Child Labor Regulations, Orders and Statements of Interpretation

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Opportunity Act of 1964, which has been repealed, and the procedures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]

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