USIA Interim Final Rule with Requirements For Au Pair Participants
[Rules and Regulations]
[Page 34632-34634]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn97-14]
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UNITED STATES INFORMATION AGENCY
22 CFR Part 514
Exchange Visitor Program
AGENCY: United States Information Agency.
ACTION: Interim final rule with request for comment.
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SUMMARY: The Agency is amending existing regulations in order to enhance the Agency's oversight of au pair programs. These amendments provide additional specificity to existing regulations that will facilitate consistent compliance with programmatic requirements. Specifically, these amendments will further define the selection and screening requirements for au pair participants and require that the participant attend rather than merely enroll for six hours of academic credit. Further, the number of hours an au pair may provide child care services is limited to no more than 10 hours per day and forty-five in any given week.
DATES: This rule is effective September 1, 1997. Written comments regarding this rule will be accepted July 28, 1997.
ADDRESSES: Comments regarding this rule must be presented in duplicate and addressed as follows: United States Information Agency, Office of the General Counsel, Rulemaking 210, 301 4th Street, SW., Washington, DC 20547.
FOR FURTHER INFORMATION CONTACT: Exchange Visitor Program Services, Program Designation Branch, United States Information Agency, 301 4th Street, SW., Washington, DC 20547; Telephone (202) 401-9810.
SUPPLEMENTARY INFORMATION: In consultation with the eight sponsors designated by the Agency to conduct au pair programs, the Agency is amending the regulations that govern the administration of au pair programs. These regulations were adopted February 15, 1995 (60 FR 8547) following an extensive public comment period that generated more than 3,000 public comments. As is often the case in the promulgation of regulations governing a program-based activity such as the au pair program, the need for further sepcificity regarding regulatory implementation and compliance has arisen. Accordingly, the Agency has worked with the eight designated sponsors to amend these regulations to provide such additional specificity.
First, the Agency is amending the existing requirement set forth at 22 CFR 514.31(c)(3) to ensure that au pair participants attend rather than merely enroll for six hours of academic credit at an institution of higher education. The requirement that au pair participants pursue academic course work is considered to be the foundation underlying the au pair program. This requirement ensures that the young adults participating in this program are engaged in activities other than child care and provides the opportunity for the au pair to interact with persons their own age and gain further insight regarding the United States and its people.
Secondly, the Agency is amending the requirements governing the selection and placement of au pair participants set forth at 22 CFR 514.31(d) and (h) in order to enhance the ability of an au pair host family to more actively participate in the selection of the au pair participant that the family will host. A report by the organizational representative interviewing the au pair participant will be provided to the host family. With this information and the references also provided to the host family, such family may develop a more informed opinion regarding the au pair participant's potential compatibility with the family. The Agency anticipates that host families may contact the listed references as they deem appropriate. Further, amendment of this regulation will more clearly define the requirement that an au pair participant successfully pass a personality profile. This amendment will require that the au pair successfully complete a personality profile based on a psychometric test that measures the differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.
In concert with these changes that will assist the host family in selecting an au pair, the Agency is also introducing requirements set forth at 22 CFR 514.31 (f) and (i) that will require au pair sponsors to provide all host families and au pair participants with a statement from the Agency regarding the au pair program itself. The Agency believes that the few complaints that arise from this program are often related to the lack of a full and complete understanding of the program by either the host family or the au pair. By providing a statement from the Agency that sets forth an overview of the program, the Agency is of the opinion that many conflicts between the au pair, the sponsoring organization, and the au pair will be avoided.
The Agency has also reviewed the training and experience requirements for au pair participants and amends 22 CFR 514.31 (e), (f) and (g) to enhance and clarify such requirements. To this end, au pair participants that will care for children under the age of two must have no less than 200 hours of documented infant child care experience. This experience must involve the direct care and supervision of infant children. Further, au pairs will receive, prior to departure from their home country, a pre-departure package that both clearly describes their prospective child care responsibilities and enumerates unacceptable behavior. Au pairs will continue to receive not less than eight hours of child safety instruction and not less than twenty-four hours of child development instruction. The Agency is, however, amending this requirement to specifically require that no less than four hours of the child safety instruction be infant related and that not less than four of the twenty-four hours of child development instruction be devoted to training for the care of children under the age of two. Child safety instruction shall be provided by the American Red
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Cross or other recognized experts in the field of safety instruction. The child development instruction is expected to include topics such as stress management and Shaken Baby Syndrome.
Finally, the Agency is amending 22 CFR 514.31(j) which governs an au pair's wages and hours. The United States Department of Labor has determined that au pair participants are covered under the provisions of the Fair Labor Standards Act and therefore must receive federal minimum wage. The Agency is amending this regulation to ensure that there is no future confusion regarding the payment of minimum wage. Finally, this regulation is amended to specify that an au pair may not provide more than 10 hours of child care on any given day or more than 45 hours of child care in any given week. This specific provision amends the existing requirement that an au pair not provide more than a reasonable number of hours per day. Amendment is necessary based upon the Agency's experience that indicates the existing standard is subject to abuse and a source of dispute.
Comment
The Agency invites comments regarding this interim final rule notwithstanding the fact that it is under no legal requirement to do so. The oversight and administration of the Exchange Visitor Program are deemed to be a foreign affairs function of the Untied States Government. The Administrative Procedures Act, 5 U.S.C. 553(a)(1) (1989), specifically exempts foreign affairs functions from the rulemaking requirements of the Act.
The Agency will accept comments for 30 days following publication of this interim final rule. A final rule will be adopted following Agency review of all comments received.
In accordance with 5 U.S.C. 605(b), the Agency certifies that this rule does not have a significant adverse economic impact on a substantial number of small entities. This rule is not considered to be a major rule within the meaning of section 1(b) of E.O. 12291, nor does it have federal implications warranting the preparation of a Federalism Assessment in accordance with E.O. 12612.
List of Subjects in 22 CFR Part 514
Cultural exchange programs.
Dated: June 23, 1997.Les Jin,
General Counsel.
Accordingly, 22 CFR part 514 is amended as follows:
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. Section 514.31 is amended by revising paragraphs (c), (d), (e), (f), (g), (h) and (j) to read as follows:
Sec. 514.31 Au pairs.
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(c) Program eligibility. Sponsors designated by the Agency to conduct an 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 register and attend classes offered by an accredited U.S. post-secondary institution 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 record of all personal monthly contacts (or more frequently as required) with each au pair and host family for which he or she is responsible and issues or problems discussed;
(7) Require that all local organizational representatives contact au pair participants and host families twice monthly for the first two months following a placement other than the initial placement for which the au pair entered the United States.
(8) 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
(9) 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 Sec. 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 who shall prepare a report of the interview which shall be provided to the host family; and
(6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background check or its recognized equivalent and a personality profile. Such personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.
(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 200 hours of documented 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 Sec. 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, grievance
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procedures, and the Agency's written statement regarding the au pair program which govern the au pair's participation in the exchange program;
(2) 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;
(4) A detailed summary of travel arrangements; and
(5) A complete and thorough pre-departure package clearly describing child care responsibilities and expectations and enumerating behavior that is unacceptable.
(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 no less than 4 of which shall be infant-related; 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 of which no less than 4 shall be devoted to specific training for children under the age of two.
(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 character references;
(5) Require that the host family has adequate financial resources to undertake all hosting obligations;
(6) Provide a written detailed summary of the exchange program and the parameters of their and the au pair's duties, participation, and obligations; and
(7) Provide the host family with the prospective au pair participant's complete application, including all references.
(i) Host family orientation. In addition to the requirements set forth at Sec. 514.10 sponsors shall:
(1) Inform all host families of the philosophy, rules, and regulations governing the sponsor's exchange program and provide all families with a copy of the Agency's written statement regarding the au pair program;
(2) Provide all selected host families with a complete copy of Agency-promulgated Exchange Visitor Program regulations including the published supplemental information;
(3) Advise all selected host families of their obligation to attend at least one family day conference to be sponsored by the au pair organization during the course of the placement year. Host family attendance at such a 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) Wages and hours. Sponsors shall require that au pair participants:
(1) Are compensated at a weekly rate based upon 45 hours per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor;
(2) Do not provide more than 10 hours of child care on any given day, nor more than 45 hours of child care in any one week;
(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.
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[FR Doc. 97-16909 Filed 6-26-97; 8:45 am]BILLING CODE 8230-01-M