Comment on FR Doc # E7-10505

RIN 1400-AC29 July 30, 2007 Dear Sir or Madam: I am writing on behalf of the Center for International Education, Inc. d.b.a. The Visiting International Faculty Program (VIF) regarding the Proposed Rule for the Exchange Visitor Program concerning Sanctions and Terminations. The VIF Program is designated by the US Department of State as an exchange visitor program and has been sponsoring international teachers to teach in the United States since 1989. We are the largest K-12 teacher exchange program in the United States. We seek to transform the educational experience of American students and invigorate their schools and communities by providing meaningful encounters with people from other countries. Last year we hosted 1750 teachers from 50 different countries. We are writing regarding the Proposed Rule for the Exchange Visitor Program concerning Sanctions and Terminations (RIN 1400-AC29). As an exchange program sponsor, we are pleased that the Department of State maintains sanctions with the intent of furthering the foreign policy interests of the United States and protecting the health and welfare of Exchange Visitor Program participants. The VIF Program shares these goals. We do have concerns about the proposed regulations, specifically that: ? The Department has not offered support for its conclusion that the proposed rule will not have a substantial effect upon the States or the responsibilities among various levels of government. In fact, exchange programs serve an important, if not critical role, at all levels of government. State and local governments increasingly recognize exchanges as one of the most effective means for preparing their citizens to remain competitive in the global economy. Additionally, these governmental entities have taken an active and varied role in promoting exchanges such as by serving as officially-designated sponsors for many of the more than 300,000 exchange visitors who enter the U.S. annually or by enacting legislation to further exchange. See 22 C.F.R. ? 62.3. They pay salaries to exchange visitors, receive tax or tuition payments from them or on their behalf and otherwise rely upon their services. By allowing the Department to eliminate some or all categories of exchange programs with little or no notice to the affected state and local governments, the proposed rule would substantially harm state and local interests in fields as diverse as education, medicine, tourism and business training. ? The provision for the elimination of entire categories of exchange programs without any showing of fault by an individual sponsor is unwarranted. The Department's existing regulations require substantial investments and expenditures by sponsors to administer exchange programs successfully. See 22. C.F.R. ? 62.9(e). Sponsors in both the public and private sector face continued increases in the costs of program administration due to factors as diverse as the rising costs of health care and fluctuations in exchange rates. By providing for the elimination of entire categories of exchanges without any showing of fault by a particular sponsor, the proposed rule exposes sponsors to a significant risk of program elimination that cannot be measured or anticipated in any way. Creating an unknown risk of program elimination will tend to discourage sponsors from investing in the improved administration of their programs when the Department would be better served to encourage such investment. ? The requirement that a sponsor's regulatory violation be willful or negligent to warrant sanctions should not be eliminated. The Department recognizes that the overwhelming majority of designated exchange visitor programs are a credit to its public diplomacy efforts and adhere to its regulations. The willful or negligence requirement serves to protect such sponsors from unjust sanctions when regulatory violations may result without any culpability by the sponsor or its management. For example, it is possible that regulatory violations could result despite prudent, good faith efforts of the sponsor due to circumstances such as misinterpretation of ambiguous regulations or the acts of third parties beyond the control of a sponsor. Similarly, in the case of acts that may endanger the health or welfare of an exchange visitor, a willful or negligence standard is necessary to allow any meaningful review of sponsor conduct. Despite every prudent effort by sponsors, many of their acts including even the mere fact of facilitating an alien's visit to the United States will subject the alien to diverse, inherent risks, such as those from crime, disease and automobile accident. The Department has already recognized that sponsor prudence cannot eliminate all risks by requiring sponsors to require exchange visitors to maintain accident and illness insurance and should explicitly incorporate a requirement of sponsor culpability in its sanctions provisions. ? Conducting an exchange program in such a way as to undermine foreign policy objectives should be eliminated or modified from the new reasons for sanctions due to vagueness. The general foreign policy purposes of exchange programs, promoting mutual understanding through exchange visits, was adequately defined by Congress in the enabling legislation and has been further defined by the Department for each program category in its regulations. See, 22 U.S.C. ? 2451 et. seq., 22 C.F.R. ? 62.1, 22 C.F.R. ? 62.20-.32. Sponsors are well-aware of the specific foreign policy purpose of their respective program categories, and the existing sanctions and redesignation provisions already provide the Department authority to sanction or refuse to redesignate sponsors that do not further these objectives. In contrast, the "foreign policy objectives of the United States" may often be varied, complex, contradictory or undisclosed to sponsors. This language is overly vague and does not provide sponsors sufficient guidance upon which to base decisions in the administration of their programs. This language should be eliminated, or alternatively replaced with a reference to the specific foreign policy objectives of for each program category as already defined by the Department. ? Similarly, compromising the national security interests of the United States, should be eliminated or modified from the new reasons for sanctions due to vagueness and related concerns. The critical importance of maintaining the ability of foreign nationals to enter the U.S. for a variety of legitimate purposes, including participation in exchange programs, is widely recognized by the Department and other U.S. government agencies. Therefore, the U.S. government will unavoidably be required to make individualized determinations to expel or exclude particular aliens who may present a security risk while at the same time allowing legitimate visitors to enter. The elimination of entire categories of exchange visitors based on broad classifications, such as high school student, university student, or member of a particular occupation, that are not in-and-of themselves security-related is not an effective means to advance these interests and address security concerns. Alternatively, the Department should define the acts or omissions by sponsors that could present a national security risk. While sponsors welcome the opportunity to cooperate with the Department in the interests of national security, this proposed ground for sanctions does not provide them useful guidance in the administration of their programs. ? Failure to file management audits should be eliminated as grounds for sanctions/revocations for categories which have no such requirement. While management audits may in the future become an effective means to further compliance efforts in other categories, the implementation of a related sanctions regulation is premature. The merit of such a sanctions provision cannot be determined without reviewing the specific requirements of any proposed management audit. ? The trial-type hearing and appeals process should be retained, particularly for severe sanctions such as a loss of program designation. Trial-type hearings offer the best means for ensuring accurate review of witness testimony, effective opportunities for rebuttal, meaningful factual determinations and the creation of a useful records for review. Such additionally procedural protections are worthwhile for exchange programs, which are recognized by the Department as a cornerstone of its public diplomacy efforts. Particularly in the case of revocation decisions which have been necessary only 5 times in the past decade, the value of maintaining hearings greatly outweighs the limited time and costs savings that would be expected from their elimination. Thank you for allowing us this opportunity to comment on these proposed regulations. Sincerely, Thomas H. Lee, Jr. General Counsel