United States Department of State.
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 15-181/2) 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.
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 § 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.Start Further Info
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.End Further Info End Preamble Start Supplemental 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 Start Printed Page 65976Secondary 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 § 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 § 62.25(j)(2).
2. Requiring Photographs of the Host Family Home. The Department proposed that a new regulatory provision be added at § 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 § 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 § 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 Start Printed Page 65977Department 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 § 62.25(j)(5).
4. Measuring Host Family Financial Resources. The Department proposed that a new regulatory provision be added at § 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 § 62.25(j)(6).
5. Criminal Background Checks. The Department proposed that a new regulatory provision be added at § 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 § 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 http://www.nsopk.gov.
6. Host Family Composition. The Department proposed that a new regulatory provision be added at § 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 § 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 Start Printed Page 65978any necessary adjustments will be considered for adoption.
7. Local Coordinator Training Course. The Department proposed that a new regulatory provision be added at § 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 § 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 § 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 § 62.25(h)(2).
10. Prohibition of Payments to Host Families. The Department proposed that a new regulatory provision be added at § 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 § 62.25(d)(6).
11. Separate Orientation for Host Families. The Department proposed that a new regulatory provision be added at § 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 § 62.25(d)(9).
12. Additional Visit to Host Family Homes. The Department proposed that a new regulatory provision be added at § 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 § 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 § 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 § 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 Start Printed Page 65979supervisor 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 § 62.25(d)(10)(i) and (ii) but finds that the language set forth at § 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 § 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 § 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 § 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 § 62.25(m)(3) and § 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.Start Printed 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 Start Printed Page 65981additional 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.
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.Start List of Subjects
List of Subjects in 22 CFR Part 62End List of Subjects Start Amendment Part
Accordingly,End Amendment Part Start Part
PART 62—EXCHANGE VISITOR PROGRAMEnd Part Start Amendment Part
1. The Authority citation for part 62 is revised to read as follows:End Amendment Part Start Amendment Part
2. Section 62.25 is revised to read as follows:End Amendment Part
(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 § 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 Start Printed Page 65982requirements 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 § 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 § 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 Start Printed Page 65983and 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 § 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 Start Printed Page 65984with 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) Advertising and Marketing for the recruitment of host families. In addition to the requirements set forth in § 62.9 in advertising and promoting for host family recruiting, sponsors must:
(1) Utilize only promotional materials that professionally, ethically, and accurately reflect the sponsor's purposes, activities, and sponsorship;
(2) Not publicize the need for host families via any public media with announcements, notices, advertisements, etc. that are not sufficiently in advance of the exchange student's arrival, appeal to public pity or guilt, imply in any way that an exchange student will be denied participation if a host family is not found immediately, or identify photos of individual exchange students and include an appeal for an immediate family;
(3) Not promote or recruit for their programs in any way that compromises the privacy, safety or security of participants, families, or schools. Specifically, sponsors shall not include personal student data or contact information (including addresses, phone numbers or email addresses) or photographs of the student on Web sites or in other promotional materials; and
(4) Ensure that access to exchange student photographs and personally identifying information, either online or in print form, is only made available to potential host families who have been fully vetted and selected for program participation. Such information, if available online, must also be password protected.
(n) Reporting requirements. Along with the annual report required by regulations set forth at § 62.15, sponsors must file with the Department of State the following information:
(1) Sponsors must immediately report to the Department any incident or allegation involving the actual or alleged sexual exploitation or any other allegations of abuse or neglect of an exchange student. Sponsors must also report such allegations as required by local or state statute or regulation. Failure to report such incidents to the Department and, as required by state law or regulation, to local law enforcement authorities shall be grounds for the suspension and revocation of the sponsor's Exchange Visitor Program designation;
(2) A report of all final academic year and semester program participant placements by August 31 for the upcoming academic year or January 15 for the Spring semester and calendar year. The report must be in the format directed by the Department and must include at a minimum, the exchange student's full name, Form DS-2019 number (SEVIS ID #), host family placement (current U.S. address), school (site of activity) address, the local coordinator's name and zip code, and other information the Department may request; and
(3) A report of all situations which resulted in the placement of an exchange student with more than one host family or in more than one school. The report must be in a format directed by the Department and include, at a minimum, the exchange student's full name, Form DS-019 number (SEVIS ID #), host family placements (current U.S. address), schools (site of activity address), the reason for the change in placement, and the date of the move. This report is due by July 31 for the previous academic school year.
A new Appendix F is added to Part 62, as follows:
Appendix F to Part 62—Information To Be Collected on Secondary School Student Host Family Applications
Basic Family Information:
a. Host Family Member—Full name and relationship (children and adults) either living full-time or part-time in the home or who frequently stay at the home)
b. Date of Birth (DOB) of all family members
c. Street Address
d. Contact information (telephone; e-mail address) of host parents
e. Employment—employer name, job title, and point of contact for each working resident of the home
f. Is the residence the site of a functioning business? (e.g., daycare, farm)
g. Description of each household member (e.g., level of education, profession, interests, community involvement, and relevant behavioral or other characteristics of such household members that could affect the successful integration of the exchange visitor into the household)
h. Has any member of your household ever been charged with any crime?
a. Number of Pets
b. Type of Pets
a. Average Annual Income Range: 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. Note: The form must include a statement stating that: “The income data collected will be used solely for the purposes of ensuring that the basic needs of the exchange students can be met, including three quality meals and transportation to and from school activities”
b. Describe if anyone residing in the home receives any kind of public assistance (financial needs-based government subsidies for food or housing)
c. Identify those personal expenses expected to be covered by the student
a. Does anyone in the family follow any dietary restrictions? (Y/N)
If yes, describe:
b. Do you expect the student to follow any dietary restrictions? (Y/N)
If yes, describe:
c. Would you feel comfortable hosting a student who follows a particular dietary restriction (ex. Vegetarian, Vegan, etc.)? (Y/N)
d. Would the family provide three (3) square meals daily?
High School Information:
a. Name and address of school (private or public school)
b. Name, address, e-mail and telephone number of school official
c. Approximate size of the school student body
d. Approximate distance between the school and your home
e. Approximate start date of the school year
f. How will the exchange student get to the school (e.g. bus, carpool, walk)?
g. Would the family provide special transportation for extracurricular activities after school or in the evenings, if required?
h. Which, if any, of your family's children, presently attend the school in which the exchange visitor is enrolled?
If applicable list sports/clubs/activities, if any, your child(ren) participate(s) in at the school
i. Does any member of your household work for the high school in a coaching/teaching/or administrative capacity?
j. Has any member of your household had contact with a coach regarding the hosting of an exchange student with particular athletic ability?
If yes, please describe the contact and sport.
a. In what type of community do you live (e.g.: Urban, Suburban, Rural, Farm)
b. Population of community
c. Nearest Major City (Distance and population)
d. Nearest Airport (Distance)
e. City or town website
f. Briefly describe your neighborhood and communityStart Printed Page 65985
g. What points of interest are near your area (parks, museums, historical sites)?
h. Areas in or near neighborhood to be avoided?
a. Describe your type of home (e.g. single family home, condominium, duplex, apartment, mobile home) and include photographs of the host family home's exterior and grounds, kitchen, student's bedroom, student's bathroom, and family and living areas.
b. Describe Primary Rooms and Bedrooms
c. Number of Bathrooms
d. Will the exchange student share a bedroom? (Y/N)
If yes, with which household resident?
e. Describe the student's bedroom
f. Describe amenities to which the student has access
a. Language spoken in home
b. Please describe activities and/or sports each family member participates in: (e.g., camping, hiking, dance, crafts, debate, drama, art, music, reading, soccer, baseball, horseback riding)
c. Describe your expectations regarding the responsibilities and behavior of the student while in your home (e.g., homework, household chores, curfew (school night and weekend), access to refrigerator and food, drinking of alcoholic beverages, driving, smoking, computer/Internet/E-Mail)
Would you be willing voluntarily to inform the exchange visitor in advance of any religious affiliations of household members? (Y/N)
Would any member of the household have difficulty hosting a student whose religious beliefs were different from their own? (Y/N) Note: A host family may want the exchange visitor to attend one or more religious services or programs with the family. The exchange visitor cannot be required to do so, but may decide to experience this facet of U.S. culture at his or her discretion.
How did you learn about being a host family?
Dated: October 21, 2010.
Sally J. Lawrence,
Director, Office of Designation, Bureau of Educational and Cultural Affairs, Department of State.
[FR Doc. 2010-27200 Filed 10-26-10; 8:45 am]
BILLING CODE 4710-05-P