Exchange Visitor Program-Secondary School Students, 65975-65985 [2010-27200]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 75, Number 207 (Wednesday, October 27, 2010)]
[Rules and Regulations]
[Pages 65975-65985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-27200]


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DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice: 7216]
RIN 1400-AC56


Exchange Visitor Program--Secondary School Students

AGENCY: United States Department of State.

ACTION: Final rule.

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SUMMARY: The Department is revising existing Secondary School Student 
regulations regarding the screening, selection, school enrollment, 
orientation, and quality assurance monitoring of exchange students as 
well as the screening, selection, orientation, and quality assurance 
monitoring of host families and field staff. Further, the Department is 
adopting a new requirement regarding training for all organizational 
representatives who place and/or monitor students with host families. 
The proposed requirement to conduct FBI fingerprint-based criminal 
background checks will not be implemented at this time. Rather, it will 
continue to be examined and a subsequent Final Rule regarding this 
provision will be forthcoming. These regulations, as revised, govern 
the 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 year while living 
with American host families or residing at accredited U.S. boarding 
schools.

DATES: Effective November 26, 2010. Compliance with the new requirement 
for the State Department designed and mandated training module for 
local coordinator training, as set forth at Sec.  62.25(d)(1), will not 
become effective until the development of an online training platform 
implementing this requirement is completed. The Department anticipates 
a January 2011 launch of this training platform. A subsequent Federal 
Register Notice will be published when development is completed.

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

SUPPLEMENTARY INFORMATION: The U.S. Department of State 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 62--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 the United States through these Secondary School Student 
programs.
    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.
    A great majority of exchange students who come to the United States 
to attend high school enjoy positive life-changing experiences, 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

[[Page 65976]]

Secondary School Student program is to further U.S. public diplomacy 
and foreign policy goals by encouraging this positive academic and 
social interaction. Experience has shown that foreign students who 
participate in this program share the knowledge and goodwill derived 
from their exchange experience with fellow citizens upon return to 
their home countries. The age and vulnerability of high school exchange 
students and the long-term importance of these programs necessitates 
increased quality of sponsor program administration through both the 
promulgation of clear and enhanced regulations and continued Department 
oversight of sponsor activities and compliance. The Department believes 
that the increased specificity in this Final Rule and the establishment 
of minimum industry standards will improve the quality of exchange 
student placements 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 a common goal of ensuring a safe and positive exchange experience 
for every foreign student participating in this exchange program.
    As a first step in the rulemaking process to adopt enhanced program 
safeguards, the Department published in the Federal Register an Advance 
Notice of Proposed Rulemaking (ANPRM) soliciting comments from sponsors 
and the general public on current best practices in the industry (see 
74 FR 45385, September 2, 2009). The ANPRM focused on six areas: (1) 
Utilization of standardized information on a sponsor-developed host 
family application form; (2) a 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 response to the ANPRM, 97 parties filed 
comments, and the Department, in turn, identified 16 discrete issues 
that it believed merited specific public comment. These issues and the 
proposed regulatory language addressing each matter were consolidated 
into a Notice of Proposed Rulemaking (NPRM) (see 75 FR 23197, May 3, 
2010). The Department received a total of 1,698 comments in response to 
the NPRM. Of this number, 1,265 comments, or 74% of the total comments, 
were submitted by individuals self-identifying with three sponsor 
organizations: Rotary International (600 comments); American Field 
Services (451 comments); and Youth for Understanding (214 comments). 
Collectively, comments from persons associated with these three sponsor 
organizations opposed: Obtaining FBI fingerprint-based criminal 
background checks for adult members of potential host families; the 
prohibition of single adults hosting exchange students; the prohibition 
of removing exchange students' government issued documents, personal 
computers, and telephones from their possession; and the change of 
required maximum distance of local coordinators from exchange students 
from 120 miles to one hour's drive. Sponsor organizations, industry 
associations, state law enforcement agencies, and other interested 
members of the public submitted the remaining 433 comments. The 
Department also hosted a public meeting on June 17, 2010, to discuss 
the Notice of Proposed Rulemaking. The Executive Directors of the 
Alliance and Council on Standards for International Educational Travel 
(CSIET) and a representative of the National Center for Missing and 
Exploited Children provided statements on behalf of their respective 
organizations. Eleven (11) other individuals spoke at the public 
meeting, including directors of three organizations, two local Rotary 
leaders, four exchange program volunteers, and one current exchange 
student. The Department received twelve (12) written comments from 
attendees following the public meeting.

Analysis of Comments

    1. Standard Host Family Application Form. The Department proposed 
that a new regulatory provision be added at Sec.  62.25(j)(2) to 
require the use of standard information fields on sponsors' host family 
application forms. The information set forth at Appendix F to Part 62, 
``Information to be Collected on Secondary School Student Host Family 
Applications,'' includes all data fields that, at a minimum, must be 
collected. The Department received 93 comments, 85 of which supported 
this change indicating that it is important that all sponsors collect 
the same information on potential host families. The eight parties 
opposing this proposal argued that sponsor organizations are 
sufficiently able to determine information to be collected on the Host 
Family Application without guidance from the Department. The Department 
disagrees with these eight parties. Based on the Department's 
administration of this program, the collection of uniform information 
by all sponsors will establish a consistent, program-wide base for 
evaluating potential host families. Having considered all points of 
view on this issue, the Department hereby adopts, without change, this 
proposed language set forth at Sec.  62.25(j)(2).
    2. Requiring Photographs of the Host Family Home. The Department 
proposed that a new regulatory provision be added at Sec.  62.25(j)(2) 
to require sponsors to photograph the exterior and grounds, kitchen, 
student's bedroom, bathroom, and family or living room of the potential 
host family's home as part of the host family application. The 
Department received 81 comments, 38 of which supported this change. 
Parties supporting this proposal explained that requiring photographs 
of the host family home would provide an objective visual means of 
evaluating the suitability of the home and is currently a standard 
practice of many sponsors. Many of the parties who did not support this 
requirement submitted comments that were general in nature, i.e., 
merely voicing opposition to the proposal but without an explanation. A 
few comments stated that requiring photographs was an invasion of 
privacy. The Department disagrees with comments opposed to this 
proposed change and has determined that the safety of students 
outweighs any privacy issues that could be raised. The Department 
hereby adopts, without change, this proposed language set forth at 
Sec.  62.25(j)(2).
    3. Personal Character References for Host Family Applicants. As a 
procedural safeguard, the Department proposed that a new regulatory 
provision be added at Sec.  62.25(j)(5) to eliminate host family 
members, and sponsor representatives from serving as character 
references for potential host families. The Department received 45 
comments, 37 of which supported this change. Parties who did not 
support this requirement submitted comments that were general in 
nature, i.e., merely voicing opposition to the proposal but without an 
explanation. The

[[Page 65977]]

Department believes that the obtainment of personal character 
references from family members and persons affiliated with the sponsor 
organization does not provide a sufficiently impartial recommendation 
of a family's suitability to host. Having considered all points of view 
on this issue, the Department thereby adopts, without change, the 
proposed language set forth at Sec.  62.25(j)(5).
    4. Measuring Host Family Financial Resources. The Department 
proposed that a new regulatory provision be added at Sec.  62.25(j)(6) 
to prohibit the placement of exchange students with host families 
receiving financial needs-based government subsidies for food or 
housing and to require that program sponsors collect the range of 
annual household income of potential host families on the host family 
application. The Department received 150 comments, 43 of which 
supported the collection of host family financial information. No 
comments were received opposing prohibiting a family that receives 
needs-based government subsidies for food or housing from hosting 
exchange students. Parties opposed to the proposed change regarding 
collection of information on host family income expressed the following 
concerns: Host families would not want to disclose their annual income 
levels; the requirement of such disclosure could discourage families 
from hosting; and income level is not a determinant of whether a family 
will be a good host family. The Department disagrees with those 
comments opposed to collecting household income information and has 
determined that the benefits of knowing a potential host family's range 
of income is an important factor in assessing a family's financial 
ability to care for an exchange student and outweighs any concerns that 
such information collection would discourage some families from 
hosting. Having considered all points of view on this issue, the 
Department hereby adopts, without change, the proposed language set 
forth at Sec.  62.25(j)(6).
    5. Criminal Background Checks. The Department proposed that a new 
regulatory provision be added at Sec.  62.25(j)(7) to require that all 
potential host family adults (age 18 or older) complete an FBI 
fingerprint-based criminal background check before the family is able 
to host an exchange student. The Department received 882 comments, 160 
of which supported this change. Opponents of the proposed FBI 
fingerprint-based criminal background check requirement suggested it 
would ``criminalize'' host families participating in the program and 
could potentially reduce by as much as 30% the number of families 
willing to host. This estimate was calculated by sponsors and industry 
trade associations involved in the program through surveys of current 
host families. Opponents also suggested that this proposal could not be 
executed in a timely, cost effective, or convenient manner as there is 
no existing mechanism for such checks to be performed directly by 
placement organizations. Supporters of this proposed requirement 
explained that the extra level of protection that FBI fingerprint-based 
criminal background checks of host family adults would provide exchange 
students far outweighs the inconveniences that such checks would impose 
on host families.
    The Department notes that the proposal to require FBI fingerprint-
based criminal history checks for all adult members of potential host 
families is responsive to public demands for the increased protections 
and reflects a trend at both the state and federal levels towards 
requiring FBI fingerprint-based criminal background checks for 
volunteers working with children. Specifically, the Congress created 
the Child Safety Pilot Program to be administered by the National 
Center for Missing and Exploited Children (see the National Child 
Protection Act/Volunteers for Children Act) to provide a national means 
to complete FBI fingerprint-based criminal background checks on 
volunteers working with children, a category that includes adult 
members of potential host families.
    Given the National Center for Missing and Exploited Children's 
limited authorization and resources to perform these checks, a number 
of cost, administrative, and statutory issues need to first be 
addressed before this proposal can be adopted. Accordingly, the 
Department will conduct further fact-finding and analysis on this 
matter and will not adopt at this time the proposed language set forth 
at Sec.  62.25(j)(7). The existing requirements for criminal background 
checks remain. As a matter of clarification, sponsors must verify that 
each member of the host family household eighteen 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 a 
criminal background check (which must include a search of the 
Department of Justice's National Sex Offender Public Registry). See 
https://www.nsopk.gov.
    6. Host Family Composition. The Department proposed that a new 
regulatory provision be added at Sec.  62.25(j)(9) to prohibit single 
adults without a school-aged child living in the home or without a 
child who visits the home frequently from hosting exchange students. 
The Department received 1,190 comments, 77 of which supported this 
change. Supporters of this proposed change believe that the placement 
of an exchange student or students with a single adult without a 
school-aged child who lives in or frequently visits the home 
necessarily increases potential risk to the exchange student as there 
is no additional person in the home with whom the student can 
communicate, should the relationship with the host parent become 
strained or abusive. However, parties opposing this proposal argued 
that the exclusion of single adults without school-aged children in the 
home or who frequently visit is discriminatory and would unnecessarily 
eliminate approximately ten percent (10%) of current host families many 
of whom, sponsors reported, provide excellent experiences for their 
exchange students and who tend to repeatedly volunteer to participate 
in this exchange program. This potential reduction of host families was 
provided by trade associations involved in this program through a 
survey of current host families.
    The Department notes that numerous public comments submitted by 
sponsor organizations outlined best practices regarding the placement 
of exchange students in single adult host homes, including additional 
screening measures for single adults. Having considered competing 
points of view, the Department finds that the language set forth at 
Sec.  62.25(j)(9) should be amended to impose additional screening 
procedures for exchange student placements involving single adult 
parents with no school-aged children in the home, including a secondary 
level of review by an organizational representative other than the 
individual who recruited and selected the applicant. Such secondary 
review should include demonstrated evidence from the individual's 
friends or family who can provide an additional support network for the 
exchange student and evidence of the individual's ties to the 
community. Finally, both the exchange student and his or her natural 
parents must agree in writing to any placement with a single adult host 
parent without a school-aged child in the home. These additional 
screening procedures for single adult homes will be monitored by the 
Department over an experimental period of not more than three years, 
following which the success of this approach will be further reviewed 
and

[[Page 65978]]

any necessary adjustments will be considered for adoption.
    7. Local Coordinator Training Course. The Department proposed that 
a new regulatory provision be added at Sec.  62.25(d)(1) to require 
that all local coordinators complete a training program, to be 
developed and administered by the Department. The Department received 
108 comments, 65 of which supported this proposal. The Department notes 
that local coordinators, who serve as representatives (as either 
employees or volunteers) of program sponsors and who have 
responsibility for obtaining school enrollment and locating and 
recruiting host families, are the critical component in 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 an exchange 
student, whether that family is an appropriate match for the student, 
and whether it has adequate financial resources to undertake hosting 
obligations. Opponents of this proposed change explained that the local 
coordinator training programs currently offered by sponsors are 
sufficient and that a Department-administered training course is 
redundant. The Department disagrees with those comments and determines 
that a uniform and program-wide local coordinator training course will 
better ensure that all agents and employees placing exchange students 
on behalf of a sponsor are equally educated and informed of their 
responsibilities. Having considered all points of view on this issue, 
the Department hereby adopts, without change, the proposed language set 
forth at Sec.  62.25(d)(1).
    8. Number of Students and Host Families for Whom a Local 
Coordinator May Be Responsible. The Department sought public comment on 
whether limiting the number of student and host family placements that 
a local coordinator may oversee would enhance the quality of host 
family placements. The Department received 61 comments, 17 of which 
supported this proposal. Opponents of the proposal opined that such a 
ratio was a decision best left to, and most accurately set by, the 
sponsor organization. The Department agrees with the 44 parties 
opposing this proposal, and, having considered all points of view on 
this issue, does not adopt this requirement.
    9. Athletic Participation in the United States. The Department 
proposed that a new regulatory provision be added at Sec.  62.25(h)(2). 
This provision would prohibit exchange student selection and placement 
based on athletic ability. The Department received 37 comments, 35 of 
which supported this proposal. Comments in support of this requirement 
noted that this proposal is an existing CSIET provision and that the 
adoption of this standard would establish a uniform policy across the 
Secondary School Student program industry. The two parties opposed to 
this requirement provided no explicit reasons. Having has considered 
all points of view on this issue, the Department hereby adopts, without 
change, the proposed language set forth at Sec.  62.25(h)(2).
    10. Prohibition of Payments to Host Families. The Department 
proposed that a new regulatory provision be added at Sec.  62.25(d)(6) 
to prohibit payments to host families for hosting exchange students. 
The Department received 141 comments, 122 of which supported this 
proposal. Parties who supported the proposal cited the established 
Secondary School Student program practice of not paying host families 
to ensure that host families are involving themselves in the program 
with the correct motives, i.e., for the experience, and not for 
compensation. The parties who opposed this requirement suggested that 
host families were providing a service for which the family should be 
compensated. The Department disagrees with the 19 parties opposing this 
proposal and maintains its position that hosting an exchange student 
must remain a volunteer activity. Having considered all points of view 
on this issue, the Department hereby adopts, without change, the 
proposed language set forth at Sec.  62.25(d)(6).
    11. Separate Orientation for Host Families. The Department proposed 
that a new regulatory provision be added at Sec.  62.25(d)(9). This 
provision would clarify that sponsors must conduct the host family 
orientation at the end of the host family application process, i.e., 
after the host family has been fully vetted and accepted into the 
program. The Department received 519 comments, 75 of which supported 
this proposal. Parties opposed to this proposed change argued that the 
host family orientation is often used as the initial recruitment 
session. The Department disagrees with those comments opposed to 
requiring a separate host family orientation and has determined that a 
separate orientation, to be conducted following the recruitment, 
screening, and selection of host families, will better ensure that the 
host family fully understands and accepts the obligations it assumes 
when choosing to host an exchange student. Having considered all points 
of view on this issue, the Department hereby adopts, without change, 
the proposed language set forth at Sec.  62.25(d)(9).
    12. Additional Visit to Host Family Homes. The Department proposed 
that a new regulatory provision be added at Sec.  62.25(d)(12) to 
require that a visit to the host family home 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. The Department received 91 comments, 31 
of which supported this proposal. Opponents focused on additional 
administration and cost burdens for sponsors required for a second 
organizational representative to make these visits. The Department 
disagrees with those comments opposed to this proposed change and has 
determined that the enhanced monitoring outweighs any possible 
administrative inconveniences. The Department also recognizes that some 
sponsors will need to adjust their current business models to satisfy 
this new requirement but has determined that this requirement is a 
minimal cost to sponsors. Having considered all points of view on this 
issue, the Department hereby adopts, without change, the proposed 
language set forth at Sec.  62.25(d)(12).
    13. Local Coordinator Distance from Exchange Students. The 
Department proposed that a new regulatory provision similar to that 
which has been successfully incorporated into the Au Pair category 
regulations be added at Sec.  62.25(d)(5) to require that no secondary 
school student placement be made beyond one hour's drive of the home of 
the local organizational representative responsible for monitoring the 
student. The Department received 54 comments, 22 of which supported 
this proposal. Opponents of this change explained that such a 
requirement would serve only to the limit number of exchange student 
placements in rural locations, especially the Mountain West region. The 
Department agrees with those comments opposed to this proposed change. 
Having considered all points of view on this issue, the Department does 
not adopt this requirement.
    14. Restrictions on Local Coordinators. The Department proposed 
that a new regulatory provision be added at Sec.  62.25(d)(10) to limit 
the functions and responsibilities of a local coordinator. Such 
limitations would prohibit a local coordinator from performing the 
duties of both a host family and a local coordinator/area

[[Page 65979]]

supervisor for an exchange student; or performing the duties of both a 
host family for one sponsor and a local coordinator for another. A 
local coordinator would also be prohibited from performing the duties 
of a local coordinator for a student if the coordinator also holds a 
position of direct authority over the student that is not related to or 
arising from the coordinator's placement of a student with a host 
family. Many local coordinators are teachers and principals in the 
schools where a student is placed. The Department received 62 comments, 
31 of which supported this proposal. Opponents specifically argued that 
school officials (both teachers and principals) best know the school 
and student environment in which exchange students will be immersed and 
to exclude such a cohort needlessly eliminates some of the most 
important volunteers in the Secondary School Student program. The 
Department adopts, without change, the proposed language set forth at 
Sec.  62.25(d)(10)(i) and (ii) but finds that the language set forth at 
Sec.  62.25(d)(10)(iii) should be amended so that principals and 
teachers are not excluded from serving as local coordinators. However, 
a teacher cannot serve as a local coordinator for a student in his/her 
class. A principal cannot serve as a local coordinator for a student in 
his/her school. The Department also notes that students are placed in 
U.S. boarding schools.
    15. Removing Exchange Student Property. The Department proposed 
that a new regulatory provision be added at Sec.  62.25(d)(8) to 
prohibit the removal of exchange students' government issued documents, 
personal computers, and telephones from their possession. The 
Department received 550 comments, 68 of which supported this proposal. 
Comments opposed to this proposed requirement argued both that students 
often do not understand the importance of safekeeping their government 
issued documents and that confiscating cell phones and computers is a 
time-tested and acceptable disciplinary action for host parents. 
Comments supporting this proposed requirement explained that exchange 
students should always have access to their telephones and computers to 
maintain contact with parents, authorities, or friends in case of a 
problem, thus viewing such access as a safeguard for the student. 
Federal law prohibits the removal of official governmental documents 
from foreign nationals. The Department agrees with the comments opposed 
to these proposed requirements regarding the removal of cell phones and 
computers and has determined that the language set forth at Sec.  
62.25(d)(8) should be amended to delete the prohibition against 
removing an exchange student's personal computer or cell phone. 
However, under no circumstance is a sponsor or a host family permitted 
to prohibit a student from communicating with his/her natural parents 
and families by telephone and e-mail.
    16. Limits to Advertising. The Department proposed that new 
regulatory provisions be added at Sec.  62.25(m)(3) and (4) to prohibit 
sponsors from including personal data, contact information, or 
photographs of potential exchange students on web sites or in other 
promotional materials and would require sponsors to ensure that access 
to student profiles be password protected and available only to 
potential host families who have been fully vetted and selected for 
program participation. The Department received 103 comments, 27 of 
which supported this proposal. Parties supporting this proposal stated 
that prohibiting the use of photographs and personal information of 
potential exchange students for recruiting un-vetted host families 
would better ensure the safety of exchange students as it makes such 
information more difficult for predators to access. Opponents stated 
that use of photographs in a restricted and limited manner is essential 
for host family recruiting. Opponents also described this type of 
``photo-listing,'' or using a photograph with a student's first name 
but no last name, address, or contact information to be a safe and 
responsible practice and one widely used in the U.S. adoption of 
children process. The Department disagrees with those comments opposing 
this proposed change and notes that the family selection process in the 
U.S. adoption system is much more lengthy and comprehensive than the 
selection of exchange student host families, and is therefore an 
inexact comparison. Having considered all points of view on this issue, 
the Department hereby adopts, without change, the proposed language set 
forth at Sec.  62.25(m)(3) and Sec.  62.25(m)(4).
    Finally, in drafting the Proposed Rule, the language contained in 
section 62.25(n) Reporting Requirements, paragraph 3 was amended to 
clarify the information the report was to contain. The Department views 
this as a clarification and not a change in requirements. Currently, a 
sponsor cannot prepare a report on changes in student placement with 
more than one host family or school without having the data, requested 
in the proposed rule, readily available. Likewise, a sponsor cannot 
perform requisite monitoring of a student without having this 
information on each student in their exchange program. In addition, 
consistent with the current process required for completion of the 
Placement Reports, this report is being requested in electronic format 
to enable the data submitted from all sponsor organizations to be 
compared and analyzed. The Department received no comments on this 
section of the proposed requirement and hereby adopts the proposed 
language set forth at 62.25(n)(3) as stated. For additional 
clarification, a final sentence was added to reflect the date by which 
the report is required. The sentence reads: This report is due by July 
31 for the previous academic school year.

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 have 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 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 exchange programs. In support 
of its position that this Final Rule involves a foreign affairs 
function of the U.S. Government, 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. Given this foreign affairs 
function exemption, the Department of State considers that it is under 
no legal obligation to provide public notice and comment with respect 
to proposed regulations. Nonetheless, in this instance, the Department 
of State offered reasonable opportunity for public notice and comment.

[[Page 65980]]

Regulatory Flexibility Act/Executive Order 13272: Small Business

    As discussed above, the Department believes that this rule is 
exempt from the provisions of 5 U.S.C. 553, and that no other law 
requires the Department to give notice of rulemaking. Accordingly, the 
Department believes that this 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 potential impact of this 
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 
accredited degree granting academic institutions, none of which we 
believe to be a small entity under the terms of the Regulatory 
Flexibility Act and the remaining 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 
dollars, thereby falling within the purview of the Regulatory 
Flexibility Act. Of these 131 entities 61 conduct secondary school 
student activities. This Rule will involve additional costs for these 
61 entities. These costs arise from the additional staff time needed to 
photograph host family homes, additional screening procedures for 
single adult family homes, ensuring that an orientation is conducted 
after a potential host family has been fully vetted and accepted and an 
additional home visit to the host family by an organizational 
representative within two months of placement of the student in the 
home. The Department estimates these additional requirements will 
involve approximately four additional hours of staff time, per student 
and at an estimated $20 per hour will cost $80 additional per student 
participant. These 61 small entities program some 3,750 students 
annually. Thus at an additional $80 per student these 61 entities will 
incur $300,000 in additional administrative costs.
    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 rule is exempt from 
the rulemaking provisions of section 553 of the APA, given the 
projected costs of this rule (discussed under the Executive Order 12866 
heading below) and the number of entities conducting student exchange 
programs noted above, the Department has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    This 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 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 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 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 
rule beginning with the 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 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 (or a 
telephone with camera capability). The Department does not believe this 
will be a substantial cost to sponsors. No comments received cited cost 
as an objection to photo use.
    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 
one-time development cost to the Department of $100,000. An additional 
cost of this 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 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

[[Page 65981]]

additional cost of travel for this sponsor representative, which the 
Department anticipates to not be substantial.
    The Department has examined the costs and benefits associated with 
this rule and declares that educational and cultural exchanges are both 
the cornerstone of U.S. public diplomacy and an integral component of 
U.S. 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 U.S. 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 
differences 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. 
Although 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 
rule.

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 
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.

0
Accordingly, 22 CFR part 62 is to be amended as follows:

PART 62--EXCHANGE VISITOR PROGRAM

0
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 (USA 
PATRIOT ACT) (Pub. L. 107-56), Section 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 62.25 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.
    (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.
    (c) Program eligibility. Secondary school student exchange visitor 
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 academic 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 whether the placement is for an academic semester, 
an academic year, or 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. Sponsors must administer training for 
local coordinators that specifically includes, 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; and the criteria to be used to screen potential 
host families and exercise good judgment when identifying what 
constitutes suitable host family placements. In addition to their own 
training, sponsors must ensure that all local coordinators complete the 
Department of State mandated training module prior to their appointment 
as a local coordinator or assumption of duties. The Department of State 
training module 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. Sponsors must demonstrate the individual's successful 
completion of all initial training

[[Page 65982]]

requirements and that annual refresher training is also successfully 
completed.
    (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 a criminal background check 
(which must include a search of the Department of Justice's National 
Sex Offender Public Registry);
    (4) Place no exchange student with his or her relatives;
    (5) Make no exchange student placement beyond 120 miles 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 or other incentives 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 student's government issued 
documents (i.e., passports, Forms DS-2019) are not removed from his/her 
possession;
    (9) Conduct the host family orientation after the host family has 
been fully vetted and accepted;
    (10) Refrain, without exception, from acting as:
    (i) Both a host family and a local coordinator or area supervisor 
for an exchange student;
    (ii) A host family for one sponsor and a local coordinator for 
another sponsor; or
    (iii) A local coordinator for any exchange student over whom he/she 
has a position of trust or authority such as the student's teacher or 
principal. This requirement is not applicable to a boarding school 
placement.
    (11) Maintain, at minimum, a monthly schedule of personal contact 
with the exchange student. The first monthly contact between the local 
coordinator and 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 are 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 are 
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), 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 system that the exchange student 
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 their home countries, 
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, that lists the exchange student's name, 
United States host family placement address

[[Page 65983]]

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 
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.
    (3) 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 
that includes, at a minimum, all data fields provided in Appendix F, 
``Information to be Collected on Secondary School Student Host Family 
Applications''. The form must include a statement stating that: ``The 
income data collected will be used solely for the purposes of 
determining that the basic needs of the exchange student can be met, 
including three quality meals and transportation to and from school 
activities.'' Such application form must be signed and dated at the 
time of application by all potential host family applicants. 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 or living room), 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 family 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 a criminal background check (which must 
include a search of the Department of Justice's National Sex Offender 
Public Registry);
    (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 without a 
child in the home undergoes a secondary level review by an 
organizational representative other than the individual who recruited 
and selected the applicant. Such secondary review should include 
demonstrated evidence of the individual's friends or family who can 
provide an additional support network for the exchange student and 
evidence of the individual's ties to his/her community. Both the 
exchange student and his or her natural parents must agree in writing 
in advance of the student's placement with a single adult host parent 
without a child in the home.
    (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;
    (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 placement. (1) Sponsors must secure, prior to the 
student's departure from his or her home country, a permanent or 
arrival host family placement for each exchange student participant. 
Sponsors may not:
    (i) Facilitate the entry into the United States of an exchange 
student for whom a host family placement has not been secured;
    (ii) Place more than one exchange student with a host family 
without the express prior written consent of the host family, the 
natural parents, and the students being placed. Under no circumstance 
may more than two exchange students be placed with a host family, or in 
the home of a local coordinator, regional coordinator, or volunteer. 
Sponsors may not place students from the same countries or

[[Page 65984]]

with the same native languages in a single home.
    (2) Prior to the student's departure from his or her home country, 
sponsors must advise both the exchange student and host family, in 
writing, of the respective family compositions and backgrounds of each, 
whether the host family placement is a permanent or arrival placement, 
and facilitate and encourage the exchange of correspondence between the 
two.
    (3) In the event of unforeseen circumstances that necessitate a 
change of host family placement, the sponsor must document the 
reason(s) necessitating such change and provide the Department of State 
with an annual statistical summary reflecting the number and reason(s) 
for such change in host family placement in the program's annual 
report.
    (m) Ad