E7-24650. Rule Title: Exchange Visitor Program-Sanctions and Terminations

AGENCY:

Department of State.

ACTION:

Final Rule.

SUMMARY:

The Department of State (Department) published a Proposed Rule regarding sponsor sanctions and program terminations, together with a request for comments, on May 31, 2007. A total of 49 comments were submitted, reviewed and evaluated. The Department herewith adopts the Proposed Rule, with minor edits, as a Final Rule.

DATES:

Effective Date: This Final Rule is effective January 22, 2008.

SUPPLEMENTARY INFORMATION:

The former United States Information Agency (USIA) and, as of October 1, 1999, its successor, the U.S. Department of State (Department), have promulgated regulations governing the Exchange Visitor Program. Those regulations now appear at 22 CFR Part 62. The regulations governing sanctions appear at 22 CFR 62.50, and regulations governing termination of a sponsor's designation, at 22 CFR 62.60 through 62.62. The ultimate goals of the sanctions regulations are to further the foreign policy interests of the United States, and to protect the health, safety, and welfare of Exchange Visitor Program participants. These regulations largely have remained unchanged since 1993, when the USIA undertook a major regulatory reform of the Exchange Visitor Program, as administered by the Office of Exchange Coordination and Designation (Office).

On May 31, 2007, the Department published a Proposed Rule on sanctions and terminations with a comment period ending July 30, 2007. 72 FR 30302-30308. Forty-nine (49) parties filed comments, which the Department reviewed and evaluated. Two membership organizations filed comments on behalf of a large number of individual designated program sponsors. Twenty-five (25) commenting parties favored the Proposed Rule. The remaining commenting parties criticized the Proposed Rule in one or more respects, and several parties recommended changes to the Proposed Rule.

Having thoroughly reviewed the comments and the changes that commenting parties recommended, the Department has determined that it will, and hereby does, adopt the Proposed Rule, with minor edits, and promulgates it as a Final Rule. The Department's evaluation of the written comments and recommendations follows.

As the Department noted in the Supplementary Information accompanying the Proposed Rule,

The [Fulbright-Hays] Act authorizes the President to provide for such exchanges if it would strengthen international cooperative relations. The language of the Act and its legislative history make it clear that the Congress considered international educational and cultural exchanges to be a significant part of the public diplomacy efforts of the President in connection with Constitutional prerogatives in conducting foreign affairs. Thus, exchange visitor programs that do not further the public diplomacy goals of the United States should not be designated initially, or retain their designation. Accordingly, it is imperative that the Department have the power to revoke program designations or deny applications for program redesignation when it determines that such programs do not serve the country's public diplomacy goals.

The above statement is the underpinning for the Department's entire approach to the sanctions regime of the Exchange Visitor Program.

Comment Analysis

One of the overall criticisms of the Proposed Rule was that the Department eliminated the requirement that it find alleged violations of Part 62 to be willful or negligent before imposing sanctions. Fifteen (15) comments were opposed to the change. The Department believes that such criticism is without merit. A program sponsor, prior to being designated or redesignated, must demonstrate that it (i.e., the responsible officer and alternate responsible officer(s)), its employees, and third parties acting on its behalf have the knowledge and ability to comply and remain in continual compliance with all provisions of Part 62. [§ 62.3(b)(1); § 62.9(a) and (f)(1) and (2); and § 62.11(a).] Since knowledge and ability to comply and remain in full compliance with the regulations are fundamental requirements of sponsor designation, it is essentially irrelevant whether a sponsor violates regulations willfully, negligently, or even inadvertently. Violations, whether or not willful or negligent, may harm the national security or the public diplomacy goals of the United States, or pose a threat to the health, safety or welfare of program participants, and the Department must have the capacity to respond appropriately. Moreover, the process set forth in the revised sanctions regulations provides that a sponsor being sanctioned may submit a statement in opposition to or mitigation of the proposed sanction. This process provides the sponsor with the opportunity to explain the circumstances of the alleged violation, and to argue that a lesser sanction, or no sanction at all, would be appropriate in view of those circumstances. In addition, the review process available for significant sanctions provides a second opportunity for the sponsor to make its case before a panel of three Review Officers not connected with the Exchange Visitor Program, thus affording additional protection from the arbitrary or capricious imposition of sanctions. A total of sixteen (16) comments were in favor of the change.

Twelve (12) commenting parties opined that the criteria for imposing sanctions are extremely broad and do not provide an adequate basis for the Department to determine, for example, under what circumstances it would propose to terminate rather than suspend a sponsor's designation or impose lesser sanctions. It should be noted in this regard that four of the six grounds for imposing sanctions are the same as those in the prior rule. The two new grounds—actions that may compromise the national security of the United States or undermine its foreign policy objectives—are of a nature that inherently requires broad discretion in the choice of appropriate sanctions. Moreover, as previously noted, the process for imposing and reviewing proposed sanctions affords a sponsor ample opportunity to argue that alternative sanctions would be more appropriate.

Nineteen (19) of the commenting parties criticized the lack of an agency review process for the “lesser sanctions,” in which the decision of the Office is the final Department decision [§ 62.50(b)]. One (1) comment was in favor. However, the lack of a review process for “lesser sanctions” is unchanged from the prior rule. Under the prior rule, reduction in the size of a sponsor's program was deemed a “lesser sanction” (and thus not subject to further agency review) if it was limited to a reduction in participants of 10 percent or less or, in the case of a geographical reduction, if it would not cause a significant financial burden for the sponsor. The only change in the Proposed Rule was an increase in the potential size of the reduction, from 10 to 15 percent, and the reminder that subsequent 10-percent reductions may be imposed in the case of continued violations (a possibility that was inherent in the prior rule). The reason for the more limited process for “lesser sanctions” remains the same as in the prior rule: Their relatively minor impact on sponsors does not justify the burden and expense, for both the Department and sponsors, of the more extensive process afforded for more significant sanctions. The modest increase of 5 percent in the size of a potential program reduction does not, in the Department's view, alter this rationale.

Fourteen (14) commenting parties criticized the basis for and the process by which the Department will implement a suspension. The prior rule allowed for “suspension” and “summary suspension.” In practice, the Department never utilized the suspension provision of the regulations, and that provision is eliminated in the Final Rule, which redesignates “summary suspension” as “suspension.” Under the prior rule, only one ground for this sanction existed: Endangering the health, safety or welfare of a participant. The Final Rule adds another ground, the necessity of which became apparent after the events of 9/11: Damaging the national security interests of the United States. The Department believes that the continued necessity for it to be able to act swiftly, and with immediate effect, in such circumstances is self-evident. Moreover, it should be noted that the summary process for such suspensions has been improved for sponsors in two respects. First, a sponsor is afforded additional time in which to submit an initial opposition to the suspension. Second, such an opposition is received, reviewed and decided at a higher level, by the Principal Deputy Assistant Secretary for Educational and Cultural Affairs (PDAS) rather than by the Office. As under the prior rule, the sponsor may seek further agency review of this decision, by a three-member review panel.

Thirteen (13) of the commenting parties criticized new language providing that the Department may determine that a class of designated programs compromises the national security of the United States or no longer furthers the public diplomacy mission of the United States [§ 62.62]. Three (3) comments were in favor of this regulation. If the Department makes such a determination, it may revoke the designations, or deny applications for redesignation, of sponsors of that class of exchange visitor programs. As the Department noted in the Supplementary Information accompanying the Proposed Rule, the Exchange Visitor Program is part of the Department's public diplomacy efforts in furtherance of the President's Constitutional prerogatives in conducting foreign affairs. Accordingly, the Department noted, termination of a program category because it no longer furthers the Department's public diplomacy mission, or compromises national security, has always been inherently within the discretion of the Department. Following 9/11, the Department concluded that its regulations should make that authority, and the means by which it would be exercised, explicit.

Thirteen (13) of the commenting parties opposed the elimination of a trial-type hearing in appeals of significant sanctions. Moreover, those same parties opine that the criteria for imposing a suspension are more stringent than the criteria for revoking a designation or denying an application for redesignation of a program.

It is entirely appropriate that the grounds for the suspension sanction be drawn far more narrowly than those for the other significant sanctions. Suspension represents a rapid response to an urgent problem, with expedited procedures including the possibility of an immediately effective sanction, not stayed by any opposition or request for review. In this, it is unlike any other sanction. That is why it is reserved for violations whose seriousness justifies it: Cases in which national security is compromised, or in which a danger is posed to the health, safety or welfare of participants. It would be inappropriate to apply its procedures to other violations; and it would be equally inappropriate to restrict the availability of other sanctions to its narrow grounds.

With regard to the elimination of trial-type review procedures for significant sanctions, the Department has found that such procedures are costly, time-consuming and burdensome for both the Department and sponsors. As noted in the Supplementary Information accompanying the Proposed Rule, such procedures are not required by any applicable statute, and are not necessary to afford due process. Under the Final Rule, sponsors are afforded notice and ample, repeated opportunities to be heard. When the Office proposes a significant sanction, a sponsor may submit to the PDAS an opposition, including factual and legal arguments and additional documentary material, such as affidavits and other evidence. Following a statement in response by the Office, the PDAS issues a written, reasoned decision confirming, withdrawing or modifying the sanction. The sponsor may then seek review of the PDAS decision, before a three-member panel, no member of which may be from the Bureau of Educational and Cultural Affairs (of which the Office forms a part, and which is supervised by the PDAS). Once again, the sponsor has the opportunity to file a statement setting forth arguments of fact and law, accompanied by documentary evidence and other attachments. Following a statement in response by the PDAS, the review panel may, at its discretion, convene a brief meeting with the parties, solely for the purpose of clarifying the written submissions. Then the review panel issues a written, reasoned decision confirming, withdrawing or modifying the sanction. This procedure affords ample notice and opportunity to be heard, with a reasoned decision on a clear record. If the program sponsor is not satisfied with the decision ultimately reached by the Review Officers, it continues to have the same opportunities as before to seek relief in an appropriate court.

Finally, ten (10) of the commenting parties requested that sponsors be given the opportunity to cure alleged violations before the Department imposes sanctions. The Department believes that if it were to provide sponsors in all cases the automatic right to cure an alleged violation or deficiency with no risk that an actual sanction will be imposed, then the deterrent effect of the sanctions regime effectively would be eliminated. However, as a practical matter, the Office seldom proposes formal sanctions without first engaging in informal discussions seeking to bring the sponsor into voluntary compliance. Moreover, although there is no right to cure, a sponsor facing the imposition of sanctions certainly may offer a settlement or, in submitting its statement in opposition to or mitigation of the sanction, show it has cured the alleged violations and argue for a less severe sanction, or no sanction at all, and may request a meeting to present its views.

Seven (7) comments favored, and two opposed, the paper review set forth at § 62.50(f). The comments stated that a review should also include statements and information provided by exchange visitor participants, concerned citizens, and school officials.

Thirteen (13) comments were received in favor of a sponsor's not being able to reapply for designation for a minimum of five (5) years once a designation has been revoked.

For the foregoing reasons, the Department is promulgating the Proposed Rule as a Final Rule.

Regulatory Analysis

Administrative Procedure Act

In accordance with provisions of the Administrative Procedure Act governing rules promulgated by federal agencies that affect the public (5 U.S.C. 552), the Department of State published a proposed rule and invited and received public comment.

Regulatory Flexibility Act

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Act of 1995

This rule does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

Executive Order 12866

The Department of State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. The Department of State does not consider the proposed rule to be an economically significant regulatory action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The rule has been provided to the Office of Management and Budget (OMB) for review.

Paperwork Reduction Act

This Final Rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 62

• Cultural Exchange Programs

Accordingly, 22 CFR part 62 is amended as follows:

PART 62—EXCHANGE VISITOR PROGRAM

1. The Authority citation for part 62 is revised to read as follows:

Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 1431-1442, 2451-2460; Pub. L. 105-277, Div. G, 112 Stat. 2681-761 et seq.; Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended; Pub. L. 107-56, Sec. 416, 115 Stat. 354; and Pub. L. 107-173, 116 Stat. 543.

2. Section 62.50 is revised to read as follows:

§ 62.50

Sanctions.

(a) Reasons for sanctions. The Department of State (Department) may impose sanctions against a sponsor upon a finding by its Office of Exchange Coordination and Designation (Office) that the sponsor has:

(1) Violated one or more provisions of this Part;

(2) Evidenced a pattern of failure to comply with one or more provisions of this Part;

(3) Committed an act of omission or commission, which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor; or

(4) Otherwise conducted its program in such a way as to undermine the foreign policy objectives of the United States, compromise the national security interests of the United States, or bring the Department or the Exchange Visitor Program into notoriety or disrepute.

(b) Lesser sanctions. (1) In order to ensure full compliance with the regulations in this Part, the Department, in its discretion and depending on the nature and seriousness of the violation, may impose any or all of the following sanctions ( “lesser sanctions”) on a sponsor upon a finding that the sponsor engaged in any of the acts or omissions set forth in paragraph (a) of this section:

(i) A written reprimand to the sponsor, with a warning that repeated or persistent violations of the regulations in this Part may result in suspension or revocation of the sponsor's Exchange Visitor Program designation, or other sanctions as set forth herein;

(ii) A declaration placing the exchange visitor sponsor's program on probation, for a period of time determined by the Department in its discretion, signifying a pattern of violation of regulations such that further violations could lead to suspension or revocation of the sponsor's Exchange Visitor Program designation, or other sanctions as set forth herein;

(iii) A corrective action plan designed to cure the sponsor's violations; or

(iv) Up to a 15 percent (15%) reduction in the authorized number of exchange visitors in the sponsor's program or in the geographic area of its recruitment or activity. If the sponsor continues to violate the regulations in this Part, the Department may impose subsequent additional reductions, in ten-percent (10%) increments, in the authorized number of exchange visitors in the sponsor's program or in the geographic area of its recruitment or activity.

(2) Within ten (10) days after service of the written notice to the sponsor imposing any of the sanctions set forth in paragraph (b)(1) of this section, the sponsor may submit to the Office a statement in opposition to or mitigation of the sanction. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. Sponsors shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. Upon review and consideration of such submission, the Office may, in its discretion, modify, withdraw, or confirm such sanction. All materials the sponsor submits will become a part of the sponsor's file with the Office.

(3) The decision of the Office is the final Department decision with regard to lesser sanctions in paragraphs (b)(1)(i) through (iv) of this section.

(c) Suspension. (1) Upon a finding that a sponsor has committed a serious act of omission or commission which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor, or of damaging the national security interests of the United States, the Office may serve the sponsor with written notice of its decision to suspend the designation of the sponsor's program for a period not to exceed one hundred twenty (120) days. Such notice must specify the grounds for the sanction and the effective date thereof, advise the sponsor of its right to oppose the suspension, and identify the procedures for submitting a statement of opposition thereto. Suspension under this paragraph need not be preceded by the imposition of any other sanction or notice.

(2)(i) Within five (5) days after service of such notice, the sponsor may submit to the Principal Deputy Assistant Secretary for Educational and Cultural Affairs (Principal Deputy Assistant Secretary, or PDAS) a statement in opposition to the Office's decision. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. A sponsor shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. The submission of a statement in opposition to the Office's decision will not serve to stay the effective date of the suspension.

(ii) Within five (5) days after receipt of, and upon consideration of, such opposition, the Principal Deputy Assistant Secretary shall confirm, modify, or withdraw the suspension by serving the sponsor with a written decision. Such decision must specify the grounds therefore, and advise the sponsor of the procedures for requesting review of the decision.

(iii) All materials the sponsor submits will become a part of the sponsor's file with the Office.

(3) The procedures for review of the decision of the Principal Deputy Assistant Secretary are set forth in paragraphs (d)(3) and (4), (g), and (h) of this section, except that the submission of a request for review will not serve to stay the suspension.

(d) Revocation of designation. (1) Upon a finding of any act or omission set forth at paragraph (a) of this section, the Office may serve a sponsor with not less than thirty (30) days' written notice of its intent to revoke the sponsor's Exchange Visitor Program designation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Revocation of designation under this paragraph need not be preceded by the imposition of any other sanction or notice.

(2) (i) Within ten (10) days after service of such written notice of intent to revoke designation, the sponsor may submit to the Principal Deputy Assistant Secretary a statement in opposition to or mitigation of the proposed sanction, which may include a request for a meeting.

(ii) The submission of such statement will serve to stay the effective date of the proposed sanction pending the decision of the Principal Deputy Assistant Secretary.

(iii) The Principal Deputy Assistant Secretary shall provide a copy of the statement in opposition to or mitigation of the proposed sanction to the Office. The Office shall submit a statement in response, and shall provide the sponsor with a copy thereof.

(iv) A statement in opposition to or mitigation of the proposed sanction, or statement in response thereto, may not exceed 25 pages in length, double-spaced and, if appropriate, may include additional documentary material. Any additional documentary material may include an index of the documents and a summary of the relevance of each document presented.

(v) Upon consideration of such statements, the Principal Deputy Assistant Secretary shall modify, withdraw, or confirm the proposed sanction by serving the sponsor with a written decision. Such decision shall specify the grounds therefor, identify its effective date, advise the sponsor of its right to request a review, and identify the procedures for requesting such review.

(vi) All materials the sponsor submits will become a part of the sponsor's file with the Office.

(3) Within ten (10) days after service of such written notice of the decision of the Principal Deputy Assistant Secretary, the sponsor may submit a request for review with the Principal Deputy Assistant Secretary. The submission of such request for review will serve to stay the effective date of the decision pending the outcome of the review.

(4) Within ten (10) days after receipt of such request for review, the Department shall designate a panel of three Review Officers pursuant to paragraph (g) of this section, and the Principal Deputy Assistant Secretary shall forward to each panel member all notices, statements, and decisions submitted or provided pursuant to the preceding paragraphs of paragraph (d) of this section. Thereafter, the review will be conducted pursuant to paragraphs (g) and (h) of this section.

(e) Denial of application for redesignation. Upon a finding of any act or omission set forth at paragraph (a) of this section, the Office may serve a sponsor with not less than thirty (30) days' written notice of its intent to deny the sponsor's application for redesignation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Denial of redesignation under this section need not be preceded by the imposition of any other sanction or notice. The procedures for opposing a proposed denial of redesignation are set forth in paragraphs (d)(2), (d)(3), (d)(4), (g), and (h) of this section.

(f) Responsible officers. The Office may direct a sponsor to suspend or revoke the appointment of a responsible officer or alternate responsible officer for any of the reasons set forth in paragraph (a) of this section. The procedures for suspending or revoking a responsible officer or alternate responsible officer are set forth at paragraphs (d), (g), and (h) of this section.

(g) Review officers. A panel of three Review Officers shall hear a sponsor's request for review pursuant to paragraphs (c), (d), (e), and (f) of this section. The Under Secretary of State for Public Diplomacy and Public Affairs shall designate one senior official from an office reporting to him/her, other than from the Bureau of Educational and Cultural Affairs, as a member of the Panel. The Assistant Secretary of State for Consular Affairs and the Legal Adviser shall each designate one senior official from their bureaus as members of the Panel.

(h) Review. The Review Officers may affirm, modify, or reverse the sanction imposed by the Principal Deputy Assistant Secretary. The following procedures shall apply to the review:

(1) Upon its designation, the panel of Review Officers shall promptly notify the Principal Deputy Assistant Secretary and the sponsor in writing of the identity of the Review Officers and the address to which all communications with the Review Officers shall be directed.

(2) Within fifteen (15) days after service of such notice, the sponsor may submit to the Review Officers four (4) copies of a statement identifying the grounds on which the sponsor asserts that the decision of the Principal Deputy Assistant Secretary should be reversed or modified. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. A sponsor shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one (1) copy of any such statement to the Principal Deputy Assistant Secretary, who shall, within fifteen (15) days after receipt of such statement, submit four (4) copies of a statement in response. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. The Principal Deputy Assistant Secretary shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one (1) copy of any such statement to the sponsor. No other submissions may be made unless specifically authorized by the Review Officers.

(3) If the Review Officers determine, in their sole discretion, that a meeting for the purpose of clarification of the written submissions should be held, they shall schedule a meeting to be held within twenty (20) days after the receipt of the last written submission. The meeting will be limited to no more than two (2) hours. The purpose of the meeting will be limited to the clarification of the written submissions. No transcript may be taken and no evidence, either through documents or by witnesses, will be received. The sponsor and the representative of the Principal Deputy Assistant Secretary may attend the meeting on their own behalf and may be accompanied by counsel.

(4) Following the conclusion of the meeting, or the submission of the last written submission if no meeting is held, the Review Officers shall promptly review the submissions of the sponsor and the Principal Deputy Assistant Secretary, and shall issue a signed written decision within thirty (30) days, stating the basis for their decision. A copy of the decision will be delivered to the Principal Deputy Assistant Secretary and the sponsor.

(5) If the Review Officers decide to affirm or modify the sanction, a copy of their decision shall also be delivered to the Department of Homeland Security and to the Bureau of Consular Affairs of the Department of State. The Office, at its discretion, may further distribute the decision.

(6) Unless otherwise indicated, the sanction, if affirmed or modified, is effective as of the date of the Review Officers' written decision, except in the case of suspension of program designation, which is effective as of the date specified pursuant to paragraph (c) of this section.

(i) Effect of suspension, revocation, or denial of redesignation. A sponsor against which an order of suspension, revocation, or denial of redesignation has become effective may not thereafter issue any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) or advertise, recruit for, or otherwise promote its program. Under no circumstances shall the sponsor facilitate the entry of an exchange visitor into the United States. An order of suspension, revocation, or denial of redesignation will not in any way diminish or restrict the sponsor's legal or financial responsibilities to existing program applicants or participants.

(j) Miscellaneous.

(1) Computation of time. In computing any period of time prescribed or allowed by these regulations, the day of the act or event from which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, a Sunday, or a Federal legal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is fewer than eleven (11) days, intermediate Saturdays, Sundays, or Federal legal holidays are excluded in the computation.

(2) Service of notice to sponsor. Service of notice to a sponsor pursuant to this section may be accomplished through written notice by mail, delivery, or facsimile, upon the president, chief executive officer, managing director, General Counsel, responsible officer, or alternate responsible officer of the sponsor.

3. Subpart E is revised to read as follows:

Subpart E—Termination and Revocation of Programs

62.60

Termination of designation.

62.61

Revocation.

62.62

Termination of, or Denial of Redesignation for, a Class of Designated programs.

62.63

Responsibilities of the Sponsor upon Termination or Revocation.

Subpart E—Termination and Revocation of Programs

§ 62.60

Termination of designation

Designation will be terminated upon the occurrence of any of the circumstances set forth in this section.

(a) Voluntary termination. A sponsor notifies the Department of its intent to terminate its designation voluntarily and withdraws its program in SEVIS via submission of a “cancel program” request. The sponsor's designation shall terminate upon submission of such notification. Such sponsor may apply for a new program designation.

(b) Inactivity. A sponsor fails to comply with the minimum program size or duration requirements, as specified in § 62.8 (a) and (b), in any 12-month period. Such sponsor may apply for a new program designation.

(c) Failure to file annual reports. A sponsor fails to file annual reports for two (2) consecutive years. Such sponsor is eligible to apply for a new program designation.

(d) Failure to file an annual management audit. A sponsor fails to file an annual management audit, if such audits are required in the relevant program category. Such sponsor is eligible to apply for a new program designation upon the filing of the past due management audit.

(e) Change in ownership or control. An exchange visitor program designation is not assignable or transferable. A major change in ownership or control automatically terminates the designation. However, the successor sponsor may apply for designation of the new entity, and it may continue to administer the exchange visitor activities of the previously-designated program while the application for designation is pending before the Department of State:

(1) With respect to a for-profit corporation, a major change in ownership or control is deemed to have occurred when one third (33.33%) or more of its stock is sold or otherwise transferred within a 12-month period;

(2) With respect to a not-for-profit corporation, a major change of control is deemed to have occurred when 51 percent (51%) or more of the board of trustees or other like body, vested with its management, is replaced within a 12-month period.

(f) Non-compliance with other requirements. A sponsor fails to remain in compliance with Federal, State, local, or professional requirements necessary to carry out the activity for which it is designated, including loss of accreditation, or licensure.

(g) Failure to apply for redesignation. A sponsor fails to apply for redesignation, pursuant to the terms and conditions of § 62.7, prior to the conclusion of its current designation period. If so terminated, the former sponsor may apply for a new program designation, but the program activity will be suspended during the pendency of the application.

§ 62.61

Revocation.

The Department may terminate a sponsor's program designation by revocation for cause as specified in § 62.50. Such sponsor may not apply for a new designation for five (5) years following the effective date of the revocation.

§ 62.62

Termination of, or denial of redesignation for, a class of designated programs.

The Department may, in its sole discretion, determine that a class of designated programs compromises the national security of the United States or no longer furthers the public diplomacy mission of the Department of State. Upon such a determination, the Office shall:

(a) Give all sponsors of such class of designated programs not less than thirty (30) days' written notice of the revocation of Exchange Visitor Program designations for such programs, specifying therein the grounds and effective date for such revocations; or

(b) Give any sponsor of such class of designated programs not less than thirty (30) days' written notice of its denial of the sponsor's application for redesignation, specifying therein the grounds for such denial and effective date of such denial. Revocation of designation or denial of redesignation on the above-specified grounds for a class of designated programs is the final decision of the Department.

§ 62.63

Responsibilities of the sponsor upon termination or revocation.

Upon termination or revocation of its program designation, a sponsor must:

(a) Fulfill its responsibilities to all exchange visitors who are in the United States at the time of the termination or revocation; and

(b) Notify exchange visitors who have not entered the United States that the program has been terminated or revoked, unless a transfer to another designated program can be obtained.

Dated: December 11, 2007.

Stanley S. Colvin,

Director, Office of Exchange Coordination and Designation, Bureau of Educational and Cultural Affairs, Department of State.