[Federal Register Volume 74, Number 169 (Wednesday, September 2, 2009)]
[Proposed Rules]
[Pages 45385-45387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21185]


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DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice: 6749]
RIN 1400-AC56


Exchange Visitor Program--Secondary School Students

AGENCY: Department of State.

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Department seeks information on alternative and more 
specific means of screening potential families to host exchange 
visitors participating in the Secondary School Student category of the 
Exchange Visitor Program. Current regulations allow sponsors the 
flexibility to exercise their independent judgment when evaluating the 
financial resources, moral character, and composition of potential host 
families, as well as the suitability of potential home environments. 
The Department believes, however, that the lack of specificity or 
industry standards may have contributed to the recent degradation of 
the appropriateness of selected families, thereby putting at risk the 
health, safety, and welfare of this most vulnerable group of exchange 
visitors.

DATES: The Department will accept comments from the public up to 
October 2, 2009.

ADDRESSES: You may submit comments, identified by any of the following 
methods:
    E-mail: [email protected]. You must include the RIN in the 
subject line of your message.
    Mail (paper, disk, or CD-ROM submissions): U.S. Department of 
State, Office of Designation, SA-5, 5th Floor, 2200 C Street, NW., 
Washington, DC 20522-0505.
    Fax: 202-632-2701.
    Persons with access to the Internet may also view this notice and 
provide comments by going to the regulations.gov Web site at: http://www.regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant 
Secretary for Private Sector Exchanges, U.S. Department of State, 2200 
C Street, NW., SA-5, 5th Floor, Washington, DC 20522-0505; or e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: The Department of State (``Department'') 
designates academic, government, and private sector entities to conduct 
educational and cultural exchange programs pursuant to a broad grant of 
authority provided by the Mutual Educational and Cultural Exchange Act 
of 1961, as amended. Under this authority, some 1,450 program sponsors 
facilitate the entry of more than 350,000 exchange participants each 
year. Secondary school students--of which there were nearly 30,000 for 
the 2008-2009 academic year--have been a vital component of these 
exchange activities since 1956. This ANPRM is a general solicitation of 
public comments that seeks to gather input as to whether and, if so, 
how the Department should modify its regulations set forth in 22 CFR 
62.25(j) (Host Family Selection) to provide more specific guidance to 
sponsors for screening and selecting host families with whom they place 
students attending high school in the United States on the Exchange 
Visitor Program.
    The safety and security of these exchange student participants are 
of paramount importance to the Department. Although these students are 
generally 17 or even 18 years of age, some are as young as 15 and often 
away from home for the first time. Given the vulnerable status of such 
a population, most of whom are considered children under the laws of 
the 50 States where they are living and attending school, the 
Department modified the regulations governing this category of exchange 
in 2006. The Department adopted a requirement that sponsors immediately 
report to the Department any incident or allegation involving the 
actual or alleged sexual exploitation or abuse of an exchange student 
participant.

[[Page 45386]]

Sponsors were also required to report such allegations pursuant to the 
local mandatory child abuse and neglect reporting laws all 50 States 
and the District of Columbia adopted pursuant to the Child Abuse 
Prevention and Treatment Act, 42 U.S.C. 5101 et seq. In addition, the 
Department adopted regulations that required sponsors to vet officers, 
employees, representatives, agents, and volunteers acting on their 
behalf who had direct personal contact with exchange students and any 
member of a potential host family household 18 years or older through 
criminal background checks.
    The Department has now had three years' experience with host family 
placements following the implementation of these regulatory 
modifications. Although complaints about the inappropriate placement or 
actual mistreatment of these young participants represent the exception 
rather than the rule, there have been a sufficient number of incidents 
of such severity that the Department has determined that more specific 
guidance for host family selection may be appropriate. Current 
regulations set forth the minimum steps that sponsors must take to 
screen potential host families. Among other things, sponsors must 
utilize a standard application form to collect broad categories of 
information (22 CFR 62.25(j)(2)), conduct an in-person interview of all 
family members residing in the home (22 CFR 62.25(j)(3)), and obtain 
two personal character references from the ``school or community'' for 
each host family. (22 CFR 62.25(j)(5)) They must also ascertain whether 
potential host families have adequate financial resources to undertake 
the hosting obligation (22 CFR 62.25(j)(6)), and they must verify that 
each member of the household 18 years or older has undergone criminal 
background checks. (22 CFR 62.25(j)(7)) Information gathered from 
commenting parties should allow the Department to determine whether it 
should clarify or strengthen these screening requirements.
    The current standard application form must provide ``a detailed 
summary'' of each family, its composition, and the home and community 
environments. A subjective verbal description of a physical 
environment, however, may not always present an accurate depiction. The 
widespread availability of digital camera technology (e.g., most cell 
phones have cameras) and the increased use of e-mail communications 
make it possible to obtain objective information about an exchange 
visitor's potential new home with great ease and little cost. Requiring 
photographs of the interior and exterior of a potential home, including 
the student's bedroom and the surrounding grounds, would complement any 
verbal description of the home and afford sponsors accurate information 
to use in assessing the suitability of the environment. The Department 
seeks information on whether sponsors' field staffs have access to the 
equipment and technology necessary to photograph potential residences 
and incorporate the images into either hard copy or online host family 
applications. In the alternative, the Department asks commenting 
parties to suggest other means of better capturing and describing 
potential homes.
    The Department is aware that some field staffs allow relatives of 
potential host families to submit character references. In some 
instances, field staffs themselves serve as references. To ensure that 
character references were not biased, the Department recently reminded 
the sponsor community that the supplemental information accompanying 
the adoption of regulations governing secondary school student exchange 
programs explained that one potential host family reference should be 
from a member of the school community and the other, from the potential 
host family's social, residential, or business community. Many sponsors 
expressed concern that some potential host families (e.g., ``empty 
nesters'') were not known in school communities, and that some schools 
would not be willing to provide such references. As a result, the 
Department seeks information on how better to identify neutral and 
dependable persons to serve as character references for potential host 
families. Specifically, the Department asks whether there are certain 
limiting criteria (e.g., prohibiting local coordinators, other agents 
of the sponsors, or persons related to the host families by blood or 
marriage from serving as character references) or defining criteria 
(e.g., knowing the potential host families for a certain number of 
years) that would provide the most meaningful references for potential 
host families. Sponsors may wish to provide specific questions that 
they have found to elicit particularly insightful information about 
potential host families or otherwise share their ``best practices.''
    The Department has recently reminded the sponsor community that the 
public diplomacy underpinnings of the Exchange Visitor Program make it 
unacceptable for them to pay families to host students. This 
restriction reflects the statutory basis on which the entire program is 
founded. The Department is authorized, pursuant to the Mutual 
Educational and Cultural Exchange Act of 1961, 22 U.S.C. 2451 et seq., 
(Fulbright-Hays Act) to facilitate and direct educational and cultural 
exchange activities to develop and promote mutual understanding between 
the people of the United States and other countries of the world. 
Allowing sponsors to pay host families introduces an incentive that 
could replace the current motivation of host families, i.e., to further 
international understanding, to the potential detriment of the public 
policy intent of the Exchange Visitor Program. While this restriction 
may deny caring families with limited economic resources opportunities 
to participate in the program, the Department has steadfastly 
maintained this caveat to stay true to the purpose of the program as 
set forth in the Fulbright-Hays Act. As a result, sponsors must rely 
solely upon families' incomes when assessing their financial 
eligibility to host exchange students.
    Determining whether families have adequate financial resources to 
host is not easy given the range of incomes of families in the United 
States, cost of living differences, and the inherently subjective views 
individuals have of what is a comfortable and nurturing home 
environment. Unfortunately, the Department has learned of situations in 
which sponsors have placed exchange visitors in unsuitable environments 
such as unsanitary or condemned homes and those without essential 
utilities. As a result, the Department seeks comment on how to 
objectively measure the minimum financial resources necessary for a 
family to host an exchange student. The Department asks sponsors to 
identify the single-point measures of income or series of indicators 
they currently use to assess financial eligibility of potential 
families. They may wish also to provide data on the percentage of their 
prior host families whose incomes met or exceeded such objective 
measures. The Department also seeks recommendations of alternative 
single-point measures or other accurate series of income indicators 
they may wish to adopt. Finally, the Department seeks comment on the 
impact the adoption of any of these objective measures might have on 
the ability of sponsors to place students.
    The Department is also studying whether we should adopt standards 
for the criminal background checks that all adult members of a 
potential host family must undergo. Currently, the Department has no 
specific requirement

[[Page 45387]]

with respect to this regulation. Instead, we have left it to the 
individual sponsors to exercise ``those qualities of attention, 
knowledge, intelligence and judgment which society requires of its 
members for the protection of their own interest and the interests of 
others'' (i.e., the ``reasonable man'' legal standard that has 
developed under case law) when deciding how much to spend for each 
background check, which commercial services to engage, or which 
databases to query. Most importantly, the Department does not dictate 
how sponsors should evaluate the results of these background checks, 
again allowing sponsors to apply the ``reasonable man'' standard. The 
proliferation of media reports of American children being sexually 
abused across the nation, however, has escalated the Department's 
concern that sponsors may not be doing enough to protect the foreign 
visitors entrusted to their care.
    Accordingly, the Department seeks information on the standards that 
other organizations use to deal with the safety and oversight of 
children to assess the suitability of volunteers or employees and the 
problems or benefits associated with adopting such practices. We also 
seek information on the identity of the service providers that current 
sponsors use, as well as the level and cost of the services obtained. 
Further, sponsors specifically are requested to recommend any Internet 
searches they may employ to supplement the formal background reports. 
Finally, we seek specific information from sponsors regarding their 
methods of evaluating the results of these reports, including 
identifying any acts that they believe render potential host families 
ineligible.
    Public Law 105-251, The Volunteers for Children Act (``Act''), 
amended the National Child Protection Act of 1993, 42 U.S.C. 5119a, to 
allow organizations and businesses engaged in the care of other 
peoples' children to use national fingerprint-based criminal history 
checks to screen out volunteers and employees with relevant criminal 
records. The Department seeks information on which, if any, State laws 
would consider a host family to be a ``qualified entity'' as defined in 
the Act, thereby requiring sponsors to request national fingerprint-
based checks of such volunteers. We seek comment on the costs and 
administrative effort that would result from requiring sponsors to vet 
adult members of potential host families through the FBI's national 
fingerprint database and whether any sponsors have been using this 
approach. To the extent possible, parties should comment on whether 
there is a relationship between the cost of criminal background checks 
and the comprehensiveness and accuracy of the resulting reports. 
Sponsors should also provide information on the procedures they employ 
to obtain criminal background checks on adult members who join a 
household or children who turn 18 after an exchange visitor is placed 
in the home. The Department asks that sponsors also identify the 
criteria they use to determine when a frequent adult visitor in a home 
(e.g., a college student, grown child, or acquaintance of an adult 
family member) should also be vetted through the criminal background 
check process.
    The regulations also require sponsors to conduct an in-person 
interview with all family members residing in the home. The Department 
requests comment from sponsors regarding how they identify ``all family 
members'' residing in the home. They should specify whether they 
interview every adult who is vetted by a background check and whether 
they conduct multiple interviews if all family members are not 
available at the same time. Parties should comment on whether they 
believe that requiring such interviews to be conducted in the home 
provides additional insight into the family dynamic and its suitability 
to host an exchange student.
    The Department has never attempted to define a ``family'' for 
purposes of being eligible to host a foreign high school student. We 
take notice, however, of the fact that problematic placements often 
occur in homes of families that do not include a school-aged child. As 
a result, we are considering regulations that require host families to 
be comprised of, at a minimum, one adult and one school-aged child 
(natural, adopted, or foster) living in the home. Although this 
configuration would eliminate from the pool of host families a number 
of caring single adults or couples, such as ``empty-nesters,'' the 
Department believes that the presence of a school-aged child in a home 
may provide compensating advantages. The Department seeks information 
from sponsors on the configurations of families that have provided 
either successful or problematic placements in the past. We ask the 
sponsor community also to suggest alternative minimum configurations or 
to recommend extenuating circumstances under which minimum 
configurations might not be necessary to ensure appropriate placements. 
The Department asks parties to comment on the extent to which imposing 
more specific definitions of a family could impact the supply of 
potential host families and whether the increased suitability of 
selected families would compensate for the smaller pool of eligible 
host families.
    Finally, the Department encourages parties to comment on aspects of 
host family screening and selecting in addition to those specifically 
raised. For example, sponsors may wish to share the methods they use in 
identifying potential host families. More importantly, they may wish to 
enumerate the methods that their experiences have found to be 
problematic or that they believe may encourage inappropriate adults to 
agree to host high school students. Sponsors are especially encouraged 
to share their best practices with the Department to provide the entire 
industry with guidance on how best to protect the health, safety, and 
welfare of high school-aged foreign exchange students.

    Dated: August 27, 2009.
Stanley S. Colvin,
Deputy Assistant Secretary for Private Sector Exchanges, Bureau of 
Educational and Cultural Affairs, Department of State.
[FR Doc. E9-21185 Filed 9-1-09; 8:45 am]
BILLING CODE 4710-05-P