Federal Register, Volume 75 Issue 97 (Thursday, May 20, 2010)

[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Rules and Regulations]
[Pages 28404-28461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11434]

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Part IV

Department of Labor

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Wage and Hour Division

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29 CFR Parts 570 and 579

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

Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules
and Regulations

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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Parts 570 and 579

RIN 1215-AB57
RIN 1235-AA01

Child Labor Regulations, Orders and Statements of Interpretation

AGENCY: Wage and Hour Division, Labor.

ACTION: Final Rule.

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SUMMARY: This Final Rule revises the child labor regulations to
incorporate statutory amendments to the Fair Labor Standards Act and to
update and clarify the regulations that establish protections for youth
employed in nonagricultural occupations. These revisions also implement
specific recommendations made by the National Institute for
Occupational Safety and Health in its 2002 report to the Department of
Labor. The Department of Labor is revising the regulations to
incorporate the 2008 amendment to section 16(e) of the Fair Labor
Standards Act that substantially increased the maximum permissible
civil money penalty an employer may be assessed for child labor
violations that cause the death or serious injury of a young worker.

DATES: Effective Dates: This rule is effective July 19, 2010. The
incorporation by reference of American National Standards Institute
standards in the regulations is approved by the Director of the Federal
Register as of July 19, 2010.

FOR FURTHER INFORMATION CONTACT: Arthur M. Kerschner, Jr., Division of
Enforcement Policy, Branch of Child Labor and Special Employment
Enforcement, Wage and Hour Division, U.S. Department of Labor, Room S-
3510, 200 Constitution Avenue, NW., Washington, DC 20210; telephone:
(202) 693-0072 (this is not a toll free number). Copies of this Final
Rule may be obtained in alternative formats (Large Print, Braille,
Audio Tape, or Disc), upon request, by calling (202) 693-0023. TTY/TDD
callers may dial toll-free (877) 889-5627 to obtain information or
request materials in alternative formats.
Questions of interpretation and/or enforcement of regulations
issued by this agency or referenced in this Final Rule may be directed
to the nearest Wage and Hour Division District Office. Locate the
nearest office by calling the Wage and Hour Division's toll-free help
line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in
your local time zone, or log onto the Wage and Hour Division's Web site
for a nationwide listing of Wage and Hour District and Area Offices at:
http://www.dol.gov/whd/america2.htm.

SUPPLEMENTARY INFORMATION: The revisions in this Final Rule continue
the Department of Labor's tradition of fostering permissible and
appropriate job opportunities for working youth that are healthy, safe,
and not detrimental to their education.
The Regulatory Information Number (RIN) identified for this
rulemaking changed with the publication of the 2010 Spring Regulatory
Agenda due to an organizational restructuring. The old RIN was assigned
to the Employment Standards Administration, which no longer exists. A
new RIN has been assigned to the Wage and Hour Division.

I. Background

The child labor provisions of the Fair Labor Standards Act (FLSA)
establish a minimum age of 16 years for employment in nonagricultural
occupations, but the Secretary of Labor is authorized to provide by
regulation for 14- and 15-year-olds to work in suitable occupations
other than manufacturing or mining, and during periods and under
conditions that will not interfere with their schooling or health and
well-being. The child labor provisions of the FLSA permit 16- and 17-
year-olds to work in the nonagricultural sector without hours or time
limitations, except in certain occupations found and declared by the
Secretary to be particularly hazardous or detrimental to the health or
well-being of such workers.
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 part 570
(29 CFR 570.31-.37). Reg. 3 limits the hours and times of day that such
minors may work and identifies occupations that are either permitted or
prohibited for such minors. Under Reg. 3, 14- and 15-year-olds may work
in certain occupations in retail, food service, and gasoline service
establishments, but are not permitted to work in certain other
occupations (including all occupations found by the Secretary to be
particularly hazardous for 16- and 17-year-olds). Reg. 3, originally
promulgated in 1939, was revised to reflect the 1961 amendments to the
FLSA, which extended the Act's coverage to include enterprises engaged
in commerce or the production of goods for commerce and thereby brought
more working youth employed in retail, food service, and gasoline
service establishments within the protections of the Act.
The regulations concerning nonagricultural hazardous occupations
are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68).
These Hazardous Occupations Orders (HOs) apply on either an industry
basis, specifying the occupations in a particular industry that are
prohibited, or an occupational basis, irrespective of the industry in
which the work is performed. The seventeen HOs were adopted
individually during the period of 1939 through 1963. Some of the HOs,
specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited
exemptions that permit the employment of 16- and 17-year-old
apprentices and student-learners under particular conditions to perform
work otherwise prohibited to that age group. The terms and conditions
for employing such apprentices and student-learners are detailed in
Sec. 570.50(b) and (c).
Because of changes in the workplace, the introduction of new
processes and technologies, the emergence of new types of businesses
where young workers may find employment opportunities, the existence of
differing federal and state standards, and divergent views on how best
to balance scholastic requirements and work experiences, the Department
has long been reviewing the criteria for permissible child labor
employment. A detailed discussion of the Department's review was
included in the Notice of Proposed Rulemaking published in the Federal
Register on April 17, 2007 (see 72 FR 19339).
Congress twice amended the child labor provisions of the FLSA in
the 1990s. The Compactors and Balers Safety Standards Modernization
Act, Public Law 104-174 (Compactor and Baler Act), was signed into law
on August 6, 1996. This legislation added section 13(c)(5) to the FLSA,
permitting minors 16 and 17 years of age to load, but not operate or
unload, certain scrap paper balers and paper box compactors when
certain requirements are met. The Drive for Teen Employment Act, Public
Law 105-334, was signed into law on October 31, 1998. This legislation
added section 13(c)(6) to the FLSA which prohibits minors under 17
years of age from driving automobiles and trucks on public roadways on
the job and establishes the conditions and criteria for 17-year-olds to
drive automobiles and trucks on public roadways on the job.
The Department published a Notice of Proposed Rulemaking (NPRM) in
the Federal Register on November 30, 1999 (64 FR 67130), inviting
comments on revisions of regulations to implement

[[Page 28405]]

the 1996 and 1998 amendments and to update certain regulatory
standards.
In 1998, the Department provided funds to the National Institute
for Occupational Safety and Health (NIOSH) to conduct a comprehensive
review of scientific literature and available data in order to assess
current workplace hazards and the adequacy of the current child labor
HOs to address them. This study was commissioned to provide the
Secretary with another tool to use in her ongoing review of the child
labor provisions, and of the hazardous occupations orders in
particular. The report, entitled National Institute for Occupational
Safety and Health (NIOSH) Recommendations to the U.S. Department of
Labor for Changes to Hazardous Orders (hereinafter referred to as the
NIOSH Report or the Report), was issued in July of 2002. The Report,
which makes 35 recommendations concerning the existing nonagricultural
HOs and recommends the creation of 17 new HOs, also incorporated the
comments NIOSH submitted in response to the 1999 NPRM. The Report is
available for review on the Department's YouthRules! Web site at http://www.youthrules.dol.gov/resources.htm.
The Department recognizes NIOSH's extensive research efforts in
compiling and reviewing this data. However, it has cautioned readers
about reaching conclusions and expecting revisions to the existing HOs
based solely on the information in the Report. In the Report, NIOSH
itself recognized the confines of its methodology and included
appropriate caveats about the limitations of the available data and
gaps in research. Of those limitations, the following are worth noting.
The NIOSH Report recommendations are driven by information on high-risk
activities for all workers, not just patterns of fatalities and serious
injuries among young workers. There is little occupational injury,
illness, and fatality data available regarding minors less than 16
years of age. In addition, such data for youth 16 and 17 years of age
tend to be mixed with that of older workers whose employment is not
subject to the child labor provisions of the FLSA. Also, available
occupational injury, illness, fatality, and employment data on the
specific operations in the specific industries covered by the NIOSH
Report recommendations tend to be combined with data on other
operations and/or industries. In some cases, this may result in a
diminution of the risk by including less risky operations and
industries in the employment estimates. In other cases, the risk may be
exaggerated by including more dangerous operations/industries in the
injury, illness, or fatality estimates.
In addition, as NIOSH was tasked with examining issues within the
framework of the current HOs only, the Report did not consider the
extent to which fatalities occur despite existing HOs, Occupational
Safety and Health Administration (OSHA) standards, or state laws
prohibiting the activity. If fatalities result from recognized illegal
activities, such as working with fireworks or a power-driven circular
saw, the best strategy for preventing future injuries may not be to
revise the regulations but to increase compliance with existing laws
through public awareness initiatives, targeted compliance assistance
efforts, and stepped-up enforcement activities. The Report also did not
consider potential approaches for decreasing workplace injuries and
fatalities that provide an alternative to a complete ban on employment,
such as safety training, increased supervision, the use of effective
personal protective equipment, and strict adherence to recognized safe
working practices.
Though cognizant of the limitations of the Report, the Department
places great value on the information and analysis provided by NIOSH.
Since receiving the Report, the Department has conducted a detailed
review and has met with various stakeholders to evaluate and prioritize
each recommendation for possible regulatory action consistent with the
established national policy of balancing the benefits of employment
opportunities for youth with the necessary and appropriate safety
protections. The Department's 2004 Final Rule addressed six of the
recommendations.
The Consolidated Appropriations Act, 2004, Public Law 108-199,
Sec. 108, which was signed into law on January 23, 2004, amended the
FLSA by creating a limited exemption from the child labor provisions
for minors 14 to 18 years of age who are excused from compulsory school
attendance beyond the eighth grade. The exemption, contained in section
13(c)(7) of the FLSA, allows eligible youth, under specific conditions,
to be employed inside and outside of places of business that use
machinery to process wood products, but does not allow such youth to
operate or assist in operating power-driven woodworking machines. This
exemption overrides the FLSA's formerly complete prohibition on the
employment of 14- and 15-year-olds in manufacturing occupations
contained in section 3(l).
The Department proposed revisions of the child labor regulations to
implement the 2004 legislation, address 25 of the remaining 29 NIOSH
Report recommendations dealing with existing nonagricultural hazardous
occupations orders, and revise and/or clarify the permitted and
prohibited occupations and industries and conditions and periods of
employment established for 14- and 15-year-olds by Reg. 3, in an NPRM
published in the Federal Register on April 17, 2007 (72 FR 19337). The
NPRM also proposed to incorporate into the regulations three long-
standing enforcement positions regarding the cleaning of power-driven
meat processing equipment, the operation of certain power-driven pizza-
dough rollers, and the definition of high-lift trucks. In addition, the
Department proposed to expand the HO that prohibits youth from
operating power-driven circular saws, band saws, and guillotine shears
to also prohibit the operation of power-driven chain saws, wood
chippers, and reciprocating saws. Finally, the Department proposed to
revise subpart G of the child labor regulations, entitled General
Statements of Interpretation of the Child Labor Provisions of the Fair
Labor Standards Act of 1938, as Amended, to incorporate all the changes
adopted by the agency since this subpart was last revised in 1971.
The Genetic Information Nondiscrimination Act of 2008 (GINA) (Pub.
L. 110-233) was enacted into law on May 21, 2008, after the publication
of the 2007 NPRM. GINA, among other things, amended FLSA section 16(e)
to provide that any person who violates the provisions of sections 12
or 13(c) of the FLSA, relating to child labor, or any regulation issued
pursuant to such sections, shall be subject to a civil money penalty
not to exceed $11,000 for each employee who was the subject of such a
violation. In addition, GINA also permits the assessment of a civil
money penalty up to $50,000 with regard to each violation that caused
the death or serious injury of any employee under the age of 18 years.
That penalty may be doubled, up to $100,000, when such violation is
determined by the Department to be a repeated or willful violation.
These changes in the law became effective May 21, 2008.
As mentioned, the NIOSH Report made 35 recommendations concerning
the existing nonagricultural HOs. The Department addressed six of those
recommendations in the 2004 Final Rule published December 16, 2004 (see
69 FR 75382). The Department, in the April 17, 2007 NPRM, based on its
determination that there was sufficient

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data available, addressed 25 of the remaining 29 NIOSH Report
recommendations dealing with the existing nonagricultural hazardous
occupations orders. In an attempt to acquire additional data needed to
address the remaining nonagricultural NIOSH recommendations and to
pursue certain other issues not explored in the NIOSH Report, the
Department also published an Advance Notice of Proposed Rulemaking
(ANPRM) concurrently with the 2007 NPRM (see 72 FR 19328). Because very
little substantive information was received, the Department withdrew
the ANPRM on February 24, 2010. No proposed rule will result directly
from that information collection effort, however, the topics discussed
in the ANPRM may be the subject of a future rulemaking. The comments
submitted in response to the ANPRM may be reviewed at the Federal
eRulemaking Portal at http://www.regulations.gov, docket identification
number WHD-2007-0001.
The NIOSH Report also made 14 recommendations that impact the
current agricultural HOs and recommended the creation of 17 new HOs.
The Department, in the ANPRM published on April 17, 2007, requested
public comment on the feasibility of one of those recommendations
regarding the creation of a new HO that would prohibit the employment
of youth in construction occupations.
The Department is continuing to review all of the remaining NIOSH
Report recommendations, but excluded them from immediate consideration
in order to keep the size and scope of the 2007 ANPRM and NPRM
manageable. Their absence from this current round of rulemaking is not
an indication that the Department believes them to be of less
importance or that they are not being given the same level of
consideration as the recommendations addressing the current
nonagricultural HOs. In that regard, the Department is nearing
completion of its thorough review of the NIOSH recommendations that
address the agricultural hazardous occupations orders.

II. Summary of Comments

A total of 28 comments were received and are available for review
at the Federal eRulemaking Portal at http://www.regulations.gov. The
Docket ID for the NPRM that generated these comments is WHD-2007-0002.
Comments were received from trade and professional associations;
advocacy and occupational health and safety organizations; employers;
federal, state, and local government agencies; representatives of
schools and organizations that provide vocational training to youth;
and one private citizen. The one private citizen comment, which
concerned the issue of door-to-door sales, was incorrectly submitted to
the ANPRM docket by the commenter and was assigned a Document ID of
WHD-2007-0001-0004. One commenter, the International Association of
Amusement Parks and Attractions, included comments from three of its
member organizations along with its submission. Four of the comments do
not address any of the issues raised by the April 17, 2007 NPRM and
focus solely on topics raised by the ANPRM that was published by the
Department on that same day. One commenter, the National Children's
Center for Rural and Agricultural Health and Safety, did not address
any specific proposal but expressed concerns that the Department has
not yet implemented the NIOSH Report recommendations for agricultural
HOs. In regards to the nonagricultural youth provisions, it stated that
``it does not appear that protection of youth workers is at the heart
of some of the proposed changes, but rather the needs of industry and
special interest groups.''
Many of the comments concerned a single issue or a cluster of
issues impacting a single industry, but two comments were quite
extensive and addressed almost every proposal raised by the NPRM. These
comprehensive comments were submitted by the Young Workers Health and
Safety Network (YWN) and the Child Labor Coalition (CLC). The
Department appreciates the time and effort all of these commenters
devoted to their submissions.
The YWN is a subcommittee of the Occupational Health and Safety
Section of the American Public Health Association. It described itself
as an informal network of public health professionals, advocates, and
government agency staff that includes individuals from academia, public
health, labor law enforcement, health and safety consultation and/or
enforcement, labor organizations, and educators. The YWN reported that,
in formulating its comments, it tried to use the following principles:
The regulations should protect youth from significant hazards; where
possible, the regulations should be kept clear and consistent, limiting
the number of exceptions or exemptions, thus fostering better
compliance and more effective enforcement; and, the regulations should
allow youth to do a broad variety of different types of potentially
rewarding work.
The CLC, which has more than 30 member organizations, described
itself as the largest grouping in the United States of advocates for
the protection of the safety, health, and education of working
children. The CLC reported that its comments are also endorsed by the
following organizations: A Better World Foundation, A Minor
Consideration, American Federation of Teachers, American Federation of
School Administrators, Americans for Democratic Action, Association of
Farmworker Opportunity Programs, Farmworker Justice, International
Initiative to End Child Labor, Migrant Legal Action Program, National
Association of State Directors of Migrant Education, National Consumers
League, Ramsay Merriam Fund, and the United Food and Commercial Workers
International Union. The CLC stated that its comments are in line with
its stated mission and objectives, which include creating a network for
the exchange of information about child labor, providing a forum and a
unified voice on protecting working minors and ending child labor
exploitation, and developing informational and educational outreach to
the public and private sectors to combat child labor abuses and to
promote progressive initiatives and legislation. The American
Federation of Labor and Congress of Industrial Organizations (AFL-CIO),
while submitting its own comments, also endorsed those submitted by the
CLC.

III. Regulatory Revisions

Many of the revisions being made by this Final Rule will result in
the redesignation of several sections and subsections of the
regulations. In order to prevent confusion when providing citations in
this discussion, the Department will provide, when appropriate, both
the current citation (the citation prior to the effective date of this
Final Rule) and the new citation (the citation that will apply on and
after the effective date of this Final Rule). For example, the section
of Reg. 3 that prohibits 14- and 15-year-olds from employment in
occupations in connection with warehousing and storage would be cited
as Sec. 570.33(f)(2)(old) or Sec. 570.33(n)(2)(new).

A. Occupations That Are Prohibited for the Employment of Minors Between
the Ages of 14 and 16 Years of Age (29 CFR 570.31-.34)

Section 3(l) of the FLSA defines oppressive child labor to
expressly prohibit children under the age of 16 from performing any
work other than that which the Secretary of Labor permits, by order or
regulation, upon

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finding that it does not interfere with their schooling or health and
well-being (see 29 U.S.C. 203(l), see also 29 CFR 570.117-.119). Before
14- and 15-year-olds may legally perform work covered by the FLSA, the
Act requires that the work itself be exempt, or that the Secretary
determines that the work to be performed does not constitute oppressive
child labor. The Secretary's declarations of what work is not deemed
oppressive for children between the ages of 14 and 16 appear in Reg. 3
(29 CFR 570.31-.37).
Reg. 3 identifies a number of occupations and activities that are
specifically prohibited for these minors without regard to the industry
or the type of business in which their employer is engaged (e.g.,
operating or tending any power-driven machinery other than office
machines, see Sec. 570.33(b) (old) and Sec. 570.33(e) (new)). Reg. 3
also incorporates by reference all of the prohibitions contained in the
Hazardous Occupations Orders (29 CFR 570.50-.68), which identify
occupations that are ``particularly hazardous'' and, therefore,
prohibited for 16- and 17-year-olds (e.g., occupations involved in the
operation of power-driven metal forming, punching, and shearing
machines, see Sec. 570.33(e) (old) and Sec. 570.33(b) (new)).
As previously mentioned, Reg. 3 was revised to reflect the 1961
amendments to the FLSA which extended the Act's coverage to include
enterprises engaged in commerce or the production of goods for commerce
and thereby brought more working youth employed in retail, food
service, and gasoline service establishments within the protections of
the Act. The current Sec. 570.34(a) expressly authorizes the
performance of certain activities by 14- and 15-year-olds in retail,
food service, and gasoline service establishments, while Sec.
570.34(b) details those activities that 14- and 15-year-olds are
expressly prohibited from performing in such establishments. For
example, clerical work, cashiering, and clean-up work are authorized,
whereas ``all work requiring the use of ladders, scaffolds, or their
substitutes'' is prohibited. These special rules currently apply only
in the designated types of business.
Since 1961, new, positive, and safe employment opportunities have
opened up for youth in industries other than retail, food service, and
gasoline service that the existing Reg. 3 does not specifically
address. Jobs in such areas as state and local governments, banks,
insurance companies, advertising agencies, and information technology
firms all normally fall outside of the permitted establishments
declared in Reg. 3. Because these jobs are not specifically permitted
by Sec. 570.33 (old), they are prohibited. There has been some
confusion about this over the years. Some employers believe that 14-
and 15-year-olds are permitted to be employed in any industry or
occupations not expressly prohibited by Reg. 3, or that any employer in
any industry is permitted to employ such youth in the occupations
permitted by Sec. 570.34(a) (old). However, when those jobs are not
located in retail, food service, or gasoline service establishments,
the provisions of Sec. 570.34 (old) (both authorizations and
prohibitions) do not apply to the employment of 14- and 15-year-olds.
The exception to this rule is where there is some discrete operation or
division that could legitimately be characterized as such an
establishment and therefore would be subject to these rules (e.g.,
minors employed in a food service operation at a city park or a
publicly owned sports stadium). The existing Reg. 3 prohibits employers
such as state and local governments, banks, insurance companies,
advertising agencies, and information technology firms from employing
14- and 15-year-old workers in any jobs other than those that occur in
those discrete operations or divisions that could be characterized as
retail, food service, or gasoline service establishments.
In 2004, in recognition of the importance of youth employment
programs operated by public sector employers that provide safe and
meaningful developmental opportunities for young people, and in
response to specific requests received from two municipalities, the
Department adopted an enforcement position that permits state and local
governments to employ 14- and 15-year-old minors under certain
conditions. Consistent with its enforcement position, the Department
exercised its prosecutorial discretion, as authorized by 29 U.S.C.
216(e), and declined to cite Reg. 3 occupations violations for the
employment of 14- and 15-year-olds by state and local governments as
long as that employment fell within the occupations authorized by Reg.
3 (Sec. 570.34(a) (old)) and did not involve any of the tasks or
occupations prohibited by Reg. 3 (Sec. Sec. 570.33 and 570.34(b)
(old)). The Department enforced all the other provisions of Reg. 3,
including the restrictions on hours of work, with respect to the
employment of such minors.
The Department's administration of this enforcement position
permitting the employment of 14- and 15-year-olds by state and local
governments has had extremely positive results. There are indications,
as reported by state and local governments and reflected in WHD
enforcement findings, that when such youth are employed under the
guidelines established by the enforcement position, that employment
does not interfere with their schooling or with their health and well-
being, and thus is in accordance with the directive of the FLSA.
Based upon the success of the above enforcement position, the
Department, in the April 17, 2007 NPRM, proposed to revise and
reorganize Sec. Sec. 570.33 and 570.34 to clarify and to expand the
list of jobs that are either permitted or prohibited for minors who are
14 and 15 years of age. The Department also proposed to remove the
language that limited the application of Sec. 570.34 to only retail,
food service, and gasoline service establishments. As proposed, the
revised Sec. 570.33 detailed certain specific occupations prohibited
for 14- and 15-year-olds. This revision also necessitates a change to
Sec. 570.35a(c)(3) (old) because it references Sec. Sec. 570.33 and
570.34 as they pertain to Work Experience and Career Exploration
Programs (WECEPs). The Department proposed to retain all the current
prohibitions contained in Sec. 570.33 but would modify the prohibition
regarding the employment of 14- and 15-year-olds in manufacturing
occupations to comport with the provisions of the Consolidated
Appropriations Act, 2004, which enacted section 13(c)(7) of the FLSA.
The NPRM proposed to continue to allow the employment of 14- and 15-
year-olds in all those retail, food service, and gasoline service
establishment occupations in which they are currently permitted to be
employed.
The Department also proposed to apply to FLSA-covered
nonagricultural employers of minors, with certain modifications, all
the permitted occupations contained in Sec. 570.34(a) (old) and all
the prohibited occupations contained in Sec. 570.34(b) (old) that
currently apply only to retail, food service, and gasoline service
establishments. This proposal would be accomplished by revising Sec.
570.34 to identify permitted occupations. The Department also proposed
to continue to permit youth 14- and 15-years of age to perform those
occupations involving processing, operating of machines, and working in
rooms where processing and manufacturing take place, that are currently
permitted under Sec. 570.34(a) (old), as referenced in Sec.
570.34(b)(1) (old).
As mentioned, certain modifications to the existing lists of
permissible and prohibited occupations were also

[[Page 28408]]

proposed. The traditionally prohibited occupations and industries
would, after adoption of the proposal, be contained in a revised Sec.
570.33, and all the permitted occupations and industries would be
contained in a revised Sec. 570.34. The Department is aware that,
given the FLSA's mandate that before 14- or 15-year-olds may legally be
employed to perform any covered work, the Secretary of Labor must first
determine that the work to be performed does not constitute oppressive
child labor, it could choose to publish only a list of permissible
occupations and industries, and not provide a list of certain commonly
arising prohibited occupations and industries. However, the Department
believes that by continuing the long-standing Reg. 3 tradition of
publishing lists of those occupations and industries in which such
youth may be employed as well as detailed examples of those industries
and occupations in which the employment of such youth is prohibited, it
can greatly enhance the public's understanding of these important
provisions. The list of prohibited industries and occupations helps to
define and to provide clarity to the list of permitted industries and
occupations. However, the list of prohibited occupations is not
intended to identify every prohibited occupation, but rather only to
provide examples of those prohibited occupations that have historically
been the most common sources of violations or concern. As previously
explained, any job not specifically permitted is prohibited.
The Department also understands that, given the constant
development and changes occurring in the modern workplace, in
continuing to provide a definitive list of permitted occupations and
industries, it may unintentionally discourage the creation of positive
and safe employment opportunities for young workers. But the Department
believes that, by continuing its past practice of carefully reviewing
inquiries regarding individual occupations or industries not currently
addressed by Reg. 3 and then exercising its prosecutorial discretion
and issuing enforcement positions that may eventually lead to
rulemaking--as evidenced by certain revisions contained in this Final
Rule--it has developed an efficient and effective mechanism which
overcomes the limitations of a definitive list. The Department firmly
believes that the limited and public exercise of its prosecutorial
discretion is an efficient and legal tool available to the Secretary in
the administration of the child labor provisions of the FLSA.
The modifications to the list of prohibited occupations are as
follows:
1. Prohibited Machinery (Sec. Sec. 570.33-.34)
Section 570.33(b) (old) prohibits youth 14 and 15 years of age from
employment in occupations involving the operation or tending of any
power-driven machinery other than office equipment. The Department has
always interpreted the term power-driven machinery very broadly to
include machines driven by electrical, mechanical, water, or other
power such as steam or hydraulic. The term also includes battery-
operated machines and tools, but does not apply to machines or tools
driven exclusively by human hand or foot power.
Even though this prohibition is clear and quite broad, other
sections of Reg. 3 have traditionally named certain pieces of power-
driven machinery so as to eliminate any doubt or confusion as to their
prohibited status. For example, Sec. 570.34(a)(6) (old) prohibits the
employment of 14- and 15-year-olds in the operation of power-driven
mowers or cutters and Sec. 570.34(b)(6) (old) prohibits the employment
of such minors in occupations that involve operating, setting up,
adjusting, cleaning, oiling, or repairing power-driven food slicers,
grinders, choppers, and cutters, and bakery-type mixers.
The Department proposed to combine Sec. Sec. 570.33(b),
570.34(a)(6), and 570.34(b)(6)--all of which address power-driven
machinery--into a single paragraph located at Sec. 570.33(e) and
expand the list of examples of prohibited equipment to include power-
driven trimmers, weed-eaters, edgers, golf carts, food processors, and
food mixers. Even though Reg. 3 for many years has prohibited the
employment of 14- and 15-year-olds to operate any power-driven
equipment other than office machines, the Department routinely receives
inquiries as to the status of these individual pieces of equipment
under Reg. 3. The Department believes that by continuing to reference
certain common prohibited machinery by name, both clarity and
compliance will be increased.
The Department received six comments on this proposal. The YWN,
CLC, and AFL-CIO supported the proposal to consolidate those
subsections of Reg. 3 dealing with power-driven machinery into a
single, new subsection located at Sec. 570.33(e) and to expand the
list of prohibited machinery, with certain caveats. The YWN and the
AFL-CIO recommended that 14- and 15-year-olds also be prohibited from
using espresso makers because, as the YWN reported, these machines
involve a potential for serious burns. They create steam at a
temperature that ``clearly exceeds the temperature limits established
for prohibiting use of other equipment such as anything related to hot
oil that exceeds a temperature of 100 degrees F.'' A representative of
the Billings, Montana Job Service also questioned how the Department's
proposal addresses the employment of youth who operate espresso
machines.
The AFL-CIO and the CLC recommended that all-terrain vehicles
(ATVs) be added to the list of prohibited machinery because, as the CLC
reported ``The serious hazards of operating ATVs have been extensively
documented.'' Neither commenter provided any data or insight regarding
how extensively ATVs are used by youth in nonagricultural employment or
whether the documented hazards resulted in occupational injuries. The
CLC also recommended that the proposed Sec. 570.33 include an
introductory statement reinforcing the principle detailed in Sec.
570.32 (new) that all work that is not specifically permitted is
prohibited.
The YWN also recommended that the Department specifically list
``bladed blenders used to chop food items such as cookies or candy with
ice cream to make ice cream desserts'' as a prohibited machine in the
revised Sec. 570.33(e) as that subsection already prohibits the
operating or tending of food grinders, food choppers, and cutters (see
Sec. 570.34(b)(6) (old)).
The National Council of Chain Restaurants (the Council), which
described itself as a national trade industry group representing the
interests of the nation's largest multi-unit, multi-state chain
restaurant companies, requested that the proposed Sec. 570.33(e)
include additional language which would emphasize that 14- and 15-year-
olds would continue to be permitted to operate all those pieces of
kitchen equipment listed in Sec. 570.34(a)(7) (old) once the Final
Rule becomes effective.
The Council commented that it believes table top food processors
and food mixers pose little risk of harm to the safety and well-being
of 14- and 15-year-olds and questions why the Department continues to
prohibit such youth from operating them (see Sec. 570.34(b)(6) (old)
and Sec. 570.33(e) (new)). The Council submitted no data to
substantiate this comment.
The Director of the Labor Standards and Safety Division of the
Alaska State Department of Labor and Workforce

[[Page 28409]]

Development (DOLWD) also supported the consolidation and listing of
prohibited equipment with some exceptions. The DOLWD recommended that
14- and 15-year-olds should be permitted to operate weed eaters that
use monofilament line (but not weed eaters that use metal blades)
provided adequate eye and hearing protection are in place. That same
office recommended that such youth be permitted to operate certain
small, residential-sized washing machines and dryers when all safety
equipment is properly installed.
The Department has carefully reviewed the comments and has decided
to adopt the proposal, as presented, with one modification. The
Department will add ATVs to the list of prohibited equipment presented
in the revised Sec. 570.33(e) (new) as recommended by the AFL-CIO and
CLC. As power-driven equipment, ATVs were, and continue to be, included
in the broad prohibitions of this subsection. In addition, because ATVs
are motor vehicles as defined by Sec. 570.52(c) (old and new), 14- and
15-year-olds would be prohibited from operating such equipment under
Sec. 570.33(c) (old) and Sec. 570.33(f) (new). But because greater
clarity and protections can be realized, the Department will add ATVs
to the list of named equipment.
With regard to cooking and the use of kitchen equipment, the
Department notes that it implemented new rules concerning the types of
cooking that may be performed by 14- and 15-year-olds in its Final Rule
published in the Federal Register on December 16, 2004 (69 FR 75382).
That Final Rule limited permitted cooking duties to cooking (1) with
electric or gas grills which does not involve an open flame (see Sec.
570.34(b)(5)(i) (old) and Sec. 570.34(c) (new)), and (2) cooking with
deep fryers that are equipped with and utilize a device which
automatically lowers the baskets into the hot oil or grease and
automatically raises the baskets from the hot oil or grease (see Sec.
570.34(b)(5)(ii) (old) and Sec. 570.34(c) (new)). The 2004 Final Rule,
however, did not change the types of equipment and devices that 14- and
15-year-olds were permitted to, and continue to be permitted to,
operate in accordance with Sec. 570.34(a)(7) (old) and Sec. 570.34(i)
(new). The list of permitted equipment includes, but is not limited to,
dishwashers, toasters, dumbwaiters, popcorn poppers, milk shake
blenders, coffee grinders, automatic coffee machines, devices used to
maintain the temperature of prepared foods, and microwave ovens that do
not have the capacity to warm above 140 [deg]F.
Although there may have been some confusion among employers, the
Department has long interpreted the term toaster to mean that type of
equipment that was generally found in snack bars and lunch counters
when Reg. 3 was issued and used to toast such items as slices of bread
and English muffins. This includes such equipment as the two- or four-
slice ``pop-up'' toasters similar to those manufactured for home use
and the conveyor-type bread toaster now often found at self-service
breakfast buffets. Broilers, automatic broiler systems, high speed
ovens, and rapid toaster machines used at both quick service and full-
service restaurants to toast such items as buns, bagels, sandwiches,
and muffins--all of which operate at high temperatures, often in excess
of 500 [deg]F--are not toasters under Sec. 570.34(a)(7) (old) and
Sec. 570.34(i) (new) and minors generally must be at least 16 years of
age to operate them.
There has also been some confusion among employers as to what
constitutes a milk shake blender under Reg. 3. The Department has long
interpreted this term to mean that type of equipment that was generally
found in snack bars and lunch counters when Reg. 3 was issued and used
to prepare a ``to-order'' milk shake for an individual customer. Such
equipment required that the worker place the ice cream, milk, and
flavorings in a stainless steel mixing cup that generally has a maximum
capacity of 20 ounces. The cup was then positioned on the machine so
that the single spindle--with an aeration disk or disks mounted at the
bottom--could blend the milk shake. Some permitted milk shake blenders
had more than one spindle so multiple products could be processed
simultaneously. Most of these blenders were free standing counter-top
models while others were incorporated into other equipment such as milk
dispensers. These are the types of milk shake blenders that 14- and 15-
year-olds may operate under Reg. 3.
Except as described below, other types of blenders, mixers, and
``blixers''--used for a variety of food preparation operations
including the blending of milk shakes--continue to be prohibited to
that age group. Such prohibited equipment often have containers or
mixing chambers that exceed a 20-ounce capacity--some can accommodate
up to 60 quarts. In addition, some of this prohibited equipment, when
used to process meat or mix batter--with or without the use of special
``attachments''--may not be operated by employees under the age of 18
because of the prohibitions of HO 10 or HO 11, respectively.
The Department has also included certain countertop blenders used
to make beverages such as milk shakes, fresh fruit drinks, and
smoothies within the term milk shake blender as used in Reg. 3. Such
machines generally consist of a base motor that supports a glass jar.
The blending blades are attached, often permanently, to the bottom of
the glass jar. Operators place the glass jar on top of the base, place
the ingredients in the jar, affix the lid to the jar, press the
appropriate button or switch, and blend the product. The permitted
blenders are identical to models used in private homes, generally do
not operate at more than 600 watts, and have jar capacities that do not
exceed 8 cups (64 ounces). As with the blenders discussed above, their
operation by minors under the age of 18 is prohibited under HO 10 when
used to process meat.
For these reasons, the Department does not agree with the YWN's
understanding that the existing regulation prohibits 14- and 15-year-
olds from operating blenders that create ice cream desserts as the
Department has previously opined that this equipment is a type of
``milk shake blender'' which has long been permitted by Sec.
570.34(a)(7) (old) and will continue to be permitted by Sec. 570.34(i)
(new).
The Department also notes that Reg. 3 has for many years prohibited
young workers from operating compact power mixers or blenders, also
know as ``immersible wands'' and ``immersion blenders,'' used for such
tasks as liquefying soups and sauces and pureeing fruits, meats, and
vegetables. Such equipment is often used in kitchens and by dietary
aides at hospitals and nursing homes. The use of such equipment would
also be prohibited by HO 10 when the mixer or wand is equipped with
knives, blades, or cutting tools designed for use on meat and poultry.
The Department did not propose to prohibit, and the Final Rule does
not prohibit, 14- and 15-year-olds from operating espresso machines as
recommend by the YWN, the AFL-CIO, and the representative of the
Billings, Montana Job Service. Section 570.34(a)(7) (old) specifically
includes automatic coffee machines on the list of equipment that 14-
and 15-year-olds may operate (see Sec. 570.34(i) (new)). The
Department has previously opined that espresso makers and cappuccino
makers are types of automatic coffee machines and therefore 14- and 15-
year-olds are permitted to operate them under the provisions of Reg. 3.
The Department notes that the YWN's comment that the temperature
reached by espresso makers ``exceeds the temperature limits

[[Page 28410]]

established for prohibiting use of other equipment such as anything
related to hot oil that exceeds a temperature of 100 degrees F'' does
not comport with either the previous or revised provisions of Reg. 3.
The temperature of 100[deg] F, when presented in Sec. 570.34(a)(7)
(old) and Sec. 570.34(i) (new), does not apply to the operation of
kitchen equipment or to such permitted activities as cooking with
certain grills or deep fryers. Instead, these subsections state that
the minors are permitted to ``clean kitchen equipment (not otherwise
prohibited), remove oil or grease, pour oil or grease through filters,
and move receptacles containing hot grease or hot oil, but only when
the equipment surfaces, containers, and liquids do not exceed a
temperature of 100 [deg]F.''
The Department has decided not to adopt the Council's
recommendation to revise Reg. 3 to permit 14- and 15-year-olds to
operate table top food processors and food mixers as no such proposal
was contemplated by the NPRM and no data has been received that
demonstrates that 14- and 15-year-olds can safely operate such
equipment. The Department does, however, address the issue of older
youth operating certain counter-top mixers later in this Final Rule
with regard to HO 11.
The Department does not accept the DOLWD's recommendation that Reg.
3 be revised to permit 14- and 15-year-olds to operate certain weed-
eaters because of the potential for injury associated with the
operation of such equipment. In fact, as discussed earlier, weed-eaters
are among the equipment the Department is adding as an example of
power-driven machinery such youth are prohibited from operating (see
Sec. 570.33(e) (new)). The Department continues to be concerned about
issues involving injuries to workers resulting from flying objects,
burns, fuel safety, and improper ergonomics. In its Document
5108, Weed Trimmers Can Throw Objects and Injure Eyes, the
U.S. Consumer Product Safety Commission estimated that, in 1989, there
were approximately 4,600 injuries associated with power lawn trimmers
or edgers that required emergency room treatment. It reported that
about one-third of those injuries were to the eye. Nor does the
Department accept DOLWD's recommendation to allow 14- and 15-year-olds
to operate certain residential-style clothes washers and dryers. Not
only is the operation of such power-driven machinery prohibited by
Sec. 570.33(b) (old) and Sec. 570.33(e) (new), the laundering of
clothes and other materials generally constitutes a ``processing
occupation'' which is prohibited under Sec. 570.33(a) (old and new).
Finally, the Department has determined that the Final Rule provides
sufficient clarity that it is not necessary to adopt the CLC's
recommended revision to the opening sentence of Sec. 570.33 to repeat
the statement contained in Sec. 570.32 (``Employment that is not
specifically permitted is prohibited.''). For the same reason, the
Department has decided not to accept the Council's recommendation that
Sec. 570.33(e) be revised to emphasize that youth will continue to be
permitted to operate all kitchen equipment they were permitted to
operate prior to the adoption of this Final Rule, as the list of
permissible kitchen equipment is set forth in Sec. 570.34(i)(new).
2. Loading of Personal Hand Tools Onto Motor Vehicles and Riding on
Motor Vehicles (Sec. Sec. 570.33(f) and 570.34(b)(8))
Section 570.33(c) (old) prohibits the employment of 14- and 15-
year-olds in the operation of motor vehicles or service as helpers on
such vehicles. The term motor vehicle is defined in Sec. 570.52(c)(1).
The Department has interpreted the Reg. 3 prohibition regarding service
as helpers on a motor vehicle to preclude youth under the age of 16
from riding anywhere outside the passenger compartment of the motor
vehicle. Such youth may not ride in the bed of a pick-up truck, on the
running board of a van, or on the bumper of a refuse truck. This
interpretation dates back to at least the 1940 enactment of HO 2, which
prohibits 16- and 17-year-olds from serving as outside helpers on motor
vehicles.
The Department does not interpret the helper prohibition as
applying to 14- and 15-year-olds who simply ride inside a motor vehicle
as passengers and, thus, Reg. 3 permits a 14- or 15-year-old, under
certain circumstances, to ride inside the enclosed passenger
compartment of a motor vehicle operated by a driver whose employment
complies with the conditions specified in HO 2. For example, a minor
may ride in a motor vehicle to reach another work site where he or she
will perform work, to receive special training or instructions while
riding, or to meet other employees or customers of the employer. While
a 14- or 15-year old may be a passive passenger in a vehicle, that same
minor is not permitted to ride in a motor vehicle when a significant
reason for the minor being a passenger is for the purpose of performing
work in connection with the transporting--or assisting in the
transporting--of other persons or property. Such work would include,
for example, delivering items to a customer or assisting passengers
with the loading and unloading of their luggage in conjunction with the
operation of an airport shuttle van. This interpretation comports with
the provision of Sec. 570.33(f)(1) (old), which prohibits the
employment of 14- and 15-year-olds in occupations in connection with
the transportation of persons or property by highway. Performing work
in connection with the transportation of other persons or property does
not have to be the primary reason for the trip for this prohibition to
apply.
The Department proposed to include its long-standing interpretation
that prohibits 14- and 15-year-olds riding outside of motor vehicles in
Reg. 3 at Sec. 570.33(f) (new). The Department also proposed to revise
Reg. 3 at Sec. 570.34(o) (new) to permit 14- and 15-year-olds to ride
in the enclosed passenger compartments of motor vehicles, except when a
significant reason for the minors being passengers in the vehicle is
for the purpose of performing work in connection with the
transporting--or assisting in the transporting--of other persons or
property. The proposal required that each minor must have his or her
own seat in the passenger compartment, each seat must be equipped with
a seat belt or similar restraining device, and the employer must
instruct the minors that such belts or other devices must be used.
These provisions mirror the requirements of the Drive for Teen
Employment Act as contained in HO 2.
In addition, the Department's interpretation of prohibited helper
services under Sec. 570.33(c) (old), since at least the mid-1950s, has
included the loading and unloading of materials from motor vehicles
when the purpose of the operation of the vehicle is the transportation
of such materials. Section 570.33(f)(1) (old) furthers this prohibition
by banning the employment of minors in occupations in connection with
the transportation of property by highway. Section 570.34(b)(8) (old)
prohibits the employment of such youth by retail, food service, and
gasoline service establishments to load or unload goods to and from
trucks, railroad cars, or conveyors. These prohibitions are designed to
protect young workers from the hazards associated with loading docks,
motor vehicles, and receiving departments; strains from lifting and
moving heavy items; and falls and falling items. Accordingly, 14- and
15-year-olds generally have been prohibited from loading and unloading
any property (not just ``goods'') onto and from motor vehicles,
including the light personal hand tools they use in performing their
duties.

[[Page 28411]]

In 2000, the Department was requested by a municipality (the City)
to review certain aspects of the prohibitions against employing 14- and
15-year-olds to load onto and unload items from motor vehicles. The
City advised the Department that, even with the adoption of the
enforcement position that permits state and local governments to employ
minors under certain conditions, it was being forced to abandon a
youth-employment program that provided 14- and 15-year-olds with
certain jobs because of the prohibition against loading materials into
vehicles. The City specifically requested permission to allow such
minors to load and unload, onto and from motor vehicles, the light,
non-power-driven tools each youth would personally use as part of his
or her employment. The Department carefully considered this request
and, again using its prosecutorial discretion, decided that it would
not assert a violation of the child labor provisions when 14- and 15-
year-old employees of state and local governments loaded and unloaded
the light non-power-driven hand tools--such as rakes, hand-held
clippers, and spades--that they personally use as part of their
employment. The City was advised that this enforcement policy did not
extend to other prohibited transportation-related work such as the
loading or unloading of materials other than the light hand tools the
minors may use on-the-job, such as trash or garbage, or power-driven
equipment such as lawn mowers, edgers, and weed trimmers--the use of
which by this age group is prohibited under Reg. 3.
The Department proposed to revise Reg. 3 at new Sec. Sec.
570.33(f) and (k) and 570.34(k) to incorporate the enforcement position
that allows 14- and 15-year-olds to be employed to load onto and unload
from motor vehicles the light non-power-driven personal hand tools they
use as part of their employment and to make it available to all covered
employers, not just state and local governments. Such light non-power-
driven hand tools would include, but are not limited to, rakes, hand-
held clippers, shovels, and brooms, but would not include items like
lawn mowers or other power-driven lawn maintenance equipment. In
addition, such minors would be permitted to load onto and unload from
motor vehicles any personal protective equipment they themselves will
use at the work site and any personal items such as backpacks, lunch
boxes, and coats their employers allow them to take to the work site.
Such minors would not be permitted to load or unload such jobsite-
related equipment as barriers, cones, or signage.
The Department received four comments addressing the proposal
regarding riding on motor vehicles. The AFL-CIO and the DOLWD supported
this proposal as written. The YWN supported the proposal with
additional requirements. The YWN recommended that the proposed
requirements that each seat occupied by a minor be equipped with a seat
belt or similar restraining device and that the employer instruct the
minors that such belts or other device must be used so that the
employer is required to ensure that the seat belt or other device is
actually used. In addition, the YWN would require that the driver of
the vehicle transporting the minors have a valid driver's license. The
CLC objected to the Department's proposal, stating that it did not have
sufficient information on the underlying rationale for the proposed
change to adequately comment on it. The CLC did, however, recommend
that the seat restraining devices should ``be required to be
manufacturer-issued and not homemade, and the employer should be
required to `ensure,' and not just `instruct' that the restraining
devices be used by the children.''
The Department received four comments concerning the loading of
personal hand tools onto motor vehicles at Sec. 570.34(k) (new). The
AFL-CIO supported the proposal as written. The CLC again stated that it
did not have enough information to adequately comment on the proposal.
The YWN agreed with this proposal with the added requirements that
``[w]ritten permission from parent or legal guardian is required to
permit employer to transport 14- and 15-year-olds and a copy of written
permission must be maintained by employer'' and ``[a] minor cannot be
abandoned at worksite without adult supervision.'' The DOLWD supported
the proposal provided adequate safety provisions were in place. The
DOLWD stated that ``[t]hese provisions would include that the vehicle
shall not be running and must be properly secured with the wheels
blocked during any loading and unloading operations.''
After carefully considering all the comments, the Department has
decided to adopt the proposal as originally written, with one
modification and minor editorial changes. The Department noted in its
2007 NPRM that it did not interpret the Reg. 3 helper prohibitions as
applying to 14- and 15-year-olds who ride inside the enclosed passenger
compartment of a motor vehicle when driven by a driver whose employment
complies with HO 2 under specified conditions (see 72 FR 19343). The
Department believes this long-standing important safety-affecting
interpretation requiring compliance with HO 2 should be included in the
regulatory language. In addition, the Department believes that the
drivers of the vehicles transporting the young workers should, as
recommended by the YWN, hold valid state drivers' licenses.
Accordingly, the Department has added the following sentence at the end
of Sec. 570.34(o): In addition, each driver transporting the young
workers must hold a State driver's license valid for the type of
driving involved and, if the driver is under the age of 18, his or her
employment must comply with the provisions of Sec. 570.52.
While the Department appreciates the remaining safety-affecting
recommendations made by the YWN, CLC, and DOLWD, it believes the
provisions of the original proposal, when coupled with other existing
state and federal provisions dealing with the safe operation of motor
vehicles, will provide ample protections to young workers. In addition,
when drafting the proposal regarding youth riding as passive passengers
in motor vehicles, the Department looked for guidance for establishing
the criteria regarding the use of seat belts or other safety
restraining devices. The most recent guidance came from Congress with
the enactment of The Drive for Teen Employment Act, Public Law 105-334,
in 1998. This legislation added section 13(c)(6) to the FLSA, which
permits 17-year-olds to perform certain limited on-the-job driving
under very specific conditions. One such condition is that the vehicle
be equipped with a seat belt for the driver and any passengers and that
the young driver's employer has instructed the youth that the seat
belts must be used when driving the vehicle. The Department believes by
adopting in Reg. 3 the identical language contained in HO 2 (see Sec.
570.52(b)), it not only provides a high degree of protection to young
workers but also avoids potential confusion.
3. Work in Meat Coolers and Freezers (Sec. 570.34(b)(7))
Section 570.34(b)(7) (old) prohibits 14- and 15-year-olds from
working in freezers and meat coolers. Since this section's inception,
the Department has interpreted it to mean that such youth are
prohibited from working as dairy stock clerks, meat clerks, deli
clerks, produce clerks, or frozen-food stock clerks where their duties
would require them to enter and remain in the freezer or meat cooler
for prolonged periods.

[[Page 28412]]

Inventory and cleanup work, involving prolonged stays in freezers or
meat coolers, are also prohibited. On the other hand, the Department
has adopted an enforcement position since at least 1981 that counter
workers in quick service establishments or cashiers in grocery stores
whose duties require them to occasionally enter freezers only
momentarily to retrieve items are not considered to be working in the
freezers. In order to provide clarification, the Department proposed to
incorporate this long-standing interpretation into the regulations at
Sec. 570.33(i) (new).
The Department received four comments on this proposal. The Council
supported the proposal as written. The YWN not only disagreed with the
proposal but suggested that the current prohibitions detailed at Sec.
570.34(b)(7) (old) be expanded to include ``any freezer or cooler
regardless of product, including but not limited to meat, seafood,
poultry or other produce.'' The AFL-CIO supported the proposal but
suggested that employers be required to keep the door open while the
minor was inside the freezer, that the freezer door be equipped with an
emergency release mechanism to ensure the youth can escape if the door
is mistakenly shut, and that the employer provide unobstructed entry to
and egress from the freezer. The CLC also made the same three
recommendations as the AFL-CIO and stated that ``[e]ven if DOL's
Occupational Safety and Health Administration (OSHA) has similar rules,
these should be incorporated into the child labor regulations so that a
DOL Wage and Hour Division inspector could assert a child labor
violation rather than having the employer face two inspections, one by
the Wage and Hour Division and another by OSHA.''
The Department has carefully reviewed the comments and has decided
to adopt the proposal as originally written with a conforming
clarification in Sec. 570.34(i). Even though, under this rule, 14- and
15-year-olds may only occasionally enter freezers momentarily to
retrieve items (see Sec. 570.33(i) (new) and Sec. 570.34(i) (new)),
requiring that the door be kept open while they are inside the freezer
could be unnecessarily burdensome in that, for energy efficiency and
food sanitation, most freezers are equipped with self-closing doors. We
note, as reported by the CLC, that OSHA, which is the recognized expert
in occupational safety and health issues, already has in place
important safety standards addressing emergency release mechanisms,
panic bars, and unobstructed paths in the workplace--and that these
standards protect all workers, not just those under the age of 16. The
Department believes that all these additional safety requirements, when
coupled with the provisions of the revised Sec. 570.33(i), adequately
protect young workers who momentarily enter freezers. WHD and OSHA, as
recommended by the CLC, will continue their partnership to leverage the
education and outreach efforts and enforcement actions of each agency.
Finally, the YWN's recommendation that the proposal be expanded to
include specific items being stored in the freezer or cooler, such as
seafood and poultry, is unnecessary because, as discussed above, Sec.
570.33 is a non-exhaustive list that only sets forth common examples of
prohibited occupations.
4. Youth Peddling
The Department proposed to amend Reg. 3 and create Sec. 570.33(j)
to ban the employment of 14- and 15-year-old minors in occupations
involving youth peddling, also referred to as ``door-to-door sales''
and ``street sales.'' Controversies regarding young children conducting
commercial sales of items, often on a ``door-to-door'' basis, are not
new. The Department has over the years documented reports of minors,
many as young as 10 or 11 years of age, working as part of mobile sales
crews, selling such items as candy, calendars, and greeting cards for
profit-making companies. Injuries, and even deaths, have occurred as
the result of young children engaging in youth peddling activities. The
door-to-door sales industry employing these minors generally is
composed of a number of crew leaders who, during the course of a year,
operate in many different states. The crew leaders, who often have ties
to regional or national businesses, mistakenly claim that they and
their young sales crews are independent contractors. Typically, a crew
leader attempts to saturate a particular area with sales crews, make as
many sales as possible, and then quickly move to a new location. Crews
often work from late afternoon to late at night as that is when most of
the potential customers are likely to be at home. Because youth
peddlers typically qualify as outside sales employees under FLSA
section 13(a)(1), they are usually exempt from the minimum wage and
overtime requirements of the FLSA (see 29 CFR 541.500).
Congressional hearings and the Department's enforcement experience
have shown that the problems associated with children performing door-
to-door sales and street sales are numerous. These youth are often
transported by crew leaders in vans, which fail to meet proper safety
and insurance requirements, to areas quite distant from their home
neighborhoods. They are often required to work many hours on school
nights and late into the evening. These minors are frequently placed by
employers, without adult supervision, at subway entrances, outside
large office buildings, at high-traffic street corners, and on median
strips at busy intersections where they can attract potential
customers. Reports of children being abandoned, suffering injuries from
violence and motor vehicle crashes, and being exposed to the elements
have been substantiated. Youth have been injured and have died as a
result of these activities. Intimidation by crew leaders is commonly
reported.
In 1987, the permanent Subcommittee on Investigations of the
Committee on Governmental Affairs of the United States Senate held
hearings on the Exploitation of Young Adults in Door-to-Door Sales. The
hearings included a staff study that documented many abuses that had
occurred in this industry, including indentured servitude, physical and
sexual abuse, and criminal activity. In 1998, the Interstate Labor
Standards Association created a subcommittee to work towards ending
door-to-door sales by children and recommended that the Department of
Labor act as a national clearinghouse regarding information concerning
door-to-door sales operations. In response to the 1994 ANPRM issued by
the Department, calls for banning door-to-door sales by those under 18
years of age were received from the National Consumers League, the
Defense for Children International, USA, and the Food and Allied
Service Trades Department, AFL-CIO. At least 17 states have rules
prohibiting or regulating door-to-door sales by minors.
The Department's proposal to prohibit youth peddling was not
limited to just the attempt to make a sale or the actual consummation
of a sale, but includes such activities normally associated with and
conducted as part of the individual youth peddler's sales activities,
such as the loading and unloading of vans or other motor vehicles, the
stocking and restocking of sales kits and trays, the exchanging of cash
and checks, and the transportation of minors to and from the various
sales areas by the employer.
As used here, the terms youth peddling, door-to-door-sales, and
street sales do not include legitimate fund-raising activities by
eleemosynary organizations such as cookie sales conducted by the Girl
Scouts of America or school fund-raising events where the

[[Page 28413]]

students are truly volunteers and are not promised compensation for the
sales they make. The term compensation would not include the small
prizes, trophies, or other awards of minimal value that the
eleemosynary organization may give a volunteer in recognition of his or
her fund raising efforts. In administering the FLSA, the Department
does not consider such individuals, who volunteer or donate their
services, usually on a part-time basis, for public service, religious,
or humanitarian objectives, without contemplation of pay, to be
employees of the religious, charitable, or similar nonprofit
corporations that receive their services. In addition, FLSA section
3(e)(4)(A) excludes from the definition of ``employee'' individuals who
volunteer to perform services for public agencies. These provisions
apply equally whether the volunteer is an adult or a minor.
The Department received five comments on this proposal. One private
citizen, who submitted his comment to the electronic docket for the
ANPRM published on April 17, 2007, was the only commenter to oppose the
proposal. This commenter stated that through door-to-door sales ``many
kids learn how to be confident and build communication skills with
adults.''
The DOLWD supported this proposal and noted that Alaska State
regulations restrict any worker under the age of 18 from working in
door-to-door sales. The YWN, the AFL-CIO, and the CLC also supported
this proposal and recommended that the prohibitions against youth
peddling be extended to the employment of 16- and 17-year-olds.
In addition, the YWN recommended that the Department amend the
first sentence of proposed Sec. 570.33(j) to prohibit sales by youth
``in front or around the outside of retail establishments'' as ``many
youth peddle wares outside grocery stores, large chain or box stores,
etc.'' The YWN also recommended that the Department not use the term
``eleemosynary'' in the regulations but replace it with ``plain English
words, such as `non-profit, religious or charitable organizations' to
assure understanding by all parties.''
The YWN assumed that the Department's proposal would also ban the
employment of 14- and 15-year-olds to perform sign waving, ``including
holding or carrying of any type, posing or acting as a sign not
directly in front of a retail establishment, or where no direct
supervision exists'' (emphasis in original). The YWN recommended that
such sign waving activities also be prohibited along public roads and
grassy areas or median areas next to public streets or traffic. The CLC
stated that it is not clear whether such sign waving activities would
be prohibited under the Department's proposal.
The CLC recommended that the proposal clarify where young employees
of retail establishments may legally make sales. The CLC assumed that
the youth-employer's establishment ``means inside or directly outside
the establishment, but not away from the establishment, such as on a
street corner or parking lot. This should be made more explicit by
barring youth peddling `in front or around the outside of the
establishment.''' Finally, the CLC noted the Department's statement
that youth peddlers performing outside sales are usually exempt from
the minimum wage and overtime provisions of the FLSA and took issue
with the Department's failure to ban peddling by 16- and 17-year-olds
as well. The CLC commented that ``DOL's approach here hardly comports
with its stated desire to balance `the benefits of employment
opportunities with the necessary and appropriate safety protections'
(72 FR 19337). The benefits of an employment opportunity in which the
children experiencing it are `usually' not entitled to minimum wage or
overtime pay are difficult to understand.''
The Department has carefully reviewed the comments and has decided
to adopt the proposal with certain clarifying modifications. The
Department appreciates the concerns raised by the YWN, the AFL-CIO, and
the CLC regarding the scope of the term youth-employer's establishment.
Under Sec. 570.33(j) as originally proposed, a retail establishment
that sets up an outside sales center to sell such things as garden
supplies, plants, outdoor furniture, portable grills, Christmas trees,
etc., that participates in a retailer association neighborhood
``sidewalk sale'' event, or that routinely displays its wares outside
its building may question whether it could use its young sales staff in
such endeavors. In order to eliminate confusion and provide clarity,
the Department has added a statement to Sec. 570.33(j) noting that the
ban on youth peddling does not prohibit a young salesperson from
conducting sales for his or her employer on property controlled by the
employer that is out of doors but may still properly be considered part
of the employer's establishment. Fourteen- and 15-year-olds may conduct
sales in such employer's exterior facilities, whether temporary or
permanent, as garden centers, sidewalk sales, and parking lot sales,
when they are employed by that establishment.
The Department agrees with the recommendations of both the YWN and
CLC that the regulatory text be revised to specifically state that 14-
and 15-year-olds may not be employed as sign-wavers, promoting
particular products, services, or events, except when performing the
sign waving activities directly in front of an establishment providing
the product, service or event. Because sign wavers and those hired to
wave or hold up other products, or wear placards, sandwich boards, or
costumes to attract potential customers are exposed to many of the same
dangers associated with youth peddling, the following sentence has been
added to Sec. 570.33(j): Prohibited youth peddling also includes such
promotion activities as the holding, wearing, or waving of signs,
costumes, sandwich boards, or placards in order to attract potential
customers, except when performed inside of, or directly in front of,
the employer's establishment providing the product, service, or event
being advertised.
The Department appreciates the concerns of those commenters who
recommended that the ban on youth peddling should be extended to all
youth under the age of 18 years, but considers such a change too
substantive to adopt without additional rulemaking. The Department
notes that the NIOSH Report, after carefully reviewing the available
data, did not include youth peddling as one of the 17 occupations
warranting the creation of a new Hazardous Occupations Order (HO).
However, the Department appreciates the AFL-CIO's recommendation that
``DOL begin gathering the necessary data to substantiate and justify
the need for extension of this coverage for future proposed regulations
as quickly as possible.''
Finally, with regard to the CLC's comment regarding wages, the fact
that youth who conduct door-to-door sales usually are exempt from the
minimum wage and overtime provisions of the FLSA in no way detracts
from the Department's stated objective to develop updated, realistic
health and safety standards for today's young workers that are
consistent with the established national policy of balancing the
benefits of employment opportunities for youth with the necessary and
appropriate safety protections. When Congress enacted the FLSA in 1938,
it created section 13(a)(1), which provides a complete exemption from
the minimum wage and overtime provisions for employees employed in the
capacity of outside salesman. The definition of that term, contained in
29 CFR 541.500, applies regardless of the age of the

[[Page 28414]]

employee and clearly includes youth peddlers as described in Sec.
570.33(j) (new). The FLSA, as amended, includes other exemptions from
the minimum wage and overtime provisions that impact jobs often
performed by young workers, such as those contained in section 13(a)(3)
(involving employees employed by an establishment which is an amusement
or recreational establishment, organized camp, or religious or non-
profit educational conference center); section 13(a)(15) (involving any
employee employed on a casual basis in domestic service employment to
provide babysitting services); and section 13(d) (involving any
employee engaged in the delivery of newspapers to the consumer). The
Department cannot enforce a minimum wage requirement for employees whom
the Congress has statutorily exempted from the minimum wage and
overtime provisions of the FLSA. Nor can it ban certain employment for
young workers solely because the employees engaged in such employment
are exempt from the FLSA's minimum wage and/or overtime requirements.
The Department notes that the exemption from minimum wage and overtime
contained in section 13(a)(1) for outside salespeople does not apply to
individuals employed solely to wave signs or wear placards, sandwich
boards, or costumes to attract potential customers as such promotion
work is not performed in conjunction with sales actually made by those
individuals (see Sec. 541.503).
5. Poultry Catching and Cooping
The Department has long taken the position that 14- and 15-year-
olds may not be employed to catch and coop poultry in preparation for
transportation or for market because it is a ``processing'' occupation
prohibited by Sec. 570.33(a) (old and new). Such employees are often
referred to as ``chicken catchers'' or ``poultry catchers.'' In
addition, the prohibitions against operating or tending power-driven
equipment contained in Sec. 570.33(b) (old) and Sec. 570.33(e) (new)
and the prohibition against employment in occupations in connection
with the transportation of property contained in Sec. 570.33(f)(1)
(old) and Sec. 570.33(n)(1) (new) generally preclude the employment of
such youth as poultry catchers. These activities are normally performed
in environments and under conditions that present risks of injury and
illness to young workers. Working in the dark, with the only
illumination provided by ``red lights'' which the fowl cannot see, and
in poorly ventilated rooms, is not uncommon. The risks associated with
poultry catching also occur in the catching and cooping of poultry
other than chickens--for example, processors of turkeys and Cornish
game hens employ similar methods of moving their products to slaughter.
Despite the Department's consistent interpretation that 14- and 15-
year-olds may not be employed as poultry catchers, employers still have
questions concerning how the regulations address such work, and
violations still occur. For example, the Department investigated the
death of a 15-year-old male in 1999 who was employed as a poultry
catcher, working in the dark and under red lighting, in Arkansas. The
youth was electrocuted shortly after midnight when he bumped into a fan
while performing his ``catching'' duties. In order to remove any
confusion and increase employer compliance, the Department proposed to
amend Reg. 3 and create Sec. 570.33(l) to specifically prohibit the
employment of 14- and 15-year-old minors in occupations involving the
catching and cooping of poultry for preparation for transport or for
market. The prohibition would include the catching and cooping of all
poultry, not just chickens.
It is important to note that in those rare instances when the
catching activities would be agricultural in nature, such as where
poultry catchers are employed solely by a farmer on a farm to catch
poultry raised by that farmer, the catchers would be subject to the
agricultural child labor provisions contained in FLSA sections 13(c)(1)
and (2).
The Department received three comments on this proposal. The YWN,
AFL-CIO, and CLC all supported the proposal as written. The CLC stated
that it welcomes the change as this work is plainly too hazardous for
14- and 15-year-olds to perform. The Department is adopting this
proposal as written with one grammatical change.

B. Occupations That Are Permitted for Minors Between 14 and 16 Years of
Age (29 CFR 570.33-.34)

As mentioned, section 3(l) of the FLSA expressly prohibits children
under the age of 16 from performing any work other than that which the
Secretary of Labor permits, by order or regulation, upon finding that
it does not interfere with their schooling or health and well-being
(see 29 U.S.C. 203(l)). Before a 14- or 15-year-old may legally perform
work covered by the FLSA, the Act requires that the work itself be
exempt, or that the Secretary of Labor has determined that the work to
be performed does not constitute oppressive child labor. The
Secretary's declarations of what forms of labor are not deemed
oppressive for children between the ages of 14 and 16 appear in Reg. 3
(29 CFR 570.31-.37) (old).
Reg. 3 identifies a number of occupations or activities that are
specifically permitted for the employment of youth 14 and 15 years of
age in retail, food service, and gasoline service establishments. As
mentioned, the Department proposed to revise this list of permitted
occupations by clarifying it, adding to it, and extending its
application to all employment covered by the FLSA, except those
employers engaged in mining or manufacturing, or any industry or
occupation prohibited by the proposed Sec. 570.33. This revised list
will be contained in Sec. 570.34 in the Final Rule.
The Department received six comments concerning the revision of the
list of permitted occupations and/or the expansion of the list to
include establishments other than retail, food service, and gasoline
service. Two of the commenters made recommendations that are beyond the
purview of the Department as they would require changes to the statute.
The DOLWD recommended that the Department focus on identifying the
specific areas and occupations where work is prohibited and eliminate
the specific provisions concerning where work is permitted. A
representative of an educational management company called White Hat
Management, LLC (White Hat) recommended that the FLSA's blanket
prohibition against 14- and 15-year-old being employed in manufacturing
occupations should be relaxed, stating that ``in today's day and age
when so many manufacturing jobs are automated and operated by computers
or buttons, that a blanket prohibition for manufacturing employment
hardly seems appropriate.'' Such recommendations do not comport with
the FLSA's statutory directive that 14- and 15-year-olds may not be
employed in manufacturing or mining occupations and may only hold such
employment that the Secretary has determined, by regulation or order,
does not constitute oppressive child labor (see 29 U.S.C. 203(l)).
The AFL-CIO, YWN, and CLC all expressed concern about this
proposal, stating that such sweeping changes would allow 14- and 15-
year-olds to work in many more industries, and they recommended that
the Department conduct further analysis. They specifically mentioned
and questioned the efficacy of permitting youth employment in
particular industries and employment situations.
The AFL-CIO, YWN, and CLC also noted that this proposal would allow

[[Page 28415]]

youth to perform janitorial and clean-up work, work already permitted
within retail, food service, and gasoline service establishments by
Sec. 570.34(a)(6) (old), in additional types of establishments. They
stated that such employment includes the potential for exposure to
hazardous and toxic chemicals or to bloodborne pathogens, particularly
in medical and dental offices, hospitals and nursing homes, and when
youth accept employment with professional janitorial services. There
were also concerns that 14- and 15-year-olds could now become full-time
janitors and spend an entire shift performing cleaning duties.
In addition, the CLC interpreted this proposal as having a major
impact on messenger services. It stated that because Sec. 570.33(d)
(old) and Sec. 570.33(m) (new) prohibit the employment of 14- and 15-
year-olds by a public messenger service, adoption of this proposal
implies that employment of such youth by a private messenger service
would be permitted. The CLC described private messenger services as
those that ``have standing contracts with law firms, accounting firms,
and other types of businesses'' to deliver documents or packages. The
CLC stated ``[a]ny reasonable person who has seen such couriers rushing
through city streets, dodging cars, pedestrians, and other cyclists to
deliver important documents, would shudder to think that 14- and 15-
year-olds would be able to do this work, if DOL's proposal becomes the
final regulation.''
The CLC stated that adoption of this proposal would allow 14- and
15-year-olds to perform office work for such employers as accounting
firms, advertising agencies, mass mailing businesses, insurance
companies, and many similar businesses. It expressed concerns that
office equipment, such as large paper shredders and data processing
machines with exposed moving parts, may present hazards to young
workers. In addition, the CLC noted that such minors would be permitted
to work up to eight hours a day and up to forty hours a week at
computers, typing or inputting data, during non-school weeks.
Finally, a representative of the Coosa Valley Regional Development
Center requested that 14- and 15-year-olds be permitted to be employed
in painting activities because the ``paint products in use today do not
contain lead or other hazardous materials.'' She stated that
prohibiting this age group from painting activities restricts their
employment activities. She recommended that the prohibitions involving
the use of ladders and scaffolds by this age group be retained.
The Department has carefully reviewed all the comments and has
decided to adopt the proposal as written. The concerns of the AFL-CIO,
YWN, and CLC about increased youth employment in several industries,
such as dry cleaning and laundry services, treating and disposing of
waste, mass mailing enterprises, and the painting of houses and
automobiles, are unfounded. This is because Sec. 570.33(a) (old and
new) prohibits the employment of 14- and 15-year-olds in almost all
occupations involving processing operations--which the Department has
interpreted to include dry cleaning and laundering, the treating and
disposing of waste, the conducting of mass mailings, and the painting
of houses and automobiles. The Department does not believe it is
appropriate to overturn the long-standing prohibitions against 14- and
15-year-olds being employed in construction or processing occupations
by accepting the recommendation of the Coosa Valley Regional
Development Center to allow such youth to perform painting activities.
In addition, Sec. 570.33(a) (old and new) provides additional
protections as it prevents the employment of such youth in work places
where goods are manufactured, mined, or otherwise processed. Fourteen-
and 15-year-olds could not be employed to clean such work places, even
after hours, because of WHD's long-standing interpretation that a work
place retains its character--and child labor continues to be
prohibited--even at times when nothing is being mined, processed, or
manufactured. It is also important to note that all the prohibited
occupations detailed in Sec. 570.33 (new) would be applicable to the
employment of 14- and 15-year-olds, regardless of the industries in
which they are employed.
The Department appreciates and understands the commenters' concerns
about the potential occupational exposure of young workers to hazardous
and toxic chemicals or to bloodborne pathogens. The Department believes
that the standards established by OSHA to address such potential
exposures, which are continually under agency review, provide vigorous
protections to all workers. The WHD is also reviewing prohibitions
regarding the potential exposure of young workers to ionizing
radiation, as reflected in the publication of the 2007 ANPRM.
The Department would also note that, as mentioned by the CLC, 14-
and 15-year-olds have been permitted to be employed by hospitals and
nursing homes for many years. This is because historically such
facilities, when open to the general public, have been considered to
have a retail concept. The Department continues to issue full-time
student subminimum wage certificates to such employers under FLSA
section 14(b) because of their retail character. In addition, such
youth have been permitted to be employed, and have been safely
employed, as janitors at many retail and food service establishments
over the years, including department stores, hotels, amusement parks,
restaurants, and large discount stores.
It is important to note that the CLC is incorrect in its assumption
that this proposal would permit the employment of 14- and 15-year-olds
by messenger service firms that ``have standing contracts with law
firms, accounting firms, and other types of businesses'' to deliver
documents or small packages. The Department has opined, as early as
1989, that the term public messenger service involves that delivery
service rendered to a company which takes messages, small parcels, etc.
from one party for delivery to another party. The public messenger goes
between two parties, neither of whom is necessarily known to the
messenger. The term public in this context refers to the customers
being served and not the nature of the ownership of the firm.
Accordingly, a 16-year minimum age is required for employment in such
messenger services. The CLC is correct in its interpretation that 14-
and 15-year-olds are permitted under Sec. 570.34(a)(4) (old) and Sec.
570.34(g) (new) to perform errand and delivery work by foot, bicycle,
and public transportation for their employers when their employers are
not engaged in the business of providing messenger services to others.
The Department agrees with the CLC that the adoption of this
proposal will allow 14- and 15-year-olds to be employed to perform
office work for such employers as accounting firms, advertising
agencies, and insurance companies; and that such youth could, under the
proper circumstances, work as many as eight hours in a day and forty
hours in a week when school is not in session. The Department, however,
does not agree that such an expansion of positive youth opportunities
is improper or in any way fails to comport with the requirements and
spirit of FLSA section 3(l). Office work continues to be one of the
safest occupations available to young workers. Moreover, this rule does
not change the limitations on the number of hours per day or per week
that 14- and 15-year-olds may work when school is not in session.

[[Page 28416]]

The Department also proposed to revise Sec. 570.34(a)(8) (old) by
clarifying that 14- and 15-year-olds may perform car cleaning, washing,
and polishing, but only by hand (see Sec. 570.34(n) (new)). Such youth
are prohibited from operating or tending any power-driven machinery,
other than office equipment, and this prohibition has always included
automatic car washers, power-washers, and power-driven scrubbers and
buffers. The Department believes this clarification will provide
guidance to employers.
The Department received three comments on this proposal. The YWN
supported the proposal as written. The CLC supported this proposal but
again expressed concern based on its erroneous assumption that such
youth could be employed to paint automobiles. The National Automobile
Dealers Association (NADA) took ``strong exception to this
`clarification' '' (emphasis in original). NADA stated that vehicle
washing ``anecdotally is known as the classic entry-level dealership
employment activity * * * Vehicle cleaning, washing, and polishing
activities commonly involve small portable power-washers and hand-tool
buffers'' (emphasis in the original). NADA stated that nowhere in the
regulatory history of Sec. 570.34(a)(8) or in the NIOSH Report has any
suggestion been made that power-equipment-assisted motor vehicle
cleaning, washing, and polishing activities pose ``significant safety
or health risks to 14- and 15-year-olds.'' NADA also recommended that
the word car in Sec. 570.34(a)(8) (old) be replaced with the words
motor vehicles so such youth may be permitted to wash additional types
of motor vehicles such as SUVs, station wagons, and vans.
The Department has considered the comments and has decided to adopt
the proposal as written. The Department believes this revision to be
nothing more than a clarification of its long-standing interpretation
of the regulations. Contrary to NADA's statement, Reg. 3, of which
Sec. 570.34(a)(8) is a part, has clearly stated in Sec. 570.33(b) for
many years that 14- and 15-year-olds may not be employed in
``occupations which involve the operation or tending of hoisting
apparatus or of any power-driven machinery other than office machines''
(emphasis added). If employers have allowed FLSA covered and nonexempt
14- and 15-year-olds to wash or polish cars and trucks using power-
driven washers or hand-tool buffers, they have done so in violation of
the federal child labor provisions. The NIOSH Report did not mention
the provisions of Sec. 570.34(a)(8) because the Report dealt
exclusively with HOs, which address work that is particularly hazardous
or detrimental to the health and well-being of 16- and 17-year-old
minors. Even if NADA had presented data supporting its statement that
power-equipment-assisted motor vehicle washing and polishing poses ``no
significant safety or health risks to 14- and 15-year-olds,'' the
Department notes that such a standard is considerably more lax than the
FLSA section 3(l) standard the Secretary must apply when determining
permissible employment opportunities for such youth. Finally, the
Department does not accept NADA's recommendation to expand Sec.
570.34(a)(8) (old) to include all motor vehicles. The Department has
long interpreted the term cars and trucks as used in Sec. 570.34(a)(8)
to include station wagons, SUVs, and passenger vans. The term does not
include larger vehicles such as buses, tractor-trailers, and heavy-
construction equipment--all of which would generally be considered
motor vehicles under Reg. 3 and HO 2.
The additional occupations the Department proposed to permit 14-
and 15-year-olds to perform are discussed below:
1. Work of a Mental or Artistically Creative Nature
The Department has routinely received inquiries asking whether 14-
and 15-year-old youth may be employed to perform certain mental or
artistically creative activities in industries not specifically
permitted by Reg. 3. The inquiries have concerned such jobs as a
computer programmer and computer applications demonstrator for a
college, print and runway model, and musical director at a church or
school. Often, these inquiries involved students who are especially
gifted or career oriented in a particular field. A strict adherence to
Reg. 3 requirements would not permit the employment of a 14- or 15-
year-old in any of these scenarios, even though talented and motivated
youth could safely and successfully perform these tasks without
interfering with their schooling or health and well-being.
The Department proposed to revise Reg. 3 at Sec. 570.34(b) (new)
to permit the employment of 14- and 15-year-olds to perform work of a
mental or artistically creative nature, such as computer programming,
the writing of software, teaching or performing as a tutor, serving as
a peer counselor or teacher's assistant, singing, playing a musical
instrument, and drawing. Permitted work of a mental nature would be
limited to work that is similar to that performed in an office setting
and not involving the use of any power-driven equipment other than
office machines. Artistically creative work would be limited to work in
a recognized field of artistic or creative endeavor. The employment
would be permitted in any industry other than those prohibited by Reg.
3 and would also be subject to all the applicable hours and times
standards established in Sec. 570.35 and the prohibited occupation
standards contained in Sec. 570.33.
The Department received comments from the YWN and CLC on this
proposal. Both commenters supported the proposal, but made additional
recommendations. The YWN suggested that the Department replace the word
mental with intellectual, so that the phrase in the subsection would
read ``work of an intellectual or artistically creative nature.'' The
YWN recommended that, for work of an artistic nature, certain locations
such as tattoo and body piercing establishments should be excluded due
to the potential for exposure to bloodborne pathogens. The YWN also
stated that the proposal should prohibit youth employed in artistic
endeavors from performing work that would expose them to carcinogenic,
toxic, or hazardous substances, or to high heat. ``For example, 14- and
15-year-olds would be permitted to work on a pottery wheel, but would
be prohibited from applying certain glazes and would be prohibited from
any work on or around the high heats of a pottery kiln. Another example
would be that 14- and 15-year-olds would be permitted to sculpt, but
would be prohibited from welding and soldering or any functions that
expose them to heat, or to height or other existing restrictions.''
Finally, the YWN believed that some artistically creative work may
``push the envelope on exploitative labor and/or prove detrimental to
the morals of youth.''
The CLC also supported this proposal with additional comments and
recommendations. The CLC noted that although the proposed Sec.
570.34(b) contains the statement that artistically creative work is
limited to work in a recognized field of artistic or creative endeavor,
it does not define the term artistic or creative endeavor. The CLC
correctly stated that another of the Department's regulations, 29 CFR
541.302(b), advises this term includes such fields as music, writing,
acting, and the graphic arts. The CLC also expressed concerns that
singing and the playing of musical instruments are often in demand ``in
bars, lounges, cabarets, and other places that 14- and 15-year-olds
might best avoid. These and other settings could cause untoward effects
on

[[Page 28417]]

such youngsters' moral health, even if not on their physical health and
safety.''
The Department has carefully considered the comments and has
decided to adopt the proposal with one modification. The Department
agrees with the YWN that the word intellectual better comports with the
intent of this proposal than the word mental. Accordingly, the
Department is revising the proposed Sec. 570.34(b) to reflect this
suggested change.
The Department understands the concerns of both commenters as to
the types of tasks young workers would be permitted to perform under
the umbrella of ``artistic or creative endeavors'' and notes that it
will rely on 29 CFR 541.302(b)--which limits the scope of this term to
such fields as music, writing, acting, and the graphic arts--for
guidance. The Department wishes to address concerns raised by the YWN
by stating that it does not consider tattooing or body piercing
performed by employees under the age of 16 years to be artistically
creative endeavors under Sec. 541.302(b).
The Department also notes that 14- and 15-year-olds who are
employed in artistic or creative endeavors will continue to be
prohibited from performing any of the occupations or tasks detailed in
the revised Sec. 570.33. These prohibitions, which include work in
manufacturing and processing occupations, the operation of most power-
driven equipment, and any duties in work rooms or work places where
goods are manufactured or processed, should alleviate many of the
concerns raised by the YWN and CLC. These prohibitions would prevent a
14- or 15-year-old from working in a factory or workroom as a
``molder'' or ``hand painter'' producing mass quantities of nearly
identical pottery or ceramic items, but when coupled with this Final
Rule, they would permit the youth to express his or her artistic
talents to shape by hand a unique clay pot or sculpt a piece of art.
Likewise, a 14- or 15-year-old could be employed, with all the
safeguards of Sec. Sec. 570.33-.35, as a painter of portraits but not
as a painter of automobiles or houses. Similarly, a youth could be
employed to create unique photographs that rise to the level of art,
but would be prohibited from developing those photographs and working
with the chemicals and solvents commonly used in such processing
activities. In addition, the hours standards provisions of Sec. 570.35
restrict the number of hours and times of day that 14- and 15-year-olds
may be employed in any FLSA-covered work, including artistic or
creative endeavors.
Finally, the Department appreciates the concerns of both the YWN
and CLC that under the guise of ``artistic or creative endeavors'' some
employers have attempted to employ youth in unsafe or unsavory lines of
work that, as the commenters note, jeopardize the morals of the young
workers. For example, the Department has encountered a situation
involving the employment of very young females as ``taxi-dancers'' who
were recruited and paid by bars and nightclubs to dance with male
patrons, often late into the evening. The Department was able to
quickly put an end to this unacceptable employment by not only
enforcing the child labor and minimum wage provisions of the FLSA, but
by partnering with local law enforcement authorities to ensure that
city and state laws addressing community standards were enforced. The
Department believes that the strict enforcement of such ordinances by
the appropriate authorities will continue to be important supplements
to the effectiveness of the federal child labor laws.
2. The Employment of 15-Year-Olds (But Not 14-Year-Olds) as Lifeguards
The Department proposed to revise Reg. 3 at Sec. 570.34(l) to
permit the employment of 15-year-olds as lifeguards at swimming pools
and water amusement parks under certain conditions. A local chapter of
the American Red Cross (Chapter) first raised this issue in 2000. The
Chapter advised the Department that the Red Cross had revised its own
rules and had begun certifying 15-year-olds as lifeguards. Prior to
2000, according to the Chapter, 16 years was generally the minimum age
at which the Red Cross would provide such certification. The Chapter
inquired as to whether Reg. 3 would permit the employment of 15-year-
olds as lifeguards. Also in 2000, a municipality contacted the
Department inquiring whether it could legally employ such youth as
lifeguards at its city-owned swimming pools.
The occupation of lifeguard is not specifically authorized in Reg.
3 as an occupation that 14- and 15-year-olds may perform. In response
to the inquiries, the Department adopted an enforcement policy in 2000
that allowed 15-year-olds (but not 14-year-olds) to be employed at
swimming pools owned and operated by state and local governments or
private-sector retail establishments under certain conditions. Those
conditions included that the youth be trained and certified in aquatics
and water safety by the Red Cross or by some similarly recognized
certifying organization, and that the youth work under conditions
acceptable to the Red Cross or some similarly recognized certifying
organization. This enforcement position permitted such employment at
swimming pools operated by hotels, amusement parks, cities, and state-
owned universities, but did not permit such employment at pools
operated by non-public and non-retail establishments such as apartment
houses, country clubs, private schools, home-owner associations, and
private health clubs. In early 2005, the Department, after reviewing
additional information, extended this enforcement position to permit
the employment of 15-year-olds as lifeguards at all traditional
swimming pools regardless of who owns, operates or manages the
establishments, and at those facilities of water amusement parks that
constitute traditional swimming pools.
The Department proposed to revise Reg. 3 by creating Sec.
570.34(l) to incorporate portions of the current enforcement position.
The revision would permit 15-year-olds, but not 14-year-olds, to be
employed as lifeguards, performing lifeguard duties, at traditional
swimming pools and certain areas of amusement water parks operated by
all types of employers, if the minors have been trained and certified
by the Red Cross or a similarly recognized certifying organization.
The occupation of lifeguard, as used in this subpart, entails the
duties of rescuing swimmers in danger of drowning, the monitoring of
activities at a swimming pool to prevent accidents, the teaching of
water safety, and assisting patrons. Lifeguards may also help to
maintain order and cleanliness in the pool and pool areas, give
swimming instructions, conduct or officiate at swimming meets, and
administer first aid. Additional ancillary lifeguard duties may include
checking in and out such items as towels, rings, watches and apparel.
Permitted duties for 15-year-olds would include the use of a ladder to
access and descend from the lifeguard chair; the use of hand tools to
clean the pool and pool area; and the testing and recording of water
quality for temperature and/or pH levels, using all of the tools of the
testing process including adding chemicals to the test water sample.
Fifteen-year-olds employed as lifeguards would, however, be prohibited
from entering or working in any mechanical rooms or chemical storage
areas, including any areas where the filtration and chlorinating
systems are housed. The other provisions of Reg. 3, including the
restrictions on hours of work contained at Sec. 570.35(a), would

[[Page 28418]]

continue to apply to the employment of 15-year-old lifeguards.
Under the proposed rule, no youth under 15 years of age, whether
properly certified or not, could legally perform any portion of the
lifeguard duties detailed above as part of his or her FLSA covered
employment. The core and defining duty of a lifeguard is the rescuing
of swimmers in danger of drowning, often by entering the water and
physically bringing the swimmer to safety. Under the Department's
proposal, any employee under the age of 16 whose duties include this
core duty--such as a ``junior lifeguard'' or a ``swim-teacher aide''--
or whose employment could place him or her in a situation where the
employer would reasonably expect him or her to perform such rescue
duties, would be performing the duties of a lifeguard while working in
such a position. For such employment to comply with Reg. 3, the
employee would have to be at least 15 years of age and be properly
certified.
A traditional swimming pool, as used in this subpart, would mean a
water-tight structure of concrete, masonry, or other approved materials
located either indoors or outdoors, used for bathing or swimming and
filled with a filtered and disinfected water supply, together with
buildings, appurtenances and equipment used in connection therewith. A
water amusement park means an establishment that not only encompasses
the features of a traditional swimming pool, but may also include such
additional attractions as wave pools; lazy rivers; specialized
activities areas such as baby pools, water falls, and sprinklers; and
elevated water slides. Properly certified 15-year-olds would be
permitted to be employed as lifeguards at most of these water park
features.
Not included in the definition of a traditional swimming pool or a
water amusement park would be such natural environment swimming
facilities as rivers, streams, lakes, reservoirs, wharfs, piers,
canals, or oceanside beaches.
It is important to note that Sec. 570.33(b) (old) prohibits the
employment of 14- and 15-year-olds in occupations involving the
operation or tending of power-driven machinery, except office machines.
This prohibition has always encompassed the operation or tending of all
power-driven amusement park and recreation establishment rides--
including elevated slides found at water amusement parks. Such slides,
which often reach heights of over 40 feet, rely on power-driven
machinery that pump water to the top of the slides which facilitates
the descents of the riders to the ``splash-down'' areas at the base of
the slides. Minors less than 16 years of age may not be employed as
dispatchers or attendants at the top of elevated water slides--
employees who maintain order, direct patrons as to when to depart the
top of the slide, and ensure that patrons have safely begun their
ride--because such work constitutes ``tending'' as used in Reg. 3. In
addition, when serving as dispatchers or attendants at the top of an
elevated water slide, minors under 16 years of age are not performing,
nor can they reasonably be expected to perform, the core lifeguard duty
of rescuing swimmers because they are so far removed from the splash-
down area of the slide. Accordingly, even if 15-year-old minors have
been certified as lifeguards, the provisions of Sec. 570.34(l) would
not apply to the time spent as dispatchers or attendants at an elevated
water slide. Properly certified 15-year-old lifeguards, however, may be
stationed at the ``splashdown pools'' located at the bottom of the
elevated water slides to perform traditional lifeguard duties.
The Department is aware that permitting 15-year-olds to be employed
as lifeguards at such water amusement park facilities as lazy rivers,
wave pools, and the splashdown pools of elevated slides could be
construed as allowing these youth to tend power-driven machinery. But
the Department believes that the overall predominance of their
responsibility to perform the core life-saving duty of rescuing patrons
who are in the water, which they have been properly trained and
certified to perform, outweighs the minimum, isolated, and sporadic
amount of tending such lifeguards may potentially be called upon to do
when stationed at wave pools, lazy rivers, and splashdown pools.
The Department received eleven comments in response to this
proposal. This includes three comments that were submitted as
attachments to the comments of the International Association of
Amusement Parks and Attractions (IAAPA). The comments centered around
the following elements of the proposal: (1) Whether 15 should be the
minimum age for employment as a lifeguard at a traditional swimming
pool or water amusement park; (2) whether 16 should be the minimum age
for employment as a lifeguard at natural environments such as lakes,
rivers, and oceanside beaches; and (3) whether 15-year-olds should be
prohibited from being employed as dispatchers or attendants at the top
of elevated water slides.
Some of the commenters supported the entire proposal as written or
suggested only minor modifications. The IAAPA, which describes itself
as the largest international trade association for permanently-situated
amusement facilities worldwide, supported this proposal. The proposal
was supported by the General Manager of Shipwreck Island Waterpark of
Panama Beach City, Florida, whose comments were submitted by the IAAPA.
A representative of Six Flags, Inc. also supported the proposal and
stated that ``[w]hile we still believe that 15-year-olds could safely
work as dispatchers on elevated water elements, we find the proposed
changes to be an acceptable compromise.''
The National Recreation and Park Association (NRPA), which
described itself as ``a non-profit organization seeking to enhance
public park facilities and expand recreation opportunities,'' supported
the adoption of the proposed change in regulations that would revise
Reg. 3 in order to ``conditionally allow'' 15-year-olds to be employed
at traditional swimming pools and water parks. The NRPA also supported
establishing a minimum age of 16 for the employment of lifeguards at
natural environments. In addition, the NRPA commented that ``[l]ocal
park and recreation agencies have a great need to find qualified,
capable, and certified lifeguards to work in their outdoor pools,
indoor pools, water amusement park facilities, and natural bodies of
water. In proposing these regulations, the Department will help
agencies meet their needs to hire certified lifeguards by allowing
lifeguards to begin work at the age of 15. Expanding the eligible age
for employment as a lifeguard at traditional swimming pools could help
these communities enhance pool safety by providing a wider and larger
applicant pool from which to select qualified candidates, and by
increasing lifeguard availability, make shorter shifts an increasingly
real probability.''
The American Red Cross (Red Cross), which has been developing and
implementing lifeguard training and certification programs since 1914,
stated that it is ``comfortable'' with the Department's proposal with
one small change. The Red Cross objected to the Department including
the task of ``giving swimming instructions'' in the list of duties that
15-year-olds may perform because the Red Cross lifeguard training
course does not include training on how to give swimming instructions.
Such training is available to 15-year-olds via a separate Red Cross
Water Safety Instructor (WSI) course. The Red Cross recommended that
the Department

[[Page 28419]]

alleviate possible public misunderstanding by deleting ``giving
swimming instructions'' from the list of permitted lifeguard duties.
The United States Lifesaving Association (USLA), which described
itself as America's nonprofit, professional association of beach
lifeguards and open water rescuers, reported that it ``works to reduce
the incidence of death and injury in the aquatic environment through
public education, promulgation of national lifeguard standards,
training programs, promotion of high levels of lifeguard readiness, and
other means.'' The USLA commented that, since 1980, it has maintained
the position that lifeguards serving at natural environments, whether
surf or non-surf beaches, should be at least 16 years of age. The USLA
further commented that this position was also reached by participants
at a national conference held in 1980 which issued a report entitled
``Guidelines for Establishing Open-Water Recreational Beach
Standards.'' Participants included representatives of the American
Camping Association, Red Cross, National Safety Council, YMCA of the
USA, Council for National Cooperation in Aquatics, Centers for Disease
Control and Prevention, U.S. Coast Guard, Boy Scouts of America, the
National Park Service, several major municipal lifeguard agencies from
throughout the USA, and several medical experts. The USLA noted that
the participants at this conference, which used a consensus-based
process to issue its recommendations, considered such factors as the
physical and cultural parameters of the natural environments to be
guarded; the psychological and physiological stresses of public safety
employment; the lack of physical stamina, maturity, and experience of
those under 16 years of age; and the varying levels of supervision
provided young lifeguards. The USLA summarized its comments by stating
``people under the age of 16 should not be permitted to work as
lifeguards at natural environments.'' It also commented that it found
it difficult to construct reasons that differentiate the natural
environment from the pool environment, given that many of the reasons
for establishing a minimum age of 16 years for employment as a
lifeguard at a natural environment facility are equally applicable at
traditional pools.
The YWN and the CLC opposed this proposal and both, apparently,
support the comments submitted by the USLA, although this is not clear.
The YWN referred to comments of the US Lifeguarding Association and the
CLC referred to comments of the Lifeguard Standards Association. The
Department has not been contacted by any organizations using those
names in regards to this proposal.
The YWN also stated that work as a lifeguard may entail exposure to
combative individuals, bloodborne pathogens, and chemicals. It added
that, for these reasons, other organizations like the YMCA do not
certify lifeguards until age 16 and thus ``DOL's argument that this
proposal ties DOL enforcement practice to `standards' in the industry
is not accurate.'' The YWN also questioned the justification for adding
a new and unique age cut-off for this one particular job, when all
other regulations group 15-year-olds with 14-year-olds.
The CLC stated that ``most distressing is the fact that DOL gives
no indication of what the Red Cross training requires.'' It also
commented that the fact that DOL would require the lifeguards to be
certified by the Red Cross (or a similar certifying organization) in
aquatics and water safety ``in no way assures that the DOL proposal is
prudent.''
The World Waterpark Association (WWA) supported the proposal to
permit the employment of 15-year-olds as lifeguards at traditional
swimming pools and water amusement parks, but opposed that portion of
the proposal that would prohibit such youth from working as dispatchers
or attendants at the top of elevated water slides. The WWA opined that
``[it] is a universally accepted position of the aquatic community that
a lifeguard's first responsibility is to prevent accidents and injuries
by enforcing rules and educating patrons * * *. Therefore, 15-year-olds
working at the tops of waterslides are fulfilling one of the core
duties of properly trained lifeguards, in a manner which places them at
the least possible risk.'' The WWA also disagreed with the Department's
position that working as a dispatcher or attendant at the top of an
elevated water slide constitutes tending of power-driven machinery
under the provisions of Reg. 3 where there are no mechanized conveyance
systems or emergency ride controls at the top.
A representative of Morey's Pier of Wildwood, New Jersey, whose
comments were submitted by the IAAPA, supported the proposal to allow
the employment of 15-year-olds as lifeguards at traditional swimming
pools and water amusement parks. She also addressed the position of
water slide dispatcher, stating ``we see no reason or evidence that
this is a dangerous job that should be restricted.'' She also opined
that such dispatchers are not in contact with any power-driven
machinery.
A representative of the Pleasant Hill Recreation and Park District
(Pleasant Hill) of Pleasant Hill, California, expressed concern about
how this proposal would affect youth who volunteer in her District's
``junior lifeguard program.'' After reviewing the list of permitted
lifeguard duties presented in Sec. 570.34(l)(2), she noted that her
facility has ``swim instructors who are certified by the American Red
Cross as Water Safety Instructors, but are not lifeguard certified.''
Her facility has ``cashiers who are not lifeguard certified, but who
help maintain order/cleanliness in the pool area (deck, locker rooms,
crowd control during emergency, etc.). She questioned whether such
employees, who are not employed as lifeguards, must be at least 16
years of age or be 15 years of age with proper lifeguard certification.
The representative of Pleasant Hill also noted that youth aged 11
to 14 years of age participate in her facility's junior lifeguard
program. The participants attend 8 hours of training, which follows the
Red Cross's Guard Start Program, and then volunteer at the pool as
aides during swim lessons. Participating youths are assigned to assist
an instructor, are never left alone to teach a class, and also help
during recreational swims ``by checking in/out patrons bags/apparel/
belongings.'' She noted that the junior lifeguard program is an
important tool for recruiting and developing future lifeguards.
The Department has carefully considered all the comments and has
decided to adopt the proposal as written, with two modifications. The
Department appreciates the concerns raised by the Red Cross that
certified lifeguards may not have received the proper training, and
therefore the proper certification, to give swimming instruction. This
same issue was mentioned by Pleasant Hill, which noted that it had
swimming instructors who were properly certified by the Red Cross but
were not certified as lifeguards. In order to address the concerns of
the Red Cross, ensure the maximum possible safety for young workers and
their charges who are learning to swim, and eliminate confusion, the
Department is modifying the language in the proposed Sec. 570.34(l)(2)
to reflect that 15-year-olds may be employed as swimming instructors
only when they have been certified to perform both lifeguard and
swimming instruction by the Red Cross or some other recognized
certifying organization. This requirement for dual certification, like
the other lifeguard

[[Page 28420]]

requirements contained in Reg. 3, will end when the minor reaches his
or her 16th birthday.
The Department received an inquiry after the publication of the
NPRM asking why ponds and quarries, places where swimming often occurs,
were not specifically listed as natural environment swimming facilities
in Sec. 570.34(l)(2) where the term traditional swimming pool is
defined. In order to clarify the Final Rule, the Department has decided
to add ponds and quarries to the non-exhaustive list of examples of
natural environment swimming facilities that currently includes rivers,
streams, lakes, reservoirs, wharfs, piers, canals, and oceanside
beaches.
The Department appreciates the concerns of the YWN, CLC, and USLA
about lowering the employment age for lifeguards at traditional
swimming pools and certain water amusement park facilities to 15, but
believes that such safeguards as proper certification in aquatics and
water safety by a recognized certification organization, the
prohibition against tending power-driven machinery which prevents 15-
year-olds from working as dispatchers or attendants at the top of
elevated water slides, the OSHA standards addressing potential
exposures to bloodborne pathogens and chemicals, and the hours and
times of day standards established by Sec. 570.35 combine to provide
adequate protections to these young workers. The Department does not
share the YWN's concerns about adding ``a new and unique age cut-off
for this one particular job, when all other regulations group 15-year-
olds with 14-year-olds.'' The Department notes that when rules are
clearly written and adequately explained, public understanding and
compliance follow. This was evidenced by the revisions to HO 2
published on December 16, 2004 (see 69 FR 75382, see also Sec.
570.52(b)) necessitated by the enactment of FLSA section 13(c)(6),
which permits limited on-the-job driving by 17-year-olds under certain
conditions, but not by 16-year-olds.
The Department does not agree with the CLC's comment that the DOL
gives no indication of what Red Cross training requires and the YWN's
comment that this proposal is not ``tied to standards in the
industry.'' The Red Cross, just like other nationally recognized
certifying organizations, spends a great deal of time and effort
formulating, refining, disseminating, and publicizing the elements and
standards of its lifeguard certification program. It is difficult to
argue that the Red Cross is not the ``industry standard'' when it
estimates that about 90% of all lifeguards in the USA have received
training through its lifeguard training program.
The Department appreciates the concerns of certain commenters that
15-year-olds should be permitted to be employed as dispatchers or
attendants at the top of elevated water slides, but believes that
continuation of its long-held position that such employment constitutes
the prohibited tending of power-driven equipment--just as it is for
attendants on roller coasters, merry-go-rounds, and ski-lifts--is both
prudent and proper.
Finally, the Department acknowledges the concerns of Pleasant Hill
which raised the issue of ``junior lifeguard programs'' and the
``volunteer'' participation of youths between the ages of 11 and 14 in
such endeavors. The Department notes that when such programs do not
involve an employer-employee relationship, they fall outside the
provisions of the FLSA. But when it is determined that an employer-
employee relationship does exist, and the employee is engaged in work
that is subject to the FLSA, the minimum age for such employment at a
traditional swimming pool would be 14. Such 14-year-old employees could
not be employed as lifeguards or swim instructors, but could perform
such tasks as maintaining the cleanliness of the pool area and locker
rooms, signing in and signing out patrons, and checking in and out such
items as towels, watches, and apparel. Such youth would not be
permitted to perform any of the core functions of a lifeguard nor be
employed in a situation where their employers could reasonably expect
them to rescue swimmers in danger of drowning. Under this Final Rule,
properly certified 15-year-olds could be employed at such pools as
lifeguards.
3. The Employment of Certain Youth by Places of Business Where
Machinery Is Used To Process Wood Products
The provisions of the Consolidated Appropriations Act, 2004,
amended the FLSA by creating a limited exemption from the child labor
provisions for certain minors 14 through 17 years of age who are
excused from compulsory school attendance beyond the eighth grade. The
exemption, contained at section 13(c)(7) of the FLSA, allows eligible
youth to work inside and outside of places of businesses that use
machinery to process wood products, subject to specified limitations.
The Department is incorporating the new requirements of this amendment
into its regulations. The Department proposed to incorporate the
amendment into Reg. 3 at Sec. 570.34(m), and into Sec. 570.54,
Logging occupations and occupations in the operation of any sawmill,
lath mill, shingle mill, or cooperage stock mill (Order 4).
Section 13(c)(7) overrides the heretofore complete prohibition on
the employment of 14- and 15-year-olds in manufacturing occupations
contained in section 3(l) of the FLSA. Accordingly, to meet the
requirements of this legislation, the Department proposed to revise
Reg. 3 to permit the employment of qualifying 14- and 15-year-olds
inside and outside of places of business where manufacturing (the
processing of wood products by machinery) takes place, subject to
specified conditions and limitations.
The Department proposed to limit the types of employers that may
employ such minors, as well as the worksites at which such minors may
be employed, to those contemplated by the language of the statute and
mentioned by the sponsors of the legislation and the interested parties
that testified at the hearings held by Congress prior to the enactment
of the legislation (see, e.g., Testimony Before Senate Labor, Health
and Human Services, and Education Subcommittee of the Committee on
Appropriations, The Employment Needs of Amish Youth, 107th Cong. 2
(2001)). The term places of business where machinery is used to process
wood products shall mean such permanent workplaces as sawmills, lath
mills, shingle mills, cooperage stock mills, furniture and cabinet
making shops, gazebo and shed making shops, toy manufacturing shops,
and pallet shops. The term shall not include construction sites,
portable sawmills, areas where logging is being performed, or mining
operations. The term inside or outside places of business refers to the
distinct physical place of the business, i.e., the buildings and the
immediate grounds necessary for the operation of the business. This
exemption would not apply to tasks performed at locations other than
inside or outside the place of business of the employer such as the
delivery of items to customers or the installation of items at
customers' establishments or residences.
Although section 13(c)(7) permits the employment of certain youth
inside and outside of places of business where machinery is used to
process wood products, it does so only if the youth do not operate or
assist in the operation of power-driven woodworking machines. The
occupations of operating or assisting in the operation of and the term
power-driven woodworking machines are well-established in the
regulations, including in Sec. 570.55. The Department proposed to
revise Reg. 3 to

[[Page 28421]]

include definitions of these terms along with the specific prohibition
against operating or assisting in the operation of power-driven
woodworking machines. Section 570.55 lists, when discussing the
prohibited occupations involved in the operation of power-driven
woodworking machines, such activities as supervising or controlling the
operation of the machines, feeding materials into such machines, and
helping the operator feed material into such machines. The list also
includes the occupations of setting up, adjusting, repairing, oiling,
or cleaning the machines. That same section defines power-driven
woodworking machines to mean all fixed or portable machines or tools
driven by power and used or designed for cutting, shaping, forming,
surfacing, nailing, stapling, wire stitching, fastening, or otherwise
assembling, pressing, or printing wood or veneer. The Department
proposed to amend the definition of power-driven woodworking machines
to include those machines that process trees, logs, and lumber in
recognition that section 13(c)(7) now permits certain youth 14 through
17 years of age to work in such places of business as sawmills, lath
mills, and shingle mills where trees, logs, and lumber would be
processed. Expanding this definition thus clarifies that youth are
prohibited from operating or assisting in the operation of wood-
processing machinery typically found in the workplaces covered by the
2004 amendment. This revised definition of power-driven woodworking
machines would be included in Sec. 570.34(m) of Reg. 3 and both Sec.
570.54 (HO 4) and Sec. 570.55 (HO 5).
The limited exemption contained in section 13(c)(7) applies only to
certain youth--new entrants into the workforce--and only when certain
additional criteria are met. Section 13(c)(7) defines a new entrant
into the workforce as an individual who is under the age of 18 and at
least the age of 14, and, by statute or judicial order, is exempt from
compulsory school attendance beyond the eighth grade.
In addition, in order to be employed inside or outside of places of
business where machinery is used to process wood products, the new
entrant must be supervised by an adult relative or an adult member of
the same religious sect or division as the entrant. The term supervised
refers to the requirement that the youth's on-the-job activities be
directed, monitored, overseen, and controlled by a specified named
adult. Although the statute does not define the terms adult and
relative, the Department proposed that, for purpose of this exemption,
a relative would include a parent (or person standing in place of a
parent), a grandparent, an aunt, an uncle, and a sibling; and an adult
would be someone who has reached his or her eighteenth birthday. The
Department also proposed that the term adult member of the same
religious sect or division as the youth would mean an adult who
professes membership in the same religious sect or division to which
the youth professes membership. The Department believes that in order
to ensure these youth receive the degree of protection from injury
Congress intended, the supervision of the minors must be close, direct,
and uninterrupted. It is important to note that this requirement of
close, direct, and uninterrupted supervision, just like the requirement
that youth not operate or assist in the operation of power-driven
woodworking machinery, applies to the employment of 16- and 17-year-
olds as well as 14- and 15-year-olds.
Furthermore, section 13(c)(7) permits the employment of a new
entrant inside or outside places of business where machinery is used to
process wood products only if the youth is protected from wood
particles or other flying debris within the workplace by a barrier
appropriate to the potential hazard of such wood particles or flying
debris or by maintaining a sufficient distance from machinery in
operation, and is required to use personal protective equipment to
prevent exposure to excessive levels of noise and saw dust. It is the
Department's position that section 13(c)(7)'s prerequisite that the
youth is ``required to use personal protective equipment to prevent
exposure to excessive levels of noise and saw dust'' includes the
youth's actual use of such equipment and not just the employer's
obligation to mandate such use.
The Wage and Hour Division has consulted with representatives of
the Department's Occupational Safety and Health Administration (OSHA)
and will defer to that agency's expertise and guidance when determining
whether an employer is in compliance with the safety provisions of this
exemption--i.e., whether a workplace barrier is appropriate to the
potential hazard, whether a sufficient distance has been maintained
from machinery in operation, and whether the youth is exposed to
excessive levels of noise and saw dust. The Department proposed that
compliance with the safety and health provisions discussed in the
previous paragraph will be accomplished when the employer is in
compliance with the requirements of the applicable governing standards
issued by OSHA or, in those areas where OSHA has authorized the state
to operate its own Occupational Safety and Health Plan, the applicable
standards issued by the Office charged with administering the State
Occupational Safety and Health Plan.
The Department received three comments on this proposal. Although
both the YWN and CLC stated that they did not support enactment of FLSA
section 13(c)(7), they strongly supported the Department's efforts to
ensure that the regulations provide adequate protections for youths who
are now permitted to be employed inside and outside places of business
where machinery is used to process wood products. Both of these
commenters, along with the AFL-CIO, made additional recommendations to
the proposal.
Both the YWN and the AFL-CIO recommended that the Department add a
requirement to the revised Sec. 570.34(m)(1) that all youth who come
within the exemption provided by FLSA section 13(c)(7) must receive
safety training or certification for the specific activities allowed
under the proposal.
The CLC labeled as a ``wise approach'' the Department's proposal to
rely on the expertise of OSHA, or the Office charged with administering
an OSHA-authorized state plan where appropriate, to determine if
employers are complying with certain of the safety standards
established by FLSA section 13(c)(7). As an outgrowth of this proposal,
it stated that ``it would make sense either for the Wage and Hour
Division to enforce OSHA in this context by issuing OSHA citations that
assert OSHA violations, or for the Wage and Hour Division investigator
to notify OSHA of an OSHA violation and direct OSHA to investigate the
matter as well for OSHA violations. The reason for this recommendation
that the CLC makes here is that if there are OSHA violations that give
rise to child labor violations, then the adults who work with the
woodworking machinery are subject to the same workplace hazards as the
children.''
The CLC commented that the Department's proposal that the
supervision received by young workers employed under the provisions of
FLSA section 13(c)(7) be close, direct, constant, and uninterrupted is
essential in view of the serious hazards that such youth will face. The
CLC recommended that the proposal should also require that the
supervision be ``one-on-one'' and that the supervisors of the young
workers should be required to have experience within the wood
processing industry or that workplace.
The CLC also expressed concern that neither the statute nor the
proposal

[[Page 28422]]

addresses the potential exposure of young workers to ``the toxic
chemicals present in adhesives and coating agents that are used in
woodworking operations.'' The CLC noted that many of these chemicals
pose risks of both short-term and long-term effects on the human body
and also are extremely flammable, and hence pose significant fire and
explosion hazards. CLC stated ``DOL's OSHA experts are familiar with
these hazards.''
Finally, the CLC noted that the statute did not require woodworking
establishments that employ youth under the provisions of FLSA section
13(c)(7) to report all work-related accidents and deaths of such
workers to the Department. The CLC stated that even in the absence of
such a reporting requirement, the Department can play an important role
by publicizing not only the hazards of working in such places of
business, but also the results of any child labor investigations
involving woodworking machines. The CLC believed that such publicizing
will remind all American youth, their parents, and their employers ``of
the grave dangers that these machines represent to working children.''
The Department has carefully reviewed the comments of the YWN, AFL-
CIO, and CLC. It has decided to adopt the proposal as written, with one
clarifying modification.
Since the enactment of FLSA section 13(c)(7) on January 23, 2004,
the Department's enforcement position has been that the employment of
14- and 15-year-olds employed under the provisions of that section must
still be in compliance with all other provisions of Reg. 3, including
the hours and time of day standards of Sec. 570.35. Although this is
evidenced by the Department's compliance and enforcement guidance and
the structure of the NPRM, it was not explicitly stated in the proposed
rule. The Department received an inquiry on this issue after the
publication of the proposal. In order to prevent any possible confusion
and to provide maximum clarity, the Department has revised the Final
Rule by adding the following sentence to the end of Sec. 570.34(m)(2):
The employment of youth under this section must comply with the other
sections of this subpart, including the hours and time of day standards
established by Sec. 570.35.
The Department appreciates the support and concerns of the
commenters. The Department believes that the youths who will be
employed under the provisions of FLSA section 13(c)(7) will receive
significant workplace protections from the statute and these resulting
regulations. Requiring pre-employment certification or training of
youth was not envisioned by Congress, especially for a population of
young workers whose formal education ends at such an early age. The
Department also believes that the CLC recommendations that the ratio of
supervisors to young workers should be one-to-one and that all adults
supervising have experience in the workplace or the industry were not
contemplated by Congress and would be viewed as excessive. Similarly,
the Department believes that the CLC recommendation regarding the
mandatory reporting of work-related injuries and deaths that might
occur to youth employed under the provisions of FLSA section 13(c)(7)
would be duplicative of the reporting requirements already established
by OSHA.
The Department has long recognized the importance of, and the
benefits resulting from, OSHA and WHD working together to share
enforcement expertise and information, and to leverage compliance
assistance initiatives. As recognized by the CLC, these two agencies
have a long and productive history of partnering for the benefit of
American workers and those who employ them. It is the Department's
intention that this relationship will continue to grow and accommodate
additional partnering opportunities as they arise. As stated in the
Final Rule, WHD will continue to rely on OSHA's expertise for guidance
when applying the specific occupational health and safety-affecting
requirements of FLSA section 13(c)(7) (see Sec. 570.34(m)(1)(iii) and
(iv)) as well as when assessing the risks from potential exposures to
toxic chemicals; but WHD will not itself issue citations for violations
of OSHA standards. As the CLC stated, ``DOL's OSHA experts are familiar
with these hazards.''
Finally, the Department is well aware of the importance of keeping
all stakeholders informed of its compliance assistance initiatives and
enforcement findings, and of serious occupational injuries involving
youth. WHD, OSHA, and NIOSH have, for many years, shared information
among themselves concerning occupational injuries that have contributed
to the deaths of young workers as soon as one of the parties learned of
the death. WHD, OSHA, and NIOSH then work together to ensure that the
appropriate rules are followed and enforced and to learn from each
event in the hopes that future tragedies can be prevented. This
cooperation will continue after the adoption of the Final Rule.

C. Periods and Conditions of Employment (29 CFR 570.35)

FLSA section 3(l) authorizes the Secretary of Labor to provide by
regulation for the employment of young workers 14 and 15 years of age
in suitable nonagricultural occupations and during periods and under
conditions that will not interfere with their schooling or with their
health and well-being. In enacting FLSA section 3(l), Congress intended
to assure the health and educational opportunities of 14- and 15-year-
olds, while allowing them limited employment opportunities.
Reg. 3 was promulgated in 1939 under the direction of the Chief of
the Children's Bureau, in whom Congress vested the original delegation
of authority to issue child labor regulations. The record on which Reg.
3 was based included hearings where advocates of children expressed
concern over the need for children to avoid fatigue, so as not to
deplete the energy required for their school work. Similarly, witnesses
stressed that early morning and late evening work hours, which
interfered with sleep and often fostered exhaustion, were unhealthful
for children and also diminished the time that children should have
spent with the family (see In the Matter of Proposed Regulation
Relating to the Employment of Minors Between 14 and 16 Years of Age
Under the Fair Labor Standards Act, Official Report of the Proceedings
Before the Children's Bureau, February 15, 1939, at 19, 21, 34, 82).
Reg. 3 limits the hours that 14- and 15-year-olds may work to:
(1) Outside school hours;
(2) Not more than 40 hours in any 1 week when school is not in
session;
(3) Not more than 18 hours in any 1 week when school is in session;
(4) Not more than 8 hours in any 1 day when school is not in
session;
(5) Not more than 3 hours in any 1 day when school is in session;
and
(6) Between 7 a.m. and 7 p.m. in any 1 day, except during the
summer (June 1 through Labor Day) when the evening hour will be 9 p.m.
The Department did not propose to change any of these hours and
time-of-day limitations, but wished to foster both understanding of,
and compliance with, these provisions by incorporating into the
regulations certain long-standing Departmental enforcement positions
and interpretations. For example, the Department has developed long-
standing enforcement positions regarding the application of certain of
the hours standards limitations to minors who, for differing reasons,
no

[[Page 28423]]

longer attend or are unable to attend school. Some of these positions
have been in place since the 1970s and all have been detailed in the
Wage and Hour Division's Field Operations Handbook since 1993. The
Department proposed to incorporate them into Reg. 3 to promote both
clarity and compliance. The Department proposed to amend Sec. 570.35
to reflect that school would not be considered to be in session for a
14- or 15-year-old minor who has graduated from high school; or has
been excused from compulsory school attendance by the state or other
jurisdiction once he or she has completed the eighth grade and his or
her employment complies with all the requirements of the state school
attendance law; or has a child to support and appropriate state
officers, pursuant to state law, have waived school attendance
requirements for this minor; or is subject to an order of a state or
federal court prohibiting him or her from attending school; or has been
permanently expelled from the local public school he or she would
normally attend. Such minors would be exempt from the ``when school is
in session'' hours standards limitations contained in Sec. Sec.
570.35(a)(1), (a)(3) and (a)(5). The employment of such minors would
still be governed by the remaining provisions of Reg. 3, including the
daily, weekly, morning, and evening hours standards limitations
contained in Sec. Sec. 570.35(a)(2), (a)(4), and (a)(6).
The Department also proposed to clarify the hours restriction
contained in Sec. 570.35(a)(5), which limits the employment of 14- and
15-year-olds in nonagricultural employment to no more than 3 hours on a
day when school is in session, by adding a statement that this
restriction also applies to Fridays. The WHD occasionally receives
requests for clarification from employers seeking to lengthen the work
shifts of younger employees on nights that do not precede a school day.
As the stated purposes of the hours standards limitations include the
protection of young workers from exhaustion and the preservation of
time for rest and family relations, no more than 3 hours of work is
permitted on any day when school is in session.
The Department also proposed to incorporate into Reg. 3 its long-
standing position that the term week as used in Reg. 3 means a standard
calendar week of 12:01 a.m. Sunday through midnight Saturday, not an
employer's workweek as defined in 29 CFR 778.105. The calendar week
would continue to serve as the timeframe for determining whether a
minor worked in excess of 18 hours during any week when school was in
session or in excess of 40 hours in any week when school was not in
session.
Finally, as noted above, Reg. 3 limits the employment of 14- and
15-year-olds to periods that are outside of school hours and to
designated hours depending upon whether or not school is in session.
Although neither the FLSA nor Reg. 3 defines the terms school hours and
school is in session as they apply to nonagricultural employment, the
Department has developed and applied a long-standing enforcement
position that these terms refer to the normal hours of the public
school system in the child's district of residence. This enforcement
position mirrors the provisions of FLSA section 13(c)(1), which
Congress added in 1949, to clarify how these terms apply to the
employment of youth in agricultural employment. FLSA section 13(c)(1)
states, in relevant part: ``The provisions of section 212 of this title
relating to child labor shall not apply to any employee employed in
agriculture outside of school hours for the school district where such
employee is living while he is so employed, if such employee * * *. (C)
is fourteen years of age or older.''
Though the Department did not propose specific regulatory language
regarding these terms when it published the NPRM, it did seek
information from the public regarding whether such regulatory
provisions would be appropriate, including whether: (1) The Department
should continue to use the hours of operation of the local public
school where a minor resides to determine when he or she may legally be
employed, even when that minor does not attend that local public school
or, for whatever reason, may actually have attendance requirements that
differ from those of the rest of the students attending that local
school; (2) the FLSA's requirement that such a minor only be employed
under conditions and during periods that will not interfere with his or
her schooling or health and well-being would be equally or better
served if it were based on the minor's own actual academic schedule;
and (3) using the academic schedule and attendance requirements of each
minor when determining when school was in session for that minor would
provide working youths greater opportunities and flexibility when
seeking safe, positive and legal employment. The Department stated
that, based on the comments it received, it would consider adding
regulatory provisions to the Final Rule defining the terms school hours
and school is in session as they apply to nonagricultural employment.
The Department received nine comments on this proposal. Two
commenters, the YWN and the CLC, addressed the proposal to incorporate
into Sec. 570.35 certain long-standing departmental enforcement
positions regarding the application of the hours standards. Both
supported the Department's enforcement positions that school should not
be considered in session for a 14- or 15-year-old youth who has
graduated from high school; has been excused from compulsory school
attendance by the state or other jurisdiction once he or she has
completed the eighth grade and his or her employment complies with all
the provisions of the state school attendance law; or is subject to an
order prohibiting him or her from attending school. Although the YWN
supported the proposals that school should also not be considered in
session for a youth who (1) has a child to support and appropriate
state officers, pursuant to state law, have waived school attendance
requirements for that minor, or (2) has been permanently expelled from
the local public school he or she would normally attend, the CLC did
not. The CLC stated that it believes it is ``ill-advised to excuse 14-
and 15-year-olds from compulsory school attendance on the basis of
parental status. It serves the best interests of the 14- and 15-year-
old parent, as well as the young parent's child, for the parent to
complete his or her education, thus realizing a long-term benefit of
increased and better employment in the future.'' The CLC stated that a
child permanently expelled from public school might still be required,
under state or local law or perhaps court order, to attend some other
school. The CLC recommended that the Department amend its proposed
revision to read ``Has been permanently expelled from the local public
school he or she would normally attend, unless the child is required,
by state or local law or ordinance, or by court order, to attend
another school.''
Only the YWN and CLC commented on the Department's proposal to
clarify the Reg. 3 limitation that 14- and 15-year-olds may not be
employed to work more than three hours on any one day when school is in
session by adding the phrase ``including Fridays.'' Both the YWN and
the CLC supported this proposal. The representative of White Hat
recommended that participants in programs similar to those of the
charter schools he advises should be permitted to work up to five hours
on a school day.
The Department received six comments that addressed its proposal to
incorporate into Reg. 3 its long-standing

[[Page 28424]]

position that the term ``week'' as used in Reg. 3 means a standard
calendar week of 12:01 a.m. Sunday through midnight Saturday, not an
employer's workweek as defined in 29 CFR 778.105. The proposal stated
that the calendar week would continue to serve as the timeframe for
determining whether a minor worked in excess of 18 hours during any
week when school was in session or in excess of 40 hours in any week
when school was not in session.
Both the YWN and CLC supported this proposal. Four commenters, the
Food Marketing Institute (FMI), Six Flags, the WWA, and the
representative of Morey's Pier, opposed the proposal. The FMI described
itself as a conductor of ``programs in research, education, industry
relations and public affairs on behalf of its 1,500 member companies--
food retailers and wholesalers--in the United States and around the
world.'' The FMI reported that its retail membership is composed of
large multi-store chains, regional firms and independent supermarkets.
The FMI stated ``[w]e strongly object to this change, which would
create an administrative nightmare, and see no reason for it.'' The FMI
commented that most of its members already have systems in place based
on their own workweeks that automatically check hours worked to make
sure minors do not exceed their allowable hours. ``By requiring the use
of a Sunday to Saturday midnight week, employers would be forced to
check hours worked manually, making it more likely that mistakes would
be made.''
The WWA echoed the concerns of the FMI and asked that the proposed
rule be amended to allow employers to calculate hours worked so that
Saturday and Sunday hours may be included within the same workweek. Six
Flags expressed the same concern regarding its ability to use its
payroll tracking system as a compliance tool and recommended that the
Department allow employers to use any reasonable system such as labor
tracking and payroll monitoring tools that complement their record
keeping systems. The representative of Morey's Pier recommended that
the term workweek should be defined, but not necessarily by the
calendar.
The Department received six comments on its enforcement position
that defines the term school in session as applying to the normal hours
of the public school system in the minor employee's district of
residence. The YWN and the CLC supported using the hours of the local
public school district the minor would attend if he or she attended
public school when defining the term school in session. The YWN praised
the enforcement benefits that would arise from having only one standard
in each school district, thereby avoiding multiple schedules that would
create unworkable and needlessly complex enforcement standards. The YWN
also suggested that the Department should clearly state in the Final
Rule that school is considered to be in session during any week in
which school attendance is required for one or more days. The CLC
commented that ``[if] the school day schedules established by private
schools and by parents of home-schooled children could determine when
children being educated in those settings governed here, there would be
nothing in the DOL child labor regulations that would prevent such a
school or parent from setting a schedule that would permit children to
work during the hours that the public school system is in session.
Indeed, non-public schools could be established by organizations whose
prime goal is to provide 14- and 15-year-old working children to
employers during normal business hours in the middle of the day, rather
than to make sure that the children are in school during the hours when
they are most alert and receptive to classroom instruction. We do not
say that there would be many such schools or home-schooling parents,
but the mere fact that such outcomes could occur should be reason
enough to cause DOL to reject this approach.'' The CLC, when commenting
on the Department's inquiry regarding whether employers of working
youth should be given greater flexibility, stated ``[t]here is no need
for DOL to bend over backwards to try to assure that children have the
absolute maximum opportunity to squeeze every possible minute of the
day into the three hours that they can work during a school day. This
approach seems to us to give far more emphasis to work experiences for
14- and 15-year-olds than to their education.''
The National Council of Chain Restaurants (Council), the
representative of Morey's Pier, and the FMI supported defining the term
school in session by following the academic schedule and attendance
requirements of each minor, rather than that of the local public
school. The Council noted that frequently ``the academic schedule and
attendance requirements followed by public schools do differ, sometimes
significantly, from the schedule followed by private schools. By
applying each minor's actual school schedule, rather than arbitrarily
applying the local public school schedule, job opportunities would be
expanded for minors subject to Child Labor Reg. 3 without adversely
impacting the school work of such minors.'' The FMI stated that
adopting the hours of the local public school when defining the term
school is in session would ``make no sense'' for the many young people
who do not go to public schools. The FMI found it ``hard to understand
why their work hours should be governed by a school system they have
nothing to do with.'' The representative of Morey's Pier believed that
each minor should be treated individually and that his or her own
academic schedule and attendance requirements should be used when
determining when school was in session for the minor. Barring adoption
of her recommendation, she believed the Department's enforcement
position to be the ``second best option.''
The DOLWD did not oppose this enforcement position but suggested
that an ``exception'' from the definition of school is in session
should be created for youth enrolled in home school or other
alternative school programs based on considerations of ``whether the
work interferes with the individual's schooling, health or well being
rather than the hours of operation for public schools.'' The DOLWD also
suggested that the federal regulations on the number of hours that 14-
and 15-year-olds may work should be amended to be consistent with the
more permissive standards established in Alaska. The Council also
recommended that the Department expand the number of hours that such
youth may be employed to four hours on any school day; to as late as 8
p.m. on any evening between Labor Day and May 31st; and as late as 10
p.m. on any evening between June 1st and Labor Day. The YWN recommended
that the Department eliminate the reference to between June 1st and
Labor Day and replace it with the actual calendar of each public
school, noting that an increasing number of school districts have year-
round schedules.
After carefully reviewing the comments, the Department has decided
to continue its long-standing enforcement position that school hours
are defined by the hours that the local public school district where
the minor resides when employed is in session, and to add this
definition to Sec. 570.35(b) to avoid confusion and to simplify both
compliance and enforcement of the hours standards of Reg. 3. The
Department has also included in this definition the YWN's recommended
clarifying statement that school should be considered to be in session
during any week when school attendance is

[[Page 28425]]

required for any portion of a day. The Department is also adding to
that section its long-standing position that outside school hours means
such periods as before and after school hours, holidays, summer
vacations, weekends, and any other day or part of a day when the local
public school district where the minor resides while employed is not in
session. This section will also note that summer school sessions, held
in addition to the regularly scheduled school year, are considered to
be outside of school hours.
The Department appreciates the concerns of the one employer and two
employer associations that recommended that an employee's own academic
schedule and individual attendance requirements should be used to
determine when school is in session for that minor and recognizes how
such a position could be seen as a means of providing minors with more
work experiences while addressing employer staffing problems. But the
Department is concerned that such a system may not give the proper
emphasis to obtaining an education and would make employer compliance
and WHD enforcement more difficult and more complicated than necessary,
given the broad variety of daily school schedules that each young
employee could have.
The Department believes that the continuation and incorporation of
this enforcement position brings clarity in that employers need only
look to the hours of operation of the local public school where the
minor resides to attain compliance. It also ensures that the consistent
application of these terms for both agricultural and nonagricultural
employment will continue, thereby avoiding confusion among those
employers who offer both agricultural and nonagricultural employment to
young workers. Finally, continuation of this enforcement position
facilitates the enforcement of the Reg. 3 hours standards by
establishing a single, easily determinable standard.
The Department also believes that continuation of this enforcement
position is appropriate as it does not provide any minor or class of
minors with an incentive to leave public school or with an unfair and
improper advantage over public school youth when competing for
employment. The Department notes the CLC's concerns that determining
when school is in session by using each student's individual academic
schedule could foster the development of nonpublic schools or home-
schooling programs created primarily to provide 14- and 15-year-old
working children to employers during the hours they would normally have
attended public school. While the Department agrees with the CLC that
it is unlikely that many such schools or home-schooling programs would
materialize, it does note that the emergence of schools that were
designed to allow migrant children to work on farms during the daylight
hours when the local public school was in session, was an impetus for
the 1949 amendment to the FLSA that codified this very same enforcement
position as it relates to agricultural employment.
The Department has decided not to incorporate into Reg. 3 its long-
standing enforcement position that a calendar week--12:01 a.m. Sunday
through midnight Saturday--shall be the framework for determining if a
14- or 15-year-old has been employed more than 18 hours in any week
when school is in session or more than 40 hours in any week when school
is not is session. The Department agrees with several commenters who
noted that applying the same definition of the term week for
determining compliance with the minimum wage, overtime, and child labor
provisions of the FLSA would make it much easier for employers to use
their payroll systems as tools and tracking systems for implementing
and maintaining compliance with the child labor requirements.
Accordingly, as suggested by those commenters, the Department will
define the term week as used in Reg. 3 to be the same workweek the
employer establishes for the youth to determine overtime compensation
under 29 CFR 778.105--a fixed and regularly recurring period of 168
hours--seven consecutive 24-hour periods.
Finally, the Department acknowledges the recommendations of the
DOLWD, the Council, and the representative of White Hat regarding the
relaxation of certain of the hours and time of day restrictions of Reg.
3 to permit 14- and 15-year-olds to work more hours on a school day or
in a school week, or later into the evening. As noted in the NPRM, the
Department did not propose any revisions to those standards. Any such
changes, therefore, would be outside the scope of this rulemaking.

D. Work-Study Programs

Effective November 5, 1969, Reg. 3 was amended to provide a
variance from some of the provisions of Sec. 570.35 for the employment
of minors 14 and 15 years of age enrolled in and employed pursuant to a
school-supervised and administered Work Experience and Career
Exploration Program (WECEP). Although originally proposed as an
experimental program, Reg. 3 was amended to make the WECEP a permanent
exception.
WECEP was created to provide a carefully planned work experience
and career exploration program for 14- and 15-year-old youth who can
benefit from a career-oriented educational program designed especially
to meet the participants' needs, interests, and abilities. The program
was, and continues to be, specifically geared to helping dropout-prone
youth become reoriented and motivated toward education and to prepare
for the world of work. WECEPs may, however, be tailored to meet the
needs of other students as well.
Section 570.35a establishes the criteria that must be met in order
for states to apply for and receive authorization to operate a WECEP.
This same section details the terms, conditions, and responsibilities
participating states agree to assume upon receiving authorization to
operate a WECEP.
As mentioned, certain provisions of Sec. 570.35 relating to the
Reg. 3 hours standards are varied for youth enrolled in and employed
pursuant to an approved WECEP. Such youth may work up to 23 hours in
any one week when school is in session and not more than 3 hours in any
day when school is in session, any portion of which may be during
school hours. The other provisions of Sec. 570.35 (limiting employment
to no more than 8 hours a day on any one day school is not in session,
and no more than 40 hours in any one week when school is not in
session) remain applicable to the employment of WECEP participants.
Section 570.35a also includes provisions that allow the Administrator
of the Wage and Hour Division discretion to grant requests for special
variances from the occupation standards established by Sec. Sec.
570.33 and 570.34.
Several states have advised the Department that WECEP serves its
targeted audience well, helping those who are not academically oriented
stay in school and complete their high school educations. However,
WECEP, by design, does little to help those students who wish to use
work experience, and the wages such experiences generate, as a means to
realize their academic potential and acquire a college education.
In 2003, the Department became aware of a non-profit network of
private schools, hereafter referred to as the Network, that was
operating a corporate work-study program for its students. The Network
is an association of private, not-for-profit college preparatory high
schools that strive to

[[Page 28426]]

meet the educational needs of people in many economically challenged
areas throughout the country. The work-study program was implemented to
help students offset the costs of a quality college preparatory
education and develop important work experience and socialization
skills that will allow them to assume leadership roles as adults.
Under the Network's model, four students share a single, full-time
clerical position with a private employer at a work place screened and
selected by the school. Each youth works five full days per four-week
period for the employer at the work place--one eight-hour day once a
week for three weeks, and two eight-hour days every fourth week. The
academic schedules of the students are carefully coordinated so that
students do not miss any classes on the days they work and the school
year has been extended beyond the standard academic schedule of the
local public school to compensate for the time the students spend at
work. These accommodations ensure that students complete a fully
accredited, college preparatory curriculum that exceeds both state and
accrediting agency requirements. Under the Network model, students do
not work more than eight hours a day, before 7 a.m. or after 7 p.m.,
and are transported to and from their jobs by the school. The students
receive at least the applicable federal and state minimum wages, and
applicable taxes are withheld and reported by their respective
employers. The Network envisioned the work-study program as an integral
part of the academic program, yielding benefits on many different
levels. Students, their parents, and the work-study director sign an
agreement defining performance expectations and program support
structures. Participating employers are also required to sign an
agreement defining job duties and expectations. All students are
required to participate in the work-study program, beginning with their
freshman year and ending at graduation.
The Network provided information that its model is achieving its
stated aims. It advised the Department that 100 percent of the students
of the 2003 graduating class of one of its schools were accepted into
college. The school is located in a neighborhood where 20 percent of
those attending the local public school drop out annually and the high
school graduation rate of the local public school is 55 percent.
Reg. 3, as currently written, does not allow 14- and 15-year-olds
to participate in the Network's work-study programs. Such youth may not
work during the hours school is in session--unless participating in a
state sponsored WECEP--and may not work more than three hours on a day
the local public school is in session.
Because the Department believes that the health, well-being, and
educational opportunities of 14- and 15-year-olds who are academically
oriented are not placed at risk by participation in structured work-
study programs such as the Network's model--and are in fact enhanced by
such participation--it proposed that Reg. 3 be revised to accommodate
such programs. The Department proposed to allow public and private
school districts or systems to apply to the Administrator of the Wage
and Hour Division for approval to operate a work-study program that
would permit certain 14- and 15-year-olds to work during school hours
and up to eight hours on a school day under specific circumstances. An
individual private school that was not part of a network, district, or
system would also be able to apply to participate in a work study
program.
The youth would have to be enrolled in a college preparatory
curriculum and must receive, every year they participate in the work-
study program, at least the minimum number of hours of class room
instruction required by the applicable state educational agency
responsible for establishing such standards. Participating youth would
also be required to receive annual classroom instruction in workplace
safety and child labor provisions. Home-schooled youth would be able to
participate in work-study programs operated by local public schools in
the same manner many currently participate in team sports programs,
band, and other extracurricular activities.
Each participating school would be required to name a teacher-
coordinator to supervise the work-study program, make regularly
scheduled visits to the students' work sites, and ensure that
participants are employed in compliance with the minimum wage and child
labor provisions of the FLSA. In addition, the teacher-coordinator, the
employer and the student would be required to sign a written
participation agreement that details the objectives of the work-study
program, describes the specific job duties to be performed by the
student, and the number of hours and times of day that the student
would be employed each week. The agreement, which must also be signed
or otherwise consented to by the student's parent or guardian, would
also affirm that the student will receive the minimum number of hours
of class room instruction as required by the state educational agency
for the completion of a fully-accredited college preparatory curriculum
and that the employment will comply with the applicable child labor and
minimum wage provisions of the FLSA.
Students participating in a valid work-study program would be
permitted to work up to eighteen hours a week, a portion of which may
be during school hours, in accordance with the following formula that
is based upon a continuous four-week cycle. In three of the four weeks,
the participant would be permitted to work during school hours on only
one day per week, and for no more than eight hours on that day. During
the remaining week of the four-week cycle, such minor would be
permitted to work during school hours on no more than two days, and for
no more than eight hours on each of those two days. The employment of
such minors would still be subject to the time of day and number of
hours standards contained in Sec. 570.35(a)(2), (a)(3), (a)(4), and
(a)(6).
The Department received eight comments on this proposal. The Cristo
Rey Network, which described itself as ``a non-profit corporation that
co-ordinates twelve college prep high schools across the country,''
self-identified itself as the Network that the Department describes in
the NPRM. The Cristo Rey Network was most supportive of the proposal
and noted that its work-study program meets the statutory objective of
permitting youth employment only ``during periods and under conditions
that will not interfere with their schooling or health and well being''
as required by FLSA section 3(l). Cristo Rey stated ``[m]eeting those
objectives can be quantified in Cristo Rey's 97+% attendance rate and/
or in its graduates' own achievements: i.e., of 219 graduates in 2006,
212 were accepted into colleges including schools such as the
University of California at Berkley, the University of Illinois, the
University of Notre Dame, the University of Chicago, and Wellesley
College; and the success continues: of 318 graduates in 2007, 313 will
attend college this Fall.'' Cristo Rey noted that the schools in the
Network provide an option for private education to children who are
``predominantly Latino (63%) or African-American (25%) and who are all
from economically-disadvantaged families; the average family income of
these students is approximately $33,000--far too little to make private
education an option absent the work-study program that the schools in
the Network have pioneered.''
The YWN disagreed with the proposal, stating that Sec. 570.35a
already includes provisions that allow the WHD

[[Page 28427]]

to grant requests for special variances from the occupation standards
regarding prohibited work, and that this should be expanded to grant
variances from the Reg. 3 hours standards as well. The YWN stated that
this proposal benefits one single program and makes the regulations
unnecessarily complex. It also raises concerns that the ``host
employer'' might not be subject to the same restrictions and
requirements as any other employer who hires youth and that students
may be replacing a ``regular paid employee.''
The CLC noted that it had several serious concerns about this
proposal. It felt that the proposal was so narrowly tailored to one
specific program that it could easily bar other school systems ``that
have similar, but not identical, approaches'' from taking advantage of
the program. The CLC stated that ``[w]hat is particularly troubling--
and what DOL does not indicate in its preamble to the proposed
regulation--is that the only school system that appears to qualify for
the proposed program is a private Roman Catholic system.'' The CLC
stated that ``[t]he DOL proposal raises serious questions under the
First Amendment to the United States Constitution, which forbids the
government favoring one religious sect over another.''
The CLC also raised concerns as to whether DOL would ``be able to
assure that no violations occur under this system'' and of ``the
secrecy of the approval process that DOL would adopt.'' The CLC
believed that the proposed approval process is not sufficiently
transparent and recommended that DOL be required to publish a notice in
the Federal Register detailing every work-study program application and
invite public comment during a specified period of 30 or 60 days.
The CLC also noted that the proposal would not prohibit an employer
from replacing a permanent worker at an establishment participating in
the work-study program with student-workers, as prohibited under the
WECEP provisions contained in Sec. 570.35a(e). The CLC also expressed
concerns that the Cristo Rey Network has been operating a work-study
program for almost a decade and questioned how much of each youth's pay
check goes to Cristo Rey and how much, if any, goes to the youth.
Finally, the CLC also questioned, as did the YWN, if the ``host
employers'' or the Cristo Rey High School would be considered the
actual employers of the youth under the FLSA.
The Department received several comments supporting the creation of
a work-study program that would allow youth to work during the hours
school was in session, but opposing that such a program be limited, as
the Department proposed, to students enrolled in a college preparatory
curriculum. The DOLWD recommended that the program should be expanded
to include pre-apprenticeship work training programs, and a
representative of the New Jersey Department of Education (NJDOE)
recommended that ``determining the educational and eligibility
requirements for such programs be left to state education agencies.''
The NJDOE also stated that the Department's proposal to limit
participation in the work-study program ``conflicts with the federal No
Child Left Behind Act, the federal Carl D. Perkins Career and Technical
Education Act, the federal Individuals with Disabilities Education Act,
and state laws and regulations, which require state education agencies
and public schools to serve all students and provide all students with
comprehensive career education, including opportunities to further
explore careers in work-based learning activities.''
The representative of White Hat supported the creation of a work-
study program but suggested that charter schools of the type he
represents should not be subjected to the ``bureaucratic requirements''
imposed by the work-study application process proposed by the
Department, ``which can be prohibitive for some smaller schools and
which serve to take needed resources away from educational instruction
and helping more students.'' He also stated that limiting participation
in the proposed work-study program to students enrolled in a college
preparatory curriculum ``can also have the unintended consequence of
denying extended work hours and compensation from those who need it the
most, the undereducated.''
A representative of the National Association of State Directors of
Career Technical Education Consortium (State Directors) apparently
believed that the adoption of the proposal contained in Sec. 570.35b
would preclude anyone but a student enrolled in a college preparatory
curriculum from participating in any work-study program in the future.
He stated ``such a rule would cripple career technical education (CTE)
programs that have work-based learning opportunities embedded within
the curriculum.'' The same assumption was made by a teacher at the
Sunrise Mountain High School in Peoria, Arizona who commented ``[t]hese
internships provide our students valuable hands-on experiences to help
connect school and careers in a meaningful way. The RIN 1215-AB44
proposal would remove this valuable learning experience from our
students.''
The Department has carefully reviewed the comments and has decided
to implement the proposal as written with two minor modifications. The
first modification involves a redesignation of the sections dealing
with both WECEP and the Work Study Program as requested by the Federal
Register. The current Sec. 570.35a will be redesignated as Sec.
570.36 and the proposed Sec. 570.35b will be issued as Sec. 570.37.
The second modification clarifies the role of the teacher-coordinator.
The Department wishes to emphasize that this proposal creates a
new, limited, work-study program designed to accommodate the needs of a
narrowly defined population--14- and 15-year-old students enrolled in a
college preparatory curriculum at a public or private school that has
been granted authority to operate such a program by the Department.
This new program does not in any way negate or preclude schools or
employers from participating in other preexisting or future work-study
programs, work experience and/or career exploration programs,
internships, or apprenticeships that also comport with the provisions
of the FLSA (whether with the hours standards and time of day
restrictions in Sec. 570.35 or the special WECEP rules in Sec.
570.35a (old) and Sec. 570.36 (new)). This proposal was developed and
offered solely with the intent, as stated earlier in this section, of
providing reasonable and structured accommodations within Reg. 3 so
that academically oriented 14- and 15-year-olds could begin their
pursuit of college educations through work-study programs.
Participation in the proposed work-study program is voluntary and it in
no way conflicts with other federal, state, or local programs
addressing the educational needs of young workers. The concerns of the
State Directors and the NJDOE are unfounded.
The Department appreciates the recommendations of several
commenters that the work-study program should be extended to youth
enrolled in programs other than college preparatory, such as vocational
programs, internships, and apprenticeships. The Department notes that
the already existing WECEP (see Sec. 570.36 (new)) would provide those
programs with limited exemptions from the hours standards contained in
Sec. 570.35(a) that are similar to the exemptions provided by the
proposed work-study program.
The Department also disagrees with the YWN and CLC comments that
the

[[Page 28428]]

proposed work-study program was designed to accommodate a single
program--the Cristo Rey Network. Although the Cristo Rey Network work-
study model was reviewed by the Department, the proposed work-study
program differs considerably from that model. The Department's proposed
WSP, unlike the Cristo Rey model, requires annual classroom instruction
in workplace safety and state and federal child labor provisions and
rules (see Sec. 570.37(b)(3)(ii)), the oversight of a designated
teacher-coordinator required to make visits to the students' workplaces
(see Sec. 570.37(b)(3)(iii)), the completion of a detailed written
participation agreement (see Sec. 570.37(b)(3)(iv)), and a rigorous
certification process. The Department believes that these additional
requirements, many of which correspond to the criteria established for
operating a WECEP under Sec. 570.36 (new), will provide adequate
protections to all students who participate in an approved work-study
program under the provisions of Sec. 570.37 (new). The Department also
believes that the certification process as proposed by the Department,
which again is similar to that required of WECEP applicants, provides
sufficient transparency without requiring publication in the Federal
Register or public comment. In addition, pursuant to the President's
commitment to openness and transparency,\1\ the Department intends to
publish the list of schools authorized to operate a work-study program
on the WHD Web site.
---------------------------------------------------------------------------

\1\ January 21, 2009 Memorandum for the Heads of Executive
Departments and Agencies, available at: http://edocket.access.gpo.gov/2009/pdf/E9-1777.pdf.
---------------------------------------------------------------------------

The Department also notes that the proposed work-study program
provides considerable flexibility to those schools that choose to
participate. The limitations on the number of hours that participating
students may be employed (see Sec. 570.37(c) (new)), though in line
with those established by the Cristo Rey Network, constitute the
absolute maximum number of hours that participants may be employed.
Participating schools and employers may choose to adopt some other
schedule of work hours that comport with the established maxima--such
as one four-hour day or one six-hour day each workweek; or two eight-
hour days each weekend; or three hours a day at the end of each of
three school days, as long as those hours comply with end-of-day hours
standards established by Sec. 570.35(a)(6). In addition, a school
could apply and receive authorization under Sec. 570.37 (new) to
operate a work-study program for just one student, one group of
students, or, as in the case of the Cristo Rey Network, the entire
student body.
The Department wishes to emphasize that the development of this
student-work program was never intended to advantage any single,
private school system, but was proposed for the benefit of all
academically motivated students enrolled in college preparatory
curricula that can avail themselves of such a program of employment
that clearly facilitates, rather than interferes with, their schooling.
The Department, for this very reason, did not specifically identify the
Cristo Rey Network in the NPRM. It did not want the public mistakenly
to believe that participation in the proposed work-study program would
be limited to private schools, public schools, or any particular
religious or nonreligious sect. For similar reasons, the Department did
not identify the municipalities that inquired about the employment of
youth by state and local governments and as lifeguards, which led to
the Department's enforcement positions on those topics. Since
publication of the NPRM, the Department has received inquiries from
public schools and private schools (not part of the Cristo Rey Network)
about establishing work-study programs under Sec. 570.37 (new).
The Department also wishes to assure both the YWN and CLC that
employers participating in the work-study program authorized by Sec.
570.37 (new) would indeed be the employer of the youth under the FLSA
and held to all the Act's minimum wage, overtime, record keeping, and
child labor provisions--unless subject to a specific exemption or
exception--as would any other employer. In fact, depending upon the
facts of each situation and the degree of control the school exercises
over the employment of the participating student, it is possible that
the student would be considered to be jointly employed by the host-
employer and the youth's school under the FLSA (see 29 CFR part 791).
The FLSA would require that students participating in the work-study
program, if covered by the Act and not exempt from the minimum wage
requirements of section 6, receive the applicable minimum wage for all
hours worked. Such students may, in accordance with 29 CFR 531.40, make
a voluntary assignment of their wages to a third party. The employment
of students participating in the work-study program would also most
likely be subject to state wage requirements and child labor
provisions. When state and federal requirements differ, the FLSA does
not supersede any more protective state child labor requirement and
employers must normally comply with the more stringent standard.
Under Sec. 570.37 (new), the participating school district and
employers share the burden of ensuring that the employment of work-
study program participants is in compliance with the FLSA. When the
Department conducts an investigation of a work-study program
participating employer, it will follow its normal investigation
procedures to determine if the employer complied with child labor
requirements. The employer will be held responsible for any violations
of the FLSA or the child labor regulations. But the Department
considers it appropriate that the school district sponsoring the work-
study assist the employer in the both achieving and monitoring the
compliance of the work-study program.
Therefore, the Department has revised the proposed regulatory
language at Sec. 570.37(b)(3)(iii) to emphasize the role of the
teacher-coordinator in confirming that the employment of the work-study
program participant complies with the child labor and minimum wage
requirements of the FLSA. In addition, when a school system files a
letter of application to renew an existing work-study program, it will
be required to note that the teacher-coordinator has confirmed that the
employment of students in the work-study program has been in compliance
with the child labor and minimum wage provisions of the FLSA.
The Department believes that the teacher-coordinator occupies an
ideal position to both help the employer attain and maintain compliance
with the all the requirements of work-study program and assist the
Department's enforcement efforts by confirming that compliance. In
addition to the regularly scheduled visits to the workplaces the
teacher-coordinator is required to make, the Department suggests that
such things as frequent interactions with the work-study program
students, program assessments and evaluations completed by the students
and the employers, and surprise or unscheduled visits to the workplaces
can all contribute to the operation of a safe, compliant, and positive
work-study program. The suggested methods of confirmation are purely
discretionary; no work-study participating school district will be
penalized for not adopting them. The Department notes that it is not
imposing any recordkeeping burdens on the employers or the school
districts beyond those proposed in the 2007 NPRM, therefore no
additional estimates of costs or burdens will be incurred that

[[Page 28429]]

must be accounted for pursuant to the Paperwork Reduction Act and
Regulatory Flexibility Act.
The Department appreciates the concerns of both the YWN and the CLC
that the proposed work-study program, unlike the WECEP, does not
prohibit participating employers from displacing a worker already
employed in the employer's establishment with a student (see Sec.
570.36(e) (new)). The Department's experience with the pilot work-study
program indicates that most of the jobs occupied by the students were
entry-level positions created especially for the work-study program. In
addition, the pilot program reduced the number of jobs being occupied
by student participants by requiring that four students share a single
full-time position. The Department expects that its experiences under
the new work-study program will be similar. It believes that
encouraging employers to create such multiple employment opportunities
for youth who qualify for participation in the work-study program
warrants this flexibility.

E. Logging Occupations and Occupations in the Operation of Any Sawmill,
Lath Mill, Shingle Mill, or Cooperage Stock Mill (Order 4) (29 CFR
570.54)

HO 4 generally prohibits minors 16 and 17 years of age from being
employed in most occupations in logging and in the operation of a
sawmill, lath mill, shingle mill or cooperage stock mill. The HO was
created because of the extremely high numbers of occupational
fatalities and injuries that were experienced by workers of all ages in
these industries.
HO 4 currently provides exemptions that allow 16- and 17-year-olds
to perform some occupations within the logging industries. Such minors
may perform work in offices or repair or maintenance shops. They may
work in the construction, operation, repair, or maintenance of living
and administrative quarters of logging camps. They may work in the
peeling of fence posts, pulpwood, chemical wood, excelsior wood,
cordwood, or similar products when not done in conjunction with and at
the same time and place as other logging occupations declared hazardous
by HO 4. They may work in the feeding and care of animals. Finally,
they may work in timber cruising, surveying, or logging engineering
parties; in the repair or maintenance of roads, railroads, or flumes;
and in forest protection, such as clearing fire trails or roads, piling
and burning slash, maintaining fire-fighting equipment, constructing
and maintaining telephone lines, or acting as fire lookouts or fire
patrolman away from the actual logging operations--but only if such
tasks do not involve the felling or bucking of timber, the collecting
or transporting of logs, the operation of power-driven machinery, the
handling or use of explosives, and working on trestles.
HO 4 also provides exemptions at Sec. 570.54(a) (old and new),
permitting 16- and 17-year-olds to be employed in certain sawmill, lath
mill, shingle mill, or cooperage stock mill occupations. These
exemptions, which do not apply to work performed in a portable sawmill
or that entails the young worker entering the sawmill building, permit
16- and 17-year-olds employed in occupations in the operation of
sawmills, lath mills, shingle mills, or cooperage stock mills to work
in offices or in repair or maintenance shops; to straighten, mark, or
tally lumber on the dry chain or the dry drop sorter; pull lumber from
the dry chain; to clean up the lumberyard; to pile, handle, or ship
cooperage stock in yards or storage sheds other than operating of or
assisting in the operation of power-driven equipment; to perform
clerical work in the yards or shipping sheds, such as done by ordermen,
tally-men, and shipping clerks; to perform clean-up work outside shake
and shingle mills, except when the mill is in operation; to split
shakes manually from precut and split blocks with a froe and mallet,
except inside the mill building or cover; to pack shakes into bundles
when done in conjunction with splitting shakes manually with a froe and
mallet, except inside the mill building or cover; and to manually load
bundles of shingles or shakes into trucks or railroad cars, provided
that the employer has on file a statement from a licensed doctor of
medicine or osteopathy certifying the minor capable of performing this
work without injury to himself.
The NIOSH Report recommends that the Department not only retain HO
4, but expand its coverage to include work in the operation of timber
tracts (Standard Industrial Classification (SIC) 081) and forestry
services (SIC 085) because of the high number of fatalities occurring
in such operations (see NIOSH Report, page 27). The SIC industry group
of timber tracts encompasses establishments primarily engaged in the
operation of timber tracts or tree farms for the purpose of selling
standing timber, including those establishments that grow Christmas
trees. The SIC industry group of forestry services encompasses
establishments primarily engaged in performing, on a contract or fee
basis, services related to timber production, wood technology, forestry
economics and marketing, as well as other forestry services not
contained in another SIC such as timber cruising, forest fire fighting,
and reforestation. Establishments that perform timber estimation and
valuation and forest fire prevention and pest control are also included
in SIC 085.
The Report states: ``The logging industry * * * had the highest
lifetime risk of fatal injury of any industry, at 47 deaths per 1,000
workers based on an analysis of National Traumatic Occupational
Fatality Surveillance System data for 1990 and 1991. Sawmills, planing
mills, and millwork * * * had the 14th highest lifetime risk of 5.8
deaths per 1,000 workers'' (see NIOSH Report, page 28). The Report also
documents that the forestry industry has a high fatality rate as well,
and workers face injury risks similar to those of logging workers.
Citing data from the Census of Fatal Occupational Injuries (CFOI), the
Report identified 82 fatalities of workers between 1992 and 1997
employed in the forestry industry as a whole, which includes
establishments primarily engaged in the operation of timber tracts,
tree farms, forest nurseries and those providing related forest service
activities such as cruising and estimating timber, reforestation, fire
prevention and fire fighting, pest control, timber valuation, and the
gathering of forest products. Transportation incidents were the most
common fatal event among forestry workers, accounting for 43 of the 82
deaths (see NIOSH Report, page 30).
Although the Report notes that there was almost no data specific to
workers 16 and 17 years of age, the CFOI identifies 35 deaths in timber
tract operations for all age groups between 1992 and 1997 and 39 deaths
in forestry service operations for all age groups during the same
period. Forestry workers also experienced fatal injuries such as those
typically associated with the logging industry; in 26 of the 82
fatalities the worker was struck by a falling object (a tree in all but
one instance). In addition, NIOSH also was able to identify 16
additional deaths of workers of all ages that were attributable to
forest fire fighting activities (see NIOSH Report, page 30).
NIOSH notes that work in SIC 083, forest nurseries and gathering of
forest products, is associated with very small numbers of fatalities
and should not be prohibited by HO 4. SIC 083 encompasses those
establishments primarily engaged in growing trees for purposes of
reforestation or in gathering forest products. The concentration or
distillation of these products, when carried out in the forest, is also
included

[[Page 28430]]

in this industry. Examples of industries or activities included in SIC
083 are the gathering of balsam needles, ginseng, huckleberry greens,
maple sap, moss, Spanish moss, sphagnum moss, teaberries, and tree
seeds; the distillation of gum, turpentine, and rosin if carried on at
the gum farm; and the extraction of pine gum. It should also be noted
that section 13(d) of the FLSA already provides an exemption from the
Act's minimum wage, overtime, and child labor provisions to any
homeworker engaged in the making of wreaths composed principally of
natural holly, pine, cedar, or other evergreens (including the
harvesting of the evergreens or other forest products used in making
such wreaths).
The Report also recommends that the Department remove the current
exemption that permits 16- and 17-year-olds to work in the construction
of living and administrative quarters of logging camps. The Report
states: ``Construction work has high risks for fatal and nonfatal
injuries and should not be exempted in the construction of living or
administrative quarters at logging sites or mills'' (see NIOSH Report,
page 27). The Department sought public comments about this issue in the
ANPRM that was published concurrently with the NPRM on April 17, 2007
(72 FR 19328).
As mentioned earlier, the Consolidated Appropriations Act, 2004
(Pub. L. 108-199), amended the FLSA by creating a limited exemption
from the child labor provisions for minors 14 to 18 years of age who
are excused from compulsory school attendance beyond the eighth grade.
The exemption, contained in section 13(c)(7) of the FLSA, allows
eligible youth, under specific conditions, to be employed by businesses
that use machinery to process wood products, but does not allow such
youth to operate or assist in operating power-driven woodworking
machines. This exemption necessitates that the Department revise both
Reg. 3 and HO 4.
The Department agreed with the NIOSH Report recommendation that HO
4 should be expanded to cover work in forest fire fighting and forest
fire prevention because of the risks inherent in those occupations. The
Department also considered adopting NIOSH's recommendation that the
employment of 16- and 17-year-olds be prohibited in the operation of
timber tracts, tree farms, and forestry services, but was concerned
that such youth may be able to be safely employed in certain facets or
occupations within those industries. Therefore, the Department
requested in the NPRM that the public provide information that would
help it identify which occupations or tasks within the timber tract,
tree farm, and forestry services industries are not particularly
hazardous to youth.
The Department proposed to revise HO 4 to add a prohibition on the
employment of youth 16 and 17 years of age in forest fire fighting and
forest fire prevention occupations to the current prohibitions on
logging occupations, and occupations in the operation of any sawmill,
lath mill, shingle mill, or cooperage stock mill. The Department
proposed to revise the title of HO 4 to reflect these changes.
Under the proposal, all occupations in forest fire fighting and
forest fire prevention would include the controlling and extinguishing
of fires, the wetting down of areas or extinguishing of spot fires, and
the patrolling of burned areas to ensure the fire has been
extinguished. The term would also include the following tasks when
performed in conjunction with, or in support of, efforts to extinguish
a fire: The piling and burning of slash; the clearing of fire trails or
roads; the construction, maintenance, and patrolling of fire lines;
acting as a fire lookout or fire patrolman; and tasks associated with
the operation of a temporary fire fighting base camp. The proposed
prohibition concerning the employment of youth in forest fire fighting
and forest fire prevention would apply to all forest locations and
buildings located within the forest, not just where logging or
sawmilling takes place. The Department notes that, because the FLSA
does not cover individuals who volunteer to perform services for state
or local government agencies when the provisions in section 3(e)(4) are
met, this proposal would not prohibit 16- and 17-year-old volunteers
from donating their forest fire fighting services to state and local
governments.
The Department also proposed to incorporate into HO 4 the
provisions of the Consolidated Appropriations Act, 2004 (Pub. L. 108-
199), which amended the FLSA by creating a limited exemption from the
child labor provisions for certain minors 14 through 17 years of age
who are excused from compulsory school attendance beyond the eighth
grade. The exemption, contained at section 13(c)(7) of the FLSA,
overrides the HO 4 prohibition against 16- and 17-year-olds performing
any work in the sawmill industry that entails entering the sawmill
building by permitting certain youth to be employed inside and outside
of places of business where machinery is used to process wood products.
The Department proposed to revise HO 4 to incorporate the provisions of
section 13(c)(7) in the same manner, and using the same definitions and
interpretations, as it proposed when discussing revisions to Reg. 3,
above.
The term all occupations in the operation of any sawmill, lath
mill, shingle mill, or cooperage stock mill, as defined by HO 4,
specifically excludes work performed in the planing-mill department or
other remanufacturing departments of any sawmill, or in any planing
mill or remanufacturing plant not a part of a sawmill. Although not
defined in the regulations, the Department has, since at least 1942,
considered the term remanufacturing departments to mean those
departments of a sawmill where lumber products such as boxes, lawn
furniture, and the like are remanufactured from previously cut lumber.
The kind of work performed in such departments is similar to that done
in planing mill departments in that rough lumber is surfaced or made
into other finished products. The term is not intended to denote those
operations in sawmills where rough lumber is cut to dimensions. Because
the Department has, over the years, received requests for clarification
as to the meaning of remanufacturing departments, it proposed to add
the above definition to HO 4.
The Department also proposed to revise HO 4 to include all the
definitions necessitated by the incorporation of the provisions of FLSA
section 13(c)(7) as discussed earlier in this document. In addition,
the Department proposed to restructure all the definitions in HO 4 in
an alphabetical sequence to comport with guidance provided by the
Federal Register.
The Department decided not to address, in the NPRM, the NIOSH
Report recommendation to remove the HO 4 exemption that permits 16- and
17-year-olds to work in the construction of living and administrative
quarters of logging camps. This is because the Report also recommended
the creation of a new HO that would prohibit all work in construction
occupations which, if adopted, would impact the provisions of not only
HO 4 but several other HOs. The Department believes additional
information is needed before it can address such a broad recommendation
that would impact all construction occupations. In an attempt to obtain
such additional information, the Department requested public comment on
this subject in the 2007 ANPRM.
The Department received five comments addressing this proposal. The
DOLWD stated it was in agreement with

[[Page 28431]]

the NIOSH recommendations, except that it believed that 16- and 17-
year-olds, after completion of the ten-hour construction safety and
health course certified by OSHA, could safely be employed to work in
the construction of living and administrative quarters of logging
camps. The DOLWD also recommended that an exception be granted allowing
such youth ``to be employed in logging camp support positions such as
cook, janitor, etc.''
The Director of Human Capital Management of the U.S. Department of
Agriculture's Forest Service stated that the Forest Service applauded
the Department of Labor's proposal that would prohibit 16- and 17-year-
olds from performing fire fighting duties. The Forest Service did,
however, recommend that the proposal be revised to permit such youth to
work in forest protection-type activities, which it sees as non-
hazardous, such as clearing fire trails or roads, maintaining fire
fighting equipment, and acting as a fire lookout or fire patrolman. The
Forest Service also noted that it ``currently uses 16- and 17-year-old
Job Corps employees and private contractors in our fire camps to
perform such tasks as building platforms for tents, stocking commissary
items, performing timekeeping activities and providing food services.''
The AFL-CIO, YWN, and CLC all supported the proposed changes to
prohibit the employment of young workers in forest fire fighting and
forest fire prevention occupations. All three also expressed their
disappointment that although the Department considered adopting NIOSH's
recommendation that the employment of 16- and 17-year-olds be
prohibited in the operation of timber tracts, tree farms, and forestry
services, it did not do so. All three commenters provided rationales
for adopting this NIOSH recommendation, which included examples of
tasks and exposures commonly associated with such industries that they
consider to be hazardous. For example, the AFL-CIO noted that
``[w]orking in the forest industry can involve working at heights * * *
These workers also cut the trees with a chainsaw and drag them from the
cutting area to a truck and then load them on to a truck. The AFL-CIO
strongly urges DOL not to permit children under 18 to do any of this
work. Other forestry workers gather products which requires them to
climb trees * * * children under 18 should not be able to work at
heights in timber tracts or tree farms.'' The CLC commented that
``[w]orking in the forestry industry can involve working at heights * *
* using machetes and pruning shears * * * These workers also cut the
trees with a chainsaw and drag them from the cutting area and then load
them on to a truck. The CLC strongly urges DOL not to permit children
under 18 to do any of this work, much of which is already prohibited.''
Finally, the YWN, AFL-CIO, and the CLC all encouraged the
Department to revise its proposal and accept the NIOSH recommendation
to prohibit the employment of 16- and 17-year-olds in the constructing
and repairing of living or administrative quarters of logging camps.
The CLC also argued that language in the proposed HO 4 is changed from
the current rule and contradicts itself in that Sec. 570.54(a)
declares all occupations in logging to be particularly hazardous; that
the definition of all occupations in logging contained in Sec.
570.54(b) includes the constructing, repairing, and maintaining of
camps used in connection with logging; and Sec. 570.54(a)(1)(ii)
permits youth to perform such work.
The Department has carefully reviewed all the comments and has
decided to adopt the proposal with certain modifications that will
clarify the Final Rule. First, the Department has been persuaded by the
comments of the Forest Service and the DOLWD that 16- and 17-year-olds
can safely be employed in certain capacities in forest protection and
in the operation of fire fighting base camps. The Department now
concurs that employment at such camps, which are purposely located
considerable distances from forest fires, when in compliance with all
other Hazardous Occupations Orders, is not particularly hazardous or
detrimental to the health or well-being of 16- and 17-year-olds. Such
employment is very similar to that involved with the operation of
logging camps, occupations that 16- and 17-year-olds have been
permitted to perform for many years. Accordingly, the Department has
revised the regulatory language in Sec. 570.54(a)(2).
The Final Rule also provides that 16- and 17-year-olds may perform
such fire prevention tasks as the clearing of fire trails or roads; the
construction, maintenance, and patrolling of fire lines; the
maintaining of fire fighting equipment; acting as a fire lookout or
fire patrolman; and the piling and burning of slash. However, such
tasks are permitted only when not performed in conjunction with
extinguishing a forest fire. The Department believes the hazards
associated with the activities of extinguishing a forest fire warrant
this prohibition and has clarified the definition of all occupations in
forest fire fighting and forest fire prevention to note that such work
is prohibited not only in all forest and timber tract locations, but
also in logging operations, and sawmill operations, including all
buildings located within such areas.
The revisions the Department proposed to Sec. 570.54(a)(1) (old)
that removed paragraph (iii) of that subsection evidenced the
Department's intention to prohibit 16- and 17-year-olds from employment
in most timber tract and forestry service occupations. The previous
Sec. 570.54(a)(1)(iii) specifically excluded from the list of logging
tasks deemed to be particularly hazardous to young workers who work in
timber cruising, surveying or logging-engineering parties; work in the
repair or maintenance of roads, railroads, or flumes; and work in
forest protection, such as clearing fire trails or roads, piling and
burning slash, maintaining fire-fighting equipment, constructing and
maintaining telephone lines, or acting as fire look-out or fire
patrolman away from the actual logging operation. By removing this
subsection, the Department removes the exception for timber tract and
forestry service occupations.
The Department, in its 2007 NPRM, specifically requested public
comments as to which occupations or tasks within the timber tract, tree
farm, and forestry service industries, if any, are not particularly
hazardous or detrimental to the health and well-being of youth (see 72
FR 19351). It was the Department's intention to qualify in the Final
Rule which occupations, if any, would be permitted for 16- and 17-year-
olds after the comments were reviewed. No comments were received that
identified any tasks in these industries as being safe for minors to
perform.
The Department believes that despite the lack of comments, 16- and
17-year-olds can safely perform certain tasks within the timber tract,
tree farm, and forestry service industries. Such youth should be
permitted to perform many of the tasks that HO 4 has long permitted
youth employed in logging to perform: Working in offices and in repair
or maintenance shops; work in the construction, operation, repair, or
maintenance of living and administrative quarters, constructing and
maintaining telephone lines; and work in the feeding or care of
animals. In addition, youth employed in timber tract, tree farm, and
forestry service industries should be permitted to perform tasks
related to forest marketing and forest economics that are not performed
in a forest. Finally, as mentioned above, such youth should also be
permitted to perform certain tasks related to forest fire fighting and

[[Page 28432]]

forest fire prevention, when not performed in conjunction with the
extinguishing of a fire, such as the clearing of trails or roads; the
construction, maintenance, and patrolling of fire lines; acting as a
fire lookout or fire patrolman; and tasks associated with the operation
of a fire fighting base camp.
The Department has revised the regulatory language proposed in the
NPRM for HO 4 at Sec. 570.54(a) to make it clear that the employment
of 16- and 17-year-olds to perform most jobs in timber tract, forestry
service, and tree farm operations are prohibited. The revisions also
simplify the section by combining, clarifying, and condensing previous
subsections. The Department notes that the use of Standard Industrial
Codes by the NIOSH Report was helpful in identifying the different
occupations and industries that could be impacted by the Department's
HO. But because many of the occupations and tasks addressed by the
Final Rule either appear in more than one code or are not included in
the codes listed in the Report, the Department did not use those codes
in formulating the definitions used in the Final Rule. The Department
has added language to Sec. 570.54(a) to make it clear that the limited
exceptions to HO 4 listed in that paragraph do not include any work
that would be prohibited by any other HO contained in subpart E. The
Department also added clarifying statements to Sec. 570.54(a)(8)
regarding the types of work that 14-year-olds employed under the
provisions of FLSA section 13(c)(7) may perform inside a sawmill. As
discussed earlier, similar clarifying language was added to Sec.
570.34(m)(2). The Department has also moved the definition of portable
sawmill contained within Sec. 570.54(a)(2) (old) to the Definitions
section (Sec. 570.54(b) (new)). In addition to changing the title of
HO 4 to accommodate this revision, the Department has also added
definitions of the terms all occupations in forestry services and all
occupations in timber tracts to Sec. 570.54(b). The Department has
also replaced the words firefighting and firelines in the Final Rule
with the words fire fighting and fire lines.
All occupations in forestry services shall mean all work involved
in the support of timber production, wood technology, forestry
economics and marketing, and forest protection. The term includes such
services as timber cruising, surveying, or logging-engineering parties;
estimating timber; timber valuation; forest pest control; forest fire
fighting and forest fire prevention as defined in this section; and
reforestation. The term shall not include work in forest nurseries,
establishments primarily engaged in growing trees for purposes of
reforestation. The term shall not include the gathering of forest
products such as balsam needles, ginseng, huckleberry greens, maple
sap, moss, Spanish moss, sphagnum moss, teaberries, and tree seeds; the
distillation of gum, turpentine, and rosin if carried on at the gum
farm; and the extraction of pine gum.
All occupations in timber tracts means all work performed in or
about establishments that cultivate, manage or sell standing timber.
The term includes work performed in timber culture, timber tracts,
timber-stand improvement, and forest fire fighting and fire prevention.
It would also include work on tree farms, except those tree farm
establishments that meet the definition of agriculture contained in 29
U.S.C. 203(f).

F. Occupations Involved in the Operation of Power-Driven Wood Working
Machines (Order 5) (29 CFR 570.55)

HO 5 generally prohibits the employment of 16- and 17-year-olds in
occupations involving the operating, setting up, adjusting, repairing,
oiling, or cleaning of power-driven woodworking machines. It also
prohibits the occupations of off-bearing from circular saws and from
guillotine-action veneer clippers. As previously mentioned, FLSA
section 13(c)(7) now permits certain minors who are at least 14 years
of age and under the age of 18 years to be employed inside and outside
of places of business where machinery is used to process wood products,
but does not allow such youth to operate or assist in operating power-
driven woodworking machines.
The term power-driven woodworking machines has long been defined in
Sec. 570.55(b) to mean all fixed or portable machines or tools driven
by power and used or designed for cutting, shaping, forming, surfacing,
nailing, stapling, wire stitching, fastening, or otherwise assembling,
pressing, or printing wood or veneer. Although FLSA section 13(c)(7)
does not impact the prohibitions of HO 5 because eligible youth are
still prevented from operating power-driven woodworking machinery, it
does expand the types of workplaces where certain youth may be employed
to include sawmills, lath mills, shingle mills, and cooperage stock
mills as well as other workplaces the Department's Final Rule includes
under Reg. 3 and HO 4. Employees at these newly permitted work sites
routinely use power-driven equipment that process materials that may
not be included in the current definition of power-driven woodworking
machines contained in HO 5, such as trees, logs, and lumber.
Accordingly, the Department proposed to amend the definition of power-
driven woodworking machines to include those machines that process
trees, logs, and lumber. To ensure consistency, the Department proposed
that this single definition of power-driven woodworking machines be
included in Sec. 570.34(m) (Reg. 3), Sec. 570.54 (HO 4), and Sec.
570.55 (HO 5).
The Department also proposed to restructure the two definitions in
this section to reflect an alphabetical sequence in accordance with
guidance provided by the Federal Register.
The Department received three comments on this proposal. The AFL-
CIO and YWN agreed with the Department's proposal to amend the
definition of power-driven woodworking machines to include those
machines that process trees, logs, and lumber. The YWN also recommended
that the proposed definition of power-driven woodworking machines be
revised to permit 16- and 17-year-olds to use small hand-held battery-
operated drills that accommodate bits no larger than \3/8\'' and hand-
held oscillating- or vibrating-type sanders.
The CLC, YWN, and AFL-CIO expressed disappointment that the
Department did not adopt NIOSH's alternative recommendation that the
Department rewrite HOs 5, 8, and 12, which respectively address
machines that work with wood, metal, and paper, by merging them into a
single or multiple HOs which address the function of the machines
rather than the material processed (see NIOSH Report, page 31).
After carefully reviewing the comments, the Department has decided
to adopt the proposal as written. The Department did not request, nor
does it possess, data regarding whether 16- and 17-year-olds can safely
operate portable drills or sanders, or what requirements should be
imposed to ensure their safe operation by young workers. Accordingly,
it cannot adopt the recommendation of the YWN at this time. The
Department notes that it is exploring the feasibility of adopting
NIOSH's alternative recommendation that certain power-driven equipment
be prohibited based on function rather than on the material being
processed. Because of the complexity of the issue and in the hopes of
obtaining additional information, the Department requested public
comment on this recommendation in the ANPRM that

[[Page 28433]]

was published in conjunction with, and on the same day as, the NPRM.

G. Occupations Involved in the Operation of Power-Driven Hoisting
Apparatus (Order 7) (29 CFR 570.58)

HO 7 generally prohibits 16- and 17-year-olds from employment in
occupations that involve the work of: (1) Operating an elevator, crane,
derrick, hoist, or high-lift truck except such youth may operate
unattended automatic operation passenger elevators and electric or air
operated hoists not exceeding one ton capacity; (2) riding on a manlift
or on a freight elevator, except a freight elevator operated by an
assigned operator; and (3) assisting in the operation of a crane,
derrick or hoist performed by crane hookers, crane chasers, hookers-on,
riggers, rigger helpers, and like occupations.
The NIOSH Report recommended that the Department expand HO 7 to
prohibit the repairing, servicing, and disassembling of the machines
and assisting in tasks being performed by the machines named in the HO.
Assisting in tasks being performed by the machines would be tending the
machines. The Report shows that a substantial number of deaths and
injuries are associated with operating and assisting in tasks performed
by power-driven hoisting apparatus, including deaths of youth (see
NIOSH Report, page 36). Additionally, a considerable number of deaths
were associated with activities not directly related to operation of
the hoisting apparatus, notably servicing, repairing, and
disassembling. Currently, the work of repairing, servicing,
disassembling, and tending the machines covered by HO 7 is prohibited
to 14- and 15-year-olds under Reg. 3 at Sec. 570.33(b) (old) and Sec.
570.33(c) (new). Under HO 7, 16- and 17-year-olds may currently perform
such work, except they may not assist in the operation of a crane,
derrick, or hoist as defined by the HO.
The Report also recommends that HO 7 be expanded to prohibit youth
from riding on any part of a forklift as a passenger (including the
forks) and from working from forks, platforms, buckets, or cages
attached to a moving or stationary forklift. The Report notes that
substantial numbers of fatalities occur among workers who are
passengers on forklifts, riding on the forks, or working from the
raised forklift attachments (see NIOSH Report, page 36). Currently, 14-
and 15-year-olds are prohibited from riding on forklifts because Reg. 3
prohibits such youth from operating or tending hoisting apparatus and
any power-driven machines other than office equipment. The Department
has long interpreted tending to include riding upon the power-driven
equipment. HO 7, however, prohibits older youth only from operating
high-lift trucks such as forklifts. Since 1999, the WHD has
investigated at least three incidents where youth under 18 years of age
were seriously injured while riding on forklifts being operated by
other employees. One 16-year-old who was riding on the tines of a
forklift suffered especially serious injuries to his liver and pancreas
as a result of being pinned against a wall when the driver was unable
to stop the forklift.
The Report also recommends that HO 7 be expanded to prohibit work
from truck-mounted bucket or basket hoists commonly termed ``bucket
trucks'' or ``cherry pickers'' because worker fatalities are associated
with work from such equipment (see NIOSH Report, page 36). The Report
specifically notes the risk of falls and electrocution being linked
with such equipment. The Report, citing CFOI data, reflects that there
were 99 worker deaths associated with truck mounted bucket or basket
hoists between 1992 and 1997 (see NIOSH Report, page 37).
In addition, the Report recommends that HO 7 be expanded to
prohibit 16- and 17-year-olds from employment involving certain
commonly used manlifts--especially aerial platforms--that do not meet
the current definition of manlift contained in the HO. The Report
contends that such manlifts appear to pose more significant injury risk
than those traditionally prohibited by HO 7 (see NIOSH Report, page
36). HO 7 defines a manlift as a device intended for the conveyance of
persons that consists of platforms or brackets mounted on, or attached
to, an endless belt, cable, chain or similar method of suspension; such
belt, cable or chain operating in a substantially vertical direction
and being supported by and driven through pulleys, sheaves or sprockets
at the top and bottom. The Report is correct that this current
definition of manlift does not include, and therefore does not
prohibit, 16- and 17-year-olds from operating or tending aerial
platforms and other manlifts such as scissor lifts, boom-type mobile
elevating work platforms, work assist vehicles, cherry pickers, basket
hoists, and bucket trucks.
The Report also recommends that HO 7 be revised to eliminate the
exemption that permits 16- and 17-year-olds to operate an electric or
air-operated hoist not exceeding one-ton capacity. The Report states
that current injury and fatality surveillance systems do not provide
sufficient detail to justify this exemption. ``A hoisted load weighing
less than one ton has the potential to cause injury or death as a
result of falling, or being improperly rigged or handled. Hoist-related
fatalities of young workers have been reported, including a recent case
in which a youth was killed while operating a half-ton capacity hoist''
(see NIOSH Report, page 36).
The Department proposed to implement all five of the Report
recommendations concerning HO 7. Sections 570.58(a)(1) and (a)(2) would
be revised to reflect that in addition to work involved with operating
the named equipment, the work of tending, riding upon, working from,
servicing, repairing or disassembling such equipment would also be
prohibited. Section 570.58(a)(3) would be eliminated because its
provisions would now be contained in the revised Sec. 570.58(a)(1).
The work of assisting in the operation of a crane, derrick, or hoist
would be prohibited because such tasks fall within the scope of tending
of equipment. The exemption contained in Sec. 570.58(a)(1) permitting
youth to operate and ride inside passenger elevators would be retained,
but the exemption that currently allows 16- and 17-year-olds to operate
an electric or air-operated hoist not exceeding one ton capacity would
be eliminated as per the Report recommendation.
The Department also proposed to reformat the definitions section
contained in HO 7 to reflect an alphabetical sequence in accordance
with guidance provided by the Federal Register. In addition, the
Department proposed to revise the definition of manlift so that, as
recommended by the Report, it incorporates those pieces of equipment
that perform the same functions as manlifts but that do not currently
fall within the prohibitions of the HO. The proposed definition
included a statement that the term manlift shall also include truck- or
equipment-mounted aerial platforms commonly referred to as scissor
lifts, boom-type mobile elevating work platforms, work assist vehicles,
cherry pickers, basket hoists, and bucket trucks.
The Department also proposed to revise the definition of high-lift
truck to incorporate a long-standing enforcement position that
industrial trucks such as skid loaders, skid-steer loaders, and Bobcat
loaders are high-lift trucks as defined by HO 7. Although not
specifically named as high-lift trucks in the current HO 7, such
equipment meets the definition of high-lift trucks because each is ``a
power-driven industrial type of truck * * * equipped with a power-
operated lifting device * * * capable of

[[Page 28434]]

tiering loaded pallets or skids one above the other.'' The Department
has opined on this matter, in writing, since at least 1993. By adding
skid loaders, skid-steer loaders, and Bobcat loaders to the definition
of high-lift trucks, the Department believes it will clarify the
requirements for compliance with HO 7. The Department has successfully
defended this enforcement position, most recently in a case where
minors were employed to operate a skid-steer loader to clean trailers
used to haul livestock. In addition to affirming the Department's
position that a skid loader was a ``high-lift truck'' within the
meaning of HO 7, the court also found that the youths' operation of the
equipment violated the HO even though the youth did not operate or
utilize the loader's hoisting device but used the skid-steer loader as
a ``scraper'' (see Lynnville Transport, Inc. v. Chao, 316 F. Supp. 2d
790 (S.D. Iowa 2004)).
The Department received three comments on this proposal. The YWN,
AFL-CIO, and CLC supported all elements of the proposal, with
additional recommendations. The YWN and AFL-CIO suggested that HO 7 be
expanded to prohibit 16- and 17-year-olds from working with hydraulic
grease racks, though the YWN recommended that an exception be made to
permit automotive repair students in cooperative education programs who
have been properly trained and receive appropriate supervision to
``work around these racks'' but not to operate them. The YWN also noted
that ``back hoes'' and ``front-end-loaders'' would fall within the
definition of high-lift trucks and recommended, for the sake of
clarity, that the Department specifically name them in the revised
Sec. 570.58(b).
The CLC noted that the NIOSH Report recommended that HO 7 prohibit
16- and 17-year-olds from employment that, among other things, included
``assisting in tasks being performed'' by the power-driven hoisting
equipment. The CLC took issue with the Department's statement that
assisting in tasks being performed by the machines would constitute
tending--an activity prohibited by the proposal. The CLC recommended
that the Department clarify the proposal by specifically adding
``assisting in tasks being performed by the equipment'' to the language
of the Final Rule. The importance of this recommendation was poignantly
demonstrated by the August 2008 death of a 17-year-old in Georgia who
was crushed to death when a one-ton electrical inverter box fell from a
fork lift. The minor was not operating the forklift at the time of his
death but was serving as a ``spotter'' and assisting the operator of
the forklift.
The Department appreciates the comments of the YWN, AFL-CIO, and
CLC and has decided to adopt the proposal with slight modifications
designed for clarification. The Department will add backhoes and front-
end loaders to the examples of high-lift trucks contained in Sec.
570.58(b) as recommended by the YWN. The Department will also clarify
in Sec. 570.58(a)(1) and (2) that the term tending includes assisting
in the hoisting tasks being performed by the equipment, to add clarity
as recommended by the CLC.
The Department believes additional information is needed before it
can determine whether 16- and 17-year-olds who operate hydraulic grease
racks are at risk and notes it requested public comment on this issue
in 2007. Accordingly, adoption of the recommendations of the YWN and
AFL-CIO that HO 7 also prohibit the operation of such equipment would
be premature.

H. Occupations in the Operation of Power-Driven Meat-Processing
Machines and Occupations Involving Slaughtering, Meat Packing or
Processing, or Rendering (Order 10) (29 CFR 570.61)

HO 10 generally prohibits 16- and 17-year-olds from being employed
in all occupations in or about slaughtering, meat packing or processing
establishments, and rendering plants. The HO also prevents such minors
from performing all occupations involved in the operation or feeding of
several power-driven meat processing machines when performed in
slaughtering and meat packing establishments, as well as in wholesale,
retail, or service establishments. The term slaughtering and meat
packing establishments is defined in HO 10 to mean places in which
cattle, calves, hogs, sheep, lambs, goats, or horses are killed,
butchered, or processed. The term also includes establishments that
manufacture or process meat products or sausage casing from such
animals. Under the existing regulation, the term does not include
establishments that process only poultry, rabbits, or small game. The
term retail/wholesale or service establishments, as defined in HO 10,
includes establishments where meat or meat products are processed or
handled, such as butcher shops, grocery stores, restaurants, quick
service establishments, hotels, delicatessens, and meat locker
(freezer-locker) companies, and establishments where any food product
is prepared or processed for serving to customers using machines
prohibited by the HO. Included on the list of prohibited power-driven
meat processing machines are meat patty forming machines, meat and bone
cutting saws, meat slicers, knives (except bacon-slicing machines),
headsplitters, and guillotine cutters; snoutpullers and jawpullers;
skinning machines; horizontal rotary washing machines; casing-cleaning
machines such as crushing, stripping, and finishing machines; grinding,
mixing, chopping, and hashing machines; and presses (except belly-
rolling machines). The term operation includes setting-up, adjusting,
repairing, oiling, or cleaning such machines, regardless of the product
being processed by the machine. For example, HO 10 prohibits a minor
from operating a meat slicer in a restaurant to cut cheese or
vegetables. In addition, the Department has, as early as 1991,
interpreted the prohibition on cleaning such machines as precluding 16-
and 17-year-olds from performing the hand or machine washing of parts
of and attachments to power-driven meat processing machines, even when
the machine was disassembled and reassembled by an adult. This
provision is designed to prevent such youth from being injured by
contact with the machines' sharp blades and cutting surfaces. HO 10
provides a limited exemption that permits the employment of apprentices
and student-learners under the conditions prescribed in Sec. 570.50(b)
and (c).
The NIOSH Report recommends that HO 10 be expanded to prohibit work
in all meat products manufacturing industries including those engaged
in the processing of sausages and/or other prepared meat products and
those engaged in poultry slaughtering and/or processing (see NIOSH
Report, page 41). The rationale for this recommendation is that
although injury fatality rates in meat products manufacturing
industries are relatively low, rates of disorders due to repeated
trauma are extremely high. This is also true for poultry processing
which is not encompassed in the existing HO. In addition, there are a
number of diverse and serious health hazards associated with the
slaughtering of animals and manufacturing of meat products, including
exposure to infectious agents and respiratory hazards. The Report notes
that in 1997 there were an estimated 13,646 occupational injuries and
illnesses resulting in days away from work among employees in the meat
products manufacturing industry. Although the greatest number of these
injuries and illnesses occurred in meat packing

[[Page 28435]]

plants (5,526), establishments that produce sausages and prepared meats
experienced 4,147 injuries and illnesses, and poultry slaughtering and
processing establishments experienced 3,937 that same year (see NIOSH
Report, page 43). In 1999, the Department investigated the death of a
young poultry processing worker in Arkansas and the serious injury of a
similarly employed minor in Missouri who injured both of his legs when
he slipped and fell into an auger. The minor also suffered severe nerve
damage and second degree burns.
The Report also recommends that HO 10 be revised to allow 16- and
17-year-olds to operate and feed power-driven meat and food slicers in
retail, wholesale and service industry establishments. This is one of
the few recommendations the Report makes that would relax current
prohibitions, and it is made with the rationale that ``although data
show high numbers of injuries associated with power-driven slicers, the
injuries appear to be relatively minor.'' NIOSH includes the caveat
that if this recommendation is implemented ``it should be accompanied
by a mandatory reporting period in which all serious youth injuries and
deaths resulting from previously prohibited activities are promptly
reported to the U.S. Department of Labor.'' Such a reporting plan would
allow an assessment as to whether the revision should be rescinded or
further refined to best protect working youth (see NIOSH Report, page
48).
Finally, the Report recommends that the apprenticeship and student-
learner exemption contained in HO 10 be restricted to apply only to 16-
and 17-year-olds employed in retail, wholesale, and service industries.
The Report recommends that this exemption no longer be applicable to
the employment of such minors in meat products manufacturing
industries.
The Department proposed to implement the Report recommendation to
expand the application of HO 10 to prohibit the employment of 16- and
17-year-olds in all meat products manufacturing industries, including
those engaged in the processing of sausages and/or other prepared meat
products and those engaged in poultry slaughtering and/or processing.
The Department proposed to revise the term slaughtering and meat
packing establishments contained in Sec. 570.61(b) so that the term
also includes places where poultry are killed, butchered, or processed.
This term would also include establishments that manufacture or process
meat products, including poultry, sausage, or sausage casings. The
Department also proposed to add buffalo and deer to the lists of
animals contained in the definitions of the terms killing floor and
slaughtering and meat packing establishments and to note that these
lists are not exhaustive. The Department also proposed to revise the
title of HO 10 to reflect its expansion to the slaughtering of poultry,
and the processing, packing, and rendering of poultry and poultry
products. The current HO 10 exemption permitting the killing and
processing of rabbits or small game in areas physically separated from
the killing floor would not be changed.
The Department also proposed to revise Sec. 570.61(a)(4) to
incorporate its interpretation that the prohibition against 16- and 17-
year-olds cleaning power-driven meat processing machines extends to
washing the machine's parts and attachments, even if the machine is
disassembled and reassembled by an adult. This proposal, however, would
not prevent a 16- or 17-year-old from operating a commercial dishwasher
to run a self-contained rack containing parts of or attachments to a
power-driven meat processing machine through the dishwasher so long as
the youth does not actually handle or touch the machine parts or
attachments.
The Department also proposed to reformat, in an alphabetical
sequence, all the definitions found in Sec. 570.61(b) to comport with
guidance provided by the Federal Register.
The Department decided not to propose implementation of the Report
recommendation that would allow 16- and 17-year-olds to operate and
feed power-driven meat and food slicers in retail, wholesale and
service industry establishments. Both the Report and the Department's
enforcement experience reflect that meat slicers are responsible for
many occupational injuries. The Report notes that the Survey of
Occupational Injuries and Illnesses reports that in 1997, food and
beverage processing machinery were responsible for 11,737 nonfatal
injuries and illness that resulted in days away from work. Over sixty
percent of that number, 7,280 injuries and illnesses, were caused by
food slicers. The median number of days away from work for workers who
suffered food slicer related injuries or illnesses was four days, not
an insignificant number (see NIOSH Report, page 47). Since October
1999, the Department has investigated at least 36 injuries of young
workers that were caused by operating or cleaning power-driven meat
slicers. Although none of these injuries were life threatening, most
were considered to be serious and many caused the partial loss of
digits and will leave some permanent scarring.
The Department also decided not to propose implementation at this
time of the Report recommendation concerning limiting the current
apprenticeship and student-learner exemption contained in HO 10 to
retail, wholesale and service industries. The apprenticeship and
student learner exemptions contained in certain HOs were developed
relatively independently of each other as each HO was adopted. The
issue of allowing certain training exemptions from the HOs first arose
in the early 1940s, after the enactment of the first six HOs. HO 5 was
amended to permit the employment of student learners and apprentices,
but HOs 1 through 4 were not. Each committee convened thereafter to
study, draft, and implement a new HO developed its own criteria for
determining the appropriateness of including apprentice and student-
learner exemptions and was not restricted by the determinations made by
previous committees. The Report makes several recommendations
concerning the establishment, revision, and elimination of
apprenticeship and student-learner exemptions, but the rationale for
each recommendation either is vague or is not provided. The Department
believes that before any changes to the existing exemptions are made,
it is important to consider and develop criteria for determining when
apprenticeship and student-learner exemptions are appropriate. Such
criteria, which must be consistent with the established national policy
of balancing the benefits of employment opportunities for youth with
the necessary and most effective safety protections, will also be of
value as the Department considers creating new HOs. Accordingly, the
Department issued an ANPRM, in conjunction with and on the same day as
the NPRM, to solicit public comment on this important issue.
The Department received six comments in response to this proposal.
The AFL-CIO, YWN, and CLC supported the proposal to expand the scope of
HO 10 to prohibit the employment of 16- and 17-year-olds in or about
places where such animals as cattle, calves, hogs, poultry, sheep,
lambs, goats, buffalo, deer, or horses are killed, butchered, or
processed and where sausage and sausage casings are manufactured or
processed. The Department received no comments opposing adoption of
this portion of the proposal. The YWN also recommended that HO 10 be
expanded to cover seafood processing occupations.
The AFL-CIO, YWN, CLC and Six Flags all supported the Department's
decision not to accept the NIOSH

[[Page 28436]]

Report's recommendation to allow 16- and 17-year-olds to operate and
feed power-driven meat and food slicers in retail, wholesale and
service industry establishments. These four commenters also supported
the Department's proposal regarding the cleaning of such equipment. The
FMI and the Council both recommended that the Department reconsider and
adopt the NIOSH recommendation that would allow 16- and 17-year-olds to
operate and feed power-driven meat and food slicers. The Council stated
``[t]he NIOSH recommendation appears well-supported'' while the FMI
believed the Department's position to be ``surprising as the NIOSH
recommendations are based on the hard data and analysis that DOL asked
NIOSH to provide.'' Neither the Council nor the FMI commented on the
Department's proposal regarding the cleaning of power-driven meat
processing equipment.
Both the YWN and the CLC disagreed with the Department's decision
not to implement at this time the NIOSH Report recommendation to limit
the student-learner and apprentice exemption contained in HO 10 to
retail, wholesale, and service industries.
After carefully reviewing the comments, the Department has decided
to implement the proposal as written with the following modifications.
The Department is adding poultry scissors and shears to the list of
prohibited power-driven meat processing machines listed in Sec.
570.61(a)(4) in recognition that the HO now covers poultry processing.
The Department is also revising Sec. 570.61(a)(7), which for many
years has prohibited 16- and 17-year-olds from handlifting or
handcarrying any carcass or half carcass of beef, pork or horse, to
include carcasses or half carcasses of buffalo and deer. This revision
would also expand the current prohibitions involving quarter carcasses
of beef and horse to include buffalo. These revisions are necessitated
by the expansion of the prohibitions of HO 10 to include the processing
of such animals. Finally, the Department is adding a statement to Sec.
570.61(a)(4) to clarify that the limited exemption to HO 11 which
permits 16- and 17-year-olds to operate certain lightweight, small
capacity, portable counter-top power-driven food mixers (see Sec.
570.62(b)(1)) would not apply when the equipment is adapted--through
the use of various attachments--to perform functions other than mixing,
or to process meat or poultry products because of the prohibitions of
HO 10. This modification is discussed in more detail further in the
section of this preamble that addresses HO 11.
The Department appreciates the concerns of the FMI and the Council,
but must reiterate that the number and severity of occupational
injuries suffered by youth who operate or clean power-driven meat
slicers do not justify allowing youth to operate or clean such
equipment. The Department notes that, since publishing the NPRM, it has
investigated the serious injuries of at least ten more young workers
who operated or cleaned such equipment.
The Department also recognizes the concerns of the YWN and CLC over
the Department's decision not to limit the student-learner and
apprentice exemption contained in HO 10 at this time. As noted in the
NPRM, the Department believes that before any changes to the existing
student-learner and apprentice exemptions are made, it is important to
consider and develop criteria for determining when student-learner and
apprentice exemptions are appropriate. As mentioned, the Department
issued an ANPRM, in conjunction with and on the same day as the NPRM,
to solicit public comment on this important issue.
The Department appreciates the YWN's recommendation that HO 10
should be expanded to cover seafood processing occupations, but notes
that no data was submitted regarding the level of youth employment in
that industry or the injury rates experienced by that industry.

I. Occupations Involved in the Operation of Bakery Machines (Order 11)
(29 CFR 570.62)

HO 11 generally prohibits the employment of 16- and 17-year-olds in
occupations involved in the operation of power-driven bakery machines.
Prohibited activities include operating, assisting to operate, setting
up, adjusting, repairing, oiling, or cleaning any horizontal or
vertical dough mixer; batter mixer; bread dividing, rounding, or
molding machine; dough brake; dough sheeter; combination bread slicing
and wrapping machine; or cake cutting band saw. The HO also prohibits
the employment of such youth in the occupation of setting up or
adjusting a ``cooky'' or cracker machine. The prohibitions of the HO do
not differentiate between portable and non-portable equipment, and
models designed for use in the home versus those solely designed for
industrial applications. Therefore, the prohibitions of HO 11 include
the employment of 16- and 17-year-olds to operate even the smallest of
counter-top vertical mixers.
In response to information presented by several restaurants and
employer associations, the Department adopted an enforcement position
in 1990 that it would not assert a violation of HO 11 when a 16- or 17-
year-old employee operated a pizza-dough roller, a type of dough
sheeter, when the machine: (1) Is constructed with safeguards contained
in the basic design so as to prevent fingers, hands, or clothing from
being caught in the in-running point of the rollers; (2) has gears that
are completely enclosed; and (3) has microswitches that disengage the
machinery if the backs or sides of the rollers are removed. This
enforcement position applies only when all the safeguards detailed
above are present on the machine, are operational, and have not been
overridden. In addition, this enforcement position applies only to the
operation of the machine. HO 11 still prohibits 16- and 17-year-olds
from being employed in occupations involving the setting up, adjusting,
repairing, oiling, or cleaning of such pizza-dough rollers. The
Department has restated this position numerous times in response to
written requests and has included this position in its Field Operations
Handbook since at least 1992.
The Report recommends that HO 11 be relaxed to allow the operation
of counter-top models of power-driven bakery machines, comparable to
those intended for household use. The Report's rationale for this
recommendation is that available data suggest that there were no
fatalities involving such counter-top power-driven machines, and
nonfatal injuries requiring time away from work are of moderate
severity (see NIOSH Report, page 48). Although, as noted, the HO
prohibits the use of several different power-driven bakery machines,
the thrust of the Report's recommendation involves food mixers. The
Report notes that there were 712 non-fatal injuries and illnesses in
1997, with a median of 11 days away from work, associated with work
with mixers, blenders, and whippers (see NIOSH Report, page 49).
The Department's enforcement experience includes situations where
employers have questioned why 16- and 17-year-olds were not permitted
to use small mixers to process such things as cheese dip and batter for
seafood when such machines generally appeared to present no risks to
such minors. Recently, the Department adopted an enforcement policy
that it would not assert violations of HO 11 when 16- and 17-year-olds
operate, assist to operate, setup, adjust, repair, oil, or clean
certain small, lightweight, counter-top mixers.
The Department proposed to implement the Report's recommendation by
creating a new Sec. 570.62(b)(1) that would include an

[[Page 28437]]

exemption allowing the employment of 16- and 17-year-olds to operate--
including setting-up, adjusting, repairing, oiling, and cleaning--
lightweight, small capacity, portable counter-top power-driven food
mixers that are, or are comparable to, those models intended for
household use.
The Department, during its meetings held after the release of the
Report with various stakeholders, including representatives of the
full-service and quick-service restaurant industries, sought to
identify which types of mixers could be operated safely in the
workplace by 16- and 17-year-olds. The information provided, which also
echoed the Department's enforcement experiences, indicated that such
factors as bowl capacity, the horsepower of the motor, the portability
of the machine (light weight and not permanently wired or ``hardwired''
into the establishment's electrical power source), and similarity to
equipment designed exclusively for home use were all important
criteria. For purposes of this exemption, the Department proposed that
a lightweight, small capacity mixer is one that is not hardwired into
the establishment's power source, is equipped with a motor that
operates at no more than \1/2\ horsepower, and whose bowl capacity does
not exceed five quarts. Minors 14- and 15-years of age would still be
prohibited from operating or assisting in the operation of such mixers
under the provisions of Reg. 3 (see Sec. 570.33(e) (new)).
The Department also proposed to incorporate into Sec. 570.62 its
long-standing enforcement position regarding the operation of certain
pizza-dough rollers by 16- and 17-year-old workers. The Department's
enforcement experience indicates that when employers properly apply
this limited enforcement position, 16- and 17-year-olds can safely
operate pizza-dough rollers. Accordingly, the Department proposed to
create a new Sec. 570.62(b)(2) that will permit such youth to
operate--but not set-up, adjust, repair, oil, or clean--those power-
driven pizza-dough rollers that: (1) Are constructed with safeguards
contained in the basic design so as to prevent fingers, hands, or
clothing from being caught in the in-running point of the rollers; (2)
have gears that are completely enclosed; and (3) have microswitches
that disengage the machinery if the backs or sides of the rollers are
removed. The exception in Sec. 570.62(b)(2) would apply only when all
the safeguards detailed above are present on the machines, are
operational, and have not been overridden.
The Department also proposed to change the word cooky in Sec.
570.62(a)(2) to cookie to reflect the more common spelling of that
word.
The Department received five comments regarding this proposal. The
FMI, Council, AFL-CIO, and YWN all supported adoption of the
Department's enforcement position allowing 16- and 17-year-olds to
operate--including setting-up, adjusting, repairing, oiling, and
cleaning--lightweight, small capacity, portable counter-top power-
driven food mixers that are, or are comparable to, those models
intended for household use. No comments were received opposing this
proposal.
The FMI, Council, and AFL-CIO also supported the proposal to adopt
the Department's long-standing enforcement position permitting 16- and
17-year-olds to operate--but not set-up, adjust, repair, oil, or
clean--certain power-driven pizza dough rollers. The YWN opposed this
proposal, stating ``[a]bsent any concrete information on injury data,
and on the specific size, make, or models under consideration as
possible examples, we disagree with this proposal at this time.'' The
YWN also endorsed the NIOSH Report recommendation that more intensive
surveillance of pertinent injuries and deaths resulting from the
operation of power-driven bakery machines be conducted should the
Department adopt these proposals.
The CLC opposed this proposal and reiterated its concerns about the
Department's use of its prosecutorial discretion to establish
enforcement positions in the administration and enforcement of the
child labor provisions of the FLSA.
The Department carefully considered all the comments and has
decided to adopt the proposal with one clarifying modification. The
Department wishes to make it clear that the exemption contained in
Sec. 570.62(b)(1) (new) that permits 16- and 17-year-olds to operate
certain lightweight, small capacity, portable counter-top power-driven
food mixers would not apply when the equipment is adapted--through the
use of various attachments--to perform functions other than mixing, or
to process meat or poultry products because of the prohibitions of HO
10 (Occupations in the operation of power-driven meat-processing
machines and occupations involving slaughtering, meat and poultry
packing, processing, or rendering) (see Sec. 570.61, old and new). It
is important to note that the functions of such mixers, as well as how
they are addressed by HO 10 and HO 11, change when different
``attachments'' are used. For example, a ``mixer'' as discussed in
Sec. 570.62(b)(1) would become a ``grinder'' prohibited by HO 10 (see
Sec. 570.61(a)(4)) when the grinding attachment is in use. As per the
provisions of Sec. 570.61(a)(4), it would not matter if products other
than meat--such as vegetables or cheese--were being processed. The
Department is including this information in both Sec. 570.62(b)(1) and
Sec. 570.61(a)(4)) to avoid confusion and facilitate compliance.
The Department appreciates the concerns of the YWN and CLC
regarding the use of certain power-driven pizza dough rollers, but
again notes that its enforcement experience indicates that when
employers properly apply all the provisions of the enforcement
position--which have been included in the proposed limited exemption--
16- and 17-year-olds can safely operate such equipment. The Department
also notes, as it has stated previously in this Final Rule, that its
limited and public exercise of its prosecutorial discretion is an
efficient and permissible tool available to the Secretary in the
administration of the child labor provisions of the FLSA.

J. Occupations Involved in the Operation of Paper-Products Machines,
Scrap Paper Balers, and Paper Box Compactors (Order 12) (29 CFR 570.63)

Hazardous Occupations Order No. 12 generally prohibits minors under
18 years of age from working in occupations involving the operation of
paper-products machines. The HO prohibits, with certain exceptions
discussed below, the loading, operating, and unloading of scrap paper
balers, including paper box balers and compacting machines, and other
power-driven machines used in the remanufacture or conversion of paper
or pulp into a finished product. When HO 12 was promulgated in 1954,
the dangers specifically associated with the operation of scrap paper
balers involved being caught in the plungers during the compression
process and suffering strains and other injuries while moving the
compressed bales.
The Compactor and Baler Act was enacted on August 6, 1996 (Pub. L.
104-174). This legislation amended the FLSA by adding subsection
13(c)(5), which permits 16- and 17-year-olds to load, but not operate
or unload, certain scrap paper balers and paper box compactors only
when certain conditions are met. One such condition is that the
equipment must meet specific standards issued for balers or for
compactors by the American National Standard Institute (ANSI). ANSI is
a national organization that coordinates the development of voluntary,

[[Page 28438]]

consensus standards in a wide range of areas, including product and
worker safety.
When enacting the Compactor and Baler Act, Congress explicitly
applied certain industry standards for the determination of which
balers and/or compactors are safe for minors to load: ANSI Standard
ANSI Z245.5-1990 for scrap paper balers or Standard ANSI Z245.2-1992
for paper box compactors. Congress has used ANSI standards in other
contexts as expressions of the best available technology in the safety
area. For example, the Occupational Safety and Health Act of 1970
directed the Department of Labor to adopt the then-existing ANSI
standards, rather than delay any activity until the agency promulgated
particular occupational safety and health standards (see section 6(a)
of the Occupational Safety and Health Act, 29 U.S.C. 655(a)). The ANSI
standards for scrap paper balers and paper box compactors govern the
manufacture and modification of the equipment, the operation and
maintenance of the equipment, and employee training. The Compactor and
Baler Act also provides that any new standard(s) adopted by ANSI would
also be sufficient for the safety of the scrap paper balers and paper
box compactors, if the Secretary of Labor certifies the new standard(s)
to be at least as protective of the safety of minors as the two
standards specified in the Act. In the Final Rule issued in 2004, the
Department stated that it would publish a Notice in the Federal
Register when the Secretary made any such certifications.
Because these ANSI standards are copyright-protected, the
Department cannot include them in the regulations or reproduce them for
distribution to the public. Copies of these standards are available for
purchase from the American National Standards Institute (ANSI), 25 West
43rd St., Fourth Floor, New York, NY 10036. The telephone number for
ANSI is (212) 642-4900 and its Web site is located at http://www.ansi.org. In addition, these standards are available for inspection
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call (202)
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. These standards are also
available for inspection at the Occupational Safety and Health
Administration's Docket Office, Room N-2625, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, DC 20210, or any of its
regional offices. The telephone number for the Occupational Safety and
Health Administration's Docket Office is (202) 693-2350 and its Web
site is located at http://dockets.osha.gov.
The Department issued a Final Rule on December 16, 2004 (69 FR
75382), which revised HO 12 to incorporate the provisions of the
Compactor and Baler Act. The Final Rule became effective on February
14, 2005. As supported by the provisions of the Compactor and Baler
Act, the Final Rule expanded the coverage of HO 12 to include those
balers and paper box compactors that process other materials in
addition to paper products. Prohibited machines include those indoor-
types of power-driven trash compactors equipped with built-in carts
that detach from the compactor to facilitate disposal of the compacted
waste. With this type of machine, an attendant wheels the cart to the
dumpster, empties the cart into the dumpster, and then wheels the cart
back to the compactor where it is reattached. Also included would be
``public use'' waste receptacles--often found at airports and other
large complexes--that include compaction equipment that allow the
public to dispose of refuse and then automatically processed the waste
at predetermined intervals.
The Final Rule also included the Secretary's certification, as
permitted by the Compactor and Baler Act, that the new Standard ANSI
Z245.5-1997 is as protective of the safety of minors as Standard ANSI-
S245.5-1990, and that the new Standard ANSI Z245.2-1997 is as
protective of the safety of minors as Standard ANSI Z245.2-1992.
Accordingly, these newer standards were incorporated into HO 12.
The Department, when issuing the 2004 Final Rule, noted that there
still remained one class of balers and compactors that falls outside of
the scope of HO 12--those machines that are designed or used
exclusively to process materials other than paper. The Report, in
recognition of this gap in coverage, recommends that HO 12 be revised
to include such machines because ``balers and compactors used to
process other scrap materials such as plastic and aluminum cans pose
similar risk of injury from crushing or amputation'' (see NIOSH Report,
page 50).
The Report notes that baler and compactor related deaths are not
limited to those in which paper or cardboard is being processed. Many
machines are adaptable for the baling and compacting of a wide variety
of materials, including paper, aluminum cans, plastic milk jugs, and
general refuse. Other machines are intended specifically for processing
a single product, such as metals. These specialized metal balers and
compactors, which process such items as cars, radiators, and siding,
may share similar designs and operating procedures with those
compactors and balers that process only paper products or process other
materials in addition to paper products. However, these specialized
metal balers also include large industrial machines that feature shear
blades that are not normally present on lighter-duty type balers. The
Report notes that while these large specialized balers are generally
found in facilities that specialize in processing scrap and waste
materials, smaller general-purpose portable machines that serve the
same functions are marketed for use in businesses such as grocery
stores, hotels, restaurants, and hospitals. These smaller general-
purpose machines operate in essentially the same manner as the larger
machines and present similar risks of injury.
In addition, the Report recommends that the Department continue to
emphasize enforcement of portions of the Compactor and Baler Act
requiring that balers and compactors conform to construction and
operations standards that greatly reduce exposure to hazardous energy.
The Report notes that investigations of baler-related incidents show
that failure to maintain machinery in safe operating condition
contributes to fatalities and serious injuries and that neither adult
supervisors nor young workers may fully appreciate the risks posed by
uncontrolled hazardous energy. The Report also recommends that the
Department retain the limited exemption contained in Sec. 570.63(c)(2)
that permits apprentices and student-learners to perform, under
specific guidelines, tasks that would otherwise be prohibited by HO 12.
The Department agreed with the NIOSH Report recommendation
regarding the scope of the HO and proposed to revise HO 12 to prohibit
16- and 17-year-olds from operating, loading, and unloading, with
limited exceptions, all balers and compactors, regardless of the
materials being processed. Both NIOSH occupational injury data and the
Department's enforcement experience reflect that injuries occur when
youth operate balers and compactors that are designed and used to
process materials other than paper. For example, the Department
investigated the employment of a 17-year-old who had both legs
amputated in a large industrial baler machine at a recycling center.
The machine was the only baler at the center and, therefore, was used
to process a wide variety of items. In a different investigation,
another 17-year-old lost his right index

[[Page 28439]]

finger while putting recyclables into an industrial waste compactor by
hand.
The limited exemption provided by FLSA section 13(c)(5) and
contained in Sec. 570.63(c)(1), which allows 16- and 17-year-old
workers, under specific conditions, to load but not operate or unload
certain scrap paper balers and paper box compactors, would remain. This
exemption, as detailed in the Compactor and Baler Act, would apply only
to certain scrap paper balers and paper box compactors, as currently
defined in Sec. 570.63(b). The exemption would not apply to balers and
compactors that are not designed or used to process paper or cardboard
as such equipment may not be considered scrap paper balers or paper box
compactors as required by the Compactor and Baler Act.
The proposed revision would be accomplished by adding new
subsections to Sec. 570.63 that would prohibit 16- and 17-year-olds
from performing the occupations of operating or assisting to operate
any baler or compactor that is designed or used to process materials
other than paper. A baler that is designed or used to process materials
other than paper would be defined in Sec. 570.63(b) to mean a powered
machine designed or used to compress materials other than paper or
cardboard boxes, with or without binding, to a density or form that
will support handling and transportation as a material unit without
requiring a disposable or reusable container. A compactor that is
designed or used to process materials other than paper would be defined
in Sec. 570.63(b) to mean a powered machine that remains stationary
during operation, designed or used to compact refuse other than paper
or cardboard boxes, into a detachable or integral container or into a
transfer vehicle. The occasional processing of paper or a cardboard box
by a machine designed to process other materials would not bring the
loading of such machines within the limited exemption provided by
section 13(c)(5).
The prohibition against such youth setting up, adjusting,
repairing, oiling, or cleaning any of the machines currently listed in
HO 12 would be extended to include compactors and balers that are
designed to process materials other than paper.
As previously noted, the Compactor and Baler Act provides that any
new standard(s) adopted by ANSI would also be sufficient for the
determination of the safety of the scrap paper balers and paper box
compactors, if the Secretary of Labor certifies the new standard(s) to
be at least as protective of the safety of minors as the two standards
specified in the Act. In the 2004 Final Rule, the Secretary certified
that Standard ANSI Z245.5-1997 is as protective of the safety of minors
as Standard ANSI-S245.5-1990 and that Standard ANSI Z245.2-1997 is as
protective of the safety of minors as Standard ANSI Z245.2-1992.
Accordingly, the newer standards were incorporated into HO 12.
In 2004 ANSI adopted Standard ANSI Z245.2-2004 (Stationary
Compactors--Safety Requirements for Installation, Maintenance, and
Operations) and Standard ANSI Z245.5-2004 (Baling Equipment--Safety
Requirements for Installation, Maintenance, and Operations). The
Department's preliminary review of these new Standards, which included
input from NIOSH, indicated that the Standards are as protective as
those cited in the Compactor and Baler Act and should be included in HO
12 along with the older Standards.
The Department appreciates the Report's recommendation to continue
emphasizing enforcement of portions of the Compactor and Baler Act
requiring that balers and compactors conform to construction and
operations standards that greatly reduce exposure to hazardous energy.
The Report notes that investigations of baler-related incidents show
that failure to maintain machinery in safe operating condition
contributes to fatalities and serious injuries and that neither adult
supervisors nor young workers may fully appreciate the risks posed by
uncontrolled hazardous energy (see NIOSH Report, page 50). The
Department's enforcement experience supports these findings. Most
recently, the Department investigated the death of a 16-year-old
grocery store worker in New York who was crushed to death by a baler
that had been jerry-rigged to operate while the door to the loading
chamber was open. This over-riding of an important safety device
required by each of the ANSI Standards was done to speed up the loading
process. As discussed previously, in order for an employer to avail
itself of the limited exemption contained in Sec. 570.63(c)(1) that
permits 16- and 17-year-olds under certain conditions to load, but not
operate or unload, certain scrap paper balers and paper box compactors,
the employer must determine that the equipment meets an appropriate
ANSI Standard listed in HO 12. The employer must also post a notice on
the machine that states, among other things, which applicable ANSI
Standard the machine meets. The appropriate ANSI Standards govern not
only the manufacture and modification of the equipment, but the
operation and maintenance of the equipment, and employee training as
well. During enforcement actions involving employers who avail
themselves of the limited exemption contained in Sec. 570.63(c)(1),
the Department routinely confirms whether the scrap paper baler or
paper box compactor being loaded by 16- or 17-year-olds meets the
requirements of the applicable ANSI Standard, as determined and
declared by the employer. If the equipment does not meet the
requirements of an applicable ANSI Standard, or if the employer failed
to make such a determination, or if any other requirement of the
limited exemption contained in FLSA section 13(c)(5) was not met, a
violation of HO 12 has most likely occurred. The Department will carry
on these efforts and will continue to work with both NIOSH and OSHA to
better educate employers, employees, and enforcement personnel about
the requirements of the ANSI Standards. Such efforts impact the safety
of all workers, not just those under the age of 18.
Finally, the Department proposed to take no action concerning the
NIOSH Report recommendation concerning the apprenticeship and student-
learner exemption to HO 12 at this time. As previously discussed, the
Department issued an ANPRM, in conjunction with and on the same day as
the NPRM, that requested information from the public on this issue.
The Department received three comments on this proposal. The brief
comments of the AFL-CIO stated that it ``strongly supports the DOL's
proposal to extend prohibitions to include operating, loading and
unloading balers and compactors designed or used to process materials
other than paper.'' The YWN was equally brief, stating ``[t]he Network
strongly agrees with this proposed change.''
The CLC ``welcomed'' the expansion of the prohibitions of HO 12 to
include balers and compactors designed or used to process materials
other than paper. It states that the Department did not address the
NIOSH Report's third recommendation dealing with HO 12 regarding the
importance of enforcing the requirements of FLSA section 13(c)(5) that
balers and compactors being loaded by 16- and 17-year-olds meet the
designated ANSI standards. The CLC also cited additional ANSI standards
that touch upon equipment used in the waste disposal and recycling
industries and questioned why these are not incorporated into HO 12.
The CLC also was concerned that the ANSI standards are copyright-
protected and that employers must either purchase them from the
American National

[[Page 28440]]

Standards Institute or visit a designated OSHA office to view them. It
also expressed concerns that employers may have difficulty interpreting
the ANSI standards. Finally, the CLC disapproved of the Department's
decision to not revisit the limited exemption currently contained in HO
12 for student-learners and apprentices.
No comments were received regarding whether Standard ANSI Z245.5-
2004 is as protective of the safety of minors as Standard ANSI Z245.5-
1990 and whether Standard ANSI Z245.2-2004 is as protective of the
safety of minors as Standard ANSI Z245.2-1992.
The Department has carefully reviewed the comments and has decided
to adopt the proposal, but with one modification concerning recently
issued ANSI Standards and a revision to the section heading. The
Department disagrees with the CLC's comment that it failed to address
NIOSH's third recommendation and notes that the recommendation clearly
reads that the Department should ``continue to emphasize enforcement
positions of the Compactor and Baler Act requiring balers to conform to
construction and operational standards that greatly reduce exposure to
hazardous energy.'' As noted in the NPRM and again in this Final Rule,
the Department considers this statement to be an endorsement of its
administration and enforcement of HO 12 and agreed to continue this
important activity.
The Department notes that when the Compactor and Baler Act was
enacted, Congress took considerable pains to ensure that the
legislation contained appropriate safeguards that would provide young
workers with necessary protections while ensuring that the employers of
such youth could achieve and maintain compliance. During this process,
Congress solicited input from the Department, NIOSH, employers,
employer associations, and employee associations. The result was, as
discussed earlier, that the Compactor and Baler Act required that
before 16- and 17-year-olds could load such equipment, the scrap paper
baler had to meet Standard ANSI Z245.5-1990 and the paper box compactor
had to meet Standard ANSI Z245.2-1992. Congress could have chosen to
include other standards--earlier versions of those ANSI standards the
CLC now suggests the Department should include in HO 12--but it did
not.
The Department believes Congress was aware that such standards are
copyright protected and available to the public only at a cost or for
reviewing at an appropriate library. The Department's enforcement
experience confirms that employers have many ways of ensuring that,
should they wish to take advantage of the limited exception contained
in FLSA section 13(c)(5), their balers and compactors comply with the
appropriate ANSI standard. Such employers can consult with the
manufacturer of the equipment, the supplier of the equipment, the owner
of the equipment if the equipment is leased, industry and/or employer
associations, OSHA, and safety engineering consultants. No employer or
employer association, when commenting on the 1999 or the 2007 NPRM,
reported that it was difficult or expensive to determine that their
balers and/or compactors met or failed to meet the appropriate ANSI
standards.
Congress also provided the Secretary of Labor with flexibility when
administering FLSA section 13(c)(5) by allowing balers and compactors
to meet any additional standards adopted by ANSI if certified by the
Secretary to be at least as protective of the safety of minors as the
standards contained in the Compactor and Baler Act. The Department
interprets this provision as permitting it to incorporate only more
recent versions of Standard ANSI Z245.5-1990 and Standard ANSI Z245.2-
1992--the two standards contained in the original legislation. The
Department followed this interpretation when it amended HO 12 and added
Standards ANSI Z245.5-1997 and ANSI Z245.2-1997 in 2004 (see 69 FR
75396) and again when promulgating this Final Rule.
The Department's review of Standard ANSI Z245.2-2004 has found it
to be as protective of the safety of minors as Standard ANSI Z245.2-
1992, and the Department's review of Standard ANSI Z245.5-2004 has
found it be as protective of the safety of minors as Standard ANSI
Z245.5-1990.
The NPRM notified the public that the Department intended to update
HO 12 to include the 2004 ANSI standards for compactors and balers, and
no comments were received as to whether the standards identified in the
NPRM were as protective of minors as the standards listed in the
Compactor and Baler Act. After the 2007 NPRM was published, ANSI
adopted two new standards related to balers and compactors: Standard
ANSI Z245.2-2008 (Stationary Compactors--Safety Requirements for
Installation, Maintenance, and Operations) and Standard ANSI Z245.5-
2008 (Baling Equipment--Safety Requirements for Installation,
Maintenance, and Operations). The Department's review of these new
Standards, which included input from NIOSH, concluded that the 2008
ANSI Standards are also as protective as those cited in the Compactor
and Baler Act. Therefore, the Department has decided to also
incorporate the 2008 ANSI standards into this Final Rule. The
Secretary, in promulgating this Final Rule, hereby certifies that
Standard ANSI Z245.2-2004 and Standard ANSI Z245.2-2008 are as
protective of the safety of minors as Standard ANSI Z245.2-1992 and
that Standard ANSI Z245.5-2004 and Standard ANSI Z245.5-2008 are as
protective of the safety of minors as Standard ANSI Z245.5-1990.
Accordingly, these four newer standards are included in the Final Rule.
The Department has also decided to provide a table listing all the
applicable ANSI Standards in Sec. 570.63(c)(1)(iv)(A).
The Department has decided to revise the title of HO 12 to reflect
that, under the Final Rule, it will prohibit occupations involved in
the operation of all balers and compactors, including those that do not
process any paper products. Accordingly, the title has been revised as
follows: Occupations involved in the operation of balers, compactors,
and paper-products machines (Order 12).
As noted earlier, FLSA section 13(c)(5) and Sec. 570.63(c)(1)(iv)
require that before a 16- or 17-year-old employee may load a baler or
compactor subject to HO 12, his or her employer must first post a
notice on the equipment stating that: (1) The baler or compactor meets
the named applicable ANSI standard; (2) sixteen- and 17-year-old
employees may only load the baler or compactor; and (3) any employee
under the age of 18 may not operate or unload the baler or compactor.
The Department recognizes the importance of these posting requirements
in the administration of section 13(c)(5) and addressed this issue in
detail in the preamble to the Final Rule published in the Federal
Register on December 16, 2004 (69 FR 75382).
Since publication of the 2007 NPRM, the Department has received
several inquiries regarding how these posting requirements impact
employers of youth who do not own or control the baler or compactor
that is available for use by their employees. In certain situations,
such as at shopping malls, industrial parks, office buildings, or
military bases, multiple employers may have access to and use
``community'' balers and compactors that the facilities manager or
owner has made available to the tenants or contractors. In these
situations, the Department has determined that it is not necessary for
every employer (tenant) that wishes to take advantage of the loading
exemption to post a notice on

[[Page 28441]]

the communal equipment as required by FLSA section 13(c)(5). The
facilities manager or owner, or the owner of the equipment, may make
the necessary postings and satisfy each employer's (tenant's) posting
obligations under the exemption. But the employer (tenant) must
exercise due vigilance, for should the notice be inaccurate or
incomplete--i.e., the baler or compactor fails to meet the appropriate
ANSI standard, or the notice fails to fully identify the appropriate
ANSI standard--the burden of compliance remains with the employer
(tenant) of any youth who loaded the equipment. An incomplete or
inaccurate posting by the facilities manager or owner will not relieve
an employer from being charged with a violation of HO 12 or assessed a
child labor civil money penalty. Employers that avail themselves of the
provisions of the loading exemption contained in FLSA section 13(c)(5)
and rely on the accuracy of notices posted by others cannot delegate
their compliance obligations imposed by that exemption.
Finally, the Department notes that the CLC takes exception to the
Department not taking any action on the NIOSH Report recommendation
regarding the limited exemption contained in HO 12 for student-learners
and apprentices. As the Report recommends that the limited exception
contained in HO 12 for apprentices and student-learners be retained,
the Department's decision not to address that issue is in full
agreement with that recommendation.

K. Occupations Involved in the Operation of Circular Saws, Band Saws,
and Guillotine Shears (Order 14) (29 CFR 570.65)

HO 14 generally prohibits the employment of 16- and 17-year-olds in
the occupations of operator or helper on power-driven circular saws,
band saws, and guillotine shears, except those that are properly
guarded and equipped with devices for full automatic feeding and
ejection. The prohibitions of HO 14 are based on the equipment and
apply regardless of the materials being processed. Section 570.65(b)(4)
defines the term circular saw to mean a machine equipped with a thin
steel disc having a continuous series of notches or teeth on the
periphery, mounted on shafting, and used for sawing materials. The term
band saw is defined in Sec. 570.65(b)(5) to mean a machine equipped
with an endless steel band having a continuous series of notches or
teeth, running over wheels or pulleys, and used for sawing materials.
Section 570.65(b)(6) defines the term guillotine shear to mean a
machine equipped with a moveable blade operated vertically and used to
shear materials. The term does not include other types of shearing
machines, using a different form of shearing action, such as alligator
shears or circular shears. HO 14 also prohibits such minors from
setting-up, adjusting, repairing, oiling, or cleaning circular saws,
band saws, and guillotine shears.
The original report that led to the issuance of HO 14 in 1960 noted
that these machines had already been found and declared to be
particularly hazardous for 16- and 17-year-old employees when used to
process certain materials. Circular saws and band saws were already
covered under HO 5 when used on wood, HO 10 when used on meat, and HO
12 when used on paper products. Band saws were also covered under HO 11
when used to cut sheet cakes to desired sizes and shapes. Guillotine
shears are covered under HOs 5, 8, 10 and 12 when used on wood, metal,
meat, and paper products, respectively. Reports showing that minors
were being injured when operating these machines on materials not
covered by an existing HO led the Department to issue the all-
encompassing HO 14.
The NIOSH Report recommends that HO 14 be expanded to cover other
machines, such as chain saws, that perform cutting and sawing functions
through direct contact between the cutting surfaces and the materials.
The Report also recommends, alternatively, that the Department consider
developing a new HO that would prohibit all sawing machinery that
performs cutting and sawing functions through direct contact of the
cutting surface and the material being processed. The Report states:
``Stationary saws and hand-held saws, including chain saws, continue to
be the source of substantial numbers of fatalities as well as nonfatal
injuries which may be unusually severe'' (see NIOSH Report, page 56).
The Report observes that not all machines that perform cutting and
sawing functions fit into HO 14's definitions of circular saw, band
saw, or guillotine shears; for example, abrasive cutting disks do not
have visible notches or teeth, but they perform the same function. The
Report notes that available data demonstrate that chainsaws
specifically contributed to 70 worker deaths between 1992 and 1997 and
over 1,600 lost workday injuries. Some of these fatalities involved
workers under 18 years of age (see NIOSH Report, page 57). The Report
also recommends that the Department retain the exemption contained in
HO 14 that permits 16- and 17-year-old apprentices and student learners
to perform work that would be otherwise prohibited by the HO.
The Department has long taken the position that HO 4 (Logging
occupations and occupations in the operation of any sawmill, lath mill,
shingle mill, or cooperage stock mill) prohibits 16- and 17-year-olds
from operating chain saws in logging operations because the HO
prohibits all work ``in connection with the felling of timber.''
Likewise, the Department has consistently taken the position, starting
as early as 1959, that HO 5 (Occupations involved in the operation of
power-driven woodworking machines) prohibits these same minors from
using chain saws to cut wood and wood products, including trees and
branches. Over the last ten years, the Department has investigated the
serious injuries of several youth that resulted from the use of chain
saws to cut branches and trees, charged violations under HO 5, and
assessed and collected civil money penalties because of those
violations. However, as the Report implies, the use of chain saws by
16- and 17-year-olds would not be prohibited when cutting other
materials such as metal, concrete, stone, and ice.
The Department has also long taken the position that HO 5 prohibits
the employment of 16- and 17-year-olds to operate wood chippers to
grind tree limbs, branches, and trunks into chips, mulch, or debris.
Some questions have recently been raised concerning the appropriateness
of this position, but the Department has been consistent in its
application when the equipment is used to process wood and trees. Young
workers have been killed or seriously injured while operating wood
chippers. In 2000, the Department investigated the death of a 14-year-
old member of a tree-trimming crew who was dismembered when he became
entangled in branches he was feeding into a drum-type wood chipper. In
2001, the Department investigated the serious injury of a 17-year-old
who suffered a fractured skull when the wood chipper he was feeding
``spit out'' a 12-inch long, 4-inch diameter, piece of a tree branch.
Three titanium plates were permanently implanted into the minor's
skull. The Department charged the employer of this youth with a
violation of HO 5, and assessed and collected a civil money penalty
because of the violation.
Just like in 1960 when HO 14 was first issued, the Department is
receiving reports of injuries and deaths, such as the ones described in
the preceding paragraphs, of youth operating power-driven machines that
may be prohibited when used to process certain types of materials and
not prohibited when processing other types of materials.

[[Page 28442]]

Reciprocating saws constitute another example of such a machine. HO 5
prohibits the employment of 16- and 17-year-olds to operate
reciprocating saws that are used or designed for cutting wood, but the
same piece of equipment is permitted when used or designed exclusively
to cut materials other than wood, such as metal. The Department has
learned of occupational injuries to workers operating reciprocating
saws to cut materials other than wood. The Department is aware of the
death of an adult plumber in Minnesota in 2002 who was killed when the
blade of the reciprocating saw he was using to rough-in plumbing
entered his head near his eye. The U.S. Department of Energy has also
reported that in 2002 an adult worker injured his larynx when the
reciprocating saw he was operating kicked back and cut him in his lower
throat. The American Journal of Forensic Medicine and Pathology (Volume
28, No. 4, December 2001) reports on the death of a 32-year-old male
who lost his balance and fell on the blade of an electric reciprocating
saw he was using to trim branches. The blade perforated his anterior
chest wall, right lung, heart, and aorta. The Journal noted that the
victim had been drinking beer while trimming the branches. Finally, in
2004, the Department investigated the death of a 17-year-old worker who
was employed to operate a reciprocating saw to salvage automobile
catalytic converters for recycling. While operating the saw, the
vehicle upon which he was using the saw fell on him and crushed him to
death.
The Department proposed to revise the prohibitions of HO 14 to
include chain saws, wood chippers, and reciprocating saws. The
prohibition would not depend on the material or materials being
processed and would encompass the occupations of setting-up, adjusting,
repairing, oiling, or cleaning such machines. This revision would be
accomplished by revising Sec. 570.65(a)(2) to prohibit the employment
of minors in the occupations of operator of or helper on power-driven
chain saws, wood chippers, and reciprocating saws, whether the machines
are fixed or portable. Unlike the machines currently listed in Sec.
570.65(a)(1), the prohibition would not be lifted if the chain saws,
wood chippers, or reciprocating saws were equipped with full automatic
feed and ejection-devices--devices that are almost never found on such
equipment. The current Sec. 570.65(a)(2) would be redesignated as
Sec. 570.65(a)(3) and revised to reflect that 16- and 17-year-olds
could not be employed in occupations involving the setting-up,
adjusting, repairing, oiling, or cleaning of any of the equipment
covered by the HO. The Department also proposed to revise the title of
HO 14 to reflect its application to the additional pieces of machinery
and to change the word operations to operation. Finally, the Department
proposed to restructure the definitions section contained at Sec.
570.65(b) in an alphabetical sequence to comport with guidance provided
by the Federal Register and to include definitions of the terms chain
saw, wood chipper, and reciprocating saw. The term chain saw would mean
a machine that has teeth linked together to form an endless chain used
for cutting materials. The term wood chipper would mean a machine
equipped with a feed mechanism, knives mounted on a rotating chipper
disc or drum, and a power plant used to reduce to chips or shred such
materials as tree branches, trunk segments, landscape waste, and other
materials. The term reciprocating saw would mean a machine equipped
with a moving blade that alternately changes direction on a linear
cutting axis used for sawing materials.
The Department is evaluating the alternative recommendation made by
the Report that it consider developing a new HO that combines the
sawing machinery covered under HO 14 with other specialized machinery
that performs cutting and sawing functions through direct contact of
the cutting surface and the material. Similar alternative
recommendations were made regarding HO 5 (Occupations involved in the
operation of power-driven woodworking machines) and HO 8 (Occupations
involved in the operation of power-driven metal forming, punching, and
shearing machines). The Department will continue to study these
recommendations.
Finally, the Report also recommended that the Department retain the
limited exemption contained in Sec. 570.65(c) that permits apprentices
and student-learners to perform, under specific guidelines, tasks that
would otherwise be prohibited by HO 14. As discussed previously in the
sections dealing with HOs 10 and 12, the Department proposed to take no
action concerning the apprenticeship and student-learner exemptions to
certain HOs at this time.
The Department received three comments on this proposal. The YWN
stated that it ``strongly agrees with this change.'' The AFL-CIO
supported the proposal and suggested that ``abrasive cutting discs'' be
added to the list of prohibited equipment. Such discs were mentioned in
the NIOSH Report as cutting equipment that falls outside the
prohibitions of HO 14. The CLC stated that it ``welcomes'' the proposed
inclusion of chain saws, wood chippers, and reciprocating saws but also
``sees no reason for DOL's failure to include abrasive cutting discs as
well.'' The CLC also disagreed with the Department's decision not to
address the issue of student-learners and apprentices in this Final
Rule.
The Department has carefully reviewed the comments and has decided
to adopt the proposal with one modification. The Department appreciates
the comments of the AFL-CIO and the CLC concerning the omission of
abrasive cutting discs from the list of prohibited equipment contained
in HO 14. The Department notes that although NIOSH did not include
injury data specific to the operation of abrasive cutting discs, NIOSH
did report that the potential contact with the moving disk of an
abrasive cutting tool does put operators at risk. The Department has
decided to add abrasive cutting discs to the list of machines
prohibited by HO 14 because it would be in keeping with the NIOSH
recommendation and will provide important protections to working youth.
The Department has defined abrasive cutting disc to mean a machine
equipped with a disc embedded with abrasive materials used for cutting
materials.
The Department once again notes that it has requested public
comment on the issue of exemptions for student-learners and apprentices
in the ANPRM that was published in conjunction with, and on the same
day as, the NPRM.

L. Additional Recommendations of the Report

The NIOSH Report recommends that the Department retain, as
currently issued, HO 3 (Coal mining occupations), HO 13 (Occupations
involved in the manufacture of brick, tile, and kindred products), HO
15 (Occupations involved in wrecking, demolition, and shipbreaking
occupations), and HO 17 (Occupations in excavation operations). The
Department accepted those recommendations and proposed no revisions to
these HOs. The Report also recommends that the Department remove the
limited exemption for apprentices and student-learners contained in HO
16 (Occupations in roofing operations and on or about a roof) and HO
17, and retain the same exemption as it applies to HO 5 (Occupations
involved in the operation of power-driven woodworking machines) and HO
8 (Occupations involved in the operation of power-

[[Page 28443]]

driven metal forming, punching, and shearing machines). As discussed
previously in the sections dealing with HOs 10, 12, and 14 of this
preamble, the Department proposed to take no action concerning the
apprenticeship and student-learner exemptions to any of the HOs at this
time. The Department believes that before any changes to the existing
exemptions are made, it is important to first consider and develop
criteria for determining when apprenticeship and student-learners
exemptions are appropriate. Accordingly, the Department issued an
ANPRM, in conjunction with and on the same day as the NPRM, that sought
information from the public on this and other issues.
Only the CLC commented on this proposal, expressing its
disappointment that the Department has decided not to address
recommendations regarding the limited exemptions provided for student-
learner and apprentices at this time.

M. Subpart G--General Statements of Interpretation of the Child Labor
Provisions of the Fair Labor Standards Act of 1938, as Amended (29 CFR
570.101-570.129)

Subpart G discusses the meaning and scope of the child labor
provisions of the FLSA. The interpretations of the Secretary of Labor
contained in subpart G indicate the construction of the law that guides
the Secretary in administrating and enforcing the Act. Since the last
revision of subpart G in 1971, Congress has passed several amendments
to the FLSA and the Department has revised other subparts of 29 CFR
part 570 that are not currently reflected in subpart G. The Department
proposed to revise subpart G to accommodate not only the statutory and
regulatory changes that have occurred, but to reflect the proposed
revisions to part 570 made by the NPRM and discussed earlier in this
document. The proposed revisions to subpart G were as follows:
1. Section 570.103(c) states that there are only four specific
child labor exemptions contained in the FLSA, and only one of them,
concerning the delivery of newspapers to the consumer, applies to the
minimum wage and overtime requirements of the Act as well. Congress has
created four additional exemptions to the nonagricultural child labor
provisions of the FLSA that are not currently reflected in subpart G
(the making of wreaths composed principally of natural holly, pine,
cedar, or other evergreens by homeworkers; the loading of certain scrap
paper balers and paper box compactors by 16- and 17-year-olds; the
limited driving of certain automobiles and trucks by 17-year-olds; and
the employment of certain youth between the ages of 14 and 18 years
inside and outside of places of business that use power-driven
machinery to process wood products). The exemption concerning the
employment of homeworkers who make wreaths, contained in FLSA section
13(d), is an exemption from the minimum wage and overtime provisions of
the Act as well as its child labor provisions. The Department proposed
to revise Sec. 570.103(c) to reflect that the FLSA now contains eight
exemptions from the child labor provisions and that two of these
exemptions are also exemptions from the Act's minimum wage and overtime
requirements.
This same subsection cites FLSA section 3(d), which defines the
term employer and then, in footnote 4, discusses that definition. FLSA
section 3(d) was amended in 1966, and the provisions of that amendment
are not reflected in subpart G. The Department proposed to revise
footnote 4 of Sec. 570.101(c) to include the more recent definition of
the term employer and to correct an erroneous reference to FLSA section
13(d).
2. Section 570.118 notes that the FLSA sets a minimum age of 16
years for employment in manufacturing or mining, but does not take into
account the effects of the 2004 enactment of FLSA section 13(c)(7).
Section 13(c)(7) allows the employment of certain 14- and 15-year-olds
inside and outside of places of business that use power-driven
machinery to process wood products as discussed above. The Department
proposed to revise Sec. 570.118 to incorporate the provisions of FLSA
section 13(c)(7).
3. Section 570.119 discusses those occupations in which 14- and 15-
year-old minors may and may not be employed under Reg. 3. The
Department proposed to revise this section to incorporate the changes
necessitated by the adoption of FLSA section 13(c)(7) and to reflect
the proposed revisions to Sec. Sec. 570.33 and 570.34 as discussed
above. For the sake of both brevity and clarity, the Department
proposed not to repeat in Sec. 570.119 the lists of all the
occupations contained in Sec. Sec. 570.33 and 570.34, but rather to
refer readers to those sections.
The proposed revision to Sec. 570.119 would contain the general
prohibition against the employment of minors under 14 years of age
under any circumstances that is currently included at the end of Sec.
570.119.
4. Section 570.120 describes the authority and process by which HOs
are adopted, and lists those occupations the Secretary has found and
declared to be particularly hazardous or detrimental to the health or
well-being of minors 16 and 17 years of age. Since subpart G was last
revised, not only have several HOs been amended, but the process for
promulgating and revising the HOs has also changed. Before 1995, the
process for promulgating and amending HOs included public hearings and
advice from committees composed of representatives of employers and
employees of the impacted industry and the public, in accordance with
the procedures established by subpart D of this part. The Department
issued a Final Rule on April 17, 1995 (60 FR 19336) that deleted
subpart D and placed the process of promulgating and revising HOs
solely under the provisions of the Administrative Procedure Act (APA),
5 U.S.C. 551 et seq., which governs Departmental rulemaking.
The Department proposed to revise Sec. 570.120 to reflect the 1995
change in the process for issuing and revising HOs. The Department also
proposed, for the sake of brevity and clarity, not to repeat the list
of individual HOs as they are already listed in subpart E of 29 CFR
part 570.
5. Section 570.122 lists the four exemptions from the FLSA child
labor provisions that existed when subpart G was last revised. As
discussed earlier, Congress has added four more exemptions that are not
included in the current subpart G.
The Department proposed to revise Sec. 570.122 by creating new
subsections (e), (f), (g), and (h), which will list the exemptions from
the child labor provisions contained in FLSA sections 13(d), 13(c)(5),
13(c)(6), and 13(c)(7), respectively. A more thorough discussion of
each of these exemptions was proposed to be included in Sec. Sec.
570.127-.130.
6. The Department proposed to revise Sec. Sec. 570.127, .128, and
.129, and create a new Sec. 570.130 to present detailed discussions of
the exemptions from the child labor provisions contained in FLSA
sections 13(d), 13(c)(5), 13(c)(6), and 13(c)(7). These proposed
provisions were structured similarly to those already contained in
subpart G that address the earlier FLSA exemptions concerning
employment of youth in agriculture (Sec. 570.123), in the delivery of
newspapers (Sec. 570.124), as actors and performers (Sec. 570.125),
and by one's parents (Sec. 570.126). The Department also proposed to
revise and redesignate the sections of subpart G currently dealing with
general enforcement

[[Page 28444]]

(Sec. 570.127), good faith defense (Sec. 570.128), and the relation
of the child labor provisions to other laws (Sec. 570.129). These
sections would be redesignated as Sec. 570.140, Sec. 570.141, and
Sec. 570.142, respectively. The Department proposed to reserve
Sec. Sec. 570.131 through 570.139 to accommodate any additional
statutory amendments to the FLSA child labor provisions that may be
enacted.
7. Section 570.127 contains a general discussion of the enforcement
of the FLSA child labor provisions. Since that last revision of subpart
G, Congress in 1996 amended the FLSA at section 16(e) so that any
person who violates the provisions of section 12 or section 13(c)(5)
relating to child labor, or any regulation issued under section 12 or
section 13(c)(5), shall be subject to a civil money penalty, currently
not to exceed $11,000, for each employee who was the subject of such a
violation. The Department, as discussed above, proposed to redesignate
this section as Sec. 570.140 and to revise it to include the
Department's authority to assess civil money penalties against persons
who violate the child labor provisions of the Act.
8. Section 570.128 deals with a provision of FLSA section 12(a)
that relieves from liability a purchaser who ships or delivers for
shipment in commerce goods acquired in good faith in reliance on
written assurance from the producer, manufacturer, or dealer that the
goods were produced in compliance with section 12 and that were
acquired for value without notice of any violation. The Department
proposed to redesignate this section as Sec. 570.141.
9. Section 570.129 discusses the relationship of the child labor
provisions of the FLSA to other laws. The Department proposed to
redesignate this section as Sec. 570.142.
No comments were received on these proposals to amend Subpart G.
The Department has decided to adopt the above proposals as written,
with three exceptions. The Department is slightly modifying the
proposed revisions to Sec. 570.122 so as to incorporate guidance
provided by the Federal Register. This modification does not change the
content of the Department's original proposal. In addition, the
Department will not implement its proposal to reserve Sec. Sec.
570.131 through 570.139, again at the direction of the Federal
Register.
Finally, on May 21, 2008, after publication of the NPRM, the
Genetic Information Nondiscrimination Act of 2008 (GINA), Public Law
110-233, was signed into law. This Act, among other things, amends
section 16(e) of the Fair Labor Standards Act by increasing the maximum
permissible civil money penalty an employer may be assessed for child
labor violations that cause the death or serious injury of a young
worker. FLSA Section 16(e) now states that any person who violates the
provisions of FLSA sections 12 or 13(c), relating to child labor, or
any regulation issued pursuant to such sections, shall be subject to a
civil penalty not to exceed $11,000 for each employee who was the
subject of such a violation. This same section also permits the
assessment of a penalty not to exceed $50,000 with regard to each
violation that causes the death or serious injury of any employee under
18 years of age. That penalty may be doubled up to $100,000 if the
violation is determined to be a repeated or willful violation.
Accordingly, the Department is revising the proposed Sec. 570.140 (as
redesignated as discussed in paragraph 7 above) to incorporate the
provisions of GINA. The provisions of GINA and the impact they have on
this rulemaking are more fully discussed later in Section O of this
preamble.

N. Miscellaneous Matters, 29 CFR Part 570

The Department proposed to change the name of HO 8 from Occupations
involved in the operations of power-driven metal forming, punching, and
shearing machines (Order 8) to Occupations involved in the operation of
power-driven metal forming, punching, and shearing machines (Order 8).
The Department has decided to adopt this proposal as written. Only
the CLC commented on this proposal, incorrectly referring to it as
``correcting a typographical error.'' The word ``operations'' was the
word used by the Department when HO 8 was first enacted in 1950 and its
use was appropriate for the time. The Department's replacing of that
word with ``operation'' reflects the current usage of the word.
The Department has made minor, nonsubstantive changes to the
proposed Sec. 570.119 to better explain the purpose of Sec. 570.33.
In addition, the Department has updated references made in Sec.
570.102 and in Footnote 21, which is cited in Sec. 570.111. These
changes were necessitated by the other revisions made in subpart G.
Typographical and grammatical errors in the proposed regulatory text
were also corrected.
Finally, pursuant to guidance provided by the Federal Register, the
Department is issuing the proposed Sec. Sec. 570.35a and 570.35b as
Sec. Sec. 570.36 and 570.37 and redesignating existing Sec. Sec.
570.36 and 570.37 as Sec. Sec. 570.38 and 570.39, respectively.

O. Civil Money Penalties; 29 CFR Part 579

Section 16(e) of the FLSA subjects any person who violates the
child labor provisions of the Act to civil money penalties. On May 21,
2008, the Genetic Information Nondiscrimination Act of 2008 (GINA)
(Pub. L. 110-233) was enacted into law. GINA, among other things,
amended FLSA section 16(e) so that any person who violates the
provisions of sections 12 or 13(c) of the FLSA, relating to child
labor, or any regulation issued pursuant to such sections, shall be
subject to a civil money penalty not to exceed $11,000 for each
employee who was the subject of such a violation. In addition, GINA
also permits the assessment of a civil money penalty not to exceed
$50,000 with regard to each violation that caused the death or serious
injury of any employee under the age of 18 years. That penalty may be
doubled, up to $100,000, when such violation is determined by the
Department to be a repeated or willful violation. These changes in the
law became effective May 21, 2008.
As mentioned above, the NPRM proposed to revise Sec. 570.127 and
redesignate it as Sec. 570.140. In addition to taking these steps, the
Final Rule will incorporate the provisions of GINA into (new) Sec.
570.140. The Final Rule will also revise those provisions of 29 CFR
part 579 relevant to civil monetary penalties in order to incorporate
the provisions of this recent statutory amendment into the regulations.
The Department is incorporating the child labor civil money penalty
provisions of the GINA amendments into this Final Rule without prior
notice and opportunity for public comment because it has for good cause
found, pursuant to the Administrative Procedure Act, 5 U.S.C.
553(b)(B), that these procedural requirements are unnecessary with
respect to these particular regulatory changes. The regulatory changes
in (new) Sec. 570.140 and Part 579 implement the recent legislation
that revised the civil monetary penalties that may be assessed under
section 16(e) of the FLSA. In bringing the regulations into conformity
with the statutory amendments, the Department is not exercising any
interpretative authority. Accordingly, the Department is incorporating
the provisions of the statutory amendments into the Final Rule without
notice and comment.
Specifically, the Department is revising Sec. 579.1(a) to
incorporate the

[[Page 28445]]

provisions of section 16(e) of the FLSA as revised by GINA. The
Department is also revising the definitions section in Sec. 579.2 to
include the terms serious injury, repeated violations, and willful
violations.
GINA amended FLSA section 16(e) to define serious injury as (1)
permanent loss or substantial impairment of one of the senses (sight,
hearing, taste, smell, tactile sensation); (2) permanent loss or
substantial impairment of the function of a bodily member, organ, or
mental faculty, including the loss of all or part of an arm, leg, foot,
hand or other body part; or (3) permanent paralysis or substantial
impairment that causes loss of movement or mobility of an arm, leg,
foot, hand or other body part.
Although GINA does not define the terms repeated violations and
willful violations, those terms already have been defined by the Wage
and Hour Division (see 29 CFR 578.3(b) and (c)), and are currently
applied, pursuant to section 16(e) of the Act, in the assessment of
civil money penalties for repeated and willful violations of sections 6
and 7 of the FLSA. Applying those definitions to civil money penalties
under 29 CFR part 579, an employer's violation of section 12 or section
13(c) of the Act relating to child labor or any regulation issued
pursuant to such sections shall be deemed to be repeated: (1) Where the
employer has previously violated section 12 or section 13(c) of the Act
relating to child labor or any regulation issued pursuant to such
sections, provided the employer has previously received notice, through
a responsible official of the Wage and Hour Division or otherwise
authoritatively, that the employer allegedly was in violation of the
provisions of the Act; or (2) where a court or other tribunal has made
a finding that an employer has previously violated section 12 or
section 13(c) of the Act relating to child labor or any regulation
issued pursuant to such sections, unless an appeal therefrom which has
been timely filed is pending before a court or other tribunal with
jurisdiction to hear the appeal, or unless the finding has been set
aside or reversed by such appellate tribunal.
For purposes of the assessment of civil money penalties under 29
CFR part 579, an employer's violation of section 12 or section 13(c) of
the Act relating to child labor or any regulation issued pursuant to
such sections shall be deemed to be willful where the employer knew
that its conduct was prohibited by the Act or showed reckless disregard
for the requirements of the Act. All of the facts and circumstances
surrounding the violation shall be taken into account in determining
whether a violation was willful. In addition, for purposes of this
section, an employer's conduct shall be deemed knowing, among other
situations, if the employer received advice from a responsible official
of the Wage and Hour Division to the effect that the conduct in
question is not lawful. For purposes of this section, an employer's
conduct shall be deemed to be in reckless disregard of the requirements
of the Act, among other situations, if the employer should have
inquired further into whether its conduct was in compliance with the
Act, and failed to make adequate further inquiry.
Finally, the Department is also revising Sec. 579.5, sections (a)
and (e), to note that FLSA section 16(e) references both sections 12
and 13(c) when discussing the types of child labor violations that are
subject to the assessment of civil money penalties.

IV. Paperwork Reduction Act

In accordance with requirements of the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR
part 1320, the Department seeks to minimize the paperwork burden for
individuals, small businesses, educational and nonprofit institutions,
Federal contractors, State, local and tribal governments, and other
persons resulting from the collection of information by or for the
agency. The PRA typically requires an agency to provide notice and seek
public comments on any proposed collection of information contained in
a proposed rule (see 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8). The NPRM
published in the Federal Register on April 17, 2007 (72 FR 19337)
invited comments on the information collection burdens imposed by these
regulations. No comments were received regarding the information
paperwork burden estimates.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number (see 5 CFR 1320.6). The Department
submitted the information collections contained in Sec. 570.37
(previously proposed as Sec. 570.35b) of this rule to the OMB for
approval, and OMB approved them under OMB Control Number 1215-0208. The
approval expires on May 31, 2013, unless extended by OMB. A copy of the
information collection request can be obtained at http://www.RegInfo.gov or by contacting the Wage and Hour Division as shown in
the FOR FURTHER INFORMATION CONTACT section of this preamble.
Circumstances Necessitating Collection: The Department has created
a new 29 CFR 570.37 that describes the conditions that allow the
employment of 14- and 15-year-olds--pursuant to a school-supervised and
school-administered Work-Study Program (WSP)--under conditions Reg. 3
otherwise prohibits. The new regulation requires the implementation of
a new paperwork burden with regard to a WSP.
FLSA section 3(l) establishes a minimum age of 16 years for most
nonagricultural employment but allows the employment of 14- and 15-
year-olds in occupations other than manufacturing and mining, if the
Secretary of Labor determines such employment is confined to periods
that will not interfere with the minor's schooling and conditions that
will not interfere with the minor's health and well-being.
FLSA section 11(c) requires all employers covered by the FLSA to
make, keep, and preserve records of their employees' wages, hours, and
other conditions and practices of employment. Section 11(c) also
authorizes the Secretary of Labor to prescribe the recordkeeping and
reporting requirements for these records. Reg. 3 sets forth the
employment standards for 14- and 15-year-olds.
Reporting Requirements: WSP Application: In order to utilize the
Reg. 3 WSP provisions, Sec. 570.37(b)(2) requires a local public or
private school system to file with the Administrator of the Wage and
Hour Division an application for approval of a WSP as one that does not
interfere with the schooling or health and well-being of the minors
involved.
Written Participation Agreement: The regulations require
preparation of a written participation agreement for each student
participating in a WSP and that the teacher-coordinator, employer, and
student each sign that agreement (see Sec. 570.37(b)(3)(iv)). The
regulation also requires that the student's parent or guardian sign the
training agreement, or otherwise give consent to the agreement, in
order for it to be valid.
Recordkeeping Requirements: The regulation requires a school system
operating a WSP to keep a copy of the written participation agreement
for each student enrolled in the WSP at the student's school. Employers
of WSP participants are also required to keep a copy of the written
participation agreement for each student employed. These agreements
shall be maintained for 3 years from the date of the student's

[[Page 28446]]

enrollment in the WSP (see Sec. 570.37(b)(4)(ii)).
Purpose and Use: WSP Application: Under the regulations, a local
school system shall file a letter of application requesting the
Administrator of the Wage and Hour Division to approve a WSP that
permits the employment of 14- and 15-year-olds under conditions that
Reg. 3 would otherwise prohibit. The Department will evaluate the
information to determine if the program meets the requirements
specified in the regulation, in order to respond to the request.
Written Participation Agreement: The school system administering
the WSP and each applicable employer shall separately maintain a copy
of the written participation agreement for each student. The written
agreement shall be signed by the teacher-coordinator, the employer, and
the student. In addition, the student's parent or guardian shall either
sign or otherwise provide consent for the participation agreement to be
valid. The written participation agreement shall be structured to
ensure that the quality of the student's education, as well as his or
her safety and well-being, are not compromised. School systems,
employers, and the Department will use these records to document the
validity of the WSP and that the 14- and 15-year-old students were
employed in accordance with the special WSP rules.

Information Collection Burdens

Total Number of Respondents: 1530 (30 school districts and 1500
employers).
Total Number of Responses: 3030 (30 WSP applications, 1500 school
district written participation agreements, 1500 employer written
participation agreements).
Total Reporting and Recordkeeping Burden Hours: 1586.
Total Dollar Cost Burden: $14.
The DOL has slightly increased the total burden hour estimate from
1585 hours to 1586 to align the data with what appears in the General
Services Administration, Regulatory Information Service Center and the
OMB, Office of Information and Regulatory Affairs Combined Information
System (ROCIS) used to track the burdens imposed by Federal government
information collections. This difference is due to differences in how
initial Departmental efforts and ROCIS dealt with rounding issues. The
Department has also increased the dollar cost from $13 to $14 to
account for increased postage costs since publication of the NPRM.

V. Executive Order 12866; Regulatory Flexibility

This Final Rule is being treated as a ``significant regulatory
action'' within the meaning of E.O. 12866 because of its importance to
the public and the Department's priorities. Therefore, the Office of
Management and Budget has reviewed this rule. However, because this
rule is not ``economically significant'' as defined in section 3(f)(1)
of E.O. 12866, it does not require a full economic impact analysis
under section 6(a)(3)(C) of the Order. The new information collection,
recordkeeping, and reporting requirements subject to the PRA being
imposed with the enactment of the new work-study program are discussed
above.
It is well established that several characteristics of youth place
adolescent workers at increased risk of injury and death. Lack of
experience in the work place and in assessing risks, and developmental
factors--physical, cognitive, and psychological--all contribute to the
higher rates of occupational injuries and deaths experienced by young
workers. CFOI data reflect that during the period of 1994-2004, 15-
year-olds experienced an occupational fatality rate of 4.7 fatalities
per 100,000 workers--a rate that was greater than that experienced by
all workers aged 15 and older. Older working youth share similar risks.
The NIOSH Report notes that the fatality rate for adolescents aged 16
and 17 was 5.1 per 100,000 full-time equivalent workers for the 10-year
period 1980-89 [Castillo et al. 1994], while the rate for adults aged
18 and older was 6.1. As NIOSH stated, ``[t]his relatively small
difference in rates is cause for concern because youth under age 18 are
employed less frequently in especially hazardous jobs.'' NIOSH reports
on its Web site (see http://www.cdc.gov/niosh/topics/youth) that in
2007, an estimated 48,600 work-related injuries and illnesses among
youth 15 to 17 years of age were treated in hospital emergency
departments. As an estimated one-third of work-related injuries are
seen in emergency departments, it is likely that approximately 146,000
youth sustain work-related injuries and illnesses each year. The NIOSH
statistics show that, despite the fact that workers aged 15 through 17
are generally restricted from employment in hazardous occupations such
as mining, motor-vehicle driving, logging, sawmilling, and
construction, they have a higher rate of injuries requiring emergency
room treatment than any other age group except 18- and 19-year-olds
(who are not restricted from performing such work). The economic and
social costs associated with the deaths and serious injuries of young
workers are substantial.
The Department considers the issuance of this rule to be an
important and necessary step in its ongoing review of the criteria for
permissible child labor employment, a review which strives to balance
the potential benefits of transitional, staged employment opportunities
for youth with the necessary protections for their education, health
and safety. Because youth often overcome the effects of those
characteristics that initially place them at increased risk of injury
and death in the workplace only through the maturation process, it is
believed that requiring older workers to perform those tasks that
present greater risks to younger workers actually eliminates injuries
and deaths--rather than delaying them or transferring them to the older
workers.
Additionally, this document revises the child labor regulations in
response to a statutory amendment enacted by the Congress that permits
certain youth between 14 and 18 years of age who are excused from
compulsory school attendance beyond the eighth grade to be employed
under specific conditions inside and outside places of business that
use machinery to process wood products. Affecting the Reg. 3
occupations standards and both HOs 4 and 5, this statutory provision
would be available to a very small number of minors and therefore is
expected to have little or no economic impact. The Department believes
that only a few minors have obtained employment in such occupations
since the amendment was enacted and doubts that the number will
increase. Moreover, the amendment's strong safety-affecting
requirements that such youth not operate or assist in the operation of
power-driven woodworking machines, use personal protective equipment to
prevent exposure to excessive levels of noise and sawdust, and be
protected from wood particles and other flying debris within the
workplace, should significantly reduce potential costs resulting from
accidents and injuries to minors on the job.
The implementation of revised subpart G of the child labor
regulations, General Statements of Interpretation of the Child Labor
Provisions of the Fair Labor Standards Act of 1938, as Amended, to
incorporate all the changes made by the agency since this subpart was
last revised in 1971, will simply provide compliance guidance on the
child labor provisions detailed in earlier subparts of 570 and
therefore imposes no economic costs.

[[Page 28447]]

The additional changes being implemented are also expected to have
little or no direct cost impact. The changes affecting the types of
occupations and industries in which 14- and 15-year-olds may or may not
be employed, as well as the periods and conditions of such employment
(Reg. 3 occupations and hours standards), are largely clarifications of
existing provisions or enforcement positions, though new occupations
involving work of an intellectual or creative nature, lifeguarding, and
the loading of personal hand tools onto motor vehicles, are being added
to the list of permitted occupations. The revision of several of the
nonagricultural HOs--implementing specific recommendations made by
NIOSH or that arise from the Department's enforcement experience--will,
in all but one instance involving the use of certain counter-top mixers
(HO 11), require employers to assign older workers to perform tasks
that previously may have been performed by 16- and 17-year-olds.
Revisions resulting from the NIOSH recommendations include the
expansion of HO 4 to prohibit the employment of minors in forest fire
fighting and fire prevention activities and in timber tract and
forestry service occupations; the revision of HO 7 to prohibit the
employment of minors in the tending, servicing, and repairing of
hoisting equipment and the addition of such equipment as cherry
pickers, scissor lifts, bucket trucks, aerial platforms, and hoists of
less than one ton capacity to the list of prohibited equipment; and the
expansion of HO 10 to prohibit the employment of minors in poultry
slaughtering and processing occupations. Revisions to HO 12 to prohibit
the employment of minors in the operation of balers and compactors not
currently covered by the HO, and the expansion of HO 14 to add
additional power-driven equipment to the list of equipment minors may
not operate, are also the result of NIOSH Report recommendations. The
Department's enforcement experience led it to incorporate into the
regulations certain long-standing enforcement positions involving the
definitions of remanufacturing departments of sawmills (HO 4), high-
lift trucks (HO 7), and the cleaning of power-driven meat processing
equipment (HO 10). The Department is also, based on its enforcement
experience, amending HO 11 to incorporate the Department's long-
standing position permitting 16- and 17-year-olds, under certain
conditions, to operate certain pizza-dough rollers, and expanding HO 14
to prohibit the employment of minors to operate wood chippers and
reciprocating saws.
The Department has incorporated certain provisions of the Genetic
Information Nondiscrimination Act of 2008 (GINA) into 29 CFR parts 570
and 579 to implement the legislation, which revised the civil monetary
penalties that may be assessed under section 16(e) of the FLSA. The
regulatory changes that implement these statutory changes do no more
than conform the previously-existing regulations to the recent
statutory amendments and do not impose any economic costs on employers
that are required to comply with the provisions of sections 12 and
13(c) of the FLSA. GINA, effective May 21, 2008, increased the maximum
civil money penalty that may be assessed for violations that cause the
death or serious injury of a minor from $11,000 to $50,000. GINA also
permits a doubling of the civil money penalty up to $100,000 when such
violations are determined to be willful or repeated.
The Department believes that implementation of the Final Rule would
not reduce the overall number of safe, positive, and legal employment
opportunities available to young workers. In fact, employment
opportunities for 14- and 15-year-olds would increase with creation,
for example, of a limited exemption for certain work-study programs,
allowing youth to be employed in work of an intellectual or creative
nature, and allowing youth to be employed in those permitted
occupations listed in Sec. 570.34(a) to be performed in additional
industries, rather than just in retail, food service, and gasoline
service establishments.
Although, as mentioned above, some employers would need to replace
younger workers with older workers, the impact would be minimal as
relatively few minors are currently employed to perform these
occupations. But the Department believes that these changes are
important as they are essential to fulfilling its charge of keeping
working youth safe by prohibiting occupations that are particularly
hazardous or detrimental to their health or well-being. Any costs that
might result from using older employees to perform the previously
permitted tasks would be more than offset by reduced health and
productivity costs resulting from accidents and injuries to minors on
the job. Rules that limit permissible job activities for working youth
to those that are safe do not, by themselves, impose significant added
costs on employers, in our view. In fact, ensuring that permissible job
opportunities for working youth are safe, healthy, and not detrimental
to their education, as required by the statute, produces many positive
benefits in addition to fewer occupational injuries and deaths,
including reduced health and productivity costs that employers may
otherwise incur because of higher accident and injury rates to young
and inexperienced workers. In any event, the direct, incremental costs
that would be imposed by this rule are expected to be minimal.
Collectively, they would not have an annual effect on the economy of
$100 million or more or adversely affect in a material way the economy
or its individual sectors, productivity, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities. Therefore, this rule is not ``economically significant''
and no regulatory impact analysis has been prepared.
The Department has similarly concluded for the same reasons noted
above that this rule is not a ``major rule'' under the Small Business
Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). It
would not likely result in: (1) An annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual industries, federal, state, or local government agencies, or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or on the ability of
U.S.-based enterprises to compete with foreign-based enterprises in
domestic or export markets.
While the impact that these regulatory changes will have on most
affected entities has already been discussed, even those entities that
are most heavily impacted should each spend an average of less than
$1500 to comply with the new requirements of this rule. Specifically,
the Department believes school districts sponsoring a WSP will incur
the greatest additional costs. An analysis of the time it will take to
prepare the application and written training agreements for a WSP and
the associated recordkeeping suggests these educational institutions
will each spend an average of about 52.5 hours more to comply with this
Final Rule than might otherwise be spent to establish a similar work-
study program. The Department associates no additional costs for the
workplace observation requirement to ensure compliance with the FLSA
child labor provisions, because such monitoring will normally be
conducted when school staff visit the workplace to see whether
educational objectives are being met. Absent any specific data on
compensation of the persons who will actually perform the work to
ensure

[[Page 28448]]

compliance, the DOL has estimated hourly costs this rule will impose on
WSP sponsor schools by increasing the October 2009 average annual
hourly rate for production or nonsupervisory workers on educational and
health services payrolls of $19.59 by 40 percent to account for the
value of fringe benefits (see The Employment Situation: December 2009,
DOL, Bureau of Labor Statistics, January 2010, Table B-3, http://www.bls.gov/news.release/archives/empsit_01082010.pdf). The Department
then multiplied this rate, which includes fringe benefits, by 52.5
hours. Accordingly, the DOL estimates WSP sponsor school districts will
incur an average of $1440 (rounded) in additional compliance costs.
(52.5 hours x $19.59 hourly rate x 1.4 fringe benefits factor.) As
previously noted, the Department expects 30 school districts will have
a WSP.
The costs imposed by this rule should not be significant for any
single entity, and they do not affect a substantial number of small
entities in a way that would require an analysis under the Regulatory
Flexibility Act. At the time the NPRM was published, the Department
certified to this effect to the Chief Counsel for Advocacy of the U.S.
Small Business Administration (SBA). Therefore, no Initial Regulatory
Flexibility Analysis was required. The Department received no comments
raising concerns about the initial certification. For the reasons
discussed in this preamble, the Department has similarly concluded and
certified to the SBA Office of Advocacy Chief Counsel that this Final
Rule is not expected to have a significant economic impact on a
substantial number of small entities in a manner that would require a
Final Regulatory Flexibility Analysis.

VI. Unfunded Mandates Reform Act

For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, this rule does not include any federal mandate that may result in
excess of $100 million in expenditures by state, local and tribal
governments in the aggregate or by the private sector.

VII. Executive Order 13132; Federalism

This rule does not have federalism implications as outlined in E.O.
13132 regarding federalism. The rule does not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.

VIII. Executive Order 13175, Indian Tribal Governments

This rule was reviewed under the terms of E.O. 13175 and determined
not to have ``tribal implications.'' The rule does not have
``substantial direct effects on one or more Indian tribes, on the
relationship between the federal government and Indian tribes, or on
the distribution of power and responsibilities between the federal
government and Indian tribes.'' As a result, no tribal summary impact
statement has been prepared.

IX. Effects on Families

The undersigned hereby certifies that this rule will not adversely
affect the well-being of families, as discussed under section 654 of
the Treasury and General Government Appropriations Act, 1999.

X. Executive Order 13045, Protection of Children

E.O. 13045, dated April 23, 1997 (62 FR 19885), applies to any rule
that (1) is determined to be ``economically significant'' as defined in
E.O. 12866, and (2) concerns an environmental health or safety risk
that the promulgating agency has reason to believe may have a
disproportionate effect on children. This rule is not subject to E.O.
13045 because it is not economically significant as defined in E.O.
12866. In addition, although this rule impacts the child labor
provisions of the FLSA and the employment of adolescents and young
adults, it does not impact the environmental health or safety risks of
children.

XI. Environmental Impact Assessment

A review of this rule in accordance with the requirements of the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11,
indicates that the rule will not have a significant impact on the
quality of the human environment. There is, thus, no corresponding
environmental assessment or an environmental impact statement.

XII. Executive Order 13211, Energy Supply

This rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution or use of
energy.

XIII. Executive Order 12630, Constitutionally Protected Property Rights

This rule is not subject to E.O. 12630, because it does not involve
implementation of a policy ``that has takings implications'' or that
could impose limitations on private property use.

XIV. Executive Order 12988, Civil Justice Reform Analysis

This rule was drafted and reviewed in accordance with E.O. 12988
and will not unduly burden the federal court system. The rule was: (1)
Reviewed to eliminate drafting errors and ambiguities; (2) written to
minimize litigation; and (3) written to provide a clear legal standard
for affected conduct and to promote burden reduction.

List of Subjects in 29 CFR Part 570

Child labor, Child Labor occupations, Employment, Government,
Incorporation by reference, Intergovernmental relations,
Investigations, Labor, Law enforcement, Minimum age.

List of Subjects in 29 CFR Part 579

Child labor, Law enforcement, Penalties.

Signed at Washington, DC, this 10th day of May, 2010.
Nancy J. Leppink,
Deputy Administrator, Wage and Hour Division.

0
For the reasons set out in the preamble, the Department amends Title
29, parts 570 and 579, of the Code of Federal Regulations as follows:

PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF
INTERPRETATION

0
1. The authority citation for part 570 subpart C is revised to read as
follows:

Authority: 29 U.S.C. 203(l), 212, 213(c).

0
2. Sections 570.31 through 570.35 are revised to read as follows:

Subpart C--Employment of Minors Between 14 and 16 Years of Age
(Child Labor Reg. 3)

Sec.
Sec. 570.31 Secretary's determinations concerning the employment of
minors 14 and 15 years of age.
Sec. 570.32 Effect of this subpart.
Sec. 570.33 Occupations that are prohibited to minors 14 and 15
years of age.
Sec. 570.34 Occupations that may be performed by minors 14 and 15
years of age.

[[Page 28449]]

Sec. 570.35 Hours of work and conditions of employment permitted
for minors 14 and 15 years of age.
* * * * *

Sec. 570.31 Secretary's determinations concerning the employment of
minors 14 and 15 years of age.

The employment of minors between 14 and 16 years of age in the
occupations, for the periods, and under the conditions specified in
Sec. 570.34 and Sec. 570.35, does not interfere with their schooling
or with their health and well-being and shall not be deemed to be
oppressive child labor.

Sec. 570.32 Effect of this subpart.

This subpart concerns the employment of youth between 14 and 16
years of age in nonagricultural occupations; standards for the
employment of minors in agricultural occupations are detailed in
subpart E-1. The employment (including suffering or permitting to work)
by an employer of minors 14 and 15 years of age in occupations detailed
in Sec. 570.34, for the periods and under the conditions specified in
Sec. 570.35, shall not be deemed to be oppressive child labor within
the meaning of the Fair Labor Standards Act of 1938, as amended.
Employment that is not specifically permitted is prohibited.

Sec. 570.33 Occupations that are prohibited to minors 14 and 15 years
of age.

The following occupations, which is not an exhaustive list,
constitute oppressive child labor within the meaning of the Fair Labor
Standards Act when performed by minors who are 14 and 15 years of age:
(a) Manufacturing, mining, or processing occupations, including
occupations requiring the performance of any duties in work rooms or
work places where goods are manufactured, mined or otherwise processed,
except as permitted in Sec. 570.34 of this subpart.
(b) Occupations that the Secretary of Labor may, pursuant to
section 3(l) of the Fair Labor Standards Act, find and declare to be
hazardous for the employment of minors between 16 and 18 years of age
or detrimental to their health or well-being.
(c) Occupations that involve operating, tending, setting up,
adjusting, cleaning, oiling, or repairing hoisting apparatus.
(d) Work performed in or about boiler or engine rooms or in
connection with the maintenance or repair of the establishment,
machines, or equipment.
(e) Occupations that involve operating, tending, setting up,
adjusting, cleaning, oiling, or repairing any power-driven machinery,
including but not limited to lawn mowers, golf carts, all-terrain
vehicles, trimmers, cutters, weed-eaters, edgers, food slicers, food
grinders, food choppers, food processors, food cutters, and food
mixers. Youth 14 and 15 years of age may, however, operate office
equipment pursuant to Sec. 570.34(a) and vacuum cleaners and floor
waxers pursuant to Sec. 570.34(h).
(f) The operation of motor vehicles; the service as helpers on such
vehicles except those tasks permitted by Sec. 570.34(k); and the
riding on a motor vehicle, inside or outside of an enclosed passenger
compartment, except as permitted by Sec. 570.34(o).
(g) Outside window washing that involves working from window sills,
and all work requiring the use of ladders, scaffolds, or their
substitutes.
(h) All baking and cooking activities except that cooking which is
permitted by Sec. 570.34(c).
(i) Work in freezers and meat coolers and all work in the
preparation of meats for sale except as permitted by Sec. 570.34(j).
This section, however, does not prohibit the employment of 14- and 15-
year-olds whose duties require them to occasionally enter freezers only
momentarily to retrieve items as permitted by Sec. 570.34(i).
(j) Youth peddling, which entails the selling of goods or services
to customers at locations other than the youth-employer's
establishment, such as the customers' residences or places of business,
or public places such as street corners and public transportation
stations. Prohibited activities associated with youth peddling not only
include the attempt to make a sale or the actual consummation of a
sale, but also the preparatory and concluding tasks normally performed
by a youth peddler in conjunction with his or her sales such as the
loading and unloading of vans or other motor vehicles, the stocking and
restocking of sales kits and trays, the exchanging of cash and checks
with the employer, and the transportation of minors to and from the
various sales areas by the employer. Prohibited youth peddling also
includes such promotion activities as the holding, wearing, or waving
of signs, merchandise, costumes, sandwich boards, or placards in order
to attract potential customers, except when performed inside of, or
directly in front of, the employer's establishment providing the
product, service, or event being advertised. This provision does not
prohibit a young salesperson from conducting sales for his or her
employer on property controlled by the employer that is out of doors
but may properly be considered part of the employer's establishment.
Youth may conduct sales in such employer exterior facilities, whether
temporary or permanent, as garden centers, sidewalk sales, and parking
lot sales, when employed by that establishment. Youth peddling does not
include the activities of persons who, as volunteers and without
compensation, sell goods or services on behalf of eleemosynary
organizations or public agencies.
(k) Loading and unloading of goods or property onto or from motor
vehicles, railroad cars, or conveyors, except the loading and unloading
of personal non-power-driven hand tools, personal protective equipment,
and personal items to and from motor vehicles as permitted by Sec.
570.34(k).
(l) Catching and cooping of poultry in preparation for transport or
for market.
(m) Public messenger service.
(n) Occupations in connection with:
(1) Transportation of persons or property by rail, highway, air,
water, pipeline, or other means;
(2) Warehousing and storage;
(3) Communications and public utilities;
(4) Construction (including demolition and repair); except such
office work (including ticket office) or sales work in connection with
paragraphs (n)(1), (2), (3), and (4) of this section, as does not
involve the performance of any duties on trains, motor vehicles,
aircraft, vessels, or other media of transportation or at the actual
site of construction operations.

Sec. 570.34 Occupations that may be performed by minors 14 and 15
years of age.

This subpart authorizes only the following occupations in which the
employment of minors 14 and 15 years of age is permitted when performed
for periods and under conditions authorized by Sec. 570.35 and not
involving occupations prohibited by Sec. 570.33 or performed in areas
or industries prohibited by Sec. 570.33.
(a) Office and clerical work, including the operation of office
machines.
(b) Work of an intellectual or artistically creative nature such
as, but not limited to, computer programming, the writing of software,
teaching or performing as a tutor, serving as a peer counselor or
teacher's assistant, singing, the playing of a musical instrument, and
drawing, as long as such employment complies with all the other
provisions contained in Sec. Sec. 570.33, 570.34, and 570.35.
Artistically creative work is limited to work in a recognized field of
artistic or creative endeavor.
(c) Cooking with electric or gas grills which does not involve
cooking over an

[[Page 28450]]

open flame (Note: This provision does not authorize cooking with
equipment such as rotisseries, broilers, pressurized equipment
including fryolators, and cooking devices that operate at extremely
high temperatures such as ``Neico broilers''). Cooking is also
permitted with deep fryers that are equipped with and utilize a device
which automatically lowers the baskets into the hot oil or grease and
automatically raises the baskets from the hot oil or grease.
(d) Cashiering, selling, modeling, art work, work in advertising
departments, window trimming, and comparative shopping.
(e) Price marking and tagging by hand or machine, assembling
orders, packing, and shelving.
(f) Bagging and carrying out customers' orders.
(g) Errand and delivery work by foot, bicycle, and public
transportation.
(h) Clean up work, including the use of vacuum cleaners and floor
waxers, and the maintenance of grounds, but not including the use of
power-driven mowers, cutters, trimmers, edgers, or similar equipment.
(i) Kitchen work and other work involved in preparing and serving
food and beverages, including operating machines and devices used in
performing such work. Examples of permitted machines and devices
include, but are not limited to, dishwashers, toasters, dumbwaiters,
popcorn poppers, milk shake blenders, coffee grinders, automatic coffee
machines, devices used to maintain the temperature of prepared foods
(such as warmers, steam tables, and heat lamps), and microwave ovens
that are used only to warm prepared food and do not have the capacity
to warm above 140 [deg]F. Minors are permitted to clean kitchen
equipment (not otherwise prohibited), remove oil or grease filters,
pour oil or grease through filters, and move receptacles containing hot
grease or hot oil, but only when the equipment, surfaces, containers
and liquids do not exceed a temperature of 100 [deg]F. Minors are also
permitted to occasionally enter freezers momentarily to retrieve items
in conjunction with restocking or food preparation.
(j) Cleaning vegetables and fruits, and the wrapping, sealing,
labeling, weighing, pricing, and stocking of items, including
vegetables, fruits, and meats, when performed in areas physically
separate from a freezer or meat cooler.
(k) The loading onto motor vehicles and the unloading from motor
vehicles of the light, non-power-driven, hand tools and personal
protective equipment that the minor will use as part of his or her
employment at the work site; and the loading onto motor vehicles and
the unloading from motor vehicles of personal items such as a back
pack, a lunch box, or a coat that the minor is permitted to take to the
work site. Such light tools would include, but are not limited to,
rakes, hand-held clippers, shovels, and brooms. Such light tools would
not include items like trash, sales kits, promotion items or items for
sale, lawn mowers, or other power-driven lawn maintenance equipment.
Such minors would not be permitted to load or unload safety equipment
such as barriers, cones, or signage.
(l)(1) Lifeguard. The employment of 15-year-olds (but not 14-year-
olds) to perform permitted lifeguard duties at traditional swimming
pools and water amusement parks (including such water park facilities
as wave pools, lazy rivers, specialized activity areas that may include
water falls and sprinkler areas, and baby pools; but not including the
elevated areas of power-driven water slides) when such youth have been
trained and certified by the American Red Cross, or a similar
certifying organization, in aquatics and water safety.
(2) Definitions. As used in this paragraph (l):
Permitted lifeguard duties include the rescuing of swimmers in
danger of drowning, the monitoring of activities at poolside to prevent
accidents, the teaching of water safety, and providing assistance to
patrons. Lifeguards may also help to maintain order and cleanliness in
the pool and pool areas, give swimming instructions (if, in addition to
being certified as a lifeguard, the 15-year-old is also properly
certified as a swimming instructor by the American Red Cross or some
other recognized certifying organization), conduct or officiate at
swimming meets, and administer first aid. Additional lifeguard duties
may include checking in and out items such as towels and personal items
such as rings, watches and apparel. Permitted duties for 15-year-olds
include the use of a ladder to access and descend from the lifeguard
chair; the use of hand tools to clean the pool and pool area; and the
testing and recording of water quality for temperature and/or pH
levels, using all of the tools of the testing process including adding
chemicals to the test water sample. Fifteen-year-olds employed as
lifeguards are, however, prohibited from entering or working in any
mechanical room or chemical storage areas, including any areas where
the filtration and chlorinating systems are housed. The term permitted
lifeguard duties does not include the operation or tending of power-
driven equipment including power-driven elevated water slides often
found at water amusement parks and some swimming pools. Minors under 16
years of age may not be employed as dispatchers or attendants at the
top of elevated water slides performing such tasks as maintaining
order, directing patrons as to when to depart the top of the slide, and
ensuring that patrons have begun their ``ride'' safely. Properly
certified 15-year-old lifeguards may, however, be stationed at the
``splashdown pools'' located at the bottom of the elevated water slides
to perform those permitted duties listed in this subsection.
Traditional swimming pool means a water tight structure of
concrete, masonry, or other approved materials located either indoors
or outdoors, used for bathing or swimming and filled with a filtered
and disinfected water supply, together with buildings, appurtenances
and equipment used in connection therewith, excluding elevated ``water
slides.'' Not included in the definition of a traditional swimming pool
would be such natural environment swimming facilities as rivers,
streams, lakes, ponds, quarries, reservoirs, wharfs, piers, canals, or
oceanside beaches.
Water amusement park means an establishment that not only
encompasses the features of a traditional swimming pool, but may also
include such additional attractions as wave pools; lazy rivers;
specialized activities areas such as baby pools, water falls, and
sprinklers; and elevated water slides. Not included in the definition
of a water amusement park would be such natural environment swimming
facilities as rivers, streams, lakes, reservoirs, wharfs, piers,
canals, or oceanside beaches.
(m)(1) Employment inside and outside of places of business where
machinery is used to process wood products. The employment of a 14- or
15-year-old who by statute or judicial order is exempt from compulsory
school attendance beyond the eighth grade inside or outside places of
business where machinery is used to process wood products if:
(i) The youth is supervised by an adult relative of the youth or is
supervised by an adult member of the same religious sect or division as
the youth;
(ii) The youth does not operate or assist in the operation of
power-driven woodworking machines;
(iii) The youth is protected from wood particles or other flying
debris within the workplace by a barrier appropriate to the potential
hazard of such wood

[[Page 28451]]

particles or flying debris or by maintaining a sufficient distance from
machinery in operation; and
(iv) The youth is required to use, and uses, personal protective
equipment to prevent exposure to excessive levels of noise and saw
dust.
(2) Compliance. Compliance with the provisions of paragraphs
(m)(1)(iii) and (m)(1)(iv) of this section will be accomplished when
the employer is in compliance with the requirements of the applicable
governing standards issued by the U.S. Department of Labor's
Occupational Safety and Health Administration (OSHA) or, in those areas
where OSHA has authorized the state to operate its own Occupational
Safety and Health Plan, the applicable standards issued by the Office
charged with administering the State Occupational Safety and Health
Plan. The employment of youth under this section must comply with the
other sections of this subpart, including the hours and time of day
standards established by Sec. 570.35.
(3) Definitions. As used in this paragraph (m):
Inside or outside places of business shall mean the actual physical
location of the establishment employing the youth, including the
buildings and surrounding land necessary to the business operations of
that establishment.
Operate or assist in the operation of power-driven woodworking
machines shall mean the operating of such machines, including
supervising or controlling the operation of such machines, feeding
material into such machines, helping the operator feed material into
such machines, unloading materials from such machines, and helping the
operator unload materials from such machines. The term also includes
the occupations of setting-up, adjusting, repairing, oiling, or
cleaning such machines.
Places of business where machinery is used to process wood products
shall mean such permanent workplaces as sawmills, lath mills, shingle
mills, cooperage stock mills, furniture and cabinet making shops,
gazebo and shed making shops, toy manufacturing shops, and pallet
shops. The term shall not include construction sites, portable
sawmills, areas where logging is being performed, or mining operations.
Power-driven woodworking machines shall mean all fixed or portable
machines or tools driven by power and used or designed for cutting,
shaping, forming, surfacing, nailing, stapling, wire stitching,
fastening or otherwise assembling, pressing, or printing wood, veneer,
trees, logs, or lumber.
Supervised by an adult relative or is supervised by an adult member
of the same religious sect or division as the youth has several
components. Supervised means that the youth's on-the-job activities
must be directed, monitored, overseen, and controlled by certain named
adults. Such supervision must be close, direct, constant, and
uninterrupted. An adult shall mean an individual who is at least
eighteen years of age. A relative shall mean the parent (or someone
standing in the place of a parent), grandparent, sibling, uncle, or
aunt of the young worker. A member of the same religious sect or
division as the youth refers to an individual who professes membership
in the same religious sect or division to which the youth professes
membership.
(n) Work in connection with cars and trucks if confined to the
following: dispensing gasoline and oil; courtesy service; car cleaning,
washing and polishing by hand; and other occupations permitted by this
section, but not including work involving the use of pits, racks, or
lifting apparatus, or involving the inflation of any tire mounted on a
rim equipped with a removable retaining ring.
(o) Work in connection with riding inside passenger compartments of
motor vehicles except as prohibited by Sec. 570.33(f) or Sec.
570.33(j), or when a significant reason for the minor being a passenger
in the vehicle is for the purpose of performing work in connection with
the transporting--or assisting in the transporting of--other persons or
property. The transportation of the persons or property does not have
to be the primary reason for the trip for this exception to apply. Each
minor riding as a passenger in a motor vehicle must have his or her own
seat in the passenger compartment; each seat must be equipped with a
seat belt or similar restraining device; and the employer must instruct
the minors that such belts or other devices must be used. In addition,
each driver transporting the young workers must hold a State driver's
license valid for the type of driving involved and, if the driver is
under the age of 18, his or her employment must comply with the
provisions of Sec. 570.52.

Sec. 570.35 Hours of work and conditions of employment permitted for
minors 14 and 15 years of age.

(a) Hours standards. Except as provided in paragraph (c) of this
section, employment in any of the permissible occupations to which this
subpart is applicable shall be confined to the following periods:
(1) Outside of school hours;
(2) Not more than 40 hours in any 1 week when school is not in
session;
(3) Not more than 18 hours in any 1 week when school is in session;
(4) Not more than 8 hours in any 1 day when school is not in
session;
(5) Not more than 3 hours in any 1 day when school is in session,
including Fridays;
(6) Between 7 a.m. and 7 p.m. in any 1 day, except during the
summer (June 1 through Labor Day) when the evening hour will be 9 p.m.
(b) Definitions. As used in this section:
Outside school hours means such periods as before and after school
hours, holidays, summer vacations, weekends, and any other day or part
of a day when school is not in session as determined by the local
public school district in which the minor resides when employed. Summer
school sessions, held in addition to the regularly scheduled school
year, are considered to be outside of school hours.
School hours refers to the hours that the local public school
district where the minor resides while employed is in session during
the regularly scheduled school year.
Week means a fixed and regularly recurring period of 168 hours--
seven consecutive 24-hour periods--that is identical to the workweek
the employer establishes for the employee under Sec. 778.105 of this
title.
Week when school is in session refers to any week the local public
school district where the minor resides while employed is in session
and students are required to attend for at least one day or partial
day.
(c) Exceptions. (1) School is not considered to be in session, and
exceptions from the hours limitations standards listed in paragraphs
(a)(1), (3), and (5) of this section are provided, for any youth 14 or
15 years of age who:
(i) Has graduated from high school;
(ii) Has been excused from compulsory school attendance by the
state or other jurisdiction once he or she has completed the eighth
grade and his or her employment complies with all the requirements of
the state school attendance law;
(iii) Has a child to support and appropriate state officers,
pursuant to state law, have waived school attendance requirements for
this minor;
(iv) Is subject to an order of a state or federal court prohibiting
him or her from attending school; or
(v) Has been permanently expelled from the local public school he
or she would normally attend, unless the youth is required, by state or
local law

[[Page 28452]]

or ordinance, or by court order, to attend another school.
(2) 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) Exceptions from certain of the hours standards contained in
paragraphs (a)(1) and (a)(3) of this section are provided for the
employment of minors who are enrolled in and employed pursuant to a
school-supervised work-experience and career exploration program as
detailed in Sec. 570.36.
(4) Exceptions from certain of the hours standards contained in
paragraphs (a)(1) and (a)(5) of this section are provided for the
employment of minors who are participating in a work-study program
designed as described in Sec. 570.37.

Sec. Sec. 570.36 and 570.37 [Redesignated as Sec. Sec. 570.38 and
570.39]

0
3. Redesignate Sec. Sec. 570.36 and 570.37 as Sec. Sec. 570.38 and
570.39, respectively.

Sec. 570.35a [Redesignated as Sec. 570.36]

0
4. Redesignate Sec. 570.35a as Sec. 570.36.

0
5. Revise paragraph (c)(3) introductory text of newly redesignated
Sec. 570.36 to read as follows:

Sec. 570.36 Work experience and career exploration program.

* * * * *
(c) * * *
(3) Occupations other than those permitted under Sec. 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.
* * * * *

0
6. Add a new Sec. 570.37 to read as follows:

Sec. 570.37 Work-study program.

(a) This section varies the provisions contained in Sec.
570.35(a)(1) and (a)(5) for the employment of minors 14 and 15 years of
age who are enrolled in and employed pursuant to a school-supervised
and school-administered work-study program that meets the requirements
of paragraph (b) of this section, in the occupations permitted by Sec.
570.34, and for the periods and under the conditions specified in
paragraph (c) of this section. With these safeguards, such employment
is found not to interfere with the schooling of the minors or with
their health and well-being and therefore is not deemed to be
oppressive child labor.
(b)(1) A school-supervised and school-administered work-study
program shall meet the educational standards established and approved
by the State Educational Agency in the respective state.
(2) The superintendent of the public or private school system
supervising and administering the work-study program shall file with
the Administrator of the Wage and Hour Division a letter of application
for approval of the work-study program as one not interfering with
schooling or with the health and well-being of the minors involved and
therefore not constituting oppressive child labor. The application
shall be filed at least sixty days before the start of the school year
and must include information concerning the criteria listed in
paragraph (b)(3) of this section. The Administrator of the Wage and
Hour Division shall approve the application, or give prompt notice of
any denial and the reasons therefor.
(3) The criteria to be used in consideration of applications under
this section are the following:
(i) Eligibility. Any student 14 or 15 years of age, enrolled in a
college preparatory curriculum, whom authoritative personnel from the
school attended by the youth identify as being able to benefit from the
program shall be able to participate.
(ii) Instructional schedule. Every youth shall receive, every
school year he or she participates in the work-study program, at least
the minimum number of hours of classroom instruction, as required by
the State Educational Agency responsible for establishing such
standards, to complete a fully-accredited college preparatory
curriculum. Such classroom instruction shall include, every year the
youth participates in the work-study program, training in workplace
safety and state and federal child labor provisions and rules.
(iii) Teacher-coordinator. Each school participating in a work-
study program shall designate a teacher-coordinator under whose
supervision the program will operate. The teacher-coordinator shall
generally supervise and coordinate the work and educational aspects of
the program and make regularly scheduled visits to the workplaces of
the participating students to confirm that minors participating in the
work-study program are employed in compliance with all applicable
provisions of this part and section 6 of the Fair Labor Standards Act.
Such confirmation shall be noted in any letters of application filed by
the superintendent of the public or private school system in accordance
with paragraph (b)(2) of this section when seeking continuance of its
work-study program.
(iv) Written participation agreement. No student shall participate
in the work-study program until there has been made a written agreement
signed by the teacher-coordinator, the employer, and the student. The
agreement shall also be signed or otherwise consented to by the
student's parent or guardian. The agreement shall detail the objectives
of the work-study program; describe the specific job duties to be
performed by the participating minor as well as the number of hours and
times of day that the minor will be employed each week; affirm that the
participant will receive the minimum number of hours of class-room
instruction as required by the State Educational Agency for the
completion of a fully-accredited college preparatory curriculum; and
affirm that

[[Page 28453]]

the employment of the minor will be in compliance with the child labor
provisions of both this part and the laws of the state where the work
will be performed, and the applicable minimum wage provisions contained
in section 6 of the FLSA.
(v) Other provisions. Any other provisions of the program providing
safeguards ensuring that the employment permitted under this section
will not interfere with the schooling of the minors or with their
health and well-being may also be submitted for use in considering the
application.
(4) Every public or private school district having students in a
work-study program approved pursuant to these requirements, and every
employer employing students in a work-study program approved pursuant
to these requirements, shall comply with the following:
(i) Permissible occupations. No student shall be assigned to work
in any occupation other than one permitted under Sec. 570.34.
(ii) Records and reports. A copy of the written agreement for each
student participating in the work-study program shall be kept by both
the employer and the school supervising and administering the program
for a period of three years from the date of the student's enrollment
in the program. Such agreements shall be made available upon request to
the representatives of the Administrator of the Wage and Hour Division
for inspection, transcription, and/or photocopying.
(c) Employment of minors enrolled in a program approved pursuant to
the requirements of this section shall be confined to not more than 18
hours in any one week when school is in session, a portion of which may
be during school hours, in accordance with the following formula that
is based upon a continuous four-week cycle. In three of the four weeks,
the participant is permitted to work during school hours on only one
day per week, and for no more than for eight hours on that day. During
the remaining week of the four-week cycle, such minor is permitted to
work during school hours on no more than two days, and for no more than
for eight hours on each of those two days. The employment of such
minors would still be subject to the time of day and number of hours
standards contained in Sec. Sec. 570.35(a)(2), (a)(3), (a)(4), and
(a)(6). To the extent that these provisions are inconsistent with the
provisions of Sec. 570.35, this section shall be controlling.
(d) Programs shall be in force and effect for a period to be
determined by the Administrator of the Wage and Hour Division, but in
no case shall be in effect for longer than two school years from the
date of their approval by the Administrator of the Wage and Hour
Division. A new application for approval must be filed at the end of
that period. Failure to meet the requirements of this section may
result in withdrawal of the approval.

(The information collection requirements contained in Sec. 570.37
were approved by the OMB under Control No. 1215-0208.)

Subpart E--Occupations Particularly Hazardous for the Employment of
Minors Between 16 and 18 Years of Age or Detrimental to Their
Health or Well-Being

0
7. The authority citation for subpart E continues to read as follows:

Authority: 29 U.S.C. 203(l), 212, 213(c).

0
8. Section 570.54 is revised to read as follows:

Sec. 570.54 Forest fire fighting and forest fire prevention
occupations, timber tract occupations, forestry service occupations,
logging occupations, and occupations in the operation of any sawmill,
lath mill, shingle mill, or cooperage stock mill (Order 4).

(a) Finding and declarations of fact. All occupations in forest
fire fighting and forest fire prevention, in timber tracts, in forestry
services, logging, and the operation of any sawmill, lath mill, shingle
mill, or cooperage stock mill are particularly hazardous for the
employment of minors between 16 and 18 years of age, except the
following when not prohibited by any other section of this subpart:
(1) Work in offices or in repair or maintenance shops.
(2) Work in the construction, operation, repair, or maintenance of
living and administrative quarters, including logging camps and fire
fighting base camps.
(3) Work in the repair or maintenance of roads, railroads or flumes
and work in construction and maintenance of telephone lines, but only
if the minors are not engaged in the operation of power-driven
machinery, the handling or use of explosives, the felling or bucking of
timber, the collecting or transporting of logs, or work on trestles.
(4) The following tasks in forest fire prevention provided none of
these tasks may be performed in conjunction with or in support of
efforts to extinguish a forest fire: the clearing of fire trails or
roads; the construction, maintenance, and patrolling of fire lines; the
piling and burning of slash; the maintaining of fire fighting
equipment; and acting as a fire lookout or fire patrolman.
(5) Work related to forest marketing and forest economics when
performed away from the forest.
(6) Work in the feeding or care of animals.
(7) Peeling of fence posts, pulpwood, chemical wood, excelsior
wood, cordwood, or similar products, when not done in conjunction with
and at the same time and place as other logging occupations declared
hazardous by this section.
(8) The following additional exceptions apply to the operation of a
permanent sawmill or the operation of any lath mill, shingle mill, or
cooperage stock mill, but not to a portable sawmill. In addition, the
following exceptions do not apply to work which entails entering the
sawmill building, except for those minors whose employment meets the
requirements of the limited exemptions discussed in Sec. Sec.
570.34(m) and 570.54(c):
(i) Straightening, marking, or tallying lumber on the dry chain or
the dry drop sorter.
(ii) Pulling lumber from the dry chain, except minors under 16
years of age may not pull lumber from the dry chain as such youth are
prohibited from operating or tending power-driven machinery by Sec.
570.33(e) of this part.
(iii) Clean-up in the lumberyard.
(iv) Piling, handling, or shipping of cooperage stock in yards or
storage sheds other than operating or assisting in the operation of
power-driven equipment; except minors under 16 years of age may not
perform shipping duties as they are prohibited from employment in
occupations in connection with the transportation of property by rail,
highway, air, water, pipeline, or other means by Sec. 570.33(n)(1) of
this part.
(v) Clerical work in yards or shipping sheds, such as done by
ordermen, tally-men, and shipping clerks.
(vi) Clean-up work outside shake and shingle mills, except when the
mill is in operation.
(vii) Splitting shakes manually from precut and split blocks with a
froe and mallet, except inside the mill building or cover.
(viii) Packing shakes into bundles when done in conjunction with
splitting shakes manually with a froe and mallet, except inside the
mill building or cover.
(ix) Manual loading of bundles of shingles or shakes into trucks or
railroad cars, provided that the employer has on file a statement from
a licensed doctor of medicine or osteopathy certifying the

[[Page 28454]]

minor capable of performing this work without injury to himself, except
minors under 16 years of age may not load bundles of shingles or shakes
into trucks or railroad cars as they are prohibited from loading and
unloading goods or property onto or from motor vehicles, railroad cars,
or conveyors by Sec. 570.33(k) of this part.
(b) Definitions. As used in this section:
All occupations in forest fire fighting and forest fire prevention
shall include the controlling and extinguishing of fires, the wetting
down of areas or extinguishing of spot fires, and the patrolling of
burned areas to assure the fire has been extinguished. The term shall
also include the following tasks when performed in conjunction with, or
in support of, efforts to extinguish a forest fire: the piling and
burning of slash; the clearing of fire trails or roads; the
construction, maintenance, and patrolling of fire lines; acting as a
fire lookout or fire patrolman; and the maintaining of fire fighting
equipment. The prohibition concerning the employment of youth in forest
fire fighting and fire prevention applies to all forest and timber
tract locations, logging operations, and sawmill operations, including
all buildings located within such areas.
All occupations in forestry services shall mean all work involved
in the support of timber production, wood technology, forestry
economics and marketing, and forest protection. The term includes such
services as timber cruising, surveying, or logging-engineering parties;
estimating timber; timber valuation; forest pest control; forest fire
fighting and forest fire prevention as defined in this section; and
reforestation. The term shall not include work in forest nurseries,
establishments primarily engaged in growing trees for purposes of
reforestation. The term shall not include the gathering of forest
products such as balsam needles, ginseng, huckleberry greens, maple
sap, moss, Spanish moss, sphagnum moss, teaberries, and tree seeds; the
distillation of gum, turpentine, and rosin if carried on at the gum
farm; and the extraction of pine gum.
All occupations in logging shall mean all work performed in
connection with the felling of timber; the bucking or converting of
timber into logs, poles, piles, ties, bolts, pulpwood, chemical wood,
excelsior wood, cordwood, fence posts, or similar products; the
collecting, skidding, yarding, loading, transporting and unloading of
such products in connection with logging; the constructing, repairing
and maintaining of roads, railroads, flumes, or camps used in
connection with logging; the moving, installing, rigging, and
maintenance of machinery or equipment used in logging; and other work
performed in connection with logging.
All occupations in the operation of any sawmill, lath mill, shingle
mill, or cooperage-stock mill shall mean all work performed in or about
any such mill in connection with storing of logs and bolts; converting
logs or bolts into sawn lumber, lathers, shingles, or cooperage stock;
storing drying, and shipping lumber, laths, shingles, cooperage stock,
or other products of such mills; and other work performed in connection
with the operation of any sawmill, lath mill, shingle mill, or
cooperage-stock mill. The term shall not include work performed in the
planing-mill department or other remanufacturing departments of any
sawmill or remanufacturing plant not a part of a sawmill.
All occupations in timber tracts means all work performed in or
about establishments that cultivate, manage or sell standing timber.
The term includes work performed in timber culture, timber tracts,
timber-stand improvement, and forest fire fighting and fire prevention.
It includes work on tree farms, except those tree farm establishments
that meet the definition of agriculture contained in 29 U.S.C. 203(f).
Inside or outside places of business shall mean the actual physical
location of the establishment employing the youth, including the
buildings and surrounding land necessary to the business operations of
that establishment.
Operate or assist in the operation of power-driven woodworking
machines includes operating such machines, including supervising or
controlling the operation of such machines, feeding material into such
machines, helping the operator feed material into such machines,
unloading materials from such machines, and helping the operator unload
materials from such machines. The term also includes the occupations of
setting-up, adjusting, repairing, oiling, or cleaning such machines.
Places of business where machinery is used to process wood products
shall mean such permanent workplaces as sawmills, lath mills, shingle
mills, cooperage stock mills, furniture and cabinet making shops,
gazebo and shed making shops, toy manufacturing shops, and pallet
shops. The term shall not include construction sites, portable
sawmills, areas where logging is being performed, or mining operations.
Portable sawmill shall mean a sawmilling operation where no office
or repair or maintenance shop is ordinarily maintained, and any
lumberyard operated in conjunction with the sawmill is used only for
the temporary storage of green lumber.
Power-driven woodworking machines shall mean all fixed or portable
machines or tools driven by power and used or designed for cutting,
shaping, forming, surfacing, nailing, stapling, wire stitching,
fastening or otherwise assembling, pressing or printing wood, veneer,
trees, logs, or lumber.
Remanufacturing department shall mean those departments of a
sawmill where lumber products such as boxes, lawn furniture, and the
like are remanufactured from previously cut lumber. The kind of work
performed in such departments is similar to that done in planing mill
departments in that rough lumber is surfaced or made into other
finished products. The term is not intended to denote those operations
in sawmills where rough lumber is cut to dimensions.
Supervised by an adult relative or is supervised by an adult member
of the same religious sect or division as the youth, as a term, has
several components. Supervised refers to the requirement that the
youth's on-the-job activities be directed, monitored, and controlled by
certain named adults. Such supervision must be close, direct, constant
and uninterrupted. An adult shall mean an individual who is at least
eighteen years of age. A relative shall mean the parent (or someone
standing in place of a parent), grandparent, sibling, uncle, or aunt of
the young worker. A member of the same religious sect or division as
the youth refers to an individual who professes membership in the same
religious sect or division to which the youth professes membership.
(c) Exemptions. (1) The provisions contained in paragraph (a)(8) of
this section that prohibit youth between 16 and 18 years of age from
performing any work that entails entering the sawmill building do not
apply to the employment of a youth who is at least 14 years of age and
less than 18 years of age and who by statute or judicial order is
exempt from compulsory school attendance beyond the eighth grade, if:
(i) The youth is supervised by an adult relative or by an adult
member of the same religious sect or division as the youth;
(ii) The youth does not operate or assist in the operation of
power-driven woodworking machines;
(iii) The youth is protected from wood particles or other flying
debris within the workplace by a barrier appropriate

[[Page 28455]]

to the potential hazard of such wood particles or flying debris or by
maintaining a sufficient distance from machinery in operation; and
(iv) The youth is required to use, and uses, personal protective
equipment to prevent exposure to excessive levels of noise and saw
dust.
(2) Compliance with the provisions of paragraphs (c)(1)(iii) and
(iv) of this section will be accomplished when the employer is in
compliance with the requirements of the applicable governing standards
issued by the U.S. Department of Labor's Occupational Safety and Health
Administration (OSHA) or, in those areas where OSHA has authorized the
state to operate its own Occupational Safety and Health Plan, the
applicable standards issued by the Office charged with administering
the State Occupational Safety and Health Plan.

0
9. In Sec. 570.55, paragraph (b) is revised to read as follows:

Sec. 570.55 Occupations involved in the operation of power-driven
woodworking machines (Order 5).

* * * * *
(b) Definitions. As used in this section:
Off-bearing shall mean the removal of material or refuse directly
from a saw table or from the point of operation. Operations not
considered as off-bearing within the intent of this section include:
(i) The removal of material or refuse from a circular saw or
guillotine-action veneer clipper where the material or refuse has been
conveyed away from the saw table or point of operation by a gravity
chute or by some mechanical means such as a moving belt or expulsion
roller; and
(ii) The following operations when they do not involve the removal
of materials or refuse directly from a saw table or point of operation:
The carrying, moving, or transporting of materials from one machine to
another or from one part of a plant to another; the piling, stacking,
or arranging of materials for feeding into a machine by another person;
and the sorting, tying, bundling, or loading of materials.
Power-driven woodworking machines shall mean all fixed or portable
machines or tools driven by power and used or designed for cutting,
shaping, forming, surfacing, nailing, stapling, wire stitching,
fastening or otherwise assembling, pressing or printing wood, veneer,
trees, logs, or lumber.
* * * * *

0
10. In Sec. 570.58, paragraphs (a) and (b) are revised to read as
follows:

Sec. 570.58 Occupations involved in the operation of power-driven
hoisting apparatus (Order 7).

(a) Findings and declaration of fact. The following occupations
involved in the operation of power-driven hoisting apparatus are
particularly hazardous for minors between 16 and 18 years of age:
(1) Work of operating, tending, riding upon, working from,
repairing, servicing, or disassembling an elevator, crane, derrick,
hoist, or high-lift truck, except operating or riding inside an
unattended automatic operation passenger elevator. Tending such
equipment includes assisting in the hoisting tasks being performed by
the equipment.
(2) Work of operating, tending, riding upon, working from,
repairing, servicing, or disassembling a manlift or freight elevator,
except 16- and 17-year-olds may ride upon a freight elevator operated
by an assigned operator. Tending such equipment includes assisting in
the hoisting tasks being performed by the equipment.
(b) Definitions. As used in this section:
Crane shall mean a power-driven machine for lifting and lowering a
load and moving it horizontally, in which the hoisting mechanism is an
integral part of the machine. The term shall include all types of
cranes, such as cantilever gantry, crawler, gantry, hammerhead, ingot
pouring, jib, locomotive, motor-truck, overhead traveling, pillar jib,
pintle, portal, semi-gantry, semi-portal, storage bridge, tower,
walking jib, and wall cranes.
Derrick shall mean a power-driven apparatus consisting of a mast or
equivalent members held at the top by guys or braces, with or without a
boom, for use with a hoisting mechanism or operating ropes. The term
shall include all types of derricks, such as A-frame, breast, Chicago
boom, gin-pole, guy, and stiff-leg derrick.
Elevator shall mean any power-driven hoisting or lowering mechanism
equipped with a car or platform which moves in guides in a
substantially vertical direction. The term shall include both passenger
and freight elevators (including portable elevators or tiering
machines), but shall not include dumbwaiters.
High-lift truck shall mean a power-driven industrial type of truck
used for lateral transportation that is equipped with a power-operated
lifting device usually in the form of a fork or platform capable of
tiering loaded pallets or skids one above the other. Instead of a fork
or a platform, the lifting device may consist of a ram, scoop, shovel,
crane, revolving fork, or other attachments for handling specific
loads. The term shall mean and include highlift trucks known under such
names as fork lifts, fork trucks, fork lift trucks, tiering trucks,
backhoes, front-end loaders, skid loaders, skid-steer loaders, Bobcat
loaders, or stacking trucks, but shall not mean low-lift trucks or low-
lift platform trucks that are designed for the transportation of but
not the tiering of materials.
Hoist shall mean a power-driven apparatus for raising or lowering a
load by the application of a pulling force that does not include a car
or platform running in guides. The term shall include all types of
hoists, such as base mounted electric, clevis suspension, hook
suspension, monorail, overhead electric, simple drum, and trolley
suspension hoists.
Manlift shall mean a device intended for the conveyance of persons
that consists of platforms or brackets mounted on, or attached to, an
endless belt, cable, chain or similar method of suspension; with such
belt, cable or chain operating in a substantially vertical direction
and being supported by and driven through pulleys, sheaves or sprockets
at the top and bottom. The term shall also include truck- or equipment-
mounted aerial platforms commonly referred to as scissor lifts, boom-
type mobile elevating work platforms, work assist vehicles, cherry
pickers, basket hoists, and bucket trucks.
* * * * *

0
11. In Sec. 570.59, the section heading is revised to read as follows:

Sec. 570.59 Occupations involved in the operation of power-driven
metal forming, punching, and shearing machines (Order 8).

* * * * *

0
12. In Sec. 570.61, the section heading and paragraphs (a)(4), (a)(7),
(b), and (c)(1) are revised to read as follows:

Sec. 570.61 Occupations in the operation of power-driven meat-
processing machines and occupations involving slaughtering, meat and
poultry packing, processing, or rendering (Order 10).

(a) * * *
(4) All occupations involved in the operation or feeding of the
following power-driven machines, including setting-up, adjusting,
repairing, or oiling such machines or the cleaning of such machines or
the individual parts or attachments of such machines, regardless of the
product being processed by these machines (including, for example, the
slicing in a retail delicatessen of meat, poultry, seafood, bread,
vegetables, or cheese, etc.): meat patty forming machines, meat and
bone

[[Page 28456]]

cutting saws, poultry scissors or shears; meat slicers, knives (except
bacon-slicing machines), headsplitters, and guillotine cutters;
snoutpullers and jawpullers; skinning machines; horizontal rotary
washing machines; casing-cleaning machines such as crushing, stripping,
and finishing machines; grinding, mixing, chopping, and hashing
machines; and presses (except belly-rolling machines). Except, the
provisions of this subsection shall not apply to the operation of those
lightweight, small capacity, portable, countertop mixers discussed in
Sec. 570.62(b)(1) of this chapter when used as a mixer to process
materials other than meat or poultry.
* * * * *
(7) All occupations involving the handlifting or handcarrying any
carcass or half carcass of beef, pork, horse, deer, or buffalo, or any
quarter carcass of beef, horse, or buffalo.
(b) Definitions. As used in this section:
Boning occupations means the removal of bones from meat cuts. It
does not include work that involves cutting, scraping, or trimming meat
from cuts containing bones.
Curing cellar includes a workroom or workplace which is primarily
devoted to the preservation and flavoring of meat, including poultry,
by curing materials. It does not include a workroom or workplace solely
where meats are smoked.
Hide cellar includes a workroom or workplace where hides are
graded, trimmed, salted, and otherwise cured.
Killing floor includes a workroom, workplace where such animals as
cattle, calves, hogs, poultry, sheep, lambs, goats, buffalo, deer, or
horses are immobilized, shackled, or killed, and the carcasses are
dressed prior to chilling.
Retail/wholesale or service establishments include establishments
where meat or meat products, including poultry, are processed or
handled, such as butcher shops, grocery stores, restaurants and quick
service food establishments, hotels, delicatessens, and meat locker
(freezer-locker) companies, and establishments where any food product
is prepared or processed for serving to customers using machines
prohibited by paragraph (a) of this section.
Rendering plants means establishments engaged in the conversion of
dead animals, animal offal, animal fats, scrap meats, blood, and bones
into stock feeds, tallow, inedible greases, fertilizer ingredients, and
similar products.
Slaughtering and meat packing establishments means places in or
about which such animals as cattle, calves, hogs, poultry, sheep,
lambs, goats, buffalo, deer, or horses are killed, butchered, or
processed. The term also includes establishments which manufacture or
process meat or poultry products, including sausage or sausage casings
from such animals.
(c) * * *
(1) The killing and processing of rabbits or small game in areas
physically separated from the killing floor.
* * * * *

0
13. In Sec. 570.62, paragraph (a)(2) is revised, and a new paragraph
(b) is added, to read as follows:

Sec. 570.62 Occupations involved in the operation of bakery machines
(Order 11).

(a) * * *
(2) The occupation of setting up or adjusting a cookie or cracker
machine.
(b) Exceptions. (1) This section shall not apply to the operation,
including the setting up, adjusting, repairing, oiling and cleaning, of
lightweight, small capacity, portable counter-top power-driven food
mixers that are, or are comparable to, models intended for household
use. For purposes of this exemption, a lightweight, small capacity
mixer is one that is not hardwired into the establishment's power
source, is equipped with a motor that operates at no more than \1/2\
horsepower, and is equipped with a bowl with a capacity of no more than
five quarts. Except, this exception shall not apply when the mixer is
used, with or without attachments, to process meat or poultry products
as prohibited by Sec. 570.61(a)(4).
(2) This section shall not apply to the operation of pizza-dough
rollers, a type of dough sheeter, that: have been constructed with
safeguards contained in the basic design so as to prevent fingers,
hands, or clothing from being caught in the in-running point of the
rollers; have gears that are completely enclosed; and have
microswitches that disengage the machinery if the backs or sides of the
rollers are removed. This exception applies only when all the
safeguards detailed in this paragraph are present on the machine, are
operational, and have not been overridden. This exception does not
apply to the setting up, adjusting, repairing, oiling or cleaning of
such pizza-dough rollers.

0
14. In Sec. 570.63, the section heading and paragraphs (a)(2), (b) are
revised, paragraphs (a)(3) and (4) are added, and paragraph
(c)(1)(iv)(A) is revised to read as follows:

Sec. 570.63 Occupations involved in the operation of balers,
compactors, and paper-products machines (Order 12).

(a) * * *
(2) The occupations of operation or assisting to operate any baler
that is designed or used to process materials other than paper.
(3) The occupations of operation or assisting to operate any
compactor that is designed or used to process materials other than
paper.
(4) The occupations of setting up, adjusting, repairing, oiling, or
cleaning any of the machines listed in paragraphs (a)(1), (2), and (3)
of this section.
(b) Definitions. As used in this section:
Applicable ANSI Standard means the American National Standard
Institute's Standard ANSI Z245.5-1990 American National Standard for
Refuse Collection, Processing, and Disposal--Baling Equipment--Safety
Requirements (ANSI S245.5-1990) for scrap paper balers or the American
National Standard Institute's Standard ANSI Z245.2-1992 American
National Standard for Refuse Collection, Processing, and Disposal
Equipment--Stationary Compactors--Safety Requirements (ANSI Z245.2-
1992) for paper box compactors. Additional applicable standards are the
American National Standard Institute's Standard ANSI Z245.5-1997
American National Standard for Equipment Technology and Operations for
Wastes and Recyclable Materials--Baling Equipment--Safety Requirements
(ANSI Z245.5-1997), the American National Standard Institute's Standard
ANSI Z245.5-2004 American National Standard for Equipment Technology
and Operations for Wastes and Recyclable Materials--Baling Equipment--
Safety Requirements for Installation, Maintenance and Operation (ANSI
Z245.5-2004), and the American National Standard Institute's Standard
ANSI Z245.5-2008 American National Standard for Equipment Technology
and Operations for Wastes and Recyclable Materials--Baling Equipment--
Safety Requirements (ANSI Z245.5-2008) for scrap paper balers or the
American National Standard Institute's Standard ANSI Z245.2-1997
American National Standard for Equipment Technology and Operations for
Wastes and Recyclable Materials--Stationary Compactors--Safety
Requirements (ANSI Z245.2-1997), the American National Standard
Institute's Standard ANSI Z245.2-2004 American National Standard for
Equipment Technology and Operations for Wastes and Recyclable
Materials--Stationary Compactors--Safety Requirements for Installation,
Maintenance and

[[Page 28457]]

Operation (ANSI Z245.2-2004), and the American National Standard
Institute's Standard ANSI Z245.2-2008 American National Standard for
Equipment Technology and Operations for Wastes and Recyclable
Materials--Stationary Compactors--Safety Requirements for Installation,
Maintenance and Operation (ANSI Z245.2-2008) for paper box compactors,
which the Secretary has certified to be at least as protective of the
safety of minors as Standard ANSI Z245.5-1990 for scrap paper balers or
Standard ANSI Z245.2-1992 for paper box compactors. The ANSI standards
for scrap paper balers and paper box compactors govern the manufacture
and modification of the equipment, the operation and maintenance of the
equipment, and employee training. These ANSI standards are incorporated
by reference in this paragraph and have the same force and effect as
other standards in this part. Only the mandatory provisions (i.e.,
provisions containing the word ``shall'' or other mandatory language)
of these standards are adopted as standards under this part. These
standards are incorporated by reference as they exist on the date of
the approval; if any changes are made in these standards which the
Secretary finds to be as protective of the safety of minors as the
current standards, the Secretary will publish a Notice of the change of
standards in the Federal Register. These incorporations by reference
were approved by the Director of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of these standards are
available for purchase from the American National Standards Institute
(ANSI), 25 West 43rd St., Fourth Floor, New York, NY 10036. The
telephone number for ANSI is (212) 642-4900 and its Web site is located
at http://www.ansi.org. In addition, these standards are available for
inspection at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call
(202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. These standards are
also available for inspection at the Occupational Safety and Health
Administration's Docket Office, Room N-2625, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, DC 20210, or any of its
regional offices. The telephone number for the Occupational Safety and
Health Administration's Docket Office is (202) 693-2350 and its Web
site is located at http://dockets.osha.gov.
Baler that is designed or used to process materials other than
paper means a powered machine designed or used to compress materials
other than paper and cardboard boxes, with or without binding, to a
density or form that will support handling and transportation as a
material unit without requiring a disposable or reusable container.
Compactor that is designed or used to process materials other than
paper means a powered machine that remains stationary during operation,
designed or used to compact refuse other than paper or cardboard boxes
into a detachable or integral container or into a transfer vehicle.
Operating or assisting to operate means all work that involves
starting or stopping a machine covered by this section, placing
materials into or removing materials from a machine, including clearing
a machine of jammed materials, paper, or cardboard, or any other work
directly involved in operating the machine. The term does not include
the stacking of materials by an employee in an area nearby or adjacent
to the machine where such employee does not place the materials into
the machine.
Paper box compactor means a powered machine that remains stationary
during operation, used to compact refuse, including paper boxes, into a
detachable or integral container or into a transfer vehicle.
Paper products machine means all power-driven machines used in
remanufacturing or converting paper or pulp into a finished product,
including preparing such materials for recycling; or preparing such
materials for disposal. The term applies to such machines whether they
are used in establishments that manufacture converted paper or pulp
products, or in any other type of manufacturing or nonmanufacturing
establishment. The term also applies to those machines which, in
addition to paper products, process other material for disposal.
Scrap paper baler means a powered machine used to compress paper
and possibly other solid waste, with or without binding, to a density
or form that will support handling and transportation as a material
unit without requiring a disposable or reusable container.
(c)(1) * * *
(iv) * * *
(A)(1) That the scrap paper baler or compactor meets the industry
safety standard applicable to the machine, as specified in paragraph
(b) of this section and displayed in the following table.

------------------------------------------------------------------------
In order for employers to
take advantage of the limited In order for employers to take advantage
exception discussed in this of the limited exception discussed in
section, the scrap paper this section, the paper box compactor
baler must meet one of the must meet one of the following ANSI
following ANSI Standards: Standards:
------------------------------------------------------------------------
ANSI Standard Z245.5-1990.... ANSI Standard Z245.2-1992.
ANSI Standard Z245.5-1997.... ANSI Standard Z245.2-1997.
ANSI Standard Z245.5-2004.... ANSI Standard Z245.2-2004.
ANSI Standard Z245.5-2008.... ANSI Standard Z245.2-2008.
------------------------------------------------------------------------

(2) The notice shall completely identify the appropriate ANSI
standard.
* * * * *

0
15. In Sec. 570.65, the section heading and paragraph (a)(2) are
revised, paragraph (a)(3) is added, and paragraph (b) is revised to
read as follows:

Sec. 570.65 Occupations involving the operation of circular saws,
band saws, guillotine shears, chain saws, reciprocating saws, wood
chippers, and abrasive cutting discs (Order 14).

(a) * * *
(2) The occupations of operator of or helper on the following
power-driven fixed or portable machines:
(i) Chain saws.
(ii) Reciprocating saws.
(iii) Wood chippers.
(iv) Abrasive cutting discs.
(3) The occupations of setting-up, adjusting, repairing, oiling, or
cleaning circular saws, band saws, guillotine shears, chain saws,
reciprocating saws, wood chippers, and abrasive cutting discs.
(b) Definitions. As used in this section:

[[Page 28458]]

Abrasive cutting disc shall mean a machine equipped with a disc
embedded with abrasive materials used for cutting materials.
Band saw shall mean a machine equipped with an endless steel band
having a continuous series of notches or teeth, running over wheels or
pulleys, and used for sawing materials.
Chain saw shall mean a machine that has teeth linked together to
form an endless chain used for cutting materials.
Circular saw shall mean a machine equipped with a thin steel disc
having a continuous series of notches or teeth on the periphery,
mounted on shafting, and used for sawing materials.
Guillotine shear shall mean a machine equipped with a moveable
blade operated vertically and used to shear materials. The term shall
not include other types of shearing machines, using a different form of
shearing action, such as alligator shears or circular shears.
Helper shall mean a person who assists in the operation of a
machine covered by this section by helping place materials into or
remove them from the machine.
Operator shall mean a person who operates a machine covered by this
section by performing such functions as starting or stopping the
machine, placing materials into or removing them from the machine, or
any other functions directly involved in operation of the machine.
Reciprocating saw shall mean a machine equipped with a moving blade
that alternately changes direction on a linear cutting axis used for
sawing materials.
Wood chipper shall mean a machine equipped with a feed mechanism,
knives mounted on a rotating chipper disc or drum, and a power plant
used to reduce to chips or shred such materials as tree branches, trunk
segments, landscape waste, and other materials.
* * * * *

Subpart G--General Statements of Interpretation of the Child Labor
Provisions of the Fair Labor Standards Act of 1938, as Amended

0
16. The authority citation for subpart G continues to read as follows:

Authority: 52 Stat. 1060-1069 as amended; 29 U.S.C. 201-219.

0
17. Section 570.102 is revised to read as follows:

Sec. 570.102. General scope of statutory provisions.

The most important of the child labor provisions are contained in
sections 12(a), 12(c), and 3(l) of the Act. Section 12(a) provides that
no producer, manufacturer, or dealer shall ship or deliver for shipment
in interstate or foreign commerce any goods produced in an
establishment in or about which oppressive child labor was employed
within 30 days before removal of the goods. The full text of this
subsection is set forth in Sec. 570.104 and its terms are discussed in
Sec. Sec. 570.105 to 570.111, inclusive. Section 12(c) prohibits any
employer from employing oppressive child labor in interstate or foreign
commerce or in the production of goods for such commerce. The text and
discussion of this provision appear in Sec. Sec. 570.112 and 570.113.
Section 3(l) of the Act, which defines the term ``oppressive child
labor,'' is set forth in Sec. 570.117 and its provisions are discussed
in Sec. Sec. 570.118 to 570.121, inclusive. It will further be noted
that the Act provides various specific exemptions from the foregoing
provisions which are set forth and discussed in Sec. Sec. 570.122 to
570.130, inclusive.

0
18. In Sec. 570.103, paragraph (c) is revised to read as follows:

Sec. 570.103 Comparison with wage and hour provisions.

* * * * *
(c) Another distinction is that the exemptions provided by the Act
from the minimum wage and/or overtime provisions are more numerous and
differ from the exemptions granted from the child labor provisions.
There are only eight specific child labor exemptions of which only two
apply to the minimum wage and overtime pay requirements as well. These
are the exemptions for employees engaged in the delivery of newspapers
to the consumer and homeworkers engaged in the making of wreaths
composed principally of evergreens.\3\ Apart from these two exceptions,
none of the specific exemptions from the minimum wage and/or overtime
pay requirements applies to the child labor provisions. However, it
should be noted that the exclusion of certain employers by section 3(d)
\4\ of the Act applies to the child labor provisions as well as the
wage and hours provisions.
---------------------------------------------------------------------------

\3\ Both of these exemptions are contained in section 13(d) of
the FLSA.
\4\ Section 3(d) defines `employer' as including ``any person
acting directly or indirectly in the interest of an employer in
relation to an employee and includes a public agency, but does not
include any labor organization (other than when acting as an
employer) or anyone acting in the capacity of officer or agent of
such labor organization.''
---------------------------------------------------------------------------

Sec. 570.111 [Amended]

0
19. In Sec. 570.111, footnote 21 is revised to read ``However, section
12(a) contains a provision relieving innocent purchasers from liability
thereunder provided certain conditions are met. For a discussion of
this provision, see Sec. 570.141.''

0
20. Sections 570.118 through 570.120 are revised to read as follows:
* * * * *

Sec. 570.118 Sixteen-year minimum.

Sec. 570.119 Fourteen-year minimum.

Sec. 570.120 Eighteen-year minimum.

* * * * *

Sec. 570.118 Sixteen-year minimum.

The Act sets a 16-year-age minimum for employment in manufacturing
or mining occupations, although under FLSA section 13(c)(7), certain
youth between the ages of 14 and 18 may, under specific conditions, be
employed inside and outside of places of business that use power-driven
machinery to process wood products. Furthermore, the 16-year-age
minimum for employment is applicable to employment in all other
occupations unless otherwise provided by regulation or order issued by
the Secretary.

Sec. 570.119 Fourteen-year minimum.

With respect to employment in occupations other than manufacturing
and mining and in accordance with the provisions of FLSA section
13(c)(7), the Secretary is authorized to issue regulations or orders
lowering the age minimum to 14 years where he or she finds that such
employment is confined to periods that will not interfere with the
minors' schooling and to conditions that will not interfere with their
health and well-being. Pursuant to this authority, the Secretary has
detailed in Sec. 570.34 all those occupations in which 14- and 15-
year-olds may be employed when the work is performed outside school
hours and is confined to other specified limits. The Secretary, in
order to provide clarity and assist employers in attaining compliance,
has listed in Sec. 570.33 certain prohibited occupations that, over
the years, have been the frequent subject of questions or violations.
The list of occupations in Sec. 570.33 is not exhaustive. The
Secretary has also set forth, in Sec. 570.35, additional conditions
that limit the periods during which 14- and 15-year-olds may be
employed. The employment of minors under 14 years of age is not
permissible under any circumstances if the employment is covered by the
child labor provisions and not specifically exempt.

[[Page 28459]]

Sec. 570.120 Eighteen-year minimum.

To protect young workers from hazardous employment, the FLSA
provides for a minimum age of 18 years in occupations found and
declared by the Secretary to be particularly hazardous or detrimental
to the health or well-being for minors 16 and 17 years of age.
Hazardous occupations orders are the means through which occupations
are declared to be particularly hazardous for minors. Since 1995, the
promulgation and amendment of the hazardous occupations orders have
been effectuated under the Administrative Procedure Act (APA), 5 U.S.C.
551 et seq. The effect of these orders is to raise the minimum age for
employment to 18 years in the occupations covered. Seventeen orders,
published in subpart E of this part, have thus far been issued under
the FLSA and are now in effect.

0
21. Section 570.122 is revised to read as follows:

Sec. 570.122 General.

(a) Specific exemptions from the child labor requirements of the
Act are provided for:
(1) Employment of children in agriculture outside of school hours
for the school district where they live while so employed;
(2) Employment of employees engaged in the delivery of newspapers
to the consumer;
(3) Employment of children as actors or performers in motion
pictures or in theatrical, radio, or television productions;
(4) Employment by a parent or a person standing in a parent's place
of his own child or a child in his custody under the age of sixteen
years in any occupation other than manufacturing, mining, or an
occupation found by the Secretary to be particularly hazardous for the
employment of children between the ages of sixteen and eighteen years
or detrimental to their health or well-being.
(5) Employment of homeworkers engaged in the making of evergreen
wreaths, including the harvesting of the evergreens or other forest
products used in making such wreaths.
(6) Employment of 16- and 17-year-olds to load, but not operate or
unload, certain scrap paper balers and paper box compactors under
specified conditions.
(7) Employment of 17-year-olds to perform limited driving of cars
and trucks during daylight hours under specified conditions.
(8) Employment of youths between the ages of 14 and 18 years who,
by statute or judicial order, are excused from compulsory school
attendance beyond the eighth grade, under specified conditions, in
places of business that use power-driven machinery to process wood
products.
(b) When interpreting these provisions, the Secretary will be
guided by the principle that such exemptions should be narrowly
construed and their application limited to those employees who are
plainly and unmistakably within their terms. Thus, the fact that a
child's occupation involves the performance of work which is considered
exempt from the child labor provisions will not relieve his employer
from the requirements of section 12(c) or the producer, manufacturer,
or dealer from the requirements of section 12(a) if, during the course
of his employment, the child spends any part of his time doing work
which is covered but not so exempt.

0
22. The undesignated center heading preceding Sec. 570.127 is removed.

0
23. Section 570.127 is revised to read as follows:

Sec. 570.127 Homeworkers engaged in the making of evergreen wreaths.

FLSA section 13(d) provides an exemption from the child labor
provisions, as well as the minimum wage and overtime provisions, for
homeworkers engaged in the making of wreaths composed principally of
natural holly, pine, cedar, or other evergreens (including the
harvesting of the evergreens or other forest products used in making
such wreaths).

Sec. 570.128 [Redesignated as Sec. 570.141]

0
24. Section 570.128 is redesignated as Sec. 570.141 and a new Sec.
570.128 is added to read as follows:

Sec. 570.128 Loading of certain scrap paper balers and paper box
compactors.

(a) Section 13(c)(5) of the FLSA provides for an exemption from the
child labor provisions for the employment of 16- and 17-year-olds to
load, but not operate or unload, certain power-driven scrap paper
balers and paper box compactors under certain conditions. The
provisions of this exemption, which are contained in HO 12 (Sec.
570.63) include that the scrap paper baler or compactor meet an
applicable standard established by the American National Standards
Institute (ANSI) and identified in the statute, or a more recent ANSI
standard that the Secretary of Labor has found, incorporated by
reference (see Sec. 570.63), and declared to be as protective of the
safety of young workers as the ANSI standard named in the statute.
(b) These standards have been incorporated into these regulations
by reference by the Federal Register as discussed in Sec. 570.63. In
addition, the scrap paper baler or paper box compactor must include an
on-off switch incorporating a key-lock or other system and the control
of the system must be maintained in the custody of employees who are at
least 18 years of age. The on-off switch of the scrap paper baler or
paper box compactor must be maintained in an off position when the
machine is not in operation. Furthermore, the employer must also post a
notice on the scrap paper baler or paper box compactor that conveys
certain information, including the identification of the applicable
ANSI standard that the equipment meets, that 16- and 17-year-old
employees may only load the scrap paper baler or paper box compactor,
and that no employee under the age of 18 may operate or unload the
scrap paper baler or paper box compactor.

Sec. 570.129 [Redesignated as Sec. 570.142]

0
25. Section 570.129 is redesignated as Sec. 570.142

0
26. A new Sec. 570.129 is added to read as follows:

Sec. 570.129 Limited driving of automobiles and trucks by 17-year-
olds.

Section 13(c)(6) of the FLSA provides an exemption for 17-year-
olds, but not 16-year-olds, who, as part of their employment, perform
the occasional and incidental driving of automobiles and trucks on
public highways under specified conditions. These specific conditions,
which are contained in HO 2 (Sec. 570.52), include that the automobile
or truck may not exceed 6,000 pounds gross vehicle weight, the driving
must be restricted to daylight hours, the vehicle must be equipped with
a seat belt or similar restraining device for the driver and for any
passengers, and the employer must instruct the employee that such belts
or other devices must be used. In addition, the 17-year-old must hold a
State license valid for the type of driving involved in the job, have
successfully completed a State-approved driver education course, and
have no records of any moving violations at the time of his or her
hire. The exemption also prohibits the minor from performing any
driving involving the towing of vehicles; route deliveries or route
sales; the transportation for hire of property, goods, or passengers;
urgent, time-sensitive deliveries; or the transporting of more than
three passengers at any one time. The exemption also places limitations
on the number of trips the 17-year-old may make each day and restricts
the driving

[[Page 28460]]

to a 30-mile radius of the minor's place of employment.

0
27. A new Sec. 570.130 is added to read as follows:

Sec. 570.130 Employment of certain youth inside and outside of places
of business that use power-driven machinery to process wood products.

Section 13(c)(7) of the FLSA provides a limited exemption from the
child labor provisions for certain youths between the ages of 14 and 18
years who, by statute or judicial order, are excused from compulsory
school attendance beyond the eighth grade, that permits their
employment inside and outside of places of business that use power-
driven machinery to process wood products. The provisions of this
exemption are contained in subpart C of this part (Sec. 570.34(m)) and
HO 4 (Sec. 570.54). Although the exemption allows certain youths
between the ages of 14 and 18 years to be employed inside and outside
of places of business that use power-driven machines to process wood
products, it does so only if such youths do not operate or assist in
the operation of power-driven woodworking machines. The exemption also
requires that the youth be supervised by an adult relative or by an
adult member of the same religious sect as the youth. The youth must
also be protected from wood particles or other flying debris within the
workplace by a barrier appropriate to the potential hazard of such wood
particles or flying debris or by maintaining a sufficient distance from
machinery in operation. For the exemption to apply, the youth must also
be required to use personal protective equipment to prevent exposure to
excessive levels of noise and sawdust.

0
28. A new center heading and a new Sec. 570.140 are added to read as
follows:

Enforcement

Sec. 570.140 General.

(a) Section 15(a)(4) of the Act makes any violation of the
provisions of sections 12(a) or 12(c) unlawful. Any such unlawful act
or practice may be enjoined by the United States District Courts under
section 17 upon court action, filed by the Secretary pursuant to
section 12(b) and, if willful will subject the offender to the criminal
penalties provided in section 16(a) of the Act. Section 16(a) provides
that any person who willfully violates any of the provisions of section
15 shall upon conviction thereof be subject to a fine of not more than
$10,000, or to imprisonment for not more than six months, or both. No
person shall be imprisoned under this subsection except for an offense
committed after the conviction of such person for a prior offense under
this subsection.
(b) In addition, FLSA section 16(e) states that any person who
violates the provisions of FLSA sections 12 or 13(c), relating to child
labor, or any regulations issued under those sections, shall be subject
to a civil penalty, not to exceed:
(1) $11,000, for each employee who was the subject of such a
violation; or
(2) $50,000 with regard to each such violation that causes the
death or serious injury of any employee under the age of 18 years,
which penalty may be doubled where the violation is repeated or
willful.
(c) Part 579 of this chapter, Child Labor Violations--Civil Money
Penalties, provides for the issuance of the notice of civil money
penalties for any violation of FLSA sections 12 or 13(c) relating to
child labor. Part 580 of this chapter, Civil Money Penalties--
Procedures for Assessing and Contesting Penalties, describes the
administrative process for assessment and resolution of the civil money
penalties. When a civil money penalty is assessed against an employer
for a child labor violation, the employer has the right, within 15 days
after receipt of the notice of such penalty, to file an exception to
the determination that the violation or violations occurred. When such
an exception is filed with the office making the assessment, the matter
is referred to the Chief Administrative Law Judge, and a formal hearing
is scheduled. At such a hearing, the employer or an attorney retained
by the employer may present such witnesses, introduce such evidence and
establish such facts as the employer believes will support the
exception. The determination of the amount of any civil money penalty
becomes final if no exception is taken to the administrative assessment
thereof, or if no exception is filed to the decision and order of the
administrative law judge.

PART 579--CHILD LABOR VIOLATIONS--CIVIL MONEY PENALTIES

0
29. The authority citation for part 579 is revised to read as follows:

Authority: 29 U.S.C. 203(l), 211, 212, 213(c), 216; Reorg. Plan
No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 Stat.
72, 76; Secretary of Labor's Order No. 09-2009 (Nov. 16, 2009):
Delegation of Authorities and Assignment of Responsibilities to the
Administrator, Wage and Hour Division, 74 FR 58836; 104 Stat. 890
(28 U.S.C. 2461 note), as amended by 110 Stat. 1321-373 and 112
Stat. 3293.

0
30. In Sec. 579.1, paragraph (a) is revised to read as follows:
(a) Section 16(e), added to the Fair Labor Standards Act of 1938,
as amended, by the Fair Labor Standards Amendments of 1974, and as
further amended by the Fair Labor Standards Amendments of 1989, the
Omnibus Budget Reconciliation Act of 1990, the Compactor and Balers
Safety Standards Modernization Act of 1996, and the Genetic Information
Nondiscrimination Act of 2008, provides for the imposition of civil
money penalties in the following manner:
(1)(i) Any person who violates the provisions of sections 212 or
213(c) of the FLSA, relating to child labor, or any regulation issued
pursuant to such sections, shall be subject to a civil penalty not to
exceed:
(A) $11,000 for each employee who was the subject of such a
violation; or
(B) $50,000 with regard to each such violation that causes the
death or serious injury of any employee under the age of 18 years,
which penalty may be doubled where the violation is a repeated or
willful violation.
(ii) For purposes of paragraph (a)(1)(i)(B) of this section, the
term ``serious injury'' means:
(A) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(B) Permanent loss or substantial impairment of the function of a
bodily member, organ, or mental faculty, including the loss of all or
part of an arm, leg, foot, hand or other body part; or
(C) Permanent paralysis or substantial impairment that causes loss
of movement or mobility of an arm, leg, foot, hand or other body part.
(2) Any person who repeatedly or willfully violates section 206 or
207 of the FLSA, relating to wages, shall be subject to a civil penalty
not to exceed $1,100 for each such violation.
(3) In determining the amount of any penalty under section 216(e)
of the FLSA, the appropriateness of such penalty to the size of the
business of the person charged and the gravity of the violation shall
be considered. The amount of any penalty under section 216(e) of the
FLSA, when finally determined, may be:
(i) Deducted from any sums owing by the United States to the person
charged;
(ii) Recovered in a civil action brought by the Secretary in any
court of competent jurisdiction, in which litigation the Secretary
shall be represented by the Solicitor of Labor; or
(iii) Ordered by the court, in an action brought for a violation of
section 215(a)(4) or a repeated or willful

[[Page 28461]]

violation of section 215(a)(2) of the FLSA, to be paid to the
Secretary.
(4) Any administrative determination by the Secretary of the amount
of any penalty under section 216(e) of the FLSA shall be final, unless
within 15 days after receipt of notice thereof by certified mail the
person charged with the violation takes exception to the determination
that the violations for which the penalty is imposed occurred, in which
event final determination of the penalty shall be made in an
administrative proceeding after opportunity for hearing in accordance
with section 554 of title 5, United States Code, and regulations to be
promulgated by the Secretary.
(5) Except for civil penalties collected for violations of section
212 of the FLSA, sums collected as penalties pursuant to section 216(e)
of the FLSA shall be applied toward reimbursement of the costs of
determining the violations and assessing and collecting such penalties,
in accordance with the provision of section 202 of the Act entitled
``An Act to authorize the Department of Labor to make special
statistical studies upon payment of the cost thereof and for other
purposes'' (29 U.S.C. 9a). Civil penalties collected for violations of
section 212 shall be deposited in the general fund of the Treasury.
* * * * *

0
31. Section 579.2 is revised to read as follows:

Sec. 579.2 Definitions.

As used in this part and part 580 of this chapter:
Act means the Fair Labor Standards Act of 1938, as amended (52
Stat. 1060, as amended; 29 U.S.C. 201, et seq.).
Administrative law judge means a person appointed as provided in 5
U.S.C. 3105 and subpart B of part 930 of title 5 of the CFR, and
qualified to preside at hearings under 5 U.S.C. 554-557.
Administrator means the Administrator of the Wage and Hour
Division, U.S. Department of Labor, and includes an authorized
representative designated by the Administrator to perform any of the
functions of the Administrator under this part and part 580 of this
chapter.
Agency has the meaning given it by 5 U.S.C. 551.
Chief Administrative Law Judge means the Chief Administrative Law
Judge, Office of Administrative Law Judges, U.S. Department of Labor,
800 K Street, NW., Suite 400, Washington, DC 20001-8002.
Department means the U.S. Department of Labor.
Person includes any individual, partnership, corporation,
association, business trust, legal representative, or organized group
of persons.
Repeated violations has two components. An employer's violation of
section 12 or section 13(c) of the Act relating to child labor or any
regulation issued pursuant to such sections shall be deemed to be
repeated for purposes of this section:
(1) Where the employer has previously violated section 12 or
section 13(c) of the Act relating to child labor or any regulation
issued pursuant to such sections, provided the employer has previously
received notice, through a responsible official of the Wage and Hour
Division or otherwise authoritatively, that the employer allegedly was
in violation of the provisions of the Act; or,
(2) Where a court or other tribunal has made a finding that an
employer has previously violated section 12 or section 13(c) of the Act
relating to child labor or any regulation issued pursuant to such
sections, unless an appeal therefrom which has been timely filed is
pending before a court or other tribunal with jurisdiction to hear the
appeal, or unless the finding has been set aside or reversed by such
appellate tribunal.
Secretary means the Secretary of Labor, U.S. Department of Labor,
or an authorized representative of the Secretary.
Serious injury means:
(1) Permanent loss or substantial impairment of one of the senses
(sight, hearing, taste, smell, tactile sensation);
(2) Permanent loss or substantial impairment of the function of a
bodily member, organ, or mental faculty, including the loss of all or
part of an arm, leg, foot, hand or other body part; or,
(3) Permanent paralysis or substantial impairment that causes loss
of movement or mobility of an arm, leg, foot, hand or other body part.
Solicitor of Labor means the Solicitor, U.S. Department of Labor,
and includes attorneys designated by the Solicitor to perform functions
of the Solicitor under this part and part 780 of this chapter.
Willful violations under this section has several components. An
employer's violation of section 12 or section 13(c) of the Act relating
to child labor or any regulation issued pursuant to such sections,
shall be deemed to be willful for purposes of this section where the
employer knew that its conduct was prohibited by the Act or showed
reckless disregard for the requirements of the Act. All of the facts
and circumstances surrounding the violation shall be taken into account
in determining whether a violation was willful. In addition, for
purposes of this section, an employer's conduct shall be deemed
knowing, among other situations, if the employer received advice from a
responsible official of the Wage and Hour Division to the effect that
the conduct in question is not lawful. For purposes of this section, an
employer's conduct shall be deemed to be in reckless disregard of the
requirements of the Act, among other situations, if the employer should
have inquired further into whether its conduct was in compliance with
the Act, and failed to make adequate further inquiry.

0
32. In Sec. 579.5, paragraphs (a) and (e) are revised to read as
follows:

Sec. 579.5 Determining the amount of the penalty and assessing the
penalty.

(a) The administrative determination of the amount of the civil
penalty for each employee who was the subject of a violation of section
12 or section 13(c) of the Act relating to child labor or of any
regulation under those sections will be based on the available evidence
of the violation or violations and will take into consideration the
size of the business of the person charged and the gravity of the
violations as provided in paragraphs (b) through (d) of this section.
The provisions of section 16(e)(1)(A)(ii) of the Fair Labor Standards
Act, regarding the assessment of civil penalties not to exceed $50,000
with regard to each violation that causes the death or serious injury
of any employee under the age of 18 years, apply only to those
violations that occur on or after May 21, 2008.
* * * * *
(e) An administrative determination of the amount of the civil
money penalty for a particular violation or particular violations of
section 12 or section 13(c) relating to child labor or any regulation
issued under those sections shall become final 15 days after receipt of
the notice of penalty by certified mail by the person so charged unless
such person has, pursuant to Sec. 580.6 filed with the Secretary an
exception to the determination that the violation or violations for
which the penalty is imposed occurred.
* * * * *
[FR Doc. 2010-11434 Filed 5-19-10; 8:45 am]
BILLING CODE 4510-27-P