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

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which, for the most part, have been replaced by the notice-and-comment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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