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

Dated: February 3, 1995.

Fred R. Shank,

Director, Center for Food Safety and Applied

Nutrition.

[FR Doc. 95–3804 Filed 2–14–95; 8:45 am]

BILLING CODE 4160–01–F

21 CFR Part 558

New Animal Drugs for Use in Animal

Feeds; Tylosin and Virginiamycin

AGENCY: Food and Drug Administration,

HHS.

ACTION: Final rule.

SUMMARY: The Food and Drug

Administration (FDA) is amending the

animal drug regulations to remove those

portions reflecting approval of four new

animal drug applications (NADA’s) held

by Premiere Agri Technologies, Inc. The

NADA’s provide for use of Type A

medicated articles and Type B

medicated feeds containing tylosin and

Type B medicated feeds containing

virginiamycin. In a notice published

elsewhere in this issue of the Federal

Register, FDA is withdrawing approval

of the NADA’s.

EFFECTIVE DATE: February 27, 1995.

FOR FURTHER INFORMATION CONTACT:

Mohammad I. Sharar, Center for

Veterinary Medicine (HFV–216), Food

and Drug Administration, 7500 Standish

Pl., Rockville, MD 20855, 301–594–

1722.

SUPPLEMENTARY INFORMATION: In a notice

published elsewhere in this issue of the

Federal Register, FDA is withdrawing

approval of the following NADA’s:

NADA

No. Drug name Sponsor nameand address

45–690 . Tylosin Type B

medicated

feeds and

Type A medicated article.

Premiere Agri

Technologies,

Inc., P.O. Box

2508, Fort

Wayne, IN

46801–2508

(former sponsor Henwood

Feed Additives)

97–289 . Tylosin Type B

medicated

feeds and

Type A medicated article.

Do. (Former

sponsor Feed

Specialties

Co., Inc.)

133–361 Virginiamycin

Type B medicated feed.

Do. (Former

sponsor Feed

Specialties

Co., Inc.)

133–839 Virginiamycin

Type B medicated feed.

Do. (Former

sponsor MacPage, Inc.)

The sponsor requested withdrawal of

approval of the NADA’s. This final rule

removes 21 CFR 558.625(b)(11) and

(b)(15) and amends 21 CFR

558.635(b)(2) to reflect the withdrawal

of approval of these NADA’s.

List of Subjects in 21 CFR Part 558

Animal drugs, Animal feeds.

Therefore, under the Federal Food,

Drug, and Cosmetic Act and under

authority delegated to the Commissioner

of Food and Drugs and redelegated to

the Center for Veterinary Medicine, 21

CFR part 558 is amended as follows:

PART 558—NEW ANIMAL DRUGS FOR

USE IN ANIMAL FEEDS

1. The authority citation for 21 CFR

part 558 continues to read as follows:

Authority: Secs. 512, 701 of the Federal

Food, Drug, and Cosmetic Act (21 U.S.C.

360b, 371).

§ 558.625 [Amended]

2. Section 558.625 Tylosin is

amended by removing and reserving

paragraphs (b)(11) and (b)(15).

3. Section 558.635 Virginiamycin is

amended by revising paragraph (b)(2) to

read as follows:

§ 558.635 Virginiamycin

* * * * *

(b) * * *

(2) 2.2 percent activity (10 grams per

pound) to 011490, 016968, and 017790

in § 510.600(c) of this chapter for use as

in paragraphs (f)(1)(iv) and (f)(1)(v) of

this section.

* * * * *

Dated: January 6, 1995.

Stephen F. Sundlof,

Director, Center for Veterinary Medicine.

[FR Doc. 95–3802 Filed 2–14–95; 8:45 am]

BILLING CODE 4160–01–F

UNITED STATES INFORMATION

AGENCY

22 CFR Part 514

[Rulemaking No. 110]

Exchange Visitor Program

AGENCY: United States Information

Agency.

ACTION: Final rule.

SUMMARY: The Agency hereby adopts as

final with modifications the interim rule

governing its oversight and

administration of au pair programs. Au

pair programs permit foreign nationals

to enter the United States for a period

of one year for the purpose of residing

with an American host family while

participating directly in the home life of

the family and providing limited child

care services. The foreign national also

attends a United States accredited postsecondary educational institution.

These rules are promulgated pursuant to

Public Law 103–415 which authorizes

the continued operation, until

September 30, 1995, of au pair programs

currently designated by the Agency.

DATES: Effective date: These rules are

effective February 15, 1995.

Applicability dates: With the

exceptions of § 514.31(j) (1) and (4), and

§ 514.31(k), these rules apply to all au

pair placements and operations as of

February 15, 1995. The provisions set

forth at § 514.31(j) (1) and (4) and

§ 514.31(k) shall apply only to au pair

participants placed after date of

publication.

Compliance date: Sponsor

implementation of the provisions set

forth at § 514.31(g) (1) and (2) will not

be expected before March 31, 1995.

FOR FURTHER INFORMATION CONTACT:

Stanley S. Colvin, Assistant General

Counsel, United States Information

Agency, 301 4th Street, SW.,

Washington, DC 20547; Telephone,

(202) 619–6829.

SUPPLEMENTARY INFORMATION: First

begun pursuant to the provisions of the

United States Information and

Educational Exchange Act of 1948

(‘‘Smith-Mundt’’), and subsequently

incorporated into and broadened under

the Fulbright-Hays Act, educational and

cultural exchange activities have, over

the past forty years, exposed millions of

foreign nationals to the United States,

its peoples, cultures, skills, business

techniques, educational institutions,

and way of life. The Fulbright-Hays Act

mandates reciprocal exchange and

Americans traveling abroad have, in

similar fashion, developed an enhanced

awareness of foreign people, their

cultures and societies. Thus, FulbrightHays programs further one of the

Agency’s primary missions: increasing

mutual understanding between

Americans and others through peopleto-people contact. Originally conducted

by the Department of State, oversight of

exchange activities, occurring under the

umbrella of the Exchange Visitor

Program, has been the responsibility of

the Agency since 1978.

The Fulbright-Hays Act sets forth

certain parameters which all exchange

activities must meet. With an eye

towards ensuring that these parameters

were being met and acting in response

to a Congressional request, the General

Accounting Office (‘‘GAO’’) investigated

Agency oversight and administration of

the Exchange Visitor Program and its

attendant utilization of the J visa. In its

report to Congress, dated February 5,

1990 and entitled ‘‘Inappropriate Uses
8548 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations

of Educational and Cultural Exchange

Visas,’’ the GAO determined that certain

Exchange Visitor Program activities

appeared to be inconsistent with the

statutory grant of authority and its

underlying legislative intent. GAO

summarized its findings, stating:

‘‘Most J visa activities appear to conform to

the intent of the 1961 act. However, GAO

believes that certain activities and programs

in the trainee and international visitor

categories, including the summer student/

travel work, international camp counselor,

and au pair (Child care) programs, are

inconsistent with the legislative intent. GAO

identified instances of participants working

as waiters, cooks, child care providers,

amusement and leisure park workers, and

summer camp counselors. Authorizing J visas

for participants and activities that are not

clearly for educational and cultural purposes

as specified in the act dilute the integrity of

the J visa and obscures the distinction

between the J visa and other visas granted for

work purposes.’’

The concerns raised in the GAO

report had troubled USIA for several

years, especially the au pair program.

Objections to the operation of au pair

programs under the Exchange Visitor

Program and the use of the J visa were

also raised by the Department of Labor,

the Immigration and Naturalization

Service, and, most importantly, USIA’s

congressional committees of

jurisdiction.

In June of 1993, USIA was

approached by the au pair sponsors

conducting these programs to examine

whether the Agency’s past objections to

the continuation of these programs

under the Exchange Visitor Program

could be resolved. The au pair sponsors

were advised that the Agency saw merit

in the programs but had concluded that

it lacked statutory authority to conduct

the programs as then configured. The

Agency’s principal objection to the

program was its lack of a bona fide

educational component sufficient to

meet the statutory requirements of the

Fulbright-Hays Act. A secondary, but

equally compelling, objection was the

program’s failure to comply with the

Fair Labor Standards Act and its

requirements governing the payment of

minimum wage.

The Agency and the au pair sponsors

began earnest discussions involving

how best to regularize the au pair

program in order for it to find a

permanent home at USIA. During the

course of these discussions, several

tragic incidents involving au pair

placements occurred and were widely

reported in the press. Specifically, the

deaths of two infants while in the care

of au pairs and allegations of child

molestation and child pornography

allegedly involving au pairs brought

about Congressional and public scrutiny

of these programs. This scrutiny, in

turn, resulted in Congressional action

which authorized and directed the

Agency to promulgate regulations

governing au pair placements.

Pursuant to this clear directive, the

Agency published, on December 14,

1994, interim final regulations

governing the au pair program that were

both consistent with the provisions of

the Fulbright-Hays Act and which also

provided safeguards for au pair

participants and the American host

families with whom they are placed.

Given the wide popularity of these

programs—and the criticisms of them—

the Agency met with, solicited, and

incorporated the views of the au pair

organizations, interested members of the

public and the views of those

congressional offices possessing

jurisdiction over educational and

cultural exchange programs.

The Agency’s Federal Register

publication of this interim rule with

request for public comment generated

over 3,000 responses from American

families during the thirty day public

comment period. A considerable

number of the comments received had

a remarkably familiar style and theme,

and focused primarily or exclusively on

two issues: the rise in weekly wage or

stipend paid to au pairs and the

requirement that au pairs taking care of

children under the age of two be at least

21 years of age. Additionally, however,

the Agency received a significant

number of personalized and thoughtful

comments and responses, many which

were highly persuasive. A majority of

the commentators, including a large

number who objected to certain aspects

of the interim final rules, praised the

Agency for efforts to improve screening,

training, and/or other aspects of the au

pair program. The letters also

highlighted that, despite the problems

which have been associated with this

program, many families develop

excellent relations with their au pairs

and make considerable efforts to

advance the cultural and educational

exchange aspects of the program.

Many letters lamented that other

forms of child care were unaffordable.

Some complained about the quality

alternative child care. While the USIA is

pleased that the au pair program

apparently provides considerable direct

benefit to many American families on

the important matter of affordable child

care, the Agency cannot lose sight of the

fact that it has legal authority to operate

the au pair program only if it is

primarily a cultural and educational

exchange program which incidentally

provides child care. If the program

becomes primarily a child care program,

no matter how valuable, it can be legally

maintained as a federal program only if

it is transferred to another agency.

Although a distinct small minority,

some letters criticized the Agency for

virtually any effort to regulate the

program as undue interference into

family activities. While the Agency has

made every effort to ensure that the

regulations are as unburdensome as

possible, it is important to note that

certain regulations are necessary before

the Agency is legally permitted to

operate this program. Additionally,

none of the regulations will affect

individuals involuntarily. The

regulations apply only to families who

voluntarily and deliberately choose to

participate in the au pair program.

In light of the comments it has

received, the Agency has determined

that the interim regulations published

December 14, 1994 should be amended

as follows.

Educational Component

As discussed above, the Agency’s

statutory authority to facilitate au pair

activities has been the subject of debate

for the past eight years. To achieve

compliance with applicable federal law,

taking into account the 1990 GAO

opinion, the interim regulations

required that au pair participants pursue

six semester hours (or its equivalent) of

academic course work at an accredited

post-secondary institution. The Agency

concluded that this requirement is the

minimum programmatic component

necessary to comply with the provisions

of the Fulbright-Hays Act. Without this

requirement the Agency had determined

that it would not have statutory

authority to conduct this activity.

Some responses criticized the Agency

for focusing excessively on traditional

forms of educational activities to meet

the educational exchange requirement.

These critics claimed the Agency failed

to appreciate the degree and caliber of

cultural exchange that results from daily

contact between host families and au

pairs. Contrary to these assertions, the

Agency believes it fully appreciates the

value of the experiences identified by

these commentators. The Agency

recognizes that the family context

provides a unique opportunity for the

host family and au pair to learn about

each other’s cultures and values.

Additionally, one of the clear benefits of

the au pair program is that it provides

many young foreign nationals who

otherwise would not have the

opportunity to participate in an

exchange program a chance to do so.

This recognition does not alleviate the

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,

however. The Agency does agree it

should not impose unnecessary rigidity

into the requirement and adhered to this

principle in drafting the interim

regulations. Accordingly, the Agency

does not amend the regulatory

provisions set forth at 22 CFR 514.31(k).

Moreover, for clarification purposes, it

is not necessary that the course work be

taken for credit so that audit of such

courses is permissible.

Selection, Training and Screening

The au pair program has been

governed for over eight years by

voluntary guidelines issued in 1986.

Because of Congressional enactments in

1988 and 1990, the Agency had been

essentially barred from modifying or

enforcing the guidelines or otherwise

regulating and monitoring the au pair

organizations. Unfortunately, these

guidelines, promulgated for two au pair

organizations under a pilot program

overseeing 300 au pairs annually, was

deficient for a program that had grown

to eight au pair organizations and

10,000 au pairs annually. By the

summer of 1994, a number of high

profile incidents, buttressed by a series

of investigative reports, strongly

suggested that the lack of oversight may

in some instances be jeopardizing the

safety of host family children. Evidence

also was presented that some au pairs

had been mistreated by host family

members. The Agency was equally

disturbed by reports suggesting the

program had been portrayed to host

families as a child care program but to

young potential au pairs as a chance to

see America. Such a disparity in

expectations laid a poor foundation for

either a good exchange experience or for

quality child care. Faced with this

history, and under Congressional

mandate, the Agency developed

regulations which attempted to provide

reasonable confidence that au pairs

assigned to host families had the skills,

experiences and character to meet host

families’ reasonable expectations.

One of the two components of the

interim regulations drawing the most

comments involved the age requirement

for au pairs caring for infant children.

The Agency had specified at 22 CFR

514.31(e)(3) that an au pair providing

such care for a child under the age of

two must be at least twenty-one years of

age. The reason for this requirement was

to attempt to ensure that au pairs

entrusted with infant children had some

degree of maturity and experience. In

imposing this requirement the Agency

recognized that any age limitation was

subjective and inexact; nevertheless, the

Agency had considered the requirement

reasonable given all surrounding

circumstances.

Many who commented provided

persuasive accounts, examples, and

illustrations supporting their beliefs that

a 21 year old rule was unnecessary,

especially in light of the Agency’s six

months of prior child care experience

requirement. These stories helped

convince the Agency that the correlation

between age and maturity was marginal

at best and, as a result, the Agency is

dropping the twenty-one age

requirement.

Another modification is set forth at 22

CFR 514.31(e) (1)–(3). Many comments

were received which questioned the

utility of requiring a parent to remain in

the home for the first week following

the au pair’s arrival. Many suggested

modifications but agreed that some form

of transition was desirable; others

suggested the transition period should

be left entirely to the discretion of the

host family.

The Agency’s reason for imposing

such a requirement was the need to

ensure that the au pair received the

benefit of an adequate transition period

and was comfortable with his or her

new duties, new home, new

community, and new country. The

Agency recognized that a vast majority

of host families would never leave their

infants and other children with an au

pair without an adequate adjustment

period, but concluded that requiring a

reasonable transition period was

essential to the welfare of both the au

pair and the children, especially infants.

In response to the comments received,

the Agency is amending 22 CFR

514.31(e)(1) to allow either a parent or

other responsible adult to assist in this

transition period and also is reducing

the length of such transition from one

week to three days duration. The

Agency has been informed that in many

instances this three day period will

encompass the weekend. This increased

flexibility addresses the concerns raised

by most of these comments but still

provides adequate assurances of a

smooth transition for the au pair. The

Agency rejects those comments

suggesting the transition period should

be left entirely to the discretion of the

host family based upon the Agency’s

experience in these matters which

indicates that a prescribed transition

period is necessary, even if it is a short

one.

The Agency also is amending the

requirement set forth at 22 CFR

514.31(e)(3) to provide for greater

flexibility. Originally, the Agency had

required that au pairs placed with

families having children under the age

of two must have at least six months

documented infant child care

experience. In response to comments

suggesting that ‘‘documented’’ was too

rigid, confusing or otherwise

counterproductive, the Agency is

amending this provision by substituting

the word ‘‘prior’’ for ‘‘documented.’’

In response to documented failures

over past eight years to adequately

screen potential au pair participants, the

Agency set forth at 22 CFR 514.31(d)

specific criteria governing au pair

selection. Based upon comments

received, the Agency is amending 22

CFR 514.31(d)(6) by requiring a

personality profile rather than a

psychological profile for potential au

pair participants. This amendment is

adopted based upon representations

made to the Agency that psychological

testing would be unduly burdensome,

costly and would be ineffective. Au pair

sponsors suggested the substitution of a

‘‘personality’’ profile which they assert

would in fact provide a screening

mechanisms sufficient to ensure the au

pair applicant’s suitability for child care

services. Also set forth in this paragraph

is the requirement that au pair

applicants undergo a criminal record

check. Au pair sponsors and the

Agency’s posts overseas confirm that a

criminal record check as such term is

commonly understood in the United

States is not necessarily available in all

countries. For those countries where

such records are not readily available,

the Agency will accept the recognized

equivalent of a criminal record check for

that country.

Directly related to the screening of au

pair participants is experience and

training. A need for some level of

uniform training for au pair participants

was recognized and supported by the

public comments received by the

Agency. However, the length of this

training was subject to debate. At 22

CFR 514.31(g)(1) the Agency set forth a

requirement that au pair participants

receive not less than 16 hours of child

safety instruction. Based upon

comments received from au pair

sponsors and the American Red Cross,

the Agency is amending this

requirement by reducing the number of

hours of such instruction from 16 to 8.

The regulation is also amended to

permit such training to be given prior to

placement with the host family. This

amendment will permit au pair

sponsors to provide child safety training

in the au pair’s home country if they

choose to do so.

Finally, for the purpose of clarity, the

Agency has determined that

amendments to 22 CFR 514.31(h) are

needed. This regulation sets forth

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

program. Given the educational and

cultural exchange overlay of this

program, criteria for program

participation is necessary. As published,

the interim rule required that all family

members resident in the home be fluent

in spoken English, be personally

interviewed, and have successfully

passed a background investigation. The

Agency is amending this regulation by

substituting ‘‘host parents’’ for ‘‘all

family members’’ based upon comments

received which convinced the Agency

that the change is needed to avoid

confusion and unintended senseless

results.

Placement and Orientation

The Agency has reviewed certain

requirements governing the terms and

conditions of an au pair placement and

has determined that greater flexibility is

both possible and desirable. At 22 CFR

514.31(e)(4) the Agency amends the

interim rule language in order to permit

the host family and au pair the latitude

of establishing flexible work hours. As

amended, this regulation will require

only that the au pair and host family

have signed a written agreement that

outlines the au pair’s obligation to

provide not more than 45 hours of child

care services per week.

A small, but vocal, minority

expressed strong disagreement with the

interim regulations’ nine hour ceiling on

an au pair’s work day. Many of these

commentators apparently failed to

realize that the nine hours per day limit

had been in effect since 1986 and was

not new. Nevertheless, upon

reconsidering this provision, the Agency

has concluded that the 45 hour week

limit, if aggressively enforced, in

conjunction with other oversight

changes, makes the nine hours per day

cap unnecessary. Thus, the Agency

amends 22 CFR 514.31(j)(2) by deleting

the requirement that au pairs provide

not more than nine hours of child care

services per day. The Agency adopts

instead language that will permit the au

pair to provide a ‘‘reasonable’’ number

of hours per day. The Agency does not

define what is reasonable, leaving this

determination to the host family and au

pair in the first instance, working with

the sponsoring au pair organization as

necessary. Given the monthly contact by

organizational representatives, the

Agency is of the belief that the

documented abuses that prompted the

limitation of hours will be prevented.

As a result of striking the nine hour per

day limit, the Agency believes the

program will be opened to potential

host families previously unable to

participate.

Many comments objected to the

requirement that host families and au

pairs attend quarterly conferences or

seminars devoted to cross cultural or

child development issues. Some

comments criticized the number as

excessive, others disagreed with the

nature of the events, and still others

considered any such events as an

intrusive nuisance. The gatherings

suggested by the Agency have been a

traditional hallmark of educational and

cultural exchange programs, and the

Agency does not agree with the

characterization that they are an

intrusive nuisance or otherwise

inappropriate for a cultural and

educational exchange program.

However, based on the comments, the

Agency agrees to amend 22 CFR

514.31(i)(3) to require attendance at one

family day event sponsored by the au

pair organization. Thus, not only are the

number of events reduced, but the

Agency is making clear it did not intend

to prescribe a narrow agenda to the

activity.

Au Pair Employment Status

Much of the criticism of the au pair

program is directly related to the work

component that is an integral part of the

program. Because of this, domestic

nanny services, and others, have long

and loudly objected to these programs.

Critics contend that since 45 hours of

work per week exceeds the traditional

40 hour American work week, it leaves

the au pair insufficient time to either

meet the educational exchange

requirement or truly pursue a cultural

experience. They assert that the program

displaces American workers and

amounts to no more than the import of

cheap foreign labor in the guise of an

educational and cultural exchange

program. While the Agency does not

agree with this characterization, it may

not ignore these claims. Accordingly,

the Agency has been obligated to

examine the question of whether au

pairs are employees subject to the

provisions of the Fair Labor Standards

Act. The Agency has also sought the

views and guidance of the Department

of Labor on this matter. The Department

of Labor has specifically advised the

Agency that an employment

relationship is established. Because the

Department of Labor is the Federal

agency entrusted with regulating labor

laws, including the definition of

employer and employee and

determining when an employment

relationship is established, it is

appropriate for the Agency to defer to

Department of Labor in this area.

Chevron, U.S.A. versus NRDC, 467 U.S.

837 (1984). To assist the public in their

understanding of this matter a short

analysis is set forth.

To fall within the purview of the Fair

Labor Standards Act, 29 U.S.C.S. 202 et

seq, an individual must meet the

threshold requirement of ‘‘employee’’

status. The Act, at 29 U.S.C.S. 203(e)(1)

and (g), defines ‘‘employee’’ as an

individual employed by an employer

and ‘‘employ’’ as to suffer or permit to

work. Three United States Supreme

Court decisions provide the controlling

authority for the determination of

employee status.

In seeking to answer directly the

question of who is an employee, the

Court in Bartels versus Birmingham, 332

U.S. 126 (1947) at page 130 pronounced

that ‘‘in the application of social

legislation employees are those who as

a matter of economic reality are

dependent upon the business to which

they render service.’’ This concept of

‘‘economic reality’’ was first developed

in Rutherford Food Corp. versus

McComb, 331 U.S. 722 (1947) which

has, along with Bartels, been controlling

authority for almost fifty years.

The decision in Goldberg versus

Whitaker House Corp., Inc., 366 U.S. 28

(1961) dictates that determination of an

employee relationship requires review

of the circumstances of the whole

activity. Pursuant to this decision,

pervasive control exercised by the

employer over the work performed is

indicative of employee status.

Application of these judicially

established criteria to the au pair and to

his or her host ‘‘family’’ clearly reveals

an employment relationship.

The most obvious indication of

employment is the inherent financial

basis upon which the relationship is

built. The au pair provides child care

services and currently receives one

hundred dollars per week room and

board. The au pair is dependent upon

her host ‘‘family’’ for her subsistence.

This economic dependence is the

measure of ‘‘economic reality’’ set forth

in the Rutherford and Bartels decisions,

supra. The Agency believes it to be

unlikely that an au pair is going to

uproot his or herself from his or her

home country, travel to the United

States, and provide forty-five hours of

child care per week for someone’s

children without compensation. The au

pair provides a service and expects and

receives payment therefore. Designation

of the wage paid as ‘‘pocket money’’ is

immaterial given that the consideration

for the receipt of the ‘‘pocket money’’ is

the child care services of the au pair.

Pursuant to Rutherford and Bartels, an

au pair is an employee.

A second criterion routinely applied

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

performed. As explained in the

Goldberg decision, supra, pervasive

control exercised by the employer over

the work performed is indicative of an

employment relationship. This concept

of control stems from the English

common law theories of master and

servant.

As applied today, the concept of

control involves the employer setting

the terms and conditions of the

employment, i.e., hours of work,

methods of performing the work, break

times, uniforms, and the designation of

actual duties. The question of control

generally arises in those situations in

which an employer seeks to designate

an employee as an independent

contractor and thereby escapes the

obligations of various labor statutes

such as the Fair Labor Standards Act.

Designation of the au pair as a ‘‘family’’

member would be analogous to this

scenario, when made to avoid the

employer/employee relationship.

An au pair’s relationship to his or her

‘‘family’’ meets the pervasive control

theory of Goldberg. The ‘‘family’’

determines what hours of the day the au

pair will work. The ‘‘family’’ determines

what additional duties may be necessary

for the au pair to perform on a daily

basis. The ‘‘family’’ dictates what the

child, under the care of the au pair, will

eat, when he will play, and when he

will nap. Pursuant to Goldberg, an au

pair is an employee.

Au Pair Wages

The weekly compensation paid to au

pairs generated voluminous comment.

All of the comments received objected

to an increase in the weekly wage or

stipend from the current $100 to $155

per week. Many agreed that a

substantial increase was appropriate,

given that au pairs have been receiving

$100 per week since the inception of the

program in 1986. $120–$130 per week

was the range mentioned most

frequently.

Some of the commentators who

criticized the increase to $155 per week

reprimanded the Agency for promoting

a 55 percent increase, asserting that the

decision reflected an insensitivity to the

needs of American families. The Agency

believes these critics misunderstood the

interim regulations and the purpose for

the formula proposed in those

regulations.

As explained in the interim final

rulemaking published December 14,

1994, the $155 amount was established

by examining Department of Labor

regulations governing the payment of

minimum wage to live-in domestic

employees. The $155 amount reflected

minimum wage less a fixed credit of $36

permitted under current Department of

Labor regulations for room and board.

This regulation, set forth at 29 CFR

552.100 also provides for an alternative

calculation of the credit for room and

board based upon actual cost.

The Agency noted in the interim rule

that the $36 credit was based upon a

regulation published in 1979 and that

the Agency was of the opinion that the

credit should be substantially higher.

The Department of Labor is of the same

opinion as evidenced by its proposed

rule published in the Federal Register

on December 30, 1993 at page 69312. In

this proposed rule the Department of

Labor sought to amend 29 CFR 552.100

to reflect the increase in the cost of

room and board by determining the

permissible credit as a percentage of the

hourly minimum wage. This proposed

rule has not been finalized.

In an attempt to document costs,

certain au pair organizations conducted

a nationwide survey of their host

families to determine the average cost of

room and board provided to au pairs.

While not endorsing the methodology

used in this survey, the Agency is

comfortable with the results presented.

This survey suggests that the average

cost for room and board is

approximately $65 per week. This

survey provides some measure of

objective evidence that the allowance

for room and board is substantially

higher than the 1979 allowance of $36

per week.

As stated, 29 CFR 552.100 provides

two methods for recognizing the cost of

room and board provided live-in

domestic employees. The first method,

which allows a fixed $36 credit is

outdated but still legally applicable. The

second method, which allows for a

deduction against the minimum wage

based on the actual cost of room and

board.

The public comments received have

convinced the Agency that a credit for

room and board based upon actual costs

is preferred by the majority of host

families. However, the programmatic

need for a uniform wage remains. Thus,

in order to balance the preference of

host families against the programmatic

need for a uniform wage, the Agency

will rely on the Department of Labor’s

methodology as set forth in its proposed

rule of December 30, 1993. To this end,

and until this Department of Labor

regulation is adopted as final, the

Agency will permit a credit for room

and board based upon actual cost but

not to exceed $76 per week. Upon

finalization of this Department of Labor

regulation, the Agency will adopt the

fixed credit method and thereby

alleviate the family’s obligation to

maintain records.

The Agency concludes this approach

will allow the weekly wage or stipend

to automatically adjust, using a formula

based on the minimum wage and room

and board costs routinely calculated by

the Department of Labor. The Agency

believes this method is fair to host

families and au pairs, and will ensure

adherence to federal law. Moreover,

once the Department of Labor

regulations are finalized, this approach

will eliminate the need for host families

to keep individualized records.

Additionally, it will not compel the

federal government to expend scarce

resources to regulate or otherwise

oversee this portion of the program.

Based on the comments received and

the above discussions, the Agency is of

the opinion that a weekly stipend or

wage of not less than $115 is consistent

with Fair Labor Standards Act

requirements governing payment of

minimum wage and is appropriate for

the present time.

Other Statutory Considerations

Finally, a question has arisen

regarding the Agency’s statutory

authority to impose a performance

bond. The program guidelines governing

au pair placements for the past eight

years have required that the au pair

participants place with the au pair

sponsor a bond in the amount of five

hundred dollars. This bond was

forfeited if the au pair participant failed

to successfully complete the agreed

upon one year program or failed to

return to their home country.

In discussions with the Department of

Labor regarding payment of minimum

wage, the Agency was advised by the

Department that this bond requirement

was a minimum wage violation. For the

reasons discussed above, under the

Chevron doctrine, deference to

Department of Labor’s interpretation is

appropriate. Additionally the Agency’s

subsequent review of this matter has led

it to conclude that it is without statutory

authority to impose a bond. Pursuant to

provisions of the Immigration and

Naturalization Act set forth at 8 U.S.C.

1184(a) the Attorney General is vested

with authority governing the admission

of aliens into the United States and the

giving of a bond to insure the aliens

maintenance of status and departure

from the United States. The Director of

USIA is without such authority and the

regulatory provision set forth at 22 CFR

514.31(1) requiring a performance bond

is therefore deleted.

List of Subjects in 22 CFR Part 514

Cultural exchange programs.
8552 Federal Register / Vol. 60, No. 31 / Wednesday, February 15, 1995 / Rules and Regulations

Dated: February 8, 1995.

Les Jin,

General Counsel.

Accordingly, the interim rule

amending 22 CFR part 514 which was

published at 59 FR 64296 on December

14, 1994, is adopted as a final rule with

the following change:

PART 514—EXCHANGE VISITOR

PROGRAM

1. The authority citation for part 514

continues to read as follows:

Authority: 8 U.S.C. 1101(a)(15)(J), 1182,

1258; 22 U.S.C. 1431–1442, 2451–2460;

Reorganization Plan No. 2 of 1977, 42 FR

62461, 3 CFR, 1977 Comp. p. 200; E.O. 12048

43 FR 13361, 3 CFR, 1978 Comp. p. 168;

USIA Delegation Order No. 85–5 (50 FR

27393).

2. Part 514 is amended by revising

§ 514.31 to read as follows:

§ 514.31 Au pairs.

(a) Introduction. These regulations

govern Agency-designated exchange

visitor programs under which foreign

nationals are afforded the opportunity to

live with an American host family and

participate directly in the home life of

the host family while providing limited

child care services and attending a U.S.

post-secondary educational institution.

(b) Program designation. The Agency

may, in its sole discretion, designate

bona fide programs satisfying the

objectives set forth in paragraph (a) of

this section. Such designation shall be

for a period of two years and may be

revoked by the Agency for good cause.

(c) Program eligibility. Sponsors

designated by the Agency to conduct au

pair exchange program shall:

(1) Limit the participation of foreign

nationals in such programs to not more

than one year;

(2) Limit the number of hours an au

pair participant is obligated to provide

child care services to not more than 45

hours per week;

(3) Require that the au pair participant

enrolls in a U.S. institution of higher

education for not less than six semester

hours of academic credit or its

equivalent;

(4) Require that all officers,

employees, agents, and volunteers

acting on their behalf are adequately

trained and supervised;

(5) Require that the au pair participant

is placed with a host family within one

hour’s driving time of the home of the

local organizational representative

authorized to act on the sponsor’s behalf

in both routine and emergency matters

arising from the au pair’s participation

in their exchange program;

(6) Require that each local

organizational representative maintain a

schedule of personal monthly contact

(or more frequently as required) with

each au pair and host family for which

he or she is responsible;

(7) Require that local organizational

representatives not devoting their full

time and attention to their program

obligations are responsible for no more

than fifteen au pairs and host families;

and

(8) Require that each local

organizational representative is

provided adequate support services by a

regional organizational representative.

(d) Au pair selection. In addition to

satisfying the requirements of

§ 514.10(a), sponsors shall ensure that

all participants in a designated au pair

exchange program:

(1) Are between the ages of 18 and 26;

(2) Are a secondary school graduate,

or equivalent;

(3) Are proficient in spoken English;

(4) Are capable of fully participating

in the program as evidenced by the

satisfactory completion of a physical;

(5) Have been personally interviewed,

in English, by an organizational

representative; and

(6) Have successfully passed a

background investigation that includes

verification of school, three, non-family

related personal and employment

references, a personality profile and a

criminal record check or its recognized

equivalent.

(e) Au pair placement. Sponsors shall

secure, prior to the au pair’s departure

from the home country, a host family

placement for each participant.

Sponsors shall not:

(1) Place an au pair with a family

unless the family has specifically agreed

that a parent or other responsible adult

will remain in the home for the first

three days following the au pair’s

arrival;

(2) Place an au pair with a family

having a child aged less than three

months unless a parent or other

responsible adult is present in the

home;

(3) Place an au pair with a host family

having children under the age of two,

unless the au pair has at least six

months of prior infant child care

experience;

(4) Place the au pair with a family

unless a written agreement between the

au pair and host family outlining the au

pair’s obligation to provide not more

than 45 hours of child care services per

week has been signed by both; and

(5) Place the au pair with a family

who cannot provide the au pair with a

suitable private bedroom.

(f) Au pair orientation. In addition to

the orientation requirements set forth

herein at § 514.10, all sponsors shall

provide au pairs, prior to their departure

from the home country, with the

following information:

(1) A copy of all operating procedures,

rules, and regulations, including a

grievance process, which govern the au

pair’s participation in the exchange

program;

(2) A detailed profile of the family

and community in which the au pair

will be placed;

(3) A detailed profile of the

educational institutions in the

community where the au pair will be

placed, including the financial cost of

attendance at these institutions; and

(4) A detailed summary of travel

arrangements.

(g) Au pair training. Sponsors shall

provide the au pair participant with

child development and child safety

instruction, as follows:

(1) Prior to placement with the host

family, the au pair participant shall

receive not less than eight hours of child

safety instruction; and

(2) Prior to placement with the

American host family, the au pair

participant shall receive not less than

twenty-four hours of child development

instruction.

(h) Host family selection. Sponsors

shall adequately screen all potential

host families and at a minimum shall:

(1) Require that the host parents are

U.S. citizens or legal permanent

residents;

(2) Require that host parents are fluent

in spoken English;

(3) Require that all adult family

members resident in the home have

been personally interviewed by an

organizational representative;

(4) Require that host parents have

successfully passed a background

investigation including employment

and personal references;

(5) Require that the host family has

adequate financial resources to

undertake hosting obligations; and

(6) Provide a written detailed

summary of the exchange program and

the parameters of their and the au pair’s

duties, participation, and obligations.

(i) Host family orientation. In addition

to the requirements set forth at § 514.10,

sponsors shall:

(1) Inform all host families of the

philosophy, rules, and regulations

governing the sponsor’s exchange

program;

(2) Provide all selected host families

with a copy of Agency-promulgated

Exchange Visitor Program regulations;

(3) Advise all selected host families of

their obligation to attend at least one

family day conference to be sponsored

by their au pair organization during the

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

condition of program participation and

failure to attend will be grounds for

possible termination of their continued

or future program participation; and

(4) Require that the organization’s

local counselor responsible for the au

pair placement contacts the host family

and au pair within forty-eight hours of

the au pair’s arrival and meets, in

person, with the host family and au pair

within two weeks of the au pair’s arrival

at the host family’ home.

(j) Stipend and hours. Sponsors shall

require that au pair participants:

(1) Are compensated at a rate of not

less than $115.00 per week;

(2) Do not provide more than a

reasonable number of hours of child

care on any given day;

(3) Receive a minimum of one and a

half days off per week in addition to one

complete weekend off each month; and

(4) Receive two weeks of paid

vacation.

(k) Educational component. Sponsors

shall require that during the period of

program participation, all au pair

participants are enrolled in an

accredited post-secondary institution for

not less than six hours of academic

credit or its equivalent. As a condition

of program participation, host family

participants must agree to facilitate the

enrollment and attendance of the au

pair and to pay the cost of such

academic course work in an amount not

to exceed $500.

(l) Monitoring. Sponsors shall fully

monitor all au pair exchanges, and at a

minimum shall:

(1) Require monthly personal contact

by the local counselor with each au pair

and host family for which the counselor

is responsible. Counselors shall

maintain a record of this contact;

(2) Require quarterly contact by the

regional counselor with each au pair

and host family for which the counselor

is responsible. Counselors shall

maintain a record of this contact;

(3) Require that all local and regional

counselors are appraised of their

obligation to report unusual or serious

situations or incidents involving either

the au pair or host family; and

(4) Promptly report to the Agency any

incidents involving or alleging a crime

of moral turpitude or violence.

(m) Reporting requirements. Along

with the annual report required by

regulations set forth at § 514.17,

sponsors shall file with the Agency the

following information:

(1) A summation of the results of an

annual survey of all host family and au

pair participants regarding satisfaction

with the program, its strengths and

weaknesses;

(2) A summation of all complaints

regarding host family or au pair

participation in the program, specifying

the nature of the complaint, its

resolution, and whether any unresolved

complaints are outstanding;

(3) A summation of all situations

which resulted in the placement of an

au pair participant with more than one

host family;

(4) A report by a certified public

accountant attesting to the sponsor’s

compliance with the procedures and

reporting requirements set forth in this

subpart;

(5) A report detailing the name of the

au pair, his or her host family

placement, location, and the names of

the local and regional organizational

representatives; and

(6) A complete set of all promotional

materials, brochures, or pamphlets

distributed to either host family or au

pair participants.

(n) Sanctions. In addition to the

sanctions provisions set forth at

§ 514.50, the Agency may undertake

immediate program revocation

procedures upon documented evidence

that a sponsor has failed to:

(1) Comply with the au pair

placement requirements set forth in

paragraph (e) of this section;

(2) Satisfy the selection requirements

for each individual au pair as set forth

in paragraph (d) of this section; and

(3) Enforce and monitor host family’s

compliance with the stipend and hours

requirements set forth in paragraph (j) of

this section.

[FR Doc. 95–3597 Filed 2–14–95; 8:45 am]

BILLING CODE 8230–01–M

DEPARTMENT OF THE INTERIOR

Office of the Secretary

25 CFR Chapter VI

RIN 1076–AD19

Tribal Self-Governance Program

Selection Criteria

AGENCY: Office of Self-Governance,

Office of the Secretary, Interior

ACTION: Interim rule.

SUMMARY: In this interim rule, the Office

of Self-Governance (OSG) announces

the criteria for tribes to be included in

an applicant pool and the establishment

of the selection process for tribes to

negotiate agreements pursuant to the

Tribal Self-Governance Act of 1994.

DATES: Effective date of this interim rule

is February 15, 1995. Written comments

concerning this rule must be received

on or before April 17, 1995. The closing

date for submission of complete

application packages for consideration

for negotiations in 1996 is May 16, 1995.

No application package will be dated as

received before March 17, 1995.

Applications requesting to be

included in the applicant pool may be

submitted at any time. All tribes

wishing to be considered for

participation in FY 1996 must respond

to this announcement, except for those

which are (1) currently involved with

negotiations with the Department or (2)

one of the 29 tribes with signed

agreements in the Demonstration

Project.

ADDRESSES: Written comments

concerning this rulemaking should be

sent to Director, Office of SelfGovernance, U.S. Department of the

Interior, 1849 C Street NW., Mail Stop

2548, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

Verner V. Duus, U.S. Department of the

Interior, Office of Self-Governance, 1849

C Street NW., Mail Stop 2548,

Washington, DC 20240, 202–219–0240.

SUPPLEMENTARY INFORMATION:

Justification for Interim Rule

Implementation of this rule is not

rulemaking subject to the provisions of

section 553 of the Administrative

Procedure Act (5 U.S.C. 551, et seq.)

(APA). Section 553(a)(2) excepts from

the scope of rulemaking rules ‘‘relating

to agency management or personnel or

to public property, loans, grants,

benefits, or contracts.’’

Even if this rule were considered

rulemaking subject to the provisions of

section 553 of the APA, good cause

exists to publish this interim rule

without prior opportunity for public

comment for the following reasons.

Section 553 outlines the following

rulemaking steps: (1) Publication of a

notice of proposed rulemaking, (2)

solicitation of public comment on the

proposed rule, (3) review of comments

received prior to developing the final

rule, and (4) publication of the final rule

30 days prior to the effective date. Using

this process at this time would not serve

the goal of the Tribal Self-Governance

Act of 1994, which is to expand tribal

participation in the Self-Governance

Program, because the process would

delay selection of new participating

tribes for FY 1996. Under the Tribal

Self-Governance Act of 1994, the

Secretary may select up to 20 additional

participating tribes for the Tribal SelfGovernance Program, and negotiate and

enter into an annual written funding

agreement with each participating tribe.

The Act mandates that the Secretary