Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations 8547

Dated: February 3, 1995. removes 21 CFR 558.625(b)(11) and attends a United States accredited post- Fred R. Shank, (b)(15) and amends 21 CFR secondary educational institution. Director, Center for Food Safety and Applied 558.635(b)(2) to reflect the withdrawal These rules are promulgated pursuant to Nutrition. of approval of these NADA’s. Public Law 103–415 which authorizes the continued operation, until [FR Doc. 95–3804 Filed 2–14–95; 8:45 am] List of Subjects in 21 CFR Part 558 BILLING CODE 4160±01±F September 30, 1995, of au pair programs Animal drugs, Animal feeds. currently designated by the Agency. Therefore, under the Federal Food, DATES: Effective date: These rules are 21 CFR Part 558 Drug, and Cosmetic Act and under effective February 15, 1995. authority delegated to the Commissioner Applicability dates: With the New Animal Drugs for Use in Animal of Food and Drugs and redelegated to exceptions of § 514.31(j) (1) and (4), and Feeds; Tylosin and Virginiamycin the Center for Veterinary Medicine, 21 § 514.31(k), these rules apply to all au CFR part 558 is amended as follows: AGENCY: Food and Drug Administration, pair placements and operations as of HHS. February 15, 1995. The provisions set PART 558ÐNEW ANIMAL DRUGS FOR forth at § 514.31(j) (1) and (4) and ACTION: Final rule. USE IN ANIMAL FEEDS § 514.31(k) shall apply only to au pair SUMMARY: The Food and Drug 1. The authority citation for 21 CFR participants placed after date of Administration (FDA) is amending the part 558 continues to read as follows: publication. animal drug regulations to remove those Authority: Secs. 512, 701 of the Federal Compliance date: Sponsor portions reflecting approval of four new Food, Drug, and Cosmetic Act (21 U.S.C. implementation of the provisions set animal drug applications (NADA’s) held 360b, 371). forth at § 514.31(g) (1) and (2) will not be expected before March 31, 1995. by Premiere Agri Technologies, Inc. The § 558.625 [Amended] NADA’s provide for use of Type A FOR FURTHER INFORMATION CONTACT: 2. Section 558.625 Tylosin is medicated articles and Type B Stanley S. Colvin, Assistant General amended by removing and reserving medicated feeds containing tylosin and Counsel, United States Information paragraphs (b)(11) and (b)(15). Agency, 301 4th Street, SW., Type B medicated feeds containing 3. Section 558.635 Virginiamycin is virginiamycin. In a notice published Washington, DC 20547; Telephone, amended by revising paragraph (b)(2) to (202) 619–6829. elsewhere in this issue of the Federal read as follows: Register, FDA is withdrawing approval SUPPLEMENTARY INFORMATION: First of the NADA’s. § 558.635 Virginiamycin begun pursuant to the provisions of the EFFECTIVE DATE: February 27, 1995. * * * * * United States Information and Educational Exchange Act of 1948 FOR FURTHER INFORMATION CONTACT: (b) * * * (‘‘Smith-Mundt’’), and subsequently Mohammad I. Sharar, Center for (2) 2.2 percent activity (10 grams per incorporated into and broadened under Veterinary Medicine (HFV–216), Food pound) to 011490, 016968, and 017790 the Fulbright-Hays Act, educational and and Drug Administration, 7500 Standish in § 510.600(c) of this chapter for use as cultural exchange activities have, over Pl., Rockville, MD 20855, 301–594– in paragraphs (f)(1)(iv) and (f)(1)(v) of the past forty years, exposed millions of 1722. this section. foreign nationals to the United States, * * * * * SUPPLEMENTARY INFORMATION: In a notice its peoples, cultures, skills, business published elsewhere in this issue of the Dated: January 6, 1995. techniques, educational institutions, Federal Register, FDA is withdrawing Stephen F. Sundlof, and way of life. The Fulbright-Hays Act approval of the following NADA’s: Director, Center for Veterinary Medicine. mandates reciprocal exchange and [FR Doc. 95–3802 Filed 2–14–95; 8:45 am] Americans traveling abroad have, in NADA Sponsor name No. Drug name and address BILLING CODE 4160±01±F similar fashion, developed an enhanced awareness of foreign people, their 45±690 . Tylosin Type B Premiere Agri cultures and societies. Thus, Fulbright- medicated Technologies, UNITED STATES INFORMATION Hays programs further one of the feeds and Inc., P.O. Box AGENCY Agency’s primary missions: increasing Type A medi- 2508, Fort mutual understanding between cated article. Wayne, IN 22 CFR Part 514 Americans and others through people- 46801±2508 [Rulemaking No. 110] to-people contact. Originally conducted (former spon- by the Department of State, oversight of sor Henwood Exchange Visitor Program Feed Addi- exchange activities, occurring under the tives) AGENCY: United States Information umbrella of the Exchange Visitor 97±289 . Tylosin Type B Do. (Former Agency. Program, has been the responsibility of medicated sponsor Feed ACTION: Final rule. the Agency since 1978. feeds and Specialties The Fulbright-Hays Act sets forth Type A medi- Co., Inc.) SUMMARY: The Agency hereby adopts as certain parameters which all exchange cated article. final with modifications the interim rule activities must meet. With an eye 133±361 Virginiamycin Do. (Former governing its oversight and towards ensuring that these parameters Type B medi- sponsor Feed cated feed. Specialties administration of au pair programs. Au were being met and acting in response Co., Inc.) pair programs permit foreign nationals to a Congressional request, the General 133±839 Virginiamycin Do. (Former to enter the United States for a period Accounting Office (‘‘GAO’’) investigated Type B medi- sponsor Mac- of one year for the purpose of residing Agency oversight and administration of cated feed. Page, Inc.) with an American host family while the Exchange Visitor Program and its participating directly in the home life of attendant utilization of the J visa. In its The sponsor requested withdrawal of the family and providing limited child report to Congress, dated February 5, approval of the NADA’s. This final rule care services. The foreign national also 1990 and entitled ‘‘Inappropriate Uses 8548 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations of Educational and Cultural Exchange about Congressional and public scrutiny becomes primarily a child care program, Visas,’’ the GAO determined that certain of these programs. This scrutiny, in no matter how valuable, it can be legally Exchange Visitor Program activities turn, resulted in Congressional action maintained as a federal program only if appeared to be inconsistent with the which authorized and directed the it is transferred to another agency. statutory grant of authority and its Agency to promulgate regulations Although a distinct small minority, underlying legislative intent. GAO governing au pair placements. some letters criticized the Agency for summarized its findings, stating: Pursuant to this clear directive, the virtually any effort to regulate the ‘‘Most J visa activities appear to conform to Agency published, on December 14, program as undue interference into the intent of the 1961 act. However, GAO 1994, interim final regulations family activities. While the Agency has believes that certain activities and programs governing the au pair program that were made every effort to ensure that the in the trainee and international visitor both consistent with the provisions of regulations are as unburdensome as categories, including the summer student/ the Fulbright-Hays Act and which also possible, it is important to note that travel work, international camp counselor, provided safeguards for au pair certain regulations are necessary before and au pair (Child care) programs, are participants and the American host the Agency is legally permitted to inconsistent with the legislative intent. GAO families with whom they are placed. operate this program. Additionally, identified instances of participants working as waiters, cooks, child care providers, Given the wide popularity of these none of the regulations will affect amusement and leisure park workers, and programs—and the criticisms of them— individuals involuntarily. The summer camp counselors. Authorizing J visas the Agency met with, solicited, and regulations apply only to families who for participants and activities that are not incorporated the views of the au pair voluntarily and deliberately choose to clearly for educational and cultural purposes organizations, interested members of the participate in the au pair program. as specified in the act dilute the integrity of public and the views of those In light of the comments it has the J visa and obscures the distinction congressional offices possessing received, the Agency has determined between the J visa and other visas granted for jurisdiction over educational and that the interim regulations published work purposes.’’ cultural exchange programs. December 14, 1994 should be amended The concerns raised in the GAO The Agency’s Federal Register as follows. report had troubled USIA for several publication of this interim rule with Educational Component years, especially the au pair program. request for public comment generated Objections to the operation of au pair over 3,000 responses from American As discussed above, the Agency’s programs under the Exchange Visitor families during the thirty day public statutory authority to facilitate au pair Program and the use of the J visa were comment period. A considerable activities has been the subject of debate also raised by the Department of Labor, number of the comments received had for the past eight years. To achieve the Immigration and Naturalization a remarkably familiar style and theme, compliance with applicable federal law, Service, and, most importantly, USIA’s and focused primarily or exclusively on taking into account the 1990 GAO congressional committees of two issues: the rise in weekly wage or opinion, the interim regulations jurisdiction. stipend paid to au pairs and the required that au pair participants pursue In June of 1993, USIA was requirement that au pairs taking care of six semester hours (or its equivalent) of approached by the au pair sponsors children under the age of two be at least academic course work at an accredited conducting these programs to examine 21 years of age. Additionally, however, post-secondary institution. The Agency whether the Agency’s past objections to the Agency received a significant concluded that this requirement is the the continuation of these programs number of personalized and thoughtful minimum programmatic component under the Exchange Visitor Program comments and responses, many which necessary to comply with the provisions could be resolved. The au pair sponsors were highly persuasive. A majority of of the Fulbright-Hays Act. Without this were advised that the Agency saw merit the commentators, including a large requirement the Agency had determined in the programs but had concluded that number who objected to certain aspects that it would not have statutory it lacked statutory authority to conduct of the interim final rules, praised the authority to conduct this activity. the programs as then configured. The Agency for efforts to improve screening, Some responses criticized the Agency Agency’s principal objection to the training, and/or other aspects of the au for focusing excessively on traditional program was its lack of a bona fide pair program. The letters also forms of educational activities to meet educational component sufficient to highlighted that, despite the problems the educational exchange requirement. meet the statutory requirements of the which have been associated with this These critics claimed the Agency failed Fulbright-Hays Act. A secondary, but program, many families develop to appreciate the degree and caliber of equally compelling, objection was the excellent relations with their au pairs cultural exchange that results from daily program’s failure to comply with the and make considerable efforts to contact between host families and au Fair Labor Standards Act and its advance the cultural and educational pairs. Contrary to these assertions, the requirements governing the payment of exchange aspects of the program. Agency believes it fully appreciates the minimum wage. Many letters lamented that other value of the experiences identified by The Agency and the au pair sponsors forms of child care were unaffordable. these commentators. The Agency began earnest discussions involving Some complained about the quality recognizes that the family context how best to regularize the au pair alternative child care. While the USIA is provides a unique opportunity for the program in order for it to find a pleased that the au pair program host family and au pair to learn about permanent home at USIA. During the apparently provides considerable direct each other’s cultures and values. course of these discussions, several benefit to many American families on Additionally, one of the clear benefits of tragic incidents involving au pair the important matter of affordable child the au pair program is that it provides placements occurred and were widely care, the Agency cannot lose sight of the many young foreign nationals who reported in the press. Specifically, the fact that it has legal authority to operate otherwise would not have the deaths of two infants while in the care the au pair program only if it is opportunity to participate in an of au pairs and allegations of child primarily a cultural and educational exchange program a chance to do so. molestation and child pornography exchange program which incidentally This recognition does not alleviate the allegedly involving au pairs brought provides child care. If the program Agency’s responsibility to conduct the Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations 8549 program in accordance with federal law, reasonable given all surrounding documented infant child care however. The Agency does agree it circumstances. experience. In response to comments should not impose unnecessary rigidity Many who commented provided suggesting that ‘‘documented’’ was too into the requirement and adhered to this persuasive accounts, examples, and rigid, confusing or otherwise principle in drafting the interim illustrations supporting their beliefs that counterproductive, the Agency is regulations. Accordingly, the Agency a 21 year old rule was unnecessary, amending this provision by substituting does not amend the regulatory especially in light of the Agency’s six the word ‘‘prior’’ for ‘‘documented.’’ provisions set forth at 22 CFR 514.31(k). months of prior child care experience In response to documented failures Moreover, for clarification purposes, it requirement. These stories helped over past eight years to adequately is not necessary that the course work be convince the Agency that the correlation screen potential au pair participants, the taken for credit so that audit of such between age and maturity was marginal Agency set forth at 22 CFR 514.31(d) courses is permissible. at best and, as a result, the Agency is specific criteria governing au pair dropping the twenty-one age selection. Based upon comments Selection, Training and Screening requirement. received, the Agency is amending 22 The au pair program has been Another modification is set forth at 22 CFR 514.31(d)(6) by requiring a governed for over eight years by CFR 514.31(e) (1)–(3). Many comments personality profile rather than a voluntary guidelines issued in 1986. were received which questioned the psychological profile for potential au Because of Congressional enactments in utility of requiring a parent to remain in pair participants. This amendment is 1988 and 1990, the Agency had been the home for the first week following adopted based upon representations essentially barred from modifying or the au pair’s arrival. Many suggested made to the Agency that psychological enforcing the guidelines or otherwise modifications but agreed that some form testing would be unduly burdensome, regulating and monitoring the au pair of transition was desirable; others costly and would be ineffective. Au pair organizations. Unfortunately, these suggested the transition period should sponsors suggested the substitution of a guidelines, promulgated for two au pair be left entirely to the discretion of the ‘‘personality’’ profile which they assert organizations under a pilot program host family. would in fact provide a screening overseeing 300 au pairs annually, was The Agency’s reason for imposing mechanisms sufficient to ensure the au deficient for a program that had grown such a requirement was the need to pair applicant’s suitability for child care to eight au pair organizations and ensure that the au pair received the services. Also set forth in this paragraph 10,000 au pairs annually. By the benefit of an adequate transition period is the requirement that au pair summer of 1994, a number of high and was comfortable with his or her applicants undergo a criminal record profile incidents, buttressed by a series new duties, new home, new check. Au pair sponsors and the of investigative reports, strongly community, and new country. The Agency’s posts overseas confirm that a suggested that the lack of oversight may Agency recognized that a vast majority criminal record check as such term is in some instances be jeopardizing the of host families would never leave their commonly understood in the United safety of host family children. Evidence infants and other children with an au States is not necessarily available in all also was presented that some au pairs pair without an adequate adjustment countries. For those countries where had been mistreated by host family period, but concluded that requiring a such records are not readily available, members. The Agency was equally reasonable transition period was the Agency will accept the recognized disturbed by reports suggesting the essential to the welfare of both the au equivalent of a criminal record check for program had been portrayed to host pair and the children, especially infants. that country. families as a child care program but to In response to the comments received, Directly related to the screening of au young potential au pairs as a chance to the Agency is amending 22 CFR pair participants is experience and see America. Such a disparity in 514.31(e)(1) to allow either a parent or training. A need for some level of expectations laid a poor foundation for other responsible adult to assist in this uniform training for au pair participants either a good exchange experience or for transition period and also is reducing was recognized and supported by the quality child care. Faced with this the length of such transition from one public comments received by the history, and under Congressional week to three days duration. The Agency. However, the length of this mandate, the Agency developed Agency has been informed that in many training was subject to debate. At 22 regulations which attempted to provide instances this three day period will CFR 514.31(g)(1) the Agency set forth a reasonable confidence that au pairs encompass the weekend. This increased requirement that au pair participants assigned to host families had the skills, flexibility addresses the concerns raised receive not less than 16 hours of child experiences and character to meet host by most of these comments but still safety instruction. Based upon families’ reasonable expectations. provides adequate assurances of a comments received from au pair One of the two components of the smooth transition for the au pair. The sponsors and the American Red Cross, interim regulations drawing the most Agency rejects those comments the Agency is amending this comments involved the age requirement suggesting the transition period should requirement by reducing the number of for au pairs caring for infant children. be left entirely to the discretion of the hours of such instruction from 16 to 8. The Agency had specified at 22 CFR host family based upon the Agency’s The regulation is also amended to 514.31(e)(3) that an au pair providing experience in these matters which permit such training to be given prior to such care for a child under the age of indicates that a prescribed transition placement with the host family. This two must be at least twenty-one years of period is necessary, even if it is a short amendment will permit au pair age. The reason for this requirement was one. sponsors to provide child safety training to attempt to ensure that au pairs The Agency also is amending the in the au pair’s home country if they entrusted with infant children had some requirement set forth at 22 CFR choose to do so. degree of maturity and experience. In 514.31(e)(3) to provide for greater Finally, for the purpose of clarity, the imposing this requirement the Agency flexibility. Originally, the Agency had Agency has determined that recognized that any age limitation was required that au pairs placed with amendments to 22 CFR 514.31(h) are subjective and inexact; nevertheless, the families having children under the age needed. This regulation sets forth Agency had considered the requirement of two must have at least six months requirements governing host family 8550 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations selection for participation in the au pair Many comments objected to the understanding of this matter a short program. Given the educational and requirement that host families and au analysis is set forth. cultural exchange overlay of this pairs attend quarterly conferences or To fall within the purview of the Fair program, criteria for program seminars devoted to cross cultural or Labor Standards Act, 29 U.S.C.S. 202 et participation is necessary. As published, child development issues. Some seq, an individual must meet the the interim rule required that all family comments criticized the number as threshold requirement of ‘‘employee’’ members resident in the home be fluent excessive, others disagreed with the status. The Act, at 29 U.S.C.S. 203(e)(1) in spoken English, be personally nature of the events, and still others and (g), defines ‘‘employee’’ as an interviewed, and have successfully considered any such events as an individual employed by an employer passed a background investigation. The intrusive nuisance. The gatherings and ‘‘employ’’ as to suffer or permit to Agency is amending this regulation by suggested by the Agency have been a work. Three United States Supreme substituting ‘‘host parents’’ for ‘‘all traditional hallmark of educational and Court decisions provide the controlling family members’’ based upon comments cultural exchange programs, and the authority for the determination of received which convinced the Agency Agency does not agree with the employee status. that the change is needed to avoid characterization that they are an In seeking to answer directly the confusion and unintended senseless intrusive nuisance or otherwise question of who is an employee, the results. inappropriate for a cultural and Court in Bartels versus Birmingham, 332 educational exchange program. U.S. 126 (1947) at page 130 pronounced Placement and Orientation However, based on the comments, the that ‘‘in the application of social The Agency has reviewed certain Agency agrees to amend 22 CFR legislation employees are those who as requirements governing the terms and 514.31(i)(3) to require attendance at one a matter of economic reality are conditions of an au pair placement and family day event sponsored by the au dependent upon the business to which has determined that greater flexibility is pair organization. Thus, not only are the they render service.’’ This concept of both possible and desirable. At 22 CFR number of events reduced, but the ‘‘economic reality’’ was first developed 514.31(e)(4) the Agency amends the Agency is making clear it did not intend in Rutherford Food Corp. versus interim rule language in order to permit to prescribe a narrow agenda to the McComb, 331 U.S. 722 (1947) which the host family and au pair the latitude activity. has, along with Bartels, been controlling of establishing flexible work hours. As authority for almost fifty years. amended, this regulation will require Au Pair Employment Status The decision in Goldberg versus only that the au pair and host family Much of the criticism of the au pair Whitaker House Corp., Inc., 366 U.S. 28 have signed a written agreement that program is directly related to the work (1961) dictates that determination of an outlines the au pair’s obligation to component that is an integral part of the employee relationship requires review provide not more than 45 hours of child program. Because of this, domestic of the circumstances of the whole care services per week. nanny services, and others, have long activity. Pursuant to this decision, A small, but vocal, minority and loudly objected to these programs. pervasive control exercised by the expressed strong disagreement with the Critics contend that since 45 hours of employer over the work performed is interim regulations’ nine hour ceiling on work per week exceeds the traditional indicative of employee status. an au pair’s work day. Many of these 40 hour American work week, it leaves Application of these judicially commentators apparently failed to the au pair insufficient time to either established criteria to the au pair and to realize that the nine hours per day limit meet the educational exchange his or her host ‘‘family’’ clearly reveals had been in effect since 1986 and was requirement or truly pursue a cultural an employment relationship. not new. Nevertheless, upon experience. They assert that the program The most obvious indication of reconsidering this provision, the Agency displaces American workers and employment is the inherent financial has concluded that the 45 hour week amounts to no more than the import of basis upon which the relationship is limit, if aggressively enforced, in cheap foreign labor in the guise of an built. The au pair provides child care conjunction with other oversight educational and cultural exchange services and currently receives one changes, makes the nine hours per day program. While the Agency does not hundred dollars per week room and cap unnecessary. Thus, the Agency agree with this characterization, it may board. The au pair is dependent upon amends 22 CFR 514.31(j)(2) by deleting not ignore these claims. Accordingly, her host ‘‘family’’ for her subsistence. the requirement that au pairs provide the Agency has been obligated to This economic dependence is the not more than nine hours of child care examine the question of whether au measure of ‘‘economic reality’’ set forth services per day. The Agency adopts pairs are employees subject to the in the Rutherford and Bartels decisions, instead language that will permit the au provisions of the Fair Labor Standards supra. The Agency believes it to be pair to provide a ‘‘reasonable’’ number Act. The Agency has also sought the unlikely that an au pair is going to of hours per day. The Agency does not views and guidance of the Department uproot his or herself from his or her define what is reasonable, leaving this of Labor on this matter. The Department home country, travel to the United determination to the host family and au of Labor has specifically advised the States, and provide forty-five hours of pair in the first instance, working with Agency that an employment child care per week for someone’s the sponsoring au pair organization as relationship is established. Because the children without compensation. The au necessary. Given the monthly contact by Department of Labor is the Federal pair provides a service and expects and organizational representatives, the agency entrusted with regulating labor receives payment therefore. Designation Agency is of the belief that the laws, including the definition of of the wage paid as ‘‘pocket money’’ is documented abuses that prompted the employer and employee and immaterial given that the consideration limitation of hours will be prevented. determining when an employment for the receipt of the ‘‘pocket money’’ is As a result of striking the nine hour per relationship is established, it is the child care services of the au pair. day limit, the Agency believes the appropriate for the Agency to defer to Pursuant to Rutherford and Bartels, an program will be opened to potential Department of Labor in this area. au pair is an employee. host families previously unable to Chevron, U.S.A. versus NRDC, 467 U.S. A second criterion routinely applied participate. 837 (1984). To assist the public in their to determine employee status is that of Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations 8551 employer control over the work minimum wage less a fixed credit of $36 alleviate the family’s obligation to performed. As explained in the permitted under current Department of maintain records. Goldberg decision, supra, pervasive Labor regulations for room and board. The Agency concludes this approach control exercised by the employer over This regulation, set forth at 29 CFR will allow the weekly wage or stipend the work performed is indicative of an 552.100 also provides for an alternative to automatically adjust, using a formula employment relationship. This concept calculation of the credit for room and based on the minimum wage and room of control stems from the English board based upon actual cost. and board costs routinely calculated by common law theories of master and The Agency noted in the interim rule the Department of Labor. The Agency servant. that the $36 credit was based upon a believes this method is fair to host As applied today, the concept of regulation published in 1979 and that families and au pairs, and will ensure control involves the employer setting the Agency was of the opinion that the adherence to federal law. Moreover, the terms and conditions of the credit should be substantially higher. once the Department of Labor employment, i.e., hours of work, The Department of Labor is of the same regulations are finalized, this approach methods of performing the work, break opinion as evidenced by its proposed will eliminate the need for host families times, uniforms, and the designation of rule published in the Federal Register to keep individualized records. actual duties. The question of control on December 30, 1993 at page 69312. In Additionally, it will not compel the generally arises in those situations in this proposed rule the Department of federal government to expend scarce which an employer seeks to designate Labor sought to amend 29 CFR 552.100 resources to regulate or otherwise an employee as an independent to reflect the increase in the cost of oversee this portion of the program. contractor and thereby escapes the room and board by determining the Based on the comments received and obligations of various labor statutes permissible credit as a percentage of the the above discussions, the Agency is of such as the Fair Labor Standards Act. hourly minimum wage. This proposed the opinion that a weekly stipend or Designation of the au pair as a ‘‘family’’ rule has not been finalized. wage of not less than $115 is consistent member would be analogous to this In an attempt to document costs, with Fair Labor Standards Act scenario, when made to avoid the certain au pair organizations conducted requirements governing payment of employer/employee relationship. a nationwide survey of their host minimum wage and is appropriate for An au pair’s relationship to his or her families to determine the average cost of the present time. ‘‘family’’ meets the pervasive control room and board provided to au pairs. theory of Goldberg. The ‘‘family’’ While not endorsing the methodology Other Statutory Considerations determines what hours of the day the au used in this survey, the Agency is Finally, a question has arisen pair will work. The ‘‘family’’ determines comfortable with the results presented. regarding the Agency’s statutory what additional duties may be necessary This survey suggests that the average authority to impose a performance for the au pair to perform on a daily cost for room and board is bond. The program guidelines governing basis. The ‘‘family’’ dictates what the approximately $65 per week. This au pair placements for the past eight child, under the care of the au pair, will survey provides some measure of years have required that the au pair eat, when he will play, and when he objective evidence that the allowance participants place with the au pair will nap. Pursuant to Goldberg, an au for room and board is substantially sponsor a bond in the amount of five pair is an employee. higher than the 1979 allowance of $36 hundred dollars. This bond was per week. forfeited if the au pair participant failed Au Pair Wages As stated, 29 CFR 552.100 provides to successfully complete the agreed The weekly compensation paid to au two methods for recognizing the cost of upon one year program or failed to pairs generated voluminous comment. room and board provided live-in return to their home country. All of the comments received objected domestic employees. The first method, In discussions with the Department of to an increase in the weekly wage or which allows a fixed $36 credit is Labor regarding payment of minimum stipend from the current $100 to $155 outdated but still legally applicable. The wage, the Agency was advised by the per week. Many agreed that a second method, which allows for a Department that this bond requirement substantial increase was appropriate, deduction against the minimum wage was a minimum wage violation. For the given that au pairs have been receiving based on the actual cost of room and reasons discussed above, under the $100 per week since the inception of the board. Chevron doctrine, deference to program in 1986. $120–$130 per week The public comments received have Department of Labor’s interpretation is was the range mentioned most convinced the Agency that a credit for appropriate. Additionally the Agency’s frequently. room and board based upon actual costs subsequent review of this matter has led Some of the commentators who is preferred by the majority of host it to conclude that it is without statutory criticized the increase to $155 per week families. However, the programmatic authority to impose a bond. Pursuant to reprimanded the Agency for promoting need for a uniform wage remains. Thus, provisions of the Immigration and a 55 percent increase, asserting that the in order to balance the preference of Naturalization Act set forth at 8 U.S.C. decision reflected an insensitivity to the host families against the programmatic 1184(a) the Attorney General is vested needs of American families. The Agency need for a uniform wage, the Agency with authority governing the admission believes these critics misunderstood the will rely on the Department of Labor’s of aliens into the United States and the interim regulations and the purpose for methodology as set forth in its proposed giving of a bond to insure the aliens the formula proposed in those rule of December 30, 1993. To this end, maintenance of status and departure regulations. and until this Department of Labor from the United States. The Director of As explained in the interim final regulation is adopted as final, the USIA is without such authority and the rulemaking published December 14, Agency will permit a credit for room regulatory provision set forth at 22 CFR 1994, the $155 amount was established and board based upon actual cost but 514.31(1) requiring a performance bond by examining Department of Labor not to exceed $76 per week. Upon is therefore deleted. regulations governing the payment of finalization of this Department of Labor minimum wage to live-in domestic regulation, the Agency will adopt the List of Subjects in 22 CFR Part 514 employees. The $155 amount reflected fixed credit method and thereby Cultural exchange programs. 8552 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations

Dated: February 8, 1995. schedule of personal monthly contact provide au pairs, prior to their departure Les Jin, (or more frequently as required) with from the home country, with the General Counsel. each au pair and host family for which following information: Accordingly, the interim rule he or she is responsible; (1) A copy of all operating procedures, amending 22 CFR part 514 which was (7) Require that local organizational rules, and regulations, including a published at 59 FR 64296 on December representatives not devoting their full grievance process, which govern the au 14, 1994, is adopted as a final rule with time and attention to their program pair’s participation in the exchange the following change: obligations are responsible for no more program; than fifteen au pairs and host families; (2) A detailed profile of the family PART 514ÐEXCHANGE VISITOR and and community in which the au pair PROGRAM (8) Require that each local will be placed; organizational representative is (3) A detailed profile of the 1. The authority citation for part 514 provided adequate support services by a educational institutions in the continues to read as follows: regional organizational representative. community where the au pair will be Authority: 8 U.S.C. 1101(a)(15)(J), 1182, (d) Au pair selection. In addition to placed, including the financial cost of 1258; 22 U.S.C. 1431–1442, 2451–2460; satisfying the requirements of attendance at these institutions; and Reorganization Plan No. 2 of 1977, 42 FR § 514.10(a), sponsors shall ensure that (4) A detailed summary of travel 62461, 3 CFR, 1977 Comp. p. 200; E.O. 12048 all participants in a designated au pair arrangements. 43 FR 13361, 3 CFR, 1978 Comp. p. 168; exchange program: (g) Au pair training. Sponsors shall USIA Delegation Order No. 85–5 (50 FR provide the au pair participant with 27393). (1) Are between the ages of 18 and 26; (2) Are a secondary school graduate, child development and child safety 2. Part 514 is amended by revising or equivalent; instruction, as follows: § 514.31 to read as follows: (3) Are proficient in spoken English; (1) Prior to placement with the host § 514.31 Au pairs. (4) Are capable of fully participating family, the au pair participant shall in the program as evidenced by the receive not less than eight hours of child (a) Introduction. These regulations satisfactory completion of a physical; safety instruction; and govern Agency-designated exchange (5) Have been personally interviewed, (2) Prior to placement with the visitor programs under which foreign in English, by an organizational American host family, the au pair nationals are afforded the opportunity to representative; and participant shall receive not less than live with an American host family and (6) Have successfully passed a twenty-four hours of child development participate directly in the home life of background investigation that includes instruction. the host family while providing limited verification of school, three, non-family (h) Host family selection. Sponsors child care services and attending a U.S. related personal and employment shall adequately screen all potential post-secondary educational institution. references, a personality profile and a (b) Program designation. The Agency host families and at a minimum shall: criminal record check or its recognized (1) Require that the host parents are may, in its sole discretion, designate equivalent. bona fide programs satisfying the U.S. citizens or legal permanent (e) Au pair placement. Sponsors shall objectives set forth in paragraph (a) of residents; secure, prior to the au pair’s departure (2) Require that host parents are fluent this section. Such designation shall be from the home country, a host family in spoken English; for a period of two years and may be placement for each participant. (3) Require that all adult family revoked by the Agency for good cause. (c) Program eligibility. Sponsors Sponsors shall not: members resident in the home have designated by the Agency to conduct au (1) Place an au pair with a family been personally interviewed by an pair exchange program shall: unless the family has specifically agreed organizational representative; (1) Limit the participation of foreign that a parent or other responsible adult (4) Require that host parents have nationals in such programs to not more will remain in the home for the first successfully passed a background than one year; three days following the au pair’s investigation including employment (2) Limit the number of hours an au arrival; and personal references; pair participant is obligated to provide (2) Place an au pair with a family (5) Require that the host family has child care services to not more than 45 having a child aged less than three adequate financial resources to hours per week; months unless a parent or other undertake hosting obligations; and (3) Require that the au pair participant responsible adult is present in the (6) Provide a written detailed enrolls in a U.S. institution of higher home; summary of the exchange program and education for not less than six semester (3) Place an au pair with a host family the parameters of their and the au pair’s hours of academic credit or its having children under the age of two, duties, participation, and obligations. equivalent; unless the au pair has at least six (i) Host family orientation. In addition (4) Require that all officers, months of prior infant child care to the requirements set forth at § 514.10, employees, agents, and volunteers experience; sponsors shall: acting on their behalf are adequately (4) Place the au pair with a family (1) Inform all host families of the trained and supervised; unless a written agreement between the philosophy, rules, and regulations (5) Require that the au pair participant au pair and host family outlining the au governing the sponsor’s exchange is placed with a host family within one pair’s obligation to provide not more program; hour’s driving time of the home of the than 45 hours of child care services per (2) Provide all selected host families local organizational representative week has been signed by both; and with a copy of Agency-promulgated authorized to act on the sponsor’s behalf (5) Place the au pair with a family Exchange Visitor Program regulations; in both routine and emergency matters who cannot provide the au pair with a (3) Advise all selected host families of arising from the au pair’s participation suitable private bedroom. their obligation to attend at least one in their exchange program; (f) Au pair orientation. In addition to family day conference to be sponsored (6) Require that each local the orientation requirements set forth by their au pair organization during the organizational representative maintain a herein at § 514.10, all sponsors shall course of the placement year. Host Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations 8553 family attendance at such gathering is a (2) A summation of all complaints on or before April 17, 1995. The closing condition of program participation and regarding host family or au pair date for submission of complete failure to attend will be grounds for participation in the program, specifying application packages for consideration possible termination of their continued the nature of the complaint, its for negotiations in 1996 is May 16, 1995. or future program participation; and resolution, and whether any unresolved No application package will be dated as (4) Require that the organization’s complaints are outstanding; received before March 17, 1995. local counselor responsible for the au (3) A summation of all situations Applications requesting to be pair placement contacts the host family which resulted in the placement of an included in the applicant pool may be and au pair within forty-eight hours of au pair participant with more than one submitted at any time. All tribes the au pair’s arrival and meets, in host family; wishing to be considered for person, with the host family and au pair (4) A report by a certified public participation in FY 1996 must respond within two weeks of the au pair’s arrival accountant attesting to the sponsor’s to this announcement, except for those at the host family’ home. compliance with the procedures and which are (1) currently involved with (j) Stipend and hours. Sponsors shall reporting requirements set forth in this negotiations with the Department or (2) require that au pair participants: subpart; one of the 29 tribes with signed (1) Are compensated at a rate of not (5) A report detailing the name of the agreements in the Demonstration less than $115.00 per week; au pair, his or her host family Project. (2) Do not provide more than a placement, location, and the names of ADDRESSES: Written comments reasonable number of hours of child the local and regional organizational concerning this rulemaking should be care on any given day; representatives; and sent to Director, Office of Self- (3) Receive a minimum of one and a (6) A complete set of all promotional Governance, U.S. Department of the half days off per week in addition to one materials, brochures, or pamphlets Interior, 1849 C Street NW., Mail Stop complete weekend off each month; and distributed to either host family or au 2548, Washington, DC 20240. (4) Receive two weeks of paid pair participants. FOR FURTHER INFORMATION CONTACT: vacation. (n) Sanctions. In addition to the (k) Educational component. Sponsors Verner V. Duus, U.S. Department of the sanctions provisions set forth at Interior, Office of Self-Governance, 1849 shall require that during the period of § 514.50, the Agency may undertake program participation, all au pair C Street NW., Mail Stop 2548, immediate program revocation Washington, DC 20240, 202–219–0240. participants are enrolled in an procedures upon documented evidence accredited post-secondary institution for that a sponsor has failed to: SUPPLEMENTARY INFORMATION: not less than six hours of academic (1) Comply with the au pair Justification for Interim Rule credit or its equivalent. As a condition placement requirements set forth in of program participation, host family Implementation of this rule is not paragraph (e) of this section; rulemaking subject to the provisions of participants must agree to facilitate the (2) Satisfy the selection requirements enrollment and attendance of the au section 553 of the Administrative for each individual au pair as set forth Procedure Act (5 U.S.C. 551, et seq.) pair and to pay the cost of such in paragraph (d) of this section; and academic course work in an amount not (APA). Section 553(a)(2) excepts from (3) Enforce and monitor host family’s the scope of rulemaking rules ‘‘relating to exceed $500. compliance with the stipend and hours (l) Monitoring. Sponsors shall fully to agency management or personnel or requirements set forth in paragraph (j) of monitor all au pair exchanges, and at a to public property, loans, grants, this section. minimum shall: benefits, or contracts.’’ (1) Require monthly personal contact [FR Doc. 95–3597 Filed 2–14–95; 8:45 am] Even if this rule were considered by the local counselor with each au pair BILLING CODE 8230±01±M rulemaking subject to the provisions of and host family for which the counselor section 553 of the APA, good cause is responsible. Counselors shall exists to publish this interim rule maintain a record of this contact; DEPARTMENT OF THE INTERIOR without prior opportunity for public (2) Require quarterly contact by the comment for the following reasons. regional counselor with each au pair Office of the Secretary Section 553 outlines the following and host family for which the counselor rulemaking steps: (1) Publication of a is responsible. Counselors shall 25 CFR Chapter VI notice of proposed rulemaking, (2) solicitation of public comment on the maintain a record of this contact; RIN 1076±AD19 (3) Require that all local and regional proposed rule, (3) review of comments counselors are appraised of their Tribal Self-Governance Program received prior to developing the final obligation to report unusual or serious Selection Criteria rule, and (4) publication of the final rule situations or incidents involving either 30 days prior to the effective date. Using the au pair or host family; and AGENCY: Office of Self-Governance, this process at this time would not serve (4) Promptly report to the Agency any Office of the Secretary, Interior the goal of the Tribal Self-Governance incidents involving or alleging a crime ACTION: Interim rule. Act of 1994, which is to expand tribal of moral turpitude or violence. participation in the Self-Governance (m) Reporting requirements. Along SUMMARY: In this interim rule, the Office Program, because the process would with the annual report required by of Self-Governance (OSG) announces delay selection of new participating regulations set forth at § 514.17, the criteria for tribes to be included in tribes for FY 1996. Under the Tribal sponsors shall file with the Agency the an applicant pool and the establishment Self-Governance Act of 1994, the following information: of the selection process for tribes to Secretary may select up to 20 additional (1) A summation of the results of an negotiate agreements pursuant to the participating tribes for the Tribal Self- annual survey of all host family and au Tribal Self-Governance Act of 1994. Governance Program, and negotiate and pair participants regarding satisfaction DATES: Effective date of this interim rule enter into an annual written funding with the program, its strengths and is February 15, 1995. Written comments agreement with each participating tribe. weaknesses; concerning this rule must be received The Act mandates that the Secretary