[Federal Register Volume 64, Number 186 (Monday, September 27, 1999)]
[Rules and Regulations]
[Pages 51894-51896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24960]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 514
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Interim final rule.
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SUMMARY: The Agency is issuing regulation on the adoption of a fee
sufficient for it to recover the full cost of its administrative
processing of requests by program participants for an extension, change
of category, or reinstatement of their program status. The Agency is
also issuing regulation on the adoption of fees to recoup the cost of
its administrative processing of requests for program designation and
non-routine requests for the Form IAP-66 submitted by designated
sponsors on an urgent or expedited basis.
EFFECTIVE DATES: This interim rule is effective January 1, 2000. The
specified fee will be assessed for all extension, change of category,
reinstatement, or program designation requests and non-routine requests
for the Form IAP-66 post-marked after January 1, 2000. Written comments
regarding this interim rule must be submitted on or before November 30,
1999.
ADDRESSES: Written comments should be submitted to: Public Comment
Clerk, Office of General Counsel, United States Information Agency, 301
4th Street SW, Washington, DC 20547.
FOR FURTHER INFORMATION CONTACT: Sally Lawrence, Branch Chief, Program
Designation Branch, Exchange Visitor Program Services, 301 4th Street,
SW, Washington, DC 20547; telephone (202) 401-9800.
SUPPLEMENTARY INFORMATION: Pursuant to the provisions of the Fulbright-
Hays Act of 1961 (Pub. L. 87-256) the Agency administers the Exchange
Visitor Program by facilitating the entry of over 200,000 program
participants each year. The Exchange Visitor Program is a component of
the public diplomacy efforts of the United States Government and
fosters mutual understanding and peaceful relations between the United
States and other countries through educational and cultural exchange
activities. Program participants enter the United States in
nonimmigrant J-visa status pursuant to sponsorship by an Agency-
designated sponsoring organization.
Program participants are admitted into the United States to pursue
specific program objectives such as training, undergraduate and post-
graduate study, and medical residency programs. In order to maintain
valid program status and thereby valid non-immigrant status, it is
often necessary for program participants to request an extension of
their program, a change of category for continued program
participation, or reinstatement to valid program status. An
organization that wishes to conduct and oversee an exchange visitor
program and thereby obtain administrative authority to sponsor a non-
immigrant alien's entry into the United States for the purpose of
participation in such exchange program must request a designation from
the Agency to do so.
Based upon the statutory and administrative authorities set forth
below, the Agency has determined that its review of requests for an
extension of program, change of category participation, or
reinstatement to program status confers a specific benefit to the
requesting individual. In similar fashion, a request for Agency
designation as an exchange visitor program sponsor confers a specific
benefit upon the requesting organization. Accordingly, a fee sufficient
to recoup the costs of conferring these specific benefits is
appropriate.
Legislative Authority
The Departments of Commerce, Justice, and State, the Judiciary, and
Related Agencies Appropriations Act of 1998 (Pub. L. 105-119)
authorizes the Agency to collect fees related to its provision of
Exchange Visitor Program services. Specifically, this appropriations
statute authorizes the Agency to charge a fee and recycle such monies
by providing ``* * * That not to exceed $6,000,000, to remain available
until expended, may be credited to this appropriation from fees or
other payments received from or in connection with English teaching,
library, motion pictures, and publication programs as authorized by
section 810 of such Act of 1948 (22 U.S.C. 1475e) and, notwithstanding
any other law, fees from educational advising and counseling, and
exchange visitor program services * * *.''
In adopting a fee for exchange visitor program services provided to
the public, the Agency is also guided by the provisions of the
Independent Offices Appropriations Act of 1952 (Pub. L. 82-137), 31
U.S.C. 9701. This statute permits an agency to prescribe regulations
establishing the charge for a service or thing of value provided by the
agency. Such regulations so adopted are subject to policies prescribed
by the President. The statute directs that any charge adopted shall be
(i) fair; and (ii) based on the costs to the Government, the value of
the service to the recipient, the public policy or interest served, and
other relevant facts. The Agency has determined that an application to
the Agency for a waiver recommendation is a request for a service
within the meaning of these statutes that confers a specific benefit
upon an identifiable beneficiary. Further, the Agency also relies upon
the decisions in Auyda, Inc. v. Attorney General, 661 F. Supp. 33
(1987); and Engine Manufacturers Association v. E.P.A., 20 F.3d 1177
(1994) in adopting a fee for the review of such applications.
Finally, the Agency's adoption and implementation of a fee for
review of requests for extensions, change of category, reinstatement,
or program designation will be subject to the provisions of the Chief
Financial Officers Act of 1990 (Pub. L. 101-576.) Section 205(a)(8) of
this Act requires the Agency's Chief Financial Officer to ``review, on
a biennial basis, the fee, royalties, rents, and other charges imposed
by the agency for services and things of value it provides, and make
recommendations on revising those charges to reflect costs incurred by
it in providing those services and things of value.'' (31 U.S.C.
902(a)(8))
Office of Management and Budget Circular No. A-25
Pursuant to Circular No. A-25, The Office of Management and Budget
(OMB) has established the Federal policy governing fees assessed for
Government services and for the sale or use of Government goods or
resources. OMB Circular No. A-25 sets forth the general policy that a
``user charge * * *
[[Page 51895]]
will be assessed against each identifiable recipient for special
benefits derived from Federal activities beyond those received by the
general public.'' To determine whether a ``special benefit'' has
accrued, Circular No. A-25 offers the following guidance:
``For example, a special benefit will be considered to accrue
and a user charge will be imposed when a Government service: (a)
(E)nables the beneficiary to obtain more immediate or substantial
gains or values (which may or may not be measurable in monetary
terms) than those that accrue to the general public (e.g., receiving
a patent, insurance, or guarantee provision, or a license to carry
on a specific activity or business or various kinds of public land
use); or (b) (P)rovides business stability or contributes to public
confidence in the business activity of the beneficiary (e.g.,
insuring deposits in commercial banks); or (c) (I)s performed at the
request of or for the convenience of the recipient, and is beyond
the services regularly received by other members of the same
industry or group or by the general public (e.g., receiving a
passport, visa, airman's certificate, or a Customs inspection after
regular duty hours.)''
(OMB Circular A-25, section 6.a.(a))
In calculating the amount of the fee to be charged for the Agency's
review of a request for extension, change of category, reinstatement,
or program designation, the Agency will rely upon the guidance set
forth in OMB Circular A-25. Agencies are directed to recoup the ``full
cost'' of providing a service or specific benefit. Full cost is defined
as including all direct and indirect costs to any part of the Federal
Government of providing a good, resource, or service. These costs
include, but are not limited to, an appropriate share of:
(a) Direct and indirect personnel costs, including salaries and
fringe benefits such as medical insurance and retirement. Retirement
costs should include all (funded or unfunded) accrued costs not
covered by employee contributions as specified in Circular No. A-11.
(b) Physical overhead, consulting, and other indirect costs
including material and supply costs, utilities, insurance, travel,
and rents or imputed rents on land, buildings, and equipment. If
imputed rental costs are applied, they should include:
(i) Depreciation of structures and equipment, based on official
Internal Revenue Service depreciation guidelines unless better
estimates are available; and
(ii) An annual rate of return (equal to the average long-term
Treasury bond rate) on land, structures, equipment and other capital
resources used.
(c) The management and supervisory costs.
(d) The costs of enforcement, collection, research,
establishment of standards, and regulation, including any required
environmental statements.
(e) Full cost shall be determined or estimated from the best
available records of the agency, and new cost accounting systems
need not be established solely for this purpose.
(OMB Circular A-25 Section 6.d)
Circular A-25 further directs the federal agencies to adopt user
charges by promulgating regulations, to ensure that proper internal
control systems and appropriate audit standards are in place, and to
review user charges biennially to ensure adjustment of such charges to
reflect unanticipated changes in costs or market values.
Fee Calculation
Having determined that imposition of a user fee for Agency review
of extension, change of category, reinstatement, or program designation
requests is a lawful exercise of Agency authority, the amount of such
fees must be calculated. In calculating the amount of these fees, the
Agency is guided by the provisions of OMB Circular No. A-25, User
Charges and the Federal Accounting Standards Advisory Board of Federal
Financial Accounting Standards No. 4: Managerial Cost Accounting
Concepts and Standards for the Federal Government. These standards
direct that an agency identify and recoup the full cost of providing a
benefit or service. Full cost is defined to mean both the direct and
indirect costs of providing said service or benefit. The Agency's
organizational structure facilitates the calculation of the full cost
associated with its review of requests for extension, change of
category, reinstatement, or program designation as performance of these
functions are centralized in the Agency's Office of General Counsel,
Program Designation Branch (Program Designation.)
The Program Designation Branch is headed by a branch chief who
supervises seven program officers, two program assistants and two
support staff. These eleven employees process some 786 requests for
extensions, change of category, and reinstatement and 126 requests for
program designation each year. This processing is broken down along
subject matter lines with each officer responsible for specific areas
of program participation with the program assistants providing
necessary support services. In addition, the Program Designation Branch
receives general management oversight from the Agency's General Counsel
and Deputy General Counsel and legal oversight and assistance from an
Agency Assistant General Counsel.
In processing extension, change of category, reinstatement, and
program designation requests, the Program Designation Branch unit is
required to perform the following tasks:
Receive extension, change of category, reinstatement, and program
designation requests, which includes the tasks of receiving, opening,
sorting, and screening applications;
Record fee, which includes, in cooperation with the Agency's
Management Bureau, the task of receipting fees, reconciling registers,
preparing and making deposits, and recording information into program
and financial systems;
Input request data, which includes the tasks of entering data from
requests into program systems, verifying data, and printing system
data;
Manage records, which includes the tasks of creating files;
connecting requested information and documents with request files;
pulling, storing, and moving files; and archiving inactive files;
Adjudicate request, which includes the tasks of distributing
workload; reviewing, examining, and adjudicating applications; making
and recording adjudicative decisions; requesting and reviewing
additional information as needed; and consulting with supervisors and
legal counsel on non-routine adjudications;
Prepare outgoing correspondence, which includes the tasks of
preparing decision letters, copying, logging, filing, faxing, and
mailing;
Respond to inquiries, which includes the tasks of receiving and
responding to inquiries on the status of an extension, change of
category, reinstatement, or program designation request. These
inquiries may be from applicants, legal representatives, or members of
Congress and are received by both telephone and in writing.
The Agency has examined the number of man-hours devoted to the
performance of these activities and has determined that 135% of one
full time equivalent position at the program officer and 100% of one
full time equivalent position at the program assistant level is
allocable to the processing of extension, change of category, and
reinstatement requests. This same analysis reveals that 70% of one full
time equivalent position at the program officer and program assistant
level is also allocable to the processing of program designation
requests. Further, this analysis reveals that 127.5% of a full time
equivalent position at the program staff assistant level is required to
fill ``expedited'' or ``urgent'' requests for the Form IAP-66 submitted
by designated sponsors. Through application of FASAB Federal financial
standards No. 4: Managerial Cost Accounting Concepts and Standards for
the Federal Government,
[[Page 51896]]
the Agency has identified $146,336 in direct costs arising from salary
and benefits and an additional $9,180 in allocable indirect costs
attributable to the processing of extension, change of category, and
reinstatement requests. Based upon direct and indirect costs of
$155,516 and 786 extension, change of category, and reinstatement
requests per year, the Agency has determined that the per unit cost of
processing such requests is $198 and adopts this amount as the fee to
be collected for the future processing of extension, change of
category, and reinstatement requests. The Agency has also identified
that $92,402 in direct costs from salary and benefits and $5,760 in
allocable indirect costs are allocable to its processing of program
designation requests. Based upon direct and indirect costs of $98,162
and 126 requests for program designation, the agency has determined
that the per unit cost of processing a program designation request is
$779 and adopts this amount as the fee to be collected for future
processing of program designation requests. Finally, the agency has
examined the number of man-hours devoted to the processing of non-
routine ``expedited'' or ``urgent'' requests for the Form IAP-66 and
has determined that 127.5% of one full time equivalent position at the
program staff assistant level is allocable to the processing of such
requests. The Agency has determined that $57,775 in direct costs from
salary and benefits and $4,950 in indirect costs are allocable to the
processing of non-routine ``expedited'' or ``urgent'' requests for the
Form IAP-66 submitted by designated sponsors. Based upon direct and
indirect costs of $62,725 and 1,461 such requests, the Agency has
determined that the per unit cost of processing a non-routine request
for the Form IAP-66 is $43 and adopts this amount as the fee to be
collected for future processing of non-routine requests for the Form
IAP-66 submitted by designated sponsors. All fees are non-refundable.
Public Comment
The Agency invites comments from the public on this interim final
rule notwithstanding the fact that it is under no legal requirement to
do so. The designation of exchange visitor sponsors and the
administration of the Exchange Visitor Program are deemed to be foreign
affairs functions of the United States Government. The Administrative
Procedures Act, 5 U.S.C. 553(a)(1)(1989) specifically exempts such
functions from the rulemaking requirements of the Act.
The Agency will accept comments regarding this rule until November
30,
1999. In accordance with 5 U.S.C. 605(b), the Agency certifies that
this rule does not have a significant adverse economic impact on a
substantial number of small entities. This rule is not considered to be
a major rule within the meaning of section 1(b) of E.O. 12291, nor does
it have federalism implications warranting the preparation of a
Federalism Assessment in accordance with E.O. 12612. This rule is not a
major rule as defined by the Small Business Regulatory Enforcement Act
of 1996 nor is it considered an economically significant regulatory
action as defined by E.O. 12866. This rule does not impose any new
reporting or record keeping requirements.
List of Subjects in 22 CFR Part 514
Cultural exchange programs.
Dated: September 21, 1999.
Les Jin,
General Counsel.
Accordingly, 22 CFR part 514 is amended as follows:
PART 514--EXCHANGE VISITOR PROGRAM
1. The authority citation for part 514 continues to read as
follows:
Authority: 8 U.S.C. 1101(a)(15(j), 1182, 1258; 22 U.S.C. 1431-
1442, 2451-2460: Reorganization Plan No.2 of 1977, 42 FR 62461, 3
CFR 1977 Comp. p. 200; E.O. 12048 43 FR 13361, 3 CFR, 1978 Comp. p.
168; USIA Delegation Order no. 85-5 (50 FR 27393).
Subpart H--Fees
2. Section 514.90 is revised to read as follows:
Sec. 514.90 Fees.
(a) Remittances. Fees prescribed within the framework of 31 U.S.C.
9701 shall be submitted as directed by the Agency and shall be in the
amount prescribed by law or regulation. Remittances must be drawn on a
bank or other institution located in the United States and be payable
in United States currency and shall be made payable to the ``United
States Information Agency.'' A charge of $25.00 will be imposed if a
check in payment of a fee is not honored by the bank on which it is
drawn. If an applicant is residing outside the United States at the
time of application, remittance may be made by bank international money
order or foreign draft drawn on an institution in the United States and
payable to the United States information Agency in United States
currency.
(b) Amounts of fees. The following fees are prescribed:
Request for waiver review and recommendation--$136
Request for program extension--$198
Request for change of program category--$198
Request for reinstatement--$198
Request for program designation--$779
Request for non-routine handling of an IAP-66 Form request--$43.
[FR Doc. 99-24960 Filed 9-24-99; 8:45 am]
BILLING CODE 8230-01-M
