Exchange Visitor Program-Secondary School Students, 23196-23206 [2010-10168]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 75, Number 84 (Monday, May 3, 2010)]
[Proposed Rules]
[Pages 23196-23206]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10168]


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DEPARTMENT OF STATE

22 CFR Part 62

RIN 1400-AC56
[Public Notice: 6982]


Exchange Visitor Program--Secondary School Students

AGENCY: Department of State.

ACTION: Proposed rule with request for comment.

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SUMMARY: The Department of State is proposing to amend existing 
regulations to impose new program administration requirements within 
the secondary school student exchange program. These regulations govern 
Department designated exchange visitor programs under which foreign 
secondary school students (ages 15-18\1/2\) are afforded the 
opportunity to study in the United States at accredited public or 
private secondary schools for an academic semester or an academic year 
while living with American host families or residing at accredited U.S. 
boarding schools. Specifically, the Department is proposing to amend 
existing regulations regarding the screening, selection, school 
enrollment, orientation, and quality assurance monitoring on behalf of 
student participants; and the screening, selection, orientation, and 
quality assurance monitoring of host families and field staff. The 
purpose of this rule is to solicit public comment regarding these 
proposed changes that are offered to address the need for greater 
clarity in current existing regulatory language. The Department's 
objective is to better protect the health, safety, and welfare of these 
participants though enhanced clarity of existing regulations. Due to 
the academic calendar and the screening and selection cycle for the 
conduct of the Secondary School Student program, the comment period of 
this proposed rule has been set to 30 days from the date of 
publication. Concerns regarding the safety and welfare of secondary 
school student population necessitate a shorter comment period. To 
provide sponsors with sufficient time to prepare for implementation of 
changes in program administration to be effective in the academic year 
2011/2012, the Department would like to accelerate this rulemaking.

DATES: The Department will accept comments from the public up to June 
2, 2010.

ADDRESSES: You may submit comments, numbered by topic by any of the 
following methods:
     Persons with access to the Internet may view this notice 
and provide comments by going to the regulations.gov Web site at: 
https://www.regulations.gov/index.cfm.
     Mail (paper, disk, or CD-ROM submissions): U.S. Department 
of State, Office of Designation, SA-5, Floor 5, 2200 C Street, NW., 
Washington, DC 20522-0505.
     E-mail: JExchanges@state.gov. You must include the title 
(Exchange Visitor Program--Secondary School Students) and RIN (1400-
AC56) in the subject line of your message.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant 
Secretary for Private Sector Exchange, U.S. Department of State, SA-5, 
Floor 5, 2200 C Street, NW., Washington, DC 20522-0505; or e-mail at 
JExchanges@state.gov.

SUPPLEMENTARY INFORMATION: 

Comments

    The Department has identified sixteen areas, as numbered in the 
Supplementary text of this document. In your response, comments should 
be numbered to coincide with the sixteen areas.

[[Page 23197]]

Background

    The Department has authorized Secondary School Student programs 
since 1949, following passage of the United States Information and 
Educational Exchange Act of 1948 and adoption of 22 CFR part 68--
Exchange Visitor Program, establishing a student exchange program (14 
FR 4592, July 22, 1949). Over the last 60 years, more than 850,000 
foreign exchange students have lived in and learned about America 
through these Secondary School Student programs.
    In 1993, the United States Information Agency, the predecessor 
agency with oversight of the Exchange Visitor Program, substantially 
rewrote the regulations governing the Exchange Visitor Program, 
including the Secondary School Student category (See 58 FR 15196, Mar. 
19, 1993, as amended at 59 FR 34761, July 7, 1994, redesignated at 64 
FR 54539, Oct. 7, 1999.) Since that time, significant changes in the 
makeup of the American family and widespread access to new technologies 
have necessitated additional updates to these regulations. In 2006, the 
Department adopted new regulations set forth at 22 CFR 62.25 to require 
Secondary School Student program sponsors to complete criminal 
background checks on all officers, employees, agents, representatives 
and volunteers acting on their behalf who had direct contact with 
exchange students and to require program sponsors to contact host 
families and students monthly. The Department also required sponsors to 
ensure that all adult members of a host family household (age 18 or 
older) to undergo criminal background checks prior to placing an 
exchange student in the home. Sponsors must also report any allegation 
of sexual misconduct or any other allegations of abuse or neglect to 
both the Department and local law enforcement authorities as required 
in that jurisdiction (see https://www.childwelfare.gov for a list by 
State of child abuse and neglect statutes) (71 FR 16696, April 4, 
2006).
    The great majority of exchange students who come to the United 
States to attend high school enjoy a positive life-changing experience, 
grow in independence and maturity, improve their English language 
skills, and build relationships with U.S. citizens. As with other 
Exchange Visitor Program categories, the underlying purpose of the 
Secondary School Student Program is to further U.S. diplomatic and 
foreign policy goals by encouraging this positive academic and social 
interaction. Experience has shown that these students will share the 
knowledge and goodwill derived from their exchanges with their fellow 
citizens upon return to their home countries. Information on Department 
of State sponsored exchange programs can be found at https://exchanges.state.gov/program evaluations/completed.html.
    While the vast majority of the Department's nearly 28,000 annual 
exchanges of secondary school students conclude with positive 
experiences for both the exchange student and the American host 
families, a number of incidents have occurred recently with respect to 
student placement and oversight which demand the Department's immediate 
attention. The success of the Secondary School Student program is 
dependent on the generosity of the American families who support this 
program by welcoming foreign students into their homes. The number of 
qualified foreign students desiring to come to the United States for a 
year of high school continues to rise and student demand is now placing 
pressure on the ability of sponsors to identify available and 
appropriate host family homes. The Department desires to provide the 
means to permit as many exchange students into the United States as 
possible so long as we can ensure their safety and welfare, which is 
our highest priority.
    The Department also recognizes that local coordinators, who serve 
as representatives (employees or volunteers) of the Secondary School 
Student program sponsors and who have responsibility for obtaining 
school enrollment and locating and recruiting host families, are the 
critical link to a successful exchange program. Local coordinators 
exercise a degree of independent judgment when determining whether a 
potential host family is capable of providing a comfortable and 
nurturing home environment for a secondary school student, whether that 
family is an appropriate match for the student, and whether it has 
adequate financial resources to undertake hosting obligations. 
Accordingly, the Department proposes the adoption of an annual testing 
and certification program for all local and regional coordinators that 
will entail, inter alia, specifying more clearly the Department's 
regulatory requirements as well as requiring specific training for the 
local and regional coordinators engaged by the sponsor organizations.
    This program is recognized as one of the Department's most valued 
exchange initiatives. The Department believes that enhanced specificity 
in the regulations and the establishment of minimum industry standards 
will improve the placement of students and promote the health, safety 
and well-being of this most vulnerable group of exchange visitors. The 
Department, the Congress, the American public, and members of the 
exchange community share the same goal of ensuring a safe and positive 
exchange experience for every foreign student invited to participate in 
this exchange program. To that end, the Department has engaged in a 
series of actions and outreach to focus the Secondary School Student 
exchange industry on best practices and continued improvement in 
selection and monitoring of host families and students.
    Prior to the development of this proposed rule, the Department 
published an Advance Notice of Proposed Rulemaking (ANPRM) in the 
Federal Register to solicit comments from sponsors and the general 
public on current best practices in the industry. (See 74 FR 45385, 
Sept. 2, 2009). The ANPRM focused on six areas: (1) Utilization of 
standard information on a sponsor developed host family application 
form; (2) requirement for photographs of all host family homes (to 
include the student's bedroom, living areas, kitchen, outside of house 
and grounds) as a part of the host family application process; (3) the 
appropriateness of host family references from family members or local 
coordinators, and the feasibility of obtaining one reference from the 
school in which the student is enrolled; (4) whether fingerprint-based 
criminal background checks should be required of all adult host family 
members and sponsor officers, employees, representatives, agents and 
volunteers who come, or may come, into direct contact with the student 
and whether guidelines regarding the interpretation of criminal 
background checks are needed; (5) the establishment of baseline 
financial resources for potential host families; and (6) the 
establishment of limitations on the composition of potential host 
families.
    In light of the 97 comments submitted in response to the ANPRM, the 
Department has identified sixteen areas that we believe will enhance 
the safety and welfare of foreign secondary school students studying in 
the United States. To effectively implement these changes, additional 
regulations are necessary. The following is an explanation of the 
proposed regulatory changes on which we invite comments:

[[Page 23198]]

1. Standard Host Family Application Form

    The Department recognizes that many sponsors have invested 
significantly in technology to develop proprietary host family 
applications and application processing systems. The current sponsor-
specific application formats vary but the Department has determined 
that they all collect information responsive to regulatory 
requirements. Accordingly, the Department believes that a Department-
mandated and designed standard application form for all potential host 
families is not needed. However, to assist exchange sponsors in their 
current or future development or amendment of application forms, the 
Department has compiled a list of information fields, the collection of 
which it deems a best practice. This list is set forth at Appendix F--
``Information to be collected on Secondary School Student Host Family 
Applications''--of this rulemaking.

2. Requiring Photographs of the Host Family Home

    The Department finds that photographing potential host family homes 
is already a standard practice with more than half of existing 
secondary student exchange sponsors. Many of the sponsors who commented 
on the recent ANPRM indicated that they find providing photographs of 
the home to be a reasonable requirement and an industry ``best 
practice'' to prevent secondary school students from being placed in 
unhealthy environments. The Department concurs and proposes that all 
sponsors photograph the exterior, kitchen, student's bedroom, bathroom, 
and family or living room of the potential host family's home.

3. Personal Character References for Host Family Applicants

    Under this proposal, host family members and sponsor 
representatives will not be permitted to serve as character references 
for potential host families. Further, the Department has determined 
that obtaining a character reference from local school officials is not 
feasible, raises certain privacy concerns, and should thus no longer be 
required.

4. Measuring Host Family Financial Resources

    The Department has determined that regional differences in incomes 
and standards of living prevent adoption of a requirement that 
potential host families have a minimum household income. Such a 
requirement would not fairly or accurately reflect cost of living 
differences for families in urban, suburban, exurban and rural areas. 
Nor would such a requirement guarantee the adequacy of the care the 
student would receive. However, the Department does not deem 
appropriate the placement of Secondary School Student exchange 
participants with host families receiving financial needs-based 
government subsidies for food or housing which are necessary to meet 
basic living needs. Such families, by definition, lack sufficient 
financial resources to meet fully the financial obligations associated 
with hosting exchange students. It is recognized, however, that there 
could be a ``needs-based subsidy for food or housing'' whose 
beneficiaries could be capable of caring for an exchange student and 
the Department is therefore soliciting public comment on how best to 
define the phrase ``needs-based'' in this context.
    To assist sponsors in their required assessment of a potential 
family's ability to undertake hosting obligations, the Department finds 
it appropriate for Secondary School Student program sponsors to obtain 
objective information on household income to help determine the 
financial capability of potential families to host an exchange student. 
The Department believes this objective measurement can be achieved 
through collecting certain information on the host family application 
form, already a current practice of many sponsors. Accordingly, the 
Department proposes that sponsors query potential host families 
regarding household income and include a box on the host family 
application form denoting annual household income level in broad ranges 
(less than $25,000; $25, 000-$35,000; $35,000-$45,000; $45,000-$55,000; 
$55,000-$65,000; $65,000-$75,000; and $75,000 and above). In evaluating 
host family resources, sponsors need to be mindful of the host family's 
obligation to provide three quality meals per day and ensure 
transportation for the exchange student to and from school and school 
activities.

5. Criminal Background Checks

    The Department has conducted significant analysis of this proposed 
criminal background check requirement and recognizes that, to date, no 
single criminal background check, or combination of criminal background 
checks, has been identified as guaranteeing that a potential host 
family member has no record of any serious or other encounters with 
U.S. county, State or Federal criminal justice systems (hereinafter 
``criminal record''). The Department currently requires a private 
vendor name and social security number check of all potential host 
family adults and proposes to expand this requirement to include an FBI 
fingerprint-based criminal background check and a check of the National 
Sex Offender Registry for each potential host family adult. The 
Congress has recognized the importance of FBI fingerprint-based 
criminal background checks as part of a screening process for adults 
working with children on a professional or volunteer basis, and created 
the Child Safety Pilot Program. This Pilot Program provides youth-
serving volunteer organizations access to the FBI master criminal 
history database for the purpose of vetting potential volunteers or 
employees. The Mentor organization, an NGO devoted to assisting youth-
serving volunteer organizations and a participant in the Child Safety 
Pilot Program, has found the following since joining the pilot program:

    ``Of the nearly 69,000 volunteers screened during the pilot, 
more than 6 percent had criminal records of concern, including 
serious crimes such as murder, rape and child sexual abuse. 
Furthermore, more than 41 percent of individuals with criminal 
records of concern had committed crimes in States other than where 
they were applying to volunteer--meaning only a nationwide check 
would have caught the criminal records.'' https://www.mentoring.org/take_action/advocate_for_mentoring/background_checks/fact_sheet/.

    The Department notes that there must exist sufficient statutory 
authority for organizations to obtain FBI authorization to access the 
FBI master criminal history database. The Child Safety Pilot Program, 
which is administered by the National Center for Missing and Exploited 
Children (NCMEC) and codified at 42 U.S.C. 5119, extends the 
opportunity to access FBI-fingerprint-based criminal background checks 
to the Boys and Girls Clubs of America, the National Council of Youth 
Sports, the Mentor pilot program, as well as ``any nonprofit 
organization that provides care, as that term is defined in section 5 
of the National Child Protection Act of 1993 (42 U.S.C. 5119c) for 
children.'' Care is defined at 42 U.S.C. 5119c as ``the provision of 
care, treatment, education, training, instruction, supervision, or 
recreation to children, the elderly, or individuals with 
disabilities.'' Based on these statutory definitions, the Department 
and the National Center for Missing and Exploited Children (NCMEC) 
agree that the 90 Secondary School Student program sponsors designated 
by the Department to facilitate Secondary School Student exchange 
programs are eligible to apply

[[Page 23199]]

to NCMEC for participation in the Child Safety Pilot Program, or a 
subsequent successor program, or as otherwise authorized by law. Each 
sponsor would be required to apply to NCMEC, who will review the 
application for sufficiency and will, in turn, recommend to the FBI 
that the sponsor be included in the Child Safety Pilot Program. The FBI 
has final approval authority. Should the Child Safety Pilot Program not 
be extended or made permanent, this regulatory provision, if adopted, 
would necessarily become null and void.
    We additionally note in this regard that there is pending 
legislation, the Child Protection Improvements Act of 2009 (S. 163, 
H.R. 1469), that would amend the National Child Protection Act of 1993 
to establish a permanent mechanism that would allow youth-serving 
organizations access to FBI fingerprint-based criminal background 
checks through a process similar to the one outlined above.
    The NCMEC's FBI fingerprint-based criminal background check process 
has been well and successfully administered since 2003. It is the 
Department's understanding that NCMEC will comply with both FBI 
criminal history record security policy and the Privacy Act regarding 
the storage, dissemination and destruction of criminal history record 
information. The Department will work with NCMEC to develop a standard 
guideline for interpreting any results received from either the FBI 
fingerprint-based criminal background check or the name and social 
security number criminal background check. NCMEC would interpret/
adjudicate any identified criminal history records according to this 
standard guideline and would provide to sponsors a ``green light/red 
light'' (yes/no) determination for each host family adult. No potential 
host family would be allowed to host a secondary school exchange 
students if any host family member receives a ``red light'' result from 
NCMEC.
    As a related matter, the Department provides notice of and seeks 
specific comment regarding ink and paper versus electronic collection 
of fingerprints. Currently, NCMEC processes ink and paper fingerprints. 
In such a process, an individual's fingerprints are inked and rolled 
onto a blank paper card, which if taken correctly, must be scanned into 
an electronic file before they are uploaded to the FBI for processing. 
We have been advised that some 30-40% of all ink and paper fingerprints 
taken are unclassifiable, meaning the fingerprints obtained are not of 
sufficient quality to be electronically scanned for processing. In such 
a situation, a new set of fingerprints would need to be taken and 
resubmitted, causing significant delay in processing time. 
Additionally, potential host family adults may be inconvenienced with 
travel to a local police station or a fingerprinting service provider 
to be ink and paper fingerprinted.
    An alternative collection method is through electronic 
fingerprinting, which the Department has discussed with NCMEC. We 
believe that this process yields a number of important advantages over 
the ink and paper fingerprinting process. First, while 30-40% of ink 
and paper fingerprints are unclassifiable, electronic fingerprints are 
unclassifiable only 1-1.5% of the time and can almost always be 
corrected in real-time, permitting electronic fingerprints not taken 
correctly to be flagged as incomplete or inaccurate and immediately 
retaken. A number of private electronic fingerprinting organizations 
exist throughout the United States that dispatch trained organizational 
representatives to potential host family homes to electronically 
fingerprint adult family members. The Department seeks specific comment 
from the public regarding the value of this type of criminal background 
check and these two alternative collection methods.
    The Department recognizes that to be effective in the educational 
exchange environment, criminal background checks must be timely, cost-
effective and not overly inconvenient for the host family. The 
Department recognizes that a higher cost is involved for an ink and 
paper FBI fingerprint-based criminal background check ($17.25 to $30.25 
for the FBI fingerprint-based criminal background check plus any State 
or local government processing fees, which on average would bring the 
total cost to $70 per individual) than the cost for the currently 
performed private vendor social security number and name check (i.e. 
approximately $4 for many non-profit organizations). The total cost for 
the electronic fingerprinting process is estimated at approximately 
$300-$400 per host family for the private fingerprinting organization's 
representative to visit the host family, collect electronic 
fingerprints of all host family adults, transmit fingerprints to NCMEC 
for subsequent channeling of the fingerprints to the FBI, adjudicate 
any criminal record, and provide to sponsors a ``green light/red 
light'' (yes/no) determination as to the host family's ability to host 
an exchange visitor.
    The Department is of the opinion that the safety of secondary 
school students invited to participate in this program outweighs the 
additional cost that may be incurred. Sponsors would be responsible for 
absorbing the cost of either the ink and paper or electronic collection 
process. We anticipate that this cost will be passed along to the 
exchange student as an additional program cost or will be absorbed by 
the sponsor. We specifically solicit and welcome comments regarding 
cost, both financial and in terms of staff resources, for the ink and 
paper and electronic FBI fingerprint-based criminal background checks.
    Finally, the Department recognizes that a search of State criminal 
history record databases would provide an additional level of review 
and certainty of results. However, there is no uniform criminal history 
record database standard across the various State jurisdictions, no 
uniform practice in how States permit access to such repositories, and 
States vary substantially in how well they maintain and how frequently 
they update their criminal history repositories. Specifically, the June 
2006 ``Attorney General's Report on Criminal History Background 
Checks'' explains that some States make their records available for 
non-criminal justice purposes ``more broadly than others,'' though 
other States are ``limiting their use for non-criminal justice purposes 
to those specifically authorized by State law.'' For many States, a 
separate statutory authority must be obtained for specific non-criminal 
justice criminal record searches. Given these parameters, the 
Department seeks specific comments regarding the feasibility and 
utility of also requiring State criminal history record checks.

6. Host Family Composition

    The Department does not define what constitutes a family; however, 
we take administrative notice that a family is considered to be more 
than one person. To ensure the Secondary School Student program's 
integrity and original intent, the Department proposes that a potential 
single adult host parent must have:
     At least one school-aged child living full-time in the 
host family home; or
     A child that no longer resides in the host family home due 
to custody agreements but who returns to the family home for frequent 
visits; or
     A child pursuing higher-education studies but who returns 
to the family home for frequent visits.
    No single adults will be allowed to host Secondary School Students. 
Only families comprised of one adult meeting the above standard or 
families

[[Page 23200]]

comprised of at least two adults will be permitted to host Secondary 
School Students.

7. Local Coordinator Training Course

    The Department recognizes that the exercise of good judgment by 
sponsors' local coordinators is the critical factor in ensuring a 
successful exchange program. Accordingly, in addition to the 
individual, organization-specific training conducted by the sponsor's; 
the Department proposes to adopt a testing and certification program 
for all local and regional coordinators to be administered by and paid 
for by the Department of State. This training will include instruction 
designed to provide a comprehensive understanding of the Exchange 
Visitor Program, its public diplomacy objectives, and the Secondary 
School Student category rules and regulations. The training conducted 
by the Department will also include instruction on conflict resolution; 
how to handle and report emergency situations; sexual conduct codes and 
appropriate responses; the criteria to be used in screening potential 
host families; and the exercise of good judgment in determining the 
suitability of a host family placement. Organizational-specific 
training may be rendered in a classroom setting, one-on-one, or via an 
online platform. If training is conducted online, the sponsor must 
demonstrate successful completion of the course by the local 
coordinator via an online test. The Department will review all training 
materials and will require that these materials be provided with the 
sponsor application for designation or redesignation. The Department 
additionally proposes that local coordinators be required to undergo 
annual certification each year following completion of the original 
training.

8. Number of Students and Host Families for Which a Local Coordinator 
May Be Responsible.

    The Department, which has over 20 years' experience with limiting 
the responsibilities of local coordinators overseeing au pairs and 
their host families is considering limiting the number of student and 
host family placements that a local coordinator may oversee in the 
Secondary School Student category of exchange. The Department is 
seeking comments on whether it should establish a similar limit for the 
Secondary School Student program, and if so, what such limits should be 
for part-time versus a local coordinator working full-time.
    Further, the Department proposes seven additional changes and/or 
clarifications to existing regulations that will provide greater 
specificity, and oversight improvements to better reflect what the 
Department deems to be current ``best practices''. These proposed 
changes include:

9. Athletic Participation in the United States

    Consistent with the purpose of participation in the Secondary 
School Student program, athletic eligibility or participation in an 
athletic program is not guaranteed. Approval for a foreign exchange 
student to participate in an athletic program must be authorized by the 
local school district in which the student is enrolled; and by the 
State authority responsible for determination of athletic eligibility, 
if applicable. The regulations are being clarified to reflect that an 
exchange student may not be selected and placed based on athletic 
ability.

10. Prohibition of Payments to Host Families

    Historically, the Secondary School Student program has been carried 
out through the use of voluntary host families. However, in May 2008 
the Department learned that some sponsors were compensating American 
families to host secondary school students. Existing regulations 
governing this category of exchange do not specifically address payment 
of host families. In response to concerns raised, the Department 
canvassed the Secondary School Student exchange community requesting 
their comment on this practice. At that time, there were 102 
organizations designated by the Department to conduct Secondary School 
Student exchange programs. Fifty organizations provided comment. Of 
these, 4 indicated that they were currently paying host families and 6 
believed that host families should be paid. The remaining 40 sponsors 
opposed the payment of host families, citing that paying host families 
would not serve the program well and that the long-term success of the 
current model is based on the relationship between the participant and 
the host family, the success of which is the result of an act of 
generosity and citizenship. The Department agreed and on July 22, 2008, 
published a Policy Notice that host families should not be paid for 
hosting exchange students. The Department is proposing that the 
prohibition of payment to host families be added to the regulations to 
ensure that the integrity of the program is maintained.
    11. Clarification that the host family orientation is to be 
conducted after the host family application process has been completed 
and the host family has been fully vetted and accepted into the 
program.
    12. A requirement that a visit to the host family home of the 
secondary school student be conducted, within two months of placement, 
by an organizational representative of the sponsor other than the local 
coordinator who screened and selected the host family and made the 
placement.
    13. A requirement that no secondary school student placement be 
made beyond one hour's drive of the home of a local organizational 
representative, a change in an existing requirement that sets 120 miles 
as the maximum.
    14. A clearer distinction between training and supervision 
requirements of officers, employees, representatives, agents, and 
volunteers acting on behalf of the sponsor.
    15. A prohibition against removing secondary school students' 
government issued documents, personal computers and telephones from 
their possession; and
    16. Adoption of standards ensuring that sponsors' promotional 
materials are professional, ethical, and accurately reflect the 
sponsor's purposes, activities, and sponsorship. Promotional materials 
should not compromise the privacy, safety or security of participants, 
families or schools. Specifically, sponsors must not include personal 
student data or contact information (including addresses, phone numbers 
or e-mail addresses) or photographs of the student on Web sites or 
other promotional materials. Sponsors would also ensure that access to 
student profiles is password protected and would only be available to 
potential host families who have been fully vetted and selected for 
program participation.

Administrative Procedure Act

    The Department of State is of the opinion that the Exchange Visitor 
Program is a foreign affairs function of the U.S. Government and that 
rules implementing this function are exempt from section 553 
(Rulemaking) and section 554 (Adjudications) of the Administrative 
Procedure Act (APA). The U.S. Government policy and longstanding 
practice, has supervised and overseen foreign nationals who come to the 
United States as participants in exchange visitor programs, either 
directly or through private sector program sponsors or grantees. When 
problems occur, the U.S. Government is often held accountable by 
foreign governments for the treatment of their nationals, regardless of 
who is responsible for the problems. The purpose of this rule is to 
protect the

[[Page 23201]]

health and welfare of foreign nationals entering the United States 
(often on programs funded by the U.S. Government) for a finite period 
of time and with a view that they will return to their countries of 
nationality upon completion of their programs. The Department of State 
represents that failure to protect the health and welfare of these 
foreign nationals will have direct and substantial adverse effects on 
the foreign affairs of the United States. Although the Department is of 
the opinion that this rule is exempt from the rulemaking provisions of 
the APA, the Department is publishing this rule as a proposed rule, 
with a 30-day provision for public comment and without prejudice to its 
determination that the Exchange Visitor Program is a foreign affairs 
function.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    As discussed above, the Department believes that this proposed rule 
is exempt from the provisions of 5 U.S.C 553, and that no other law 
requires the Department to give notice of proposed rulemaking. 
Accordingly the Department believes that this proposed rule is not 
subject to the requirements of the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.) or Executive Order 13272, section 3(b). However, the 
Department has examined the costs and benefits associated with this 
proposed rule, and declare that educational and cultural exchanges are 
both the cornerstone of U.S. public diplomacy and an integral component 
of American foreign policy. The Secondary School Student exchange 
programs conducted under the authorities of the Exchange Visitor 
Program promote mutual understanding by providing foreign students the 
opportunity to study in American high schools while living with 
American host families. Not only are the students themselves 
transformed by these experiences, but so too are their families, 
friends and teachers in their home countries. By studying and 
participating in daily student life in the United States, Secondary 
School Student program participants gain an understanding of and an 
appreciation for the similarities and difference between their culture 
and that of the United States. Upon their return home, these students 
enrich their schools and communities with different perspectives of 
U.S. culture and events, providing local communities with new and 
diverse perspectives. Secondary School Student exchanges also foster 
enduring relationships and lifelong friendships which help build 
longstanding ties between the people of the United States and other 
countries. In reciprocal fashion, American secondary school students 
are provided opportunities to increase their knowledge and 
understanding of the world through these friendships. Participating 
schools gain from the experience of having international students in 
the classroom, at after-school activities, and in their communities. 
Though the benefits of these exchanges to the United States and its 
people cannot be monetized, the Department is nonetheless of the 
opinion that these benefits outweigh the costs associated with this 
proposed rule.
    Further, the Department has examined the potential impact of this 
proposed rule on small entities. Entities conducting student exchange 
programs are classified under code number 6117.10 of the North American 
Industry Classification System. Some 5,573 for-profit and tax-exempt 
entities are listed as falling within this classification. Of this 
total number of so-classified entities, 1,226 are designated by the 
Department of State as sponsors of an exchange visitor program, 
designated as such to further the public diplomacy mission of the 
Department and U.S. Government through the conduct of people to people 
exchange visitor programs. Of these 1,226 Department designated 
entities, 933 are academic institutions and 293 are for-profit or tax-
exempt entities. Of the 293 for-profit or tax-exempt entities 
designated by the Department, 131 have annual revenues of less than $7 
million thereby falling within the purview of the Regulatory 
Flexibility Act. Thus, the Department finds that 2.3% of all 
organizations conducting student exchange programs are both designated 
by the Department as Exchange Visitor Program sponsors and also have 
annual revenues of less than $7 million. Although, as stated above, the 
Department is of the opinion that the Exchange Visitor Program is a 
foreign affairs function of the United States Government and, as such, 
that this proposed rule is exempt from the rulemaking provisions of 
section 553 of the APA, given the projected costs of this proposed rule 
discussed below and the number of entities conducting student exchange 
programs noted above, the Department has determined that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local and Tribal governments, in the aggregate, or by the private 
sector, of $100 million 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.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
Tribal implications, will not impose substantial direct compliance 
costs on Indian Tribal governments, and will not pre-empt Tribal law. 
Accordingly, the requirements of Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule as defined by 5 U.S.C. 804 
for the purposes of Congressional review of agency rulemaking under the 
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
801-808). 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 
export markets.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review. The Department is of the opinion 
that the Exchange Visitor Program is a foreign affairs function of the 
United States Government and that rules governing the conduct of this 
function are exempt from the requirements of Executive Order 12866. 
However, the Department has nevertheless reviewed this proposed 
regulation to ensure its consistency with the regulatory philosophy and 
principles set forth in that Executive Order.
    The Department has identified potential costs associated with this 
proposed rule beginning with the proposed requirement that sponsors 
collect photographs documenting the exterior and interior of a 
potential host family home. Although many sponsors currently collect 
such photographs as part of the host family application and vetting 
process, not all designated sponsors do so. Those sponsors that do 
collect this photographic documentation find that the cost of doing so 
is not

[[Page 23202]]

substantial as the photographs are taken by the local coordinator with 
digital cameras, uploaded electronically, and attached to the host 
family application that is in turn sent to the sponsor for evaluation 
and further vetting. For program sponsors not currently following this 
practice, the cost of doing so will be associated with the purchase of 
a digital camera for those local coordinators that do not own or have 
access to one. The Department does not believe this will be a 
substantial cost to sponsors.
    The Department is necessarily of the opinion that all reasonable 
measures should be taken to ensure the placement of students in safe 
homes. Having adopted in 2006 a criminal background check required of 
all adults resident in a potential host family home, the Department now 
proposes to strengthen this requirement by expanding the criminal 
background check to include an FBI fingerprint-based criminal 
background check, a basic Social Security number and name check and a 
national Sex Offender registry check for all adult members resident in 
a potential host family home. The nationwide average for an ink and 
paper FBI fingerprint-based criminal background check is $70.00 per 
person. Approximately 60,000 checks will need to be performed at an 
aggregate cost of approximately $4.2 million. A possible second 
approach to the collection of these criminal background checks would 
involve-I home electronic fingerprinting of all adult members of a host 
family household. This process would involve the use of a contractor, 
with a national footprint, recognized and authorized by the FBI to 
collect and process electronic fingerprints. Estimated costs for this 
process would be $300-$400 per household with an aggregate cost of $8.4 
million. The Department anticipates that these costs will be borne by 
the exchange student as an additional program cost or will be absorbed 
by the sponsor.
    The Department also identifies the costs associated with the 
implementation of enhanced training for local coordinators, the 
individuals acting as agents of program sponsors in screening, 
selecting and monitoring host family placements. The Department will 
develop a training program for all local coordinators at a projected 
cost to the Department of $100,000. An additional cost of this proposed 
rule is the time required for these individuals to take this training. 
While some local coordinators receive payment for placing exchange 
students, others do not. In determining costs for required training, 
the Department places a value of $20 per hour on the time spent in 
taking this required training and thus finds that if all volunteers and 
agents (estimated at 4,000 individuals) spend three hours each taking 
the proposed training, then the aggregate cost would be approximately 
$240,000. Finally, the Department notes that there will be an increased 
cost arising from the proposed requirement that each host family home 
be visited within the first or second month of the student's placement 
in the home by a representative of the sponsor other than the local 
coordinator who screened and selected the host family and arranged the 
placement. The Department recognizes that the sponsor will utilize its 
existing local coordinator network and that the identifiable cost of 
this proposal will be related to the additional cost of travel for this 
sponsor representative, which the Department anticipates to not be 
substantial.

Executive Order 12988

    The Department has reviewed this regulation in light of sections 
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 regulation 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 section 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

    The information collection requirements contained in this proposed 
rulemaking are pursuant to the Paperwork Reduction Act, 44 U.S.C. 
Chapter 35 and OMB Control Number 1405-0147, Form DS-7000.

List of Subjects in 22 CFR Part 62

    Cultural Exchange Program.
    Accordingly, 22 CFR part 62 is proposed to be 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 et seq.; Foreign Affairs Reform and Restructuring 
Act of 1998, Pub. L. 105-277, Div. G, 112 Stat. 2681 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 (U.S.A. 
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.

    2. Section 62.25 is revised to read as follows:


Sec.  62.25  Secondary school students.

    (a) Purpose. This section governs Department of State designated 
exchange visitor programs under which foreign secondary school students 
are afforded the opportunity to study in the United States at 
accredited public or private secondary schools for an academic semester 
or an academic year, while living with American host families or 
residing at accredited U.S. boarding schools. The secondary school 
student program is one of the Department's oldest and most effective 
means to foster enduring relationships between the people of the United 
States and other countries and is, accordingly, an integral component 
of U.S. public diplomacy and American foreign policy. By living with 
American host families and participating in daily student life in the 
United States, exchange students gain an understanding of and 
appreciation for the similarities and differences between their culture 
and that of the United States. The great majority of exchange students 
who come to the United States to attend high school enjoy a positive 
life-changing experience, grow in independence and maturity, improve 
their English language skills, and build relationships with U.S. 
citizens. The success of this program is dependent on the generosity of 
the American families who support this program by welcoming exchange 
students into their homes.
    (b) Program sponsor eligibility. Eligibility for designation as a 
secondary school student exchange visitor program sponsor is limited to 
organizations:
    (1) With tax-exempt status as conferred by the Internal Revenue 
Service pursuant to section 501(c)(3) of the Internal Revenue Code; and
    (2) Which are United States citizens as such term is defined in 
Sec.  62.2 of this part.
    (c) Program eligibility. Secondary school student exchange visitor

[[Page 23203]]

programs designated by the Department of State must:
    (1) Require all exchange students to be enrolled and participating 
in a full course of study at an accredited educational institution;
    (2) Allow entry of exchange students for not less than one academic 
semester (or quarter equivalency) and not more than two academic 
semesters (or quarter equivalency) duration; and
    (3) Ensure that the program is conducted on a U.S. academic 
calendar year basis, except for students from countries whose academic 
year is opposite that of the United States. Exchange students may begin 
an exchange program in the second semester of a U.S. academic year only 
if specifically permitted to do so, in writing, by the school in which 
the exchange student is enrolled. In all cases, sponsors must notify 
both the host family and school prior to the exchange student's arrival 
in the United States that the placement is for either an academic 
semester, academic year, or for a calendar year.
    (d) Program administration. Sponsors must ensure that all 
organizational officers, employees, representatives, agents, and 
volunteers acting on their behalf:
    (1) Are adequately trained. All training must be applicable to the 
individual's position within the sponsor organization. A Department- 
administered training program will include instruction designed to 
provide a comprehensive understanding of the Exchange Visitor Program; 
its public diplomacy objectives; and the Secondary School Student 
category rules and regulations. The training component developed by 
sponsors for local coordinators must specifically include, at a 
minimum, instruction in conflict resolution; procedures for handling 
and reporting emergency situations; awareness or knowledge of child 
safety standards; information on sexual conduct codes; procedures for 
handling and reporting allegations of sexual misconduct or any other 
allegations of abuse or neglect; the criteria to be used to screen 
potential host families and exercising good judgment when identifying 
what constitutes suitable host family placements. Training may be 
rendered in classroom, one-on-one, or via an online platform. Sponsors 
must demonstrate the individual's successful completion of the 
training. All sponsor training materials must be submitted to the 
Department for review as part of the sponsor's application for 
designation or redesignation. Annual refresher training is required.
    (2) Are adequately supervised. Sponsors must create and implement 
organization-specific standard operating procedures for the supervision 
of local coordinators designed to prevent or deter fraud, abuse, or 
misconduct in the performance of the duties of these employees/agents/
volunteers. They must also have sufficient internal controls to ensure 
that such employees/agents/volunteers comply with such standard 
operating procedures.
    (3) Have been vetted annually through an FBI fingerprint-based 
criminal background check, a basic name and Social Security number 
check, and a check of the National Sex Offender Registry and has 
accordingly received a ``green light'' response from the Child Safety 
Pilot Program as administered by the National Center of Missing and 
Exploited Children (NCMEC), or its subsequent successor program, or as 
otherwise authorized by law;
    (4) Place no exchange student with his or her relatives;
    (5) Make no exchange student placement beyond one hour's drive of 
the home of the local coordinator authorized to act on the sponsor's 
behalf in both routine and emergency matters arising from that exchange 
student's participation in the exchange visitor program;
    (6) Make no monetary payments to host families;
    (7) Provide exchange students with reasonable access to their 
natural parents and family by telephone and e-mail;
    (8) Make certain that the exchange students' governmental issued 
documents (i.e. passports, Forms DS-2019), personal computers, and 
telephones are not removed from their possession;
    (9) Conduct the host family orientation after the host family has 
been fully screened and selected;
    (10) That no organizational representative acts as:
    (i) Both a host family and a local coordinator or area supervisor 
for any exchange student participant;
    (ii) A host family for one sponsor and a local coordinator for 
another sponsor; or
    (iii) A local coordinator for any student over whom they have a 
position of trust or authority (i.e. a principal or teacher at a school 
where the student attends).
    (11) Maintain, at minimum, a monthly schedule of personal contact 
with the exchange student. The first monthly contact by the local 
coordinator to the exchange student must be in person. All other 
contacts may take place in person, on the phone, or via electronic mail 
and must be properly documented. The sponsor is responsible for 
ensuring that issues raised through such contacts be promptly and 
appropriately addressed.
    (12) That a sponsor representative other than the local coordinator 
who recruited, screened and selected the host family visit the exchange 
student/host family home within the first or second month following the 
student's placement in the home.
    (13) Maintain, at a minimum, a monthly schedule of personal contact 
with the host family. At least once during the fall semester and at 
least once during the spring semester, (i.e. twice during the academic 
year) the contact by the local coordinator with the host family must be 
in person. All other contacts may take place in person, on the phone, 
or via electronic mail and must be properly documented. The sponsor is 
responsible for ensuring the issues raised through such contacts be 
promptly and appropriately addressed.
    (14) That host schools are provided contact information for the 
local organizational representative (including name, direct phone 
number, and e-mail address) for the local organizational 
representative, the program sponsor, and the Department's Office of 
Designation; and
    (15) Adhere to all regulatory provisions set forth in this Part and 
all additional terms and conditions governing program administration 
that the Department may impose.
    (e) Student selection. In addition to satisfying the requirements 
of Sec.  62.10(a), sponsors must ensure that all participants in a 
designated secondary school student exchange visitor program:
    (1) Are secondary school students in their home countries who have 
not completed more than 11 years of primary and secondary study, 
exclusive of kindergarten; or are at least 15 years of age but not more 
than 18 years and six months of age as of the program start date;
    (2) Demonstrate maturity, good character, and scholastic aptitude; 
and
    (3) Have not previously participated in an academic year or 
semester secondary school student exchange program in the United States 
or attended school in the United States in either F-1 or J-1 visa 
status.
    (f) Student enrollment. (1) Sponsors must secure prior written 
acceptance for the enrollment of any exchange student in a United 
States public or private secondary school. Such prior acceptance must:
    (i) Be secured from the school principal or other authorized school 
administrator of the school or school

[[Page 23204]]

system that the exchange student participant will attend; and
    (ii) Include written arrangements concerning the payment of tuition 
or waiver thereof if applicable.
    (2) Under no circumstance may a sponsor facilitate the entry into 
the United States of an exchange student for whom a written school 
placement has not been secured.
    (3) Under no circumstance may a sponsor charge a student private 
school tuition if such arrangements are not finalized in writing prior 
to the issuance of Form DS-2019.
    (4) Sponsors must maintain copies of all written acceptances for a 
minimum of three years and make such documents available for Department 
of State inspection upon request.
    (5) Sponsors must provide the school with a translated ``written 
English language summary'' of the exchange student's complete academic 
course work prior to commencement of school, in addition to any 
additional documents the school may require. Sponsors must inform the 
prospective host school of any student who has completed secondary 
school in his/her home country.
    (6) Sponsors may not facilitate the enrollment of more than five 
exchange students in one school unless the school itself has requested, 
in writing, the placement of more than five students from the sponsor.
    (7) Upon issuance of a Form DS-2019 to a prospective participant, 
the sponsor accepts full responsibility for securing a school and host 
family placement for the student, except in cases of voluntary student 
withdrawal or visa denial.
    (g) Student orientation. In addition to the orientation 
requirements set forth at Sec.  62.10, all sponsors must provide 
exchange students, prior to their departure from the home country, with 
the following information:
    (1) A summary of all operating procedures, rules, and regulations 
governing student participation in the exchange visitor program along 
with a detailed summary of travel arrangements;
    (2) A copy of the Department's Welcome letter to exchange students;
    (3) Age and language appropriate information on how to identify and 
report sexual abuse or exploitation;
    (4) A detailed profile of the host family with whom the exchange 
student will be placed. The profile must state whether the host family 
is either a permanent placement or a temporary-arrival family;
    (5) A detailed profile of the school and community in which the 
exchange student will be placed. The profile must state whether the 
student will pay tuition; and
    (6) An identification card, which lists the exchange student's 
name, United States host family placement address and telephone numbers 
(landline and cellular), sponsor name and main office and emergency 
telephone numbers, name and telephone numbers (landline and cellular) 
of the local coordinator and area representative, the telephone number 
of Department's Office of Designation, and the Secondary School Student 
program toll free emergency telephone number. The identification card 
must also contain the name of the health insurance provider and policy 
number. Such cards may be provided in advance of home country departure 
or immediately upon entry into the United States but must be corrected, 
reprinted and reissued to the student if changes in contact information 
occur due to a change in the student's placement.
    (h) Student extra-curricular activities. Exchange students may 
participate in school sanctioned and sponsored extra-curricular 
activities, including athletics, if such participation is:
    (1) Authorized by the local school district in which the student is 
enrolled; and
    (2) Authorized by the State authority responsible for determination 
of athletic eligibility, if applicable. Sponsors shall not knowingly be 
party to a placement (inclusive of direct placements) based on athletic 
abilities, whether initiated by a student, a natural or host family, a 
school, or any other interested party. Any placement in which either 
the student or the sending organization in the foreign country is party 
to an arrangement with any other party, including receiving school 
personnel, whereby the student will attend a particular school or live 
with a particular host family must be reported to the particular school 
and the National Federation of State High School Associations prior to 
the first day of classes.
    (i) Student employment. Exchange students may not be employed on 
either a full or part-time basis but may accept sporadic or 
intermittent employment such as babysitting or yard work.
    (j) Host family application and selection. Sponsors must adequately 
screen and select all potential host families and at a minimum must:
    (1) Provide potential host families with a detailed summary of the 
Exchange Visitor Program and of their requirements, obligations and 
commitment to host;
    (2) Utilize a standard application form developed by the sponsor. 
Such application form must be signed and dated at the time of 
application by all adults living in the home of a potential host 
family. The host family application must be designed to provide a 
detailed summary and profile of the host family, the physical home 
environment (to include photographs of the host family home's exterior 
and grounds, kitchen, student's bedroom, bathroom, and family and 
living areas), family composition, and community environment. Exchange 
students are not permitted to reside with their relatives.
    (3) Conduct an in-person interview with all family members residing 
in the home where the student will be living;
    (4) Ensure that the host family is capable of providing a 
comfortable and nurturing home environment and that the home is clean 
and sanitary; that the exchange student's bedroom contains a separate 
bed for the student that is neither convertible nor inflatable in 
nature; and that the student has adequate storage space for clothes and 
personal belongings, reasonable access to bathroom facilities, study 
space if not otherwise available in the house and reasonable, unimpeded 
access to the outside of the house in the event of a fire or similar 
emergency. An exchange student may share a bedroom, but with no more 
than one other individual of the same sex.
    (5) Ensure that the host family has a good reputation and character 
by securing two personal references from within the community from 
individuals who are not relatives of the potential host families or 
representatives of the sponsor (i.e., field staff or volunteers), 
attesting to the host family's good reputation and character;
    (6) Ensure that the host family has adequate financial resources to 
undertake hosting obligations and is not receiving needs-based 
government subsidies for food or housing.
    (7) Verify that each member of the host family household 18 years 
of age and older, as well as any new adult member added to the 
household, or any member of the host family household who will turn 
eighteen years of age during the exchange student's stay in that 
household, has undergone an FBI fingerprint-based criminal history 
record information background check, a basic name and social security 
number check, and a check of the National Sex Offender Registry, and 
has accordingly received a ``green light'' response from the Child 
Safety Pilot Program as administered by the National Center of Missing 
and Exploited Children (NCMEC), or its subsequent successor program, or 
as otherwise authorized by law;

[[Page 23205]]

    (8) Maintain a record of all documentation on a student's exchange 
program, including but not limited to application forms, background 
checks, evaluations, and interviews, for all selected host families for 
a period of three years following program completion; and
    (9) Ensure that a potential single adult host parent has at least 
one school-aged child living full-time in the host family home, a child 
that no longer resides in the host family home due to custody 
agreements but who returns to the family home for frequent visits, or a 
child pursuing higher-education studies but who returns to the family 
home for frequent visits.
    (k) Host family orientation. In addition to the orientation 
requirements set forth in Sec.  62.10, sponsors must:
    (1) Inform all host families of the philosophy, rules, and 
regulations governing the sponsor's exchange visitor program, including 
examples of ``best practices'' developed by the exchange community;
    (2) Provide all selected host families with a copy of the 
Department's letter of appreciation to host families;
    (3) Provide all selected host families with a copy of Department of 
State-promulgated Exchange Visitor Program regulations and a copy of 
the Department of State letter to exchange student host families;
    (4) Advise all selected host families of strategies for cross-
cultural interaction and conduct workshops to familiarize host families 
with cultural differences and practices; and
    (5) Advise host families of their responsibility to inform the 
sponsor of any and all material changes in the status of the host 
family or student, including, but not limited to, changes in address, 
finances, employment and criminal arrests.
    (l) Host family pla