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

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.

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 § 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1964, which has been repealed, and the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

§ 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 § 570.35a(c)(3) for

obtaining a variance from workactivities 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-yearolds employed as attendants in

professional sports. The notice also

proposed technical modifications in

§ 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

§ 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 sportsattendant 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 sportsconnected 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 wellbeing 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,
Federal Register / Vol. 60, No. 73 / Monday, April 17, 1995 / Rules and Regulations 19337

1Twelve States have Departmental approval to

operate WECEP programs in the 1994–95 schoolyear. 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.

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 sportsattendants 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 wellbeing. 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 sportsattending 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-yearold 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 sportsattendants 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 sportsattendant 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 § 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 §§ 570.33 and 570.34

of the regulations (Reg. 3)).

The regulations at § 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
19338 Federal Register / Vol. 60, No. 73 / Monday, April 17, 1995 / Rules and Regulations

(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 workrelated 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-bycase 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 teachercoordinators 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 § 570.35(b)

No comments were received on the

proposal to delete the exception

contained in § 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-yearolds. 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
Federal Register / Vol. 60, No. 73 / Monday, April 17, 1995 / Rules and Regulations 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 § 570.35 of subpart C, paragraph

(b) is revised to read as follows:

§ 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 postgame 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:

§ 570.35a Work experience and career

exploration programs.

* * * * *

(c) * * *

(3) Occupations other than those

permitted under §§ 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 §§ 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