[Federal Register Volume 60, Number 73 (Monday, April 17, 1995)]
[Rules and Regulations]
[Pages 19336-19339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9328]




[[Page 19335]]

_______________________________________________________________________

Part II





Department of Labor





_______________________________________________________________________



Employment Standards Administration



Wage and Hour Division



_______________________________________________________________________



29 CFR Part 570



Child Labor Regulations, Orders and Statements of Interpretation; Final 
Rule

  Federal Register / Vol. 60, No. 73 / Monday, April 17, 1995 / Rules 
and Regulations   
[[Page 19336]] 

DEPARTMENT OF LABOR

Employment Standards Administration
Wage and Hour Division

29 CFR Part 570

RIN 1215-AA89


Child Labor Regulations, Orders and Statements of Interpretation

AGENCY: Wage and Hour Division, Employment Standards Administration, 
Labor.

ACTION: Final rule.

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SUMMARY: This document revises 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, and to change the procedure for obtaining 
occupational variances for 14- and 15-year-olds enrolled in Work 
Experience and Career Exploration Programs. Other revisions to update 
these regulations delete the exception contained in Sec. 570.35(b) for 
enrollees in work training programs conducted under the Economic 
Opportunity Act of 1964, which has been repealed, and the procedures 
relating to hazardous occupation determinations in Subpart D (Child 
Labor Reg. 5), which have been made obsolete by the Administrative 
Procedure Act (APA), 60 Stat. 237.

EFFECTIVE DATE: This rule is effective May 17, 1995.

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, N.W. Washington, D.C. 20210. Telephone (202) 219-8412. This is 
not a toll free number.

SUPPLEMENTARY INFORMATION

I. Paperwork Reduction Act

    These rules contain no reporting or recordkeeping requirements 
subject to the Paperwork Reduction Act of 1980 (Pub. L. 96-511). The 
information collection requirements contained Sec. 570.35a were 
previously approved by the Office of Management and Budget under OMB 
control number 1215-0121. While minor revisions are made in the 
procedure in Sec. 570.35a(c)(3) for obtaining a variance from work-
activities otherwise prohibited for 14-and 15-year-olds, the 
information needed by State Education Agencies to support variance 
requests is not materially different under the final rule. 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 Secretary of Labor is authorized by the Fair Labor Standards 
Act (FLSA) to provide by regulation for the employment of young workers 
under age 18. These regulations are contained in 29 CFR part 570. 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.
    The Department published a notice of proposed rulemaking in the 
Federal Register on May 13, 1994 (59 FR 25164) inviting comments until 
July 12, 1994, on an exception from the permissible hours and time 
standards in Child Labor Regulation No. 3 (Reg. 3), subpart C of 29 CFR 
part 570, for 14- and 15-year-olds employed as attendants in 
professional sports. The notice also proposed technical modifications 
in Sec. 570.35a of Reg. 3 to facilitate applications for certification 
under the Work Experience and Career Exploration Program (WECEP); the 
deletion of the exception contained in Sec. 570.35(b) of Reg. 3 for 
enrollees in work training programs conducted under the now repealed 
Economic Opportunity Act of 1964; and the deletion of 29 CFR part 570, 
subpart D (Child Labor Reg. 5) because of the procedures provided by 
the Administrative Procedure Act (APA), 60 Stat. 237.
    A total of 26 comments were received in response to the notice--
from employers, trade and professional associations, advocacy 
organizations, State governments, and others, including the National 
Institute of Occupational Safety and Health (NIOSH).
Summary of Major Comments

I. 14- and 15-Year-Olds Employed as Sports Attendants
    The Secretary proposed a narrow exemption to the Reg. 3 hours and 
time of day regulations so that 14- and 15-year-old minors may work as 
attendants in professional sports. The proposed rule would exempt 14- 
and 15-year-olds performing ``sports-attending services at professional 
sporting events'' from the regulations restricting the hours and time 
of day they may be employed, ``provided that the duties of the sports-
attendant occupation consist of [certain specific sports-related 
duties].'' Based on careful consideration of the comments and other 
available information, the Secretary has determined that such an 
exemption would not be inconsistent with the FLSA's prohibitions 
against oppressive child labor, provided the minors work outside of 
school hours and they perform work that is limited to the traditional 
duties of typical sports attendants, i.e., specifically sports-
connected duties.
    As indicated in the preamble to the Proposed Rule, the Department 
conducted a study of the employment of sports attendants in 
professional baseball during 1986 and 1987. Congress mandated the study 
to determine whether a change in the permissible hours of employment 
for sports attendants would be detrimental to their schooling and 
health and well-being and whether any changes to the existing standards 
should be proposed. The study concluded that changes in the permissible 
hours and time standards for the employment of sports attendants in 
baseball would not interfere with their schooling and their health and 
well-being. The Secretary believes that the results of the study are 
equally applicable to other professional sports.
    The Department received comments from eight minor league 
professional baseball teams supporting the Proposed Rule. These 
organizations stressed the unique and rewarding opportunity that the 
sports-attendant experience offers to young people. In addition, these 
commenters emphasized the benefits to young people of engaging in a 
healthy activity which can be a formative, character building 
experience. As the Fort Myers Miracle Baseball Club stated: ``There is 
no other environment equal to professional sports where a young man or 
woman has a chance to interact with local and national role models in a 
wholesome, family-oriented atmosphere while also being exposed to 
practicalities of the business world.''
    The New York State Education Department concurred with the proposed 
exemption, while emphasizing the importance of having the rule specify 
activities that are acceptable for a sports-attendant to perform, as 
well as those that are impermissible.
    Three advocacy groups (National Consumer League, Child Labor 
Coalition, and National PTA) and a labor organization (Food & Allied 
Service Trades) opposed the proposed rule, based on their concern that 
the increased hours and late time of day would be deleterious to the 
young people's health, safety, and education. The National PTA opposed 
lifting the current 18-hour per week restriction, [[Page 19337]] and 
suggested a case by case evaluation of a student's school attendance 
and academic record in determining whether a young person should work 
long hours. Two of the advocacy groups suggested that the proposed rule 
should be limited to professional baseball.
    Commenters representing the restaurant industry objected to the 
narrow exemption for sports-attendants, asserting it was unfair to 
exempt the sports industry from the hours and time restrictions while 
leaving the restrictions in place for all other employment.
    The Secretary finds that this exemption from the existing hours and 
time of day restrictions to permit 14- and 15-year-olds to work as 
attendants in professional sports will not constitute oppressive child 
labor under the FLSA, provided that the employment is limited to 
traditional duties of typical sports-attendants and that 14- and 15-
year-old minors are not employed during school hours. The employment of 
14- and 15-year-olds as sports-attendants under the terms of the 
regulation will provide positive, formative experiences to the young 
people without interfering with their schooling or their health and 
well-being. Such experiences are commonly regarded as opportunities to 
associate with individuals possessing attributes of success and 
achievement, i.e., mentors or role models, and in some cases, 
``heroes,'' and are genuinely enjoyed by participating youths.
    While the Secretary is sensitive to the concerns of commenters who 
expressed views that the minors' school work will be adversely 
affected, there is an absence of evidence that sports-attending work 
interferes with their schooling. Further, it is the Secretary's view 
that end-of-day and weekly time restrictions add burdens on employers 
that would likely discourage the sports organizations from providing 
these employment experiences altogether. The Secretary has concluded, 
on balance, and in light of the lack of specific information to the 
contrary, that working as sports-attendants will not interfere with the 
schooling and health and well-being of the 14- and 15-year-old minors. 
Based on the comments, the Secretary believes that narrowly tailoring 
the exemption to 14- and 15-year-old minors working as attendants in 
professional sports will enable young people to participate in a 
memorable and unique work experience.
    The Secretary emphasizes that the work to be performed by sports-
attendants is strictly limited to those duties that would bring them 
into personal contact with the players and coaches, and in so doing, 
would provide the young people with role models. Permissible duties of 
the sports-attendant include: 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 (pre-game set-up and player warm-up), 
during, and after (post-game activities) 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.
    With respect to comments seeking special treatment for work 
experiences beyond sports-attending, the Department published in the 
Federal Register (59 FR 25167) an advance notice of proposed rulemaking 
requesting the views of the public on any changes they felt were 
necessary in the child labor regulations (29 CFR part 570). The comment 
period ended October 11, 1994, and the Department expects to publish a 
notice of proposed rulemaking during 1995. Interested parties will have 
an opportunity to offer comments on matters of permissible employment 
of minors under 18 years of age at that time. In light of this separate 
rulemaking process, it would be inappropriate for the Department to 
address such issues in this limited final rule.
II. WECEP Occupational Variations for 14- and 15-Year-Olds
    The Department proposed a revision in Sec. 570.35a which provides 
for the employment of 14- and 15-year-olds in a State-approved, school-
supervised Work Experience and Career Exploration Program (WECEP).\1\ 
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: (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); (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); or (4) 
those not permitted for minors aged 14 and 15 years (set forth in 
Secs. 570.33 and 570.34 of the regulations (Reg. 3)).

    \1\Twelve States have Departmental approval to operate WECEP 
programs in the 1994-95 school-year. 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.
    The regulations at Sec. 570.35a(c)(3) allow the Administrator of 
the Wage and Hour Division to approve a variation from the Reg. 3 
prohibited occupations in individual cases or classes of cases after 
notice to interested parties and an opportunity to furnish views. The 
Department had consistently approved variations for particular 
activities requested in State Educational Agency applications for WECEP 
program approval. The Department proposed to amend the WECEP 
regulations to provide, in effect, a limited exception to the Reg. 3 
occupations restrictions for WECEP participants engaged in the 
following activities:
    (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.
    The WECEP proposal also retained a provision for obtaining other 
variations from Reg. 3 occupational restrictions in special 
circumstances where a WECEP program applicant was able to demonstrate 
that the program would provide safe and suitable employment.
    Of the sixteen commenters addressing this proposal, two (State of 
Ohio's Department of Education; National Council of Chain Restaurants) 
endorsed the proposed changes, including the specific work activity 
exceptions. The State of Ohio indicated that their WECEP program 
provides both general and job specific safety training, and that there 
were no reports of student employee injuries related to work in the 
activities which are the subject of this rulemaking. Four employer 
commenters [[Page 19338]] (two fast food restaurant franchises, a 
supermarket company, and a restaurant), endorsed the proposal and 
suggested that the regulations should be broadened beyond WECEP to 
generally permit 14- and 15-year-olds to cook, bake, make french fries 
and onion rings, unload stock trucks, or enter walk-in coolers.
    Twelve commenters opposed either some or all of the proposed 
exceptions from work activities otherwise prohibited for 14- and 15-
year-olds not participating in a WECEP. These commenters include two 
public health organizations (National Institute of Occupational Safety 
and Health (NIOSH); American Public Health Association (APHA)); one 
union (Food and Allied Services Trades (FAST)); one employer (Sugar 
Plum, Inc.); four public interest and child advocacy groups (Child 
Labor Coalition; National Consumers League; Parent Teachers 
Association; and the American Academy of Pediatrics); and four State 
government entities (State of Kansas Department of Human Resources; 
State of Kansas Department of Health and Environment; State of 
Washington Department of Labor and Industries; and University of 
Massachusetts Occupational Health Program). Several of these commenters 
referred to particular studies or data on work-related injuries to 
support their contentions that all or certain of the work activities 
for which a variation was proposed (e.g., cooking at grills or deep 
fryers) were particularly dangerous for 14- and 15-year-olds, that 
coolers/freezers require further evaluation to determine whether 
appropriate safeguards would make it possible for WECEP participants to 
work in and around them safely, and that any variation from existing 
work restrictions should be linked to supervision and safety and health 
training appropriate for WECEP employees in activities approved by 
variation.
    The comments opposing the proposed work-activity exceptions for 
WECEP participants are persuasive, and, on review, the Department has 
concluded that automatic exceptions for certain work-activities are 
inappropriate. Accordingly, the final rule modifies the procedure 
governing WECEP variations to create a clearer process which is less of 
a departure from the Reg. 3 restrictions than was the proposed rule's 
procedure. The Wage and Hour Administrator's long-established WECEP 
variation discretion is maintained, and requests for variations from 
the work-activities prohibited by Reg. 3 will continue to be considered 
where specified standards are met. Under the revised procedure, such 
requests will be reviewed on a case-by-case basis based on information 
furnished by the applicant State Educational Agency. The applicant will 
be expected to demonstrate that the activity under the State program 
for which the variation is requested will not interfere with the WECEP 
participant's schooling, health, or well-being. For example, the 
applicant will be expected to show that the work to be performed by the 
student(s) is safe; that adequate job training will be provided, 
including safety related training; that teacher-coordinators and work 
site supervisors will provide adequate supervision; and that employers 
in the program have not experienced job-related injuries of similarly 
employed 14- and 15-year-old students. The variation provision in the 
Final Rule also allows any interested party to review any application, 
to oppose the approval of a variation, and to request reconsideration 
of a previously approved variation.
III. Deletion of Subpart D (Child Labor Reg. 5)
    The Department proposed to delete the regulations known as Child 
Labor Reg. 5 (Reg. 5), which provide a procedure for the Secretary to 
promulgate or amend hazardous occupation orders (HOs). The proposal to 
repeal Reg. 5 was based on the conclusion that its procedural 
requirements have been largely superseded by the Administrative 
Procedure Act (APA), 60 Stat. 237, which control DOL rulemaking, and 
that the APA provides greater administrative flexibility.
    Only three commenters addressed the proposed deletion of Reg. 5. 
The National Consumers League and the Child Labor Coalition agreed with 
the Department's conclusion that the notice and comment procedures of 
the APA effectively obviated the need for Reg. 5, which was first 
promulgated in 1938, prior to enactment of the APA. The National 
Automobile Dealers Association, on the other hand, argued that Reg. 5 
establishes a clear procedural framework for the promulgation and 
amendment of HOs which should be retained. Instead of repeal, they 
urged the Department to make whatever technical changes were needed to 
maintain consistency with the APA. After reviewing these comments, the 
Department believes that it is necessary to streamline regulatory 
procedures and eliminate redundant provisions wherever possible, and, 
therefore, has decided to adopt the proposal as a final rule.
IV. Deletion of Sec. 570.35(b)
    No comments were received on the proposal to delete the exception 
contained in Sec. 570.35(b) for enrollees in work training programs 
conducted under the Economic Opportunity Act of 1964. The exception is 
unnecessary due to the repeal of the 1964 Act, and the proposal is 
adopted as a final rule.

Executive Order 12866

    This rule is not a ``significant regulatory action'' within the 
meaning of Executive Order 12866. It revises the permissible hours and 
time standards to permit greater flexibility in the employment of 14- 
and 15-year-olds as professional sports attendants. While these changes 
are expected to enhance opportunities for employment, the impact on 
overall employment levels of 14- and 15-year-olds is modest. Other 
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

    This rule will not have a significant economic impact on a 
substantial number of small entities. As indicated in the preamble to 
the proposed rule (59 FR 25164, May 13, 1994), the 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. Thus, this rule will not have a 
significant economic impact on a substantial number of small entities, 
and the Secretary of labor has certified to this effect to the Chief 
Counsel for [[Page 19339]] Advocacy of the Small Business 
Administration. A regulatory flexibility analysis is not 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 
amended as set forth below.

    Signed at Washington, DC, on this 7th day of April 1995.
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 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. Section570.35a(c)(3) of subpart C is 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 upon approval of a variation by the Administrator of the 
Wage and Hour Division in acting on the program application of the 
State Educational Agency. The Administrator shall have discretion to 
grant requests for special variations if the applicant demonstrates 
that the activity will be performed under adequate supervision and 
training (including safety precautions) and that the terms and 
conditions of the proposed employment will not interfere with the 
health or well-being or schooling of the minor enrolled in an approved 
program. The granting of a special variation is determined on a case-
by-case basis.
    (i) The Administrator's decision on whether to grant a special 
variation will be based on information provided in the application 
filed by the State Educational Agency, and/or any supplemental 
information that may be requested by the Administrator.
    (ii) The Administrator's decision shall be in writing, and may 
designate specific equipment safeguards or other terms and conditions 
governing the work-activity approved by variation. If the request is 
denied, in whole or part, the reason(s) for the decision will be 
provided to the applicant, who may request reconsideration.
    (iii) A special variation will be valid only during the period 
covered by an approved program, and must be renewed with the filing of 
a new program application.
    (iv) The Administrator shall revoke or deny a special variation, in 
whole or in part, where there is reason to believe that program 
participants have been or will be employed contrary to terms and 
conditions specified for the variation, or these regulations, other 
provisions of the Fair Labor Standards Act, or otherwise in conditions 
detrimental to their health or well-being or schooling.
    (v) Requests for special variations and related documentation will 
be available for examination in the Branch of Child Labor and Polygraph 
Standards, Wage and Hour Division, Room S3510, 200 Constitution Avenue, 
NW., Washington, DC 20210. Any interested person may oppose the 
granting of a special variation or may request reconsideration or 
revocation of a special variation. Such requests shall set forth 
reasons why the special variation should be denied or revoked.
* * * * *

Subpart D--[Removed and Reserved]

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

[FR Doc. 95-9328 Filed 4-14-95; 8:45 am]
BILLING CODE 4510-27-M