[Federal Register Volume 59, Number 92 (Friday, May 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9946]


[[Page Unknown]]

[Federal Register: May 13, 1994]


_______________________________________________________________________

Part II





Department of Labor





_______________________________________________________________________



Wage and Hour Division



_______________________________________________________________________



29 CFR Part 570




Child Labor Regulations, Orders and Statements of Interpretation; 
Proposed Rules
DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 570

RIN 1215-AA89

 
Child Labor Regulations, Orders and Statements of Interpretation

AGENCY: Wage and Hour Division, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of Labor (Department or DOL) is proposing 
revisions in subpart C (Child Labor Reg. No. 3) to provide an exception 
from the permissible hours and time standards for minors 14 and 15 
years of age when employed as attendants in professional sports. The 
proposed exception limits such employment to outside school hours and 
to duties customarily performed by typical sports attendants (e.g., 
batboys/girls, ballboys/girls, etc.). Technical modifications are 
proposed in the procedure for obtaining occupational variations for 14- 
and 15-year-olds enrolled in Work Experience and Career Exploration 
Programs. Among other revisions to update these regulations, the 
Department is also proposing to delete the procedures relating to 
hazardous occupation determinations in Subpart D (Child Labor Reg. 5), 
which, for the most part, have been replaced by the notice-and-comment 
requirements of the Administrative Procedure Act.

DATES: Comments are due on or before July 12, 1994.

ADDRESSES: Submit written comments to the Administrator, Wage and Hour 
Division, U.S. Department of Labor, room S3506, 200 Constitution 
Avenue, NW., Washington, DC 20210, Attention: J. Dean Speer, Director, 
Division of Policy and Analysis. Commenters who wish to receive 
notification of receipt of comments are requested to include a self-
addressed, stamped post card, or to submit them by certified mail, 
return receipt requested. As a convenience to commenters, comments may 
be transmitted by facsimile (``FAX'') machine to (202) 219-5122 (this 
is not a toll-free number). If transmitted by facsimile and a hard copy 
is also submitted by mail, please indicate on the hard copy that it is 
a duplicate copy of the facsimile transmission.

FOR FURTHER INFORMATION CONTACT: J. Dean Speer, Director, Division of 
Policy and Analysis, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, room S-3506, 200 Constitution 
Avenue, NW. Washington, DC 20210. Telephone (202) 219-8412. This is not 
a toll free number.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

    The proposed rules contain no reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act of 1980 (Pub. L. 
96-511). The information collection requirements contained in 
Sec. 570.35a, which are not modified by this proposal, were previously 
approved by the Office of Management and Budget under OMB control 
number 1215-0121. The general FLSA information collection requirements 
(including requirements contained in part 570) were approved by the 
Office of Management and Budget under the control number 1215-0017.

II. Background

    The child labor provisions of the Fair Labor Standards Act (FLSA) 
establish a minimum age of 14 years for employment in most 
nonagricultural occupations. The Secretary of Labor is authorized to 
provide by regulation for the employment of young workers 14 and 15 
years of age in suitable occupations other than manufacturing or 
mining, and during periods and under conditions which will not 
interfere with their schooling or with their health and well-being. 
These provisions also permit 16- and 17-year- old minors to be employed 
in the nonagricultural sector, without hours or time limitations, 
subject to prohibitions on occupations found and declared by the 
Secretary of Labor to be particularly hazardous, or detrimental to the 
health or well-being of minors under age 18. In agriculture, minors 14 
and older may be engaged in general employment, subject to prohibitions 
on occupations declared particularly hazardous by the Secretary of 
Labor. Additionally, in agriculture 12- and 13-year-olds may be 
employed with written parental consent or on a farm where the minor's 
parent is also employed. Under very limited waiver conditions, 10- and 
11-year-olds may be employed outside of school hours in agriculture as 
hand harvesters of short season crops for a maximum annual period of 
eight weeks.
    The regulations for 14-and 15-year-olds are known as Child Labor 
Regulation No. 3 (Reg. 3) and are contained in subpart C of 29 CFR Part 
570. Reg. 3, as amended, limits the hours that 14- and 15-year-olds may 
work to:
    (1) Outside school hours;
    (2) Not more than 40 hours in any one week when school is not in 
session;
    (3) Not more than 18 hours in any one week when school is in 
session;
    (4) Not more than 8 hours in any day when school is not in session;
    (5) Not more than 3 hours in any day when school is in session; and
    (6) Between 7 a.m. and 7 p.m.; except during the summer (June 1 
through Labor Day) when the evening hour is extended to 9 p.m.
    Summer school sessions are considered to be ``outside school 
hours,'' i.e., nonschool weeks. Also, 14- and 15-year-olds enrolled in 
a State-approved, school-supervised Work Experience and Career 
Exploration Program (WECEP) may be employed for up to 23 hours in 
school weeks, 3 hours on school days, and during school hours.
    Child Labor Reg. 3 permits work by 14- and 15-year-olds in certain 
occupations in retail, food service, and gasoline service 
establishments, and prohibits their employment in certain other work, 
including work prohibited by hazardous occupational orders.
    The Department is proposing an exception from the above permissible 
hours and time standards for 14- and 15-year-olds employed as 
attendants in professional sports. The Department suspended enforcement 
of the child labor regulations as applied to batboys/girls employed in 
professional baseball during the 1993 baseball season, and subsequently 
extended the policy to attendants in other professional sports while 
reviewing such employment under the child labor regulations.
    During 1986 and 1987, the Department conducted a study at the 
request of the Congress\1\ to determine whether a change in the 
permissible hours of employment for batboys and batgirls would be 
detrimental to their well-being and whether any changes to existing 
standards should be proposed. The Department concluded that changes in 
permissible hours and time standards for batboy/girl work would not be 
detrimental to their health and well-being. The Department surveyed 157 
professional league baseball teams and conducted selected on-site 
interviews with parents, teachers, team owners, and batboys/girls and 
found that youths genuinely enjoyed the experience. The Department 
could find no evidence that school grades were adversely affected by 
such work. The Department also advised the Congress that regulatory 
modifications, rather than legislative change, would be the best 
vehicle to address the matter of permissible hours for batboys/girls.
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    \1\See section 801, Public Law 99-425 (September 30, 1986).
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    The Department's Child Labor Advisory Committee (CLAC), established 
in 1987 to provide advice and guidance in the development of possible 
proposals to change existing standards, recommended that existing hours 
and time of work standards be retained for 14- and 15-year-olds 
employed as sports attendants, including batboys/girls; and that the 
work performed in such activity be limited to traditional duties, i.e., 
putting out and taking in field equipment, running errands for players, 
and supplying the umpire with balls. While the Committee's advisory 
view was taken into consideration, the Department also continued to 
consider other pertinent information, including inquiries received from 
interested parties concerning the employment of youth in sports-related 
activities, such as scorekeepers, concession stand helpers, ball 
monitors and sideline officials. One inquiry concerned conforming the 
Federal child labor regulations to a State of Wisconsin provision which 
permits youths under age 14 to be employed by high schools as ball 
monitors and sideline officials at football games. Another was received 
from the Grant County (Kansas) Recreation Commission concerning 14- and 
15-year-olds employed as scorekeepers and concession stand helpers in 
summer softball, baseball, and other sports programs. Also, the 
National Association of Professional Baseball Leagues, Inc. (NAPBL) 
petitioned\2\ the Department in June 1993 to revise the regulation to 
permit the employment of 14- and 15-year-olds as batboys for 
professional baseball clubs. According to the NAPBL, existing hours and 
time-of-day standards effectively preclude baseball teams from lawfully 
employing youth under the age of 16. The NAPBL contended further that 
such employment is not adverse to the health and well-being of youth 
and that the denial of the batboy/girl experience is inconsistent with 
the intent of the FLSA's child labor provisions.
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    \2\Section 570.38 of the regulations provides that persons 
desiring revisions of subpart C of part 570 may submit in writing to 
the Secretary of Labor a petition setting forth the changes desired 
and the reasons for proposing them. In response, the Secretary may 
either schedule hearings or make other provision for affording 
interested parties an opportunity to be heard.
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    Some employers are covered by all of FLSA's provisions, while 
others are covered by the FLSA but may be exempt from its minimum wage 
and overtime provisions though not its child labor provisions.\3\ Other 
employers that are not covered by the FLSA are subject to varying State 
child labor requirements. The practice of providing sport-attendant 
experiences to America's youth is a longstanding tradition. As a 
consequence, many professional and semi-professional sports teams, 
i.e., baseball, basketball, etc., have violated Federal child labor 
regulations by employing underage youth, particularly 14- and 15-year-
olds, as sports-attendants.
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    \3\For example, section 13(a)(3) of the FLSA exempts any 
employee employed by an amusement or recreational establishment from 
the minimum wage (section 6) and overtime (section 7) provisions of 
the Act, but not from the child labor provisions (section 12), if 
the establishment does not operate for more than seven months in any 
calendar year, or if during the preceding calendar year the 
establishment's average receipts for any six months were not more 
than 33\1/2\ percent of its average receipts for the other six 
months.
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    The Department believes that a change in the existing Federal hours 
and times standards to allow employment of 14- and 15-year-olds as 
batboys/girls, ballboys/girls, or in other sports-attendant capacities 
would not be inconsistent with FLSA's oppressive child labor provisions 
and, therefore, proposes a narrow exception from the requirements of 
Child Labor Reg. 3 for such work. Specifically, the proposed exception 
is limited to employment by professional sports organizations and would 
apply only if the duties performed are traditional in nature and the 
work is outside regular school hours. Thus, the current restrictions 
when school is in session, i.e, 3-hour daily limit, 18-hour weekly 
limit, and 7 p.m. end-of-day time restriction, and the current 9 p.m. 
end-of-day time restriction when school in not in session would not 
apply to 14- and 15-year-old sports-attendants.
    The Department recognizes that a delicate balance exists between 
the value of jobs that provide positive, formative experiences, and the 
possible negative effects that excessive employment of youth can have 
on their academic performance and their health and well-being. The 
Department believes that the proposed change for 14- and 15-year-olds 
in sports attending activities will not have an adverse effect on their 
health, well-being, or educational development. Further, the Department 
believes that the employment opportunities for 14- and 15-year-olds as 
provided herein is consistent with the purpose of the FLSA to permit 
safe and healthy employment opportunities under conditions which 
protect the health, well-being, and schooling of such young workers. 
See 29 U.S.C. 203(l).
    In addition, the Department proposes to delete the regulations at 
29 CFR part 570, subpart D (Child Labor Reg. 5). These regulations 
provide a procedure for the Secretary to promulgate or amend hazardous 
occupation orders (HOs), which identify occupations in which employment 
of minors under 18 years of age is prohibited because the Secretary, 
pursuant to section 3(l) of the Act, has determined that the 
occupations are particularly hazardous for such workers or detrimental 
to their health or well-being. The Department proposes to repeal Child 
Labor Reg. 5, because its procedural requirements are no longer 
necessary, and because the continued existence of the regulation poses 
the potential for confusion regarding the process to be utilized by the 
Secretary in the review, amendment, and promulgation of HOs.
    Child Labor Reg. 5 was promulgated in 1938, immediately after the 
enactment of the FLSA (3 FR 2640 (1938)). Although neither the FLSA nor 
other laws required such procedures, the Children's Bureau, which at 
that time was charged with administration of the FLSA child labor 
provisions, prescribed the process so that the public would be informed 
of the Department's intentions regarding the creation or amendment of 
restrictions on the employment of minors in hazardous occupations. The 
original Child Labor Reg. 5 identified certain mandatory steps, 
including public hearings, to be taken in HO promulgation. The 
Congress, however, imposed a standardized procedure in 1946 for all 
Federal agencies to follow when issuing or amending regulations. The 
procedures in this law, the Administrative Procedure Act (APA), 60 
Stat. 237, provide greater administrative flexibility than the process 
in Child Labor Reg. 5, in that, for example, the APA does not mandate a 
public hearing in every case prior to promulgation of a regulation. 
There have been no changes to Child Labor Reg. 5 except for a technical 
amendment in 1961 (26 FR 5005 (1961)) to more align the HO process with 
APA requirements, i.e., hearings were identified among various optional 
steps which the Department could utilize.
    It is the Department's view that Child Labor Reg. 5 is no longer 
necessary. The procedures set out in this regulation are not 
substantively different from the APA requirements which control DOL 
rulemaking, including promulgation of HOs. While the optional steps 
identified in the regulation are matters which the Department may 
choose to undertake in the promulgation of particular HOs, these 
steps--involving study, drafting, examination, and review of options 
and standards--are integral parts of the Department's deliberative, 
policy-making process and, thus, they need not and should not be set 
out in detail in regulations. Further, it is the Department's view that 
the regulation potentially creates confusion in that the Child Labor 
Reg. 5 procedures may be viewed incorrectly as mandatory steps for 
promulgation of HOs. The proposed repeal of Child Labor Reg. 5 will 
eliminate the possibility of confusion.
    The Department is also proposing a technical modification in the 
regulations that is considered necessary and appropriate in connection 
with the Work Experience and Career Exploration Program (WECEP) to 
facilitate applications for certification under this program. Section 
570.35a of the regulations provides for the employment of 14- and 15-
year-olds in a State-approved, school-supervised Work Experience and 
Career Exploration Program (WECEP).\4\ A condition for approval of such 
programs is that they provide sufficient safeguards to ensure that the 
employment will not interfere with the schooling of the minors or with 
their health and well-being. Enrollees in approved WECEPs may be 
employed for up to 23 hours in school weeks, 3 hours on school days, 
and during school hours, in occupations other than:
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    \4\Twelve States have Departmental approval to operate WECEP 
programs in the 1992-94 school years.
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    (1) Those in manufacturing and mining;
    (2) Those declared to be hazardous for the employment of minors 
under 18 years of age (set forth in subpart E of the regulations); or
    (3) Those declared to be hazardous for employment of minors below 
the age of 16 in agriculture (set forth in subpart E-1 of the 
regulations).
    The regulations at Sec. 570.35a(c)(3) allow the Administrator of 
the Wage and Hour Division to approve a variance from the prohibited 
occupations in individual cases or classes of cases after notice to 
interested parties and an opportunity to furnish views. In State 
Educational Agency applications for WECEP program approval and requests 
for variances from the Reg. 3 occupations restrictions in those 
programs pursuant to Sec. 570.35a(c)(3), the Department has 
consistently approved variances for particular activities which, within 
the operation of programs that meet all the WECEP criteria, have been 
determined by the Department not to interfere with the health and well-
being of the 14- and 15-year-olds enrolled in the programs. To provide 
pertinent guidance to the State Educational Agencies and other 
interested parties, the Department proposes to amend the WECEP 
regulations to specify that the following activities will be ordinarily 
considered to be acceptable for participants in approved WECEP 
programs:

(1) Using a deep fryer or cooking at a grill with a maximum 
temperature of 375 degrees;
(2) Operating power-driven mowers, weed-eaters, trimmers and whips 
with nylon string only;
(3) Retrieving and/or placing food in coolers/freezers;
(4) Loading and unloading goods weighing up to 30 lbs. provided that 
such work does not exceed 30 percent of the minor's weekly hours 
worked; and
(5) Operating noncommercial dishwashers.

    In effect, the revised WECEP regulations would contain a limited 
exception to the Reg. 3 occupations restrictions for WECEP participants 
engaged in the specified activities. Further, in order to preserve the 
Department's discretion to modify the Reg. 3 restrictions in special 
circumstances where a WECEP program applicant can demonstrate that the 
program will provide safe and suitable employment, the WECEP regulation 
will continue to contain a provision for obtaining variances from 
occupational restrictions similar to variance procedures under other 
programs administered by the Department's Wage and Hour Division, e.g., 
see Sec. 5.14 of 29 CFR part 5 (Davis-Bacon and Related Acts) and 
Sec. 4.123 of 29 CFR part 4 (McNamara-O'Hara Service Contract Act).
    In addition, the Department is proposing to delete the exception 
contained in Sec. 570.35(b) for enrollees in work training programs 
conducted under the Economic Opportunity Act of 1964. This Act has been 
repealed and the exception is no longer appropriate.

Executive Order 12866

    The Department believes that this proposed rule is not a 
``significant regulatory action'' within the meaning of Executive Order 
12866. It proposes to change the permissible hours and time standards 
to permit greater flexibility in the employment of 14- and 15-year-olds 
as professional sports attendants. While the changes proposed are 
expected to enhance opportunities for employment, the impact on overall 
employment levels of 14- and 15-year-olds is modest. Other proposed 
changes are technical in nature and are expected to have only a minor 
impact on the employment of 14- and 15-year-olds. Accordingly, these 
changes are not expected to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866. Therefore, no regulatory impact analysis has 
been prepared.

Regulatory Flexibility Analysis

    The Department has determined that the proposed rule will not have 
a significant economic impact on a substantial number of small 
entities. The proposed change to provide an exception from the 
permissible hours and time standards for minors 14 and 15 years of age 
when employed as attendants in professional sports has narrow 
application and will affect only a limited number of employers of which 
some may be considered small entities. Although the other technical 
changes may affect small entities, the impact is believed to be 
insignificant. For these reasons, the Department believes that the 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. The Secretary of Labor has 
certified to this effect to the Chief Counsel for Advocacy of the Small 
Business Administration. Therefore, no regulatory flexibility analysis 
is required.

Document Preparation

    This document was prepared under the direction and control of Maria 
Echaveste, Administrator, Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 570

    Child labor, Child labor occupations, Employment, Government, 
Intergovernmental relations, Investigations, Labor, Law enforcement, 
Minimum age.
    Accordingly, 29 CFR part 570 of the Code of Federal Regulations is 
proposed to be amended as set forth below.

    Signed at Washington, DC., on this 4th day of May 1994.
Robert B. Reich,
Secretary of Labor.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
Maria Echaveste,
Administrator, Wage and Hour Division.

PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF 
INTERPRETATION

    1. The authority citation for part 570 continues to read as 
follows:

    Authority: Secs. 3, 11, 12, 52 Stat. 1060, as amended, 1066, as 
amended, 1067, as amended; 29 U.S.C. 203, 211, 212.

Subpart C--Employment of Minors Between 14 and 16 Years of Age 
(Child Labor Reg. 3)

    2. In Sec. 570.35 of subpart C, paragraph (b) is proposed to be 
revised to read as follows:


Sec. 570.35  Periods and conditions of employment.

* * * * *
    (b) In the case of minors 14 and 15 years of age who are employed 
to perform sports-attending services at professional sporting events, 
i.e., baseball, basketball, football, soccer, tennis, etc., the 
requirements of paragraphs (a)(2) through (a)(6) of this section shall 
not apply, provided that the duties of the sports-attendant occupation 
consist of pre- and post-game or practice setup of balls, items and 
equipment; supplying and retrieving balls, items and equipment during a 
sporting event; clearing the field or court of debris, moisture, etc. 
during play; providing ice, drinks, towels, etc., to players during 
play; running errands for trainers, managers, coaches, and players 
before, during, and after a sporting event; and returning and/or 
storing balls, items and equipment in club house or locker room after a 
sporting event. For purposes of this exception, impermissible duties 
include grounds or field maintenance such as grass mowing, spreading or 
rolling tarpaulins used to cover playing areas, etc.; cleaning and 
repairing equipment; cleaning locker rooms, showers, lavatories, rest 
rooms, team vehicles, club houses, dugouts or similar facilities; 
loading and unloading balls, items, and equipment from team vehicles 
before and after a sporting event; doing laundry; and working in 
concession stands or other selling and promotional activities.

    3. Section 570.35a(c)(3) of subpart C is proposed to be revised to 
read as follows:


Sec. 570.35a  Work experience and career exploration programs.

* * * * *
    (c) * * *

    (3) Occupations other than those permitted under Secs. 570.33 and 
570.34, except ordinarily for the following if expressly identified in 
the program application:

    (i) Using a deep fryer or cooking at a grill with a maximum 
temperature of 375 degrees;

    (ii) Operating power-driven mowers, weed-eaters, trimmers and whips 
with nylon string only;

    (iii) Retrieving and/or placing food in coolers/freezers;

    (iv) Loading and unloading goods weighing up to 30 lbs. provided 
that such work does not exceed 30 percent of the weekly hours worked; 
and (v) Operating noncommercial dishwashers. Employment in other 
activities may be approved by the Administrator of the Wage and Hour 
Division in acting on the program application if the Administrator 
finds that the applicant has demonstrated that the terms and conditions 
of the proposed employment will not be particularly hazardous or 
detrimental to the health or well-being of the minor enrolled in an 
approved program.
* * * * *

Subpart D--[Removed and Reserved]

    4. Subpart D, consisting of Secs. 570.41 through 570.49, is 
proposed to be removed and reserved.

[FR Doc. 94-9946 Filed 5-12-94; 8:45 am]

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