|
|
|
|
SUBSCRIBE The leading Copyright |
[Federal Register: November 2, 2007 (Volume 72, Number 212)]
[Rules and Regulations]
[Page 62112-62117]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no07-7]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF STATE
22 CFR Part 62
[Public Notice: 5981]
RIN 1400-AC29
Exchange Visitor Program--Sanctions and Terminations
AGENCY: Department of State.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department is amending its regulations to add to and
modify the existing actions for which the Department may sanction a
sponsor. The change in the regulations will streamline the review
process to offer sanctioned sponsors the procedural due process rights
equal to those that the Administrative Procedure Act guarantees. In
addition, the Final Rule eliminates summary suspension and modifies
program suspension to halt the activities of a sponsor that 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 damage the national security interests of the
United States.
DATES: Effective Date: This Final Rule is effective 30 days from
November 2, 2007.
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. The Alliance for International
Educational and Cultural Exchange (Alliance), a membership
organization, and the Council on International Educational Exchange
(CIEE) represented a number of individual designated program sponsors
in their comments. 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
[[Page 62113]]
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. [Sec. 62.3(b)(1); Sec. 62.9(a) and
(f)(1) and (2); and Sec. 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. [Sec.
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 bases 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
[Sec. 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
[[Page 62114]]
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 Sec. 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, Unfunded Mandates Reform Act of 1995, and
Small Business Regulatory Enforcement Fairness Act of 1996
The Department has determined that this Final Rule involves a
foreign affairs function of the United States and is consequently
exempt from the procedures required by 5 U.S.C. 553 pursuant to 5
U.S.C. 553(a)(1).
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA),
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires
agencies to prepare a statement before proposing any rule that may
result in an annual expenditure of $100 million or more by State, local
or tribal governments, or by the private sector. This rule will not
result in any such expenditure, nor will it significantly or uniquely
affect small businesses.
The Final Rule has been found not to be a major rule within the
meaning of the Small Business Regulatory Enforcement Fairness Act of
1996. It will not have a substantial effect on the States, the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, it has been determined that the Final Rule does
not have sufficient federalism implications to warrant application of
the consultation provisions of Executive Orders 12372 and 13132.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Since this rulemaking is exempt from 5 U.S.C. 553 and no other law
required the Department to give notice of proposed rulemaking, this
rulemaking also is not subject to the Regulatory Flexibility Act (5
U.S.C. 601 et seq.) or Executive Order 13272, Sec. 3(b). Nonetheless,
the Department has analyzed the provisions of the Final Rule and
certifies that it will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.
Executive Order 12866, as Amended
The Department does not consider this Final Rule to be a
``significant regulatory action'' under Executive Order 12866, as
amended, Sec. 3(f), Regulatory Planning and Review. In addition, the
Department is exempt from Executive Order 12866 except to the extent
that it is promulgating, in conjunction with a domestic agency,
regulations that are significant regulatory actions. The Department
has, nevertheless, reviewed the Final Rule to ensure its consistency
with the regulatory philosophy and principles set forth in that
Executive Order.
Executive Order 12988
The Department has reviewed this Final Rule in light of Sec. Sec.
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Executive Orders 12372 and 13132
This Final Rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Sec. 6 of
Executive Order 13132, it is determined that this Rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this regulation.
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.
0
Accordingly, 22 CFR part 62 is amended as follows:
PART 62--EXCHANGE VISITOR PROGRAM
0
1. The Authority citation for part 62 is amended as follows:
[[Page 62115]]
Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431-1442, 2451-2460; Foreign Affairs Reform and Restructuring Act
of 1998, 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; the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of
1996, Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended;
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT ACT), Pub. L. 107-56, Sec. 416, 115 Stat. 354; and the
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L.
107-173, 116 Stat. 543.
0
2. Section 62.50 is revised to read as follows:
Sec. 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 Sec. 62.50(a):
(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 Sec. 62.50(b)(1),
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 Sec. 62.50(b)(1)(i)-(iv).
(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 Sec. Sec. 62.50(d)(3) and
(4), (g), and (h), 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 Sec. 62.50(a), 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
[[Page 62116]]
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 Sec. 62.50(g), 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 Sec. 62.50(d). Thereafter, the review will be conducted
pursuant to Sec. 62.50(g) and (h).
(e) Denial of application for redesignation. Upon a finding of any
act or omission set forth at Sec. 62.50(a), 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 Sec. 62.50(d)(2), (d)(3), (d)(4), (g), and (h).
(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 Sec. 62.50(a).
The procedures for suspending or revoking a responsible officer or
alternate responsible officer are set forth at Sec. 62.50(d), (g), and
(h).
(g) Review officers. A panel of three Review Officers shall hear a
sponsor's request for review pursuant to Sec. 62.50(c), (d), (e), and
(f). 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 Sec. 62.50(c).
(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
[[Page 62117]]
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.
0
3. Subpart E is revised to read as follows:
Subpart E--Termination and Revocation of Programs
Sec.
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.
Sec. 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 Sec. 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 Sec. 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.
Sec. 62.61 Revocation.
The Department may terminate a sponsor's program designation by
revocation for cause as specified in Sec. 62.50. Such sponsor may not
apply for a new designation for five (5) years following the effective
date of the revocation.
Sec. 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.
Sec. 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: October 22, 2007.
Stanley S. Colvin,
Director, Office of Exchange Coordination and Designation, Bureau of
Educational and Cultural Affairs, Department of State.
[FR Doc. E7-21522 Filed 11-1-07; 8:45 am]
BILLING CODE 4710-05-P
Copyright © 1999-2007 American Immigration LLC, ILW.COM
 Share this page | Bookmark this page | Print this page |  Add to del.icio.us
The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995-2008 American Immigration LLC, ILW.COM |