[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
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Wage and Hour Division
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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which, for the most part, have been replaced by the notice-and-comment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]
BILLING CODE 4510-27-P
