ESA Proposed Rule

Child Labor Regulations, Orders and Statements of Interpretation [04/17/2007]

Volume 72, Number 73, Page 19337-19373

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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 570

RIN 1215-AB57

 
Child Labor Regulations, Orders and Statements of Interpretation

AGENCY: Wage and Hour Division, Employment Standards Administration, 
Labor.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Department of Labor (Department or DOL) is proposing to 
revise the child labor regulations in order to implement an amendment 
to the Fair Labor Standards Act's child labor provisions, contained in 
the Department of Labor Appropriations Act, 2004 (Pub. L. 108-199), 
which authorizes under specified conditions the employment of certain 
youth between the ages of 14 and 18 years inside and outside of places 
of business that use machinery to process wood products.
    The Department is proposing to revise Child Labor Regulation No. 3, 
subpart C of 29 CFR part 570, which governs the employment of 14- and 
15-year-olds in nonagricultural occupations by revising the lists of 
occupations and industries

[[Page 19338]]

in which such youth may and may not be employed. The Department is also 
proposing to clarify, but not change, the standards addressing the 
permitted periods and conditions under which such youth may be employed 
and to create a limited exemption from those standards for certain 
academically motivated youth enrolled in work-study programs.
    The Department is also proposing to revise several of the 
nonagricultural Hazardous Occupations Orders (HOs) to implement 
specific recommendations made by the National Institute for 
Occupational Safety and Health in its 2002 report entitled National 
Institute for Occupational Safety and Health (NIOSH) Recommendations to 
the U.S. Department of Labor for Changes to Hazardous Orders. The HOs 
affected by this proposal concern occupations involved with logging and 
sawmilling; meat processing; and the operation of power-driven hoisting 
equipment, bakery equipment, compacting and baling equipment, and 
certain cutting, shearing, and guillotining equipment.
    In addition, the Department is proposing to provide clarity by 
incorporating 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. The Department is also 
proposing to expand the HO that prohibits youth from operating power-
driven circular saws, band saws, and guillotine shears to include 
prohibitions concerning the operation of power-driven chain saws, wood 
chippers, and reciprocating saws.
    Finally, the Department proposes to revise subpart G of the child 
labor regulations, which is entitled General Statements of 
Interpretation of the Child Labor Provisions of the Fair Labor 
Standards Act of 1938, as Amended. The proposal would incorporate into 
this subpart all the regulatory changes made since this subpart was 
last revised in 1971.

DATES: Comments are due on or before July 16, 2007.

ADDRESSES: You may submit comments, identified by RIN 1215-AB57, by 
either one of the following methods:
     Electronic comments, through the Federal eRulemaking 
Portal: http://www.regulations.gov. Follow the instructions for 

submitting comments.
     Mail: Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, Room S-3502, 200 Constitution 
Avenue, NW., Washington, DC 20210.
    Instructions: Please submit one copy of your comments by only one 
method. All submissions received must include the agency name and 
Regulatory Information Number (RIN) identified above for this 
rulemaking. All comments received will be posted without change to 
http://www.regulations.gov, including any personal information 

provided. Because we continue to experience delays in receiving mail in 
the Washington, DC area, commenters are strongly encouraged to transmit 
their comments electronically via the Federal eRulemaking Portal at 
http://www.regulations.gov or to submit them by mail early. For 

additional information on submitting comments and the rulemaking 
process, see the ``Public Participation'' heading of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov
.


FOR FURTHER INFORMATION CONTACT: Arthur M. Kerschner, Jr., Office of 
Enforcement Policy, Child Labor and Special Employment Team, Wage and 
Hour Division, Employment Standards Administration, 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 notice of proposed rulemaking 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 notice 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/esa/contacts/whd/america2.htm.


SUPPLEMENTARY INFORMATION:

I. Electronic Access and Filing Comments

    Public Participation: This notice of proposed rulemaking is 
available through the Federal Register and the http://www.regulations.gov
 Web site. You may also access this document via the 

WHD home page at http://www.wagehour.dol.gov To comment electronically on federal rulemakings, go to the Federal eRulemaking Portal at http://.

http://www.regulations.gov, which will allow you to find, review, and submit 

comments on federal documents that are open for comment and published 
in the Federal Register. Please identify all comments submitted in 
electronic form by the RIN docket number (1215-AB57). Because of delays 
in receiving mail in the Washington, DC area, commenters should 
transmit their comments electronically via the Federal eRulemaking 
Portal at http://www.regulations.gov, or submit them by mail early to 

ensure timely receipt prior to the close of the comment period. Submit 
one copy of your comments by only one method.

II. 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 FLSA provisions 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-.38). 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. Because of the 
statutory amendments, the FLSA's child labor protections became 
applicable to additional areas of employment for

[[Page 19339]]

young workers in retail, food service, and gasoline service 
establishments.
    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. In this review, the Department published a Notice of 
Proposed Rulemaking (NPRM) in 1982, an NPRM in 1990, a Final Rule in 
1991, both an Advance Notice of Proposed Rulemaking (ANPRM) and an NPRM 
in 1994, a Final Rule in 1995, an NPRM in 1999, and a Final Rule in 
2004.
    On July 16, 1982, an NPRM was published in the Federal Register (47 
FR 31254) which proposed to revise several elements of Reg. 3, 
including the permissible hours and times of employment for 14- and 15-
year-olds and the types of cooking operations those minors would be 
permitted to perform. The NPRM generated considerable public interest, 
mostly relating to the expansion of the hours and times of work for 
this age group. The Department subsequently suspended the proposal from 
further consideration and no final rule was implemented.
    The Department continued to receive suggestions from the public 
that certain changes should be made to the child labor regulations on a 
number of issues. In 1987, the Department established a Child Labor 
Advisory Committee (CLAC) composed of 21 members representing 
employers, education, labor, child guidance professionals, civic 
groups, child advocacy groups, state officials, and safety groups. The 
mission of the CLAC was to give advice and guidance in developing 
possible proposals to change existing standards. After reviewing a 
number of issues, the CLAC proposed making certain changes to the child 
labor regulations. The Department considered the CLAC's suggestions, as 
well as suggestions received from the public as noted above, and 
published an NPRM in October 1990, proposing changes to three HOs (55 
FR 42612). In December 1991, the Department promulgated a Final Rule 
which revised the three HOs (56 FR 58626).
    The Department continued to review the child labor regulations and 
on May 13, 1994, in an effort to accumulate data concerning all aspects 
of the provisions, published both an NPRM (59 FR 25164) and an ANPRM 
(59 FR 25167). The NPRM proposed to exempt 14- and 15-year-olds from 
Reg. 3 hours standards when employed under certain restrictions as 
sports attendants for professional sports teams, to standardize the 
Reg. 3 process for issuing occupational variances for Work Experience 
and Career Exploration Program (WECEP) participants, to remove an 
outdated exemption for enrollees in certain work training programs, and 
to revise the process by which HOs are promulgated. A Final Rule on 
these issues was published April 17, 1995 (60 FR 19336).
    The 1994 ANPRM requested public comment on several specific topics 
as well as all aspects of the child labor provisions. Several 
individuals and organizations submitted comments. The National 
Institute for Occupational Safety and Health (NIOSH) provided the 
Department with epidemiological data on a number of issues related to 
both Reg. 3 and the HOs. NIOSH also provided the Department with 
statistics regarding occupational injuries and made several 
recommendations. A number of child guidance professionals, educators, 
unions, employer associations, and child labor advocates also commented 
and made various recommendations.
    Congress has amended the child labor provisions of the FLSA three 
times since 1996. The Compactors and Balers Safety Standards 
Modernization Act, Pub. L. 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, Pub. L. 105-334, was signed into law on October 31, 
1998. This legislation added section 13(c)(6) to the FLSA, prohibiting 
minors under 17 years of age from driving automobiles and trucks on 
public roadways on-the-job and establishing the conditions and criteria 
for 17-year-olds to drive automobiles and trucks on public roadways on-
the-job. The Department of Labor Appropriations Act, 2004, Pub. L. 108-
199, amended the FLSA by creating a limited exemption from the youth 
employment 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 published an NPRM in the Federal Register on 
November 30, 1999 (64 FR 67130), inviting comments on revisions of 
regulations to implement the 1996 and 1998 amendments and to update 
certain regulatory standards. The Compactor and Baler Act affected the 
HO 12 standards (Occupations involved in the operation of paper-
products machines) (29 CFR 570.63) and certain other related 
regulations; amendments of those regulations were proposed. The Drive 
for Teen Employment Act affected the HO 2 standards (Occupations of 
motor-vehicle driver and outside helper) (29 CFR 570.52); an amendment 
of that regulation was proposed. As a result of its ongoing review of 
the child labor provisions, the Department also proposed changes to HO 
1 (Occupations in or about plants or establishments manufacturing or 
storing explosives or articles containing explosive components) (29 CFR 
570.51), HO 16 (Occupations in roofing operations) (29 CFR 570.67), the 
Reg. 3 limitations on cooking (29 CFR 570.34), and 29 CFR 570.6(b)(1) 
which deals with the disposition of a Certificate of Age when the named 
individual's employment ends. A Final Rule, addressing the above issues 
and implementing procedural changes dealing with administrative 
hearings and appeals of child labor civil money penalties, was issued 
on December 16, 2004 (69 FR 75382).

[[Page 19340]]

    In 1998, the Department provided funds to 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 youth employment HOs to address them. This study was 
commissioned to provide the Secretary with another tool to use in her 
ongoing review of the youth employment provisions, and of the hazardous 
occupations orders in particular. The report, entitled National 
Institute for Occupational Safety and Health 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 limitations in 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 youth employment 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 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 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 2004 Final Rule addressed six of the recommendations.
    As an adjunct to its review of these issues the Department 
contracted with a private consulting firm, SiloSmashers, Inc., to 
construct a model that, using quantitative analysis, would help 
determine the costs and benefits associated with implementing, or not 
implementing, each of the Report's recommendations. The SiloSmashers 
report, Determination of the Costs and Benefits of Implementing NIOSH 
Recommendations Relating to Child Labor Hazardous Orders, was completed 
in November 2004 and covers 34 of the NIOSH HO recommendations in 
agricultural and nonagricultural occupations, as well as several 
occupations or activities not presently addressed by an existing HO.
    The methodology used by SiloSmashers was to compare the direct 
costs and benefits of implementing or revising an HO, as recommended by 
NIOSH, with the costs and benefits of not implementing or revising the 
HO based on the NIOSH recommendations. Each SiloSmashers analysis was 
conducted on a mutually exclusive basis to yield a net present value 
(NPV). SiloSmashers defines NPV as ``the discounted dollar value of an 
investment across the expected planning horizon. As a dollar figure, 
NPV is presented at the full value level for each implementation 
approach (implementing versus not implementing) as well as at the 
incremental approach (the difference between implementing versus not 
implementing). As a comparison tool and under the incremental approach, 
the higher the NPV, the higher the expected value of implementation.'' 
The NPVs reported by SiloSmashers for each of the NIOSH recommendations 
addressing the current nonagricultural HOs range from a negative 
$9,537,000 to a positive $113,556,000.
    Although the SiloSmashers report includes both a quantitative 
analysis and a qualitative analysis of each NIOSH recommendation, the 
Department is concerned that some readers might try to rank each 
recommendation solely on the basis of the quantitative results (i.e., 
on the basis of the NPVs) listed in the HO Comprehensive Summary. This 
simplistic ranking would not be appropriate due to several constraints 
inherent in the methodology adopted by SiloSmashers, especially the 
lack of reliable and pertinent data.
    In addition, not only was the methodology used by SiloSmashers to 
generate the NPVs subject to the same data limitations faced by NIOSH 
regarding the employment, fatality, and injury rates of young workers, 
but it also raises additional concerns. First, if SiloSmashers were 
unable to identify any minors who were fatally injured while performing 
work that was the subject of the NIOSH recommendation being examined, 
even if many adult workers were killed while performing that exact same 
work, the analysis would reflect that implementation of the 
recommendation would have no benefit in reducing occupational hazards 
to youth. Such an assumption is contrary to the Department's long-held 
position that work which is dangerous for adults is inherently 
dangerous for youth. For example, because SiloSmashers found no deaths 
of youth resulting from the operation of chainsaws, it concluded that 
implementation of the NIOSH recommendation to expand HO 14 to prohibit 
the operation of chainsaws on all materials, and not just on wood and 
wood products as currently prohibited by HOs 4 and 5, would have no 
impact on the number of occupational fatalities suffered by 16- and 17-
year-olds. The Department strongly disagrees with this conclusion. 
NIOSH based its

[[Page 19341]]

recommendation on data that demonstrate that chainsaws continue to be 
the source of substantial numbers of fatalities as well as nonfatal 
injuries which may be unusually severe. Accordingly, the Department 
believes that the operation of chainsaws is inherently dangerous for 
young workers, regardless of the lack of youth-specific injury and 
fatality data. The Department agrees with NIOSH that the prudent course 
of action is to prohibit the use of chainsaws by all workers under the 
age of 18.
    Secondly, when youth fatalities were identified, the values the 
SiloSmashers report placed on the lives saved and injuries prevented 
under the various NIOSH Report recommendations are based on estimates 
published in economic literature that are based on adult populations. 
Applying those estimates to children may result in an underestimate of 
the risk to children because the susceptibility of a developing child's 
body to illness, injury, or death will most likely differ from that of 
the fully developed body of an adult. These differences are important 
in any such analysis, as society tends to place a higher value on the 
lives of children compared to adults. By their very nature, child labor 
laws are intended to protect children from situations that are 
permissible for adults. Thus, even without some of the other data 
limitations discussed above, the estimates presented in the 
SiloSmashers report consistently understate the benefits of 
implementing the NIOSH recommendations. Because of the data limitations 
and flaws in methodology, the Department does not consider the 
individual analysis prepared by SiloSmashers to be influential for 
rulemaking purposes.
    It was the Department's intention that the SiloSmashers analysis 
would help in identifying and defining the scope of each recommendation 
and provide additional information to consider after the decision was 
made to implement or not to implement a particular recommendation. This 
is in keeping with the ultimate recommendation made in the SiloSmashers 
report that the Department consider both quantitative and qualitative 
factors, as well as other internal and external factors-such as budget 
constraints, priorities established by the Department or 
Administration, additional stakeholder input, etc.--when determining 
which NIOSH Report recommendations to implement. The entire report 
provided to the Department by SiloSmashers can be viewed on the 
Internet at http://www.youthrules.dol.gov/clri/Final_Report.pdf.

    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 (see 69 FR 75382; Dec. 16, 
2004). The Department has decided that, in this first proposal since 
the dissemination of the NIOSH Report, it will address 25 of the 
remaining 29 Report recommendations dealing with existing 
nonagricultural hazardous occupations orders. The Department believes 
there is sufficient data to support implementing its proposals. In an 
attempt to acquire additional data in order to address the remaining 
nonagricultural NIOSH recommendations, as well as pursue items not 
explored in the NIOSH Report, the Department is publishing an ANPRM 
concurrently with this NPRM.
    The NIOSH Report also makes 11 recommendations that impact the 
current agricultural HOs as well as 17 recommendations that urge the 
creation of new HOs. The Department, in the ANPRM being published on 
the same day as this NPRM, is requesting public comment on the 
feasibility of one of those recommendations regarding the creation of 
an HO that would prohibit the employment of youth in construction 
occupations. The Department is continuing to review the remaining 
recommendations, but for administrative reasons excluded them from its 
consideration of the NIOSH proposals covered in this phase to keep the 
size and scope 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 will not be given the same level of 
consideration as the recommendations addressing the current 
nonagricultural HOs.

III. Proposed Regulatory Revisions

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, defining oppressive child labor, 
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), 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 
forms of labor are not deemed oppressive for children between the ages 
of 14 and 16 appear in Reg. 3 (29 CFR 570.31-.38).
    Reg. 3 identifies a number of occupations or 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)). 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, banned 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)).
    As previously mentioned, Reg. 3 was revised to reflect the 1961 
amendments to the FLSA, which by extending the Act's coverage to 
include enterprises engaged in commerce or the production of goods for 
commerce, brought more working youth employed in retail, food service, 
and gasoline service establishments within the protections of the Act. 
Section 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 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 Reg. 3 does not currently 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 declarations made in Reg. 3. Because these 
jobs are not specifically permitted by Sec.  570.33, they are 
prohibited. There has been some confusion about this over the years. 
Some employers have believed that 14- and 15-year-old are permitted to 
be employed in any industry or occupations not expressly prohibited by 
Reg. 3, or that any employer in any industry may employ such youth in 
the occupations permitted

[[Page 19342]]

by Sec.  570.34(a). However, where these jobs are not located in 
retail, food service, or gasoline service establishments, the 
provisions of Sec.  570.34 (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 Department's interpretation of Reg. 3 would prohibit 
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 may 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 
has exercised its prosecutorial discretion, as authorized by 29 U.S.C. 
216(e), in declining 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 falls within the occupations authorized by Reg. 
3 (Sec.  570.34(a)) and does not involve any of the tasks or 
occupations prohibited by Reg. 3 (Sec. Sec.  570.33 and 570.34(b)). The 
other provisions of Reg. 3, including the restrictions on hours of 
work, remain fully applicable to the employment of such minors and 
continue to be enforced.
    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 strong 
indications that when such youth are employed under the guidelines 
established by this enforcement position, the employment does not 
interfere with their schooling or with their health and well-being, and 
thus accords with the FLSA.
    Based upon the success of the above enforcement position, the 
Department is proposing to revise and to 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 and 
to remove the language that limits the application of Sec.  570.34 to 
only retail, food service, and gasoline service establishments. The 
revised Sec.  570.33 would detail certain specific occupations that are 
prohibited for 14- and 15-year-olds. This revision also necessitates a 
change to Sec.  570.35a(c)(3), which references the current Sec. Sec.  
570.33 and 570.34 as they pertain to WECEPs. The Department proposes to 
retain all the current prohibitions contained in Sec.  570.33 but will 
modify the prohibition regarding the employment of 14- and 15-year-olds 
in manufacturing occupations to comport with the provisions of the 
Department of Labor Appropriations Act, 2004, which enacted section 
13(c)(7) of the FLSA. Fourteen- and 15-year-olds would continue to be 
permitted to be employed in all those retail, food service, and 
gasoline service establishment occupations in which they may currently 
be employed.
    The Department also proposes to apply to FLSA-covered 
nonagricultural employers of minors, with certain modifications, all 
the permitted occupations contained in Sec.  570.34(a) and all the 
prohibited occupations contained in Sec.  570.34(b) 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 proposes 
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), as referenced in Sec.  570.34(b)(1).
    As mentioned, certain modifications to the existing lists of 
permissible and prohibited occupations are being proposed. The 
traditionally prohibited occupations and industries would 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, the Department 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 proposals 
contained in this NPRM--it has developed an efficient and effective 
mechanism which overcomes the limitations of a definitive list.
    The proposed modifications to the list of prohibited occupations 
are as follows:
1. Prohibited Machinery (Sec. Sec.  570.33-.34)
    Section 570.33(b) 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. 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) prohibits the employment of 14- and 15-
year-olds in the operation of power-driven mowers or cutters and Sec.  
570.34(b)(6) prohibits the employment of such minors in occupations 
that involve operating, setting up, adjusting, cleaning, oiling, or 
repairing power-

[[Page 19343]]

driven food slicers, grinders, choppers, and cutters, and bakery-type 
mixers.
    The Department proposes 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 under Reg. 3 of these individual pieces of 
equipment. The Department believes that by continuing to reference 
certain common prohibited machinery by name, both clarity and 
compliance will be increased.
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) 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 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 to ride 
inside the enclosed passenger compartment of a motor vehicle when 
driven by a driver whose employment complies with HO 2 under certain 
circumstances. 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. This interpretation comports with the provision of 
Sec.  570.33(f)(1), 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 the other persons or property does not have to be the 
primary reason for the trip for this prohibition to apply.
    The Department is proposing 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). The Department is also 
proposing to revise Reg. 3 at Sec.  570.34(o) 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. 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 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), 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) 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) 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 are 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.
    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 and unload items onto and 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 encounter 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 proposes to revise Reg. 3 at 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 not be 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.

[[Page 19344]]

3. Work in Meat Coolers and Freezers (Sec.  570.34(b)(7))
    Section 570.34(b)(7) prohibits 14- and 15-year-olds from working in 
freezers and meat coolers. Since its inception, the Department has 
interpreted this section 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. Inventory and cleanup work, involving prolonged stays in 
freezers or meat coolers, are also prohibited. On the other hand, the 
Department has taken the 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 for enforcement purposes. In order to provide clarification, 
the Department is proposing to incorporate this long-standing 
interpretation into the regulations at Sec.  570.33(i).
4. Youth Peddling
    The Department is proposing 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 toward 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 would not be 
limited to just the attempt to make a sale or the actual consummation 
of a sale, but would include 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 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 efforts. 
In administering the FLSA, the Department considers 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, not to be employees of the religious, charitable, 
or similar nonprofit corporations that receive their services. In 
addition, FLSA section 3(e)(4) excludes from the definition of 
``employee'' individuals who volunteer to public agencies. These 
provisions apply equally whether the volunteer is an adult or a minor.
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). 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) and the prohibition against employment in occupations in 
connection with the transportation of property contained in Sec.  
570.33(f)(1) 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 chicken--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

[[Page 19345]]

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 is therefore proposing 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).

B. Occupations That Are Permitted for Minors Between 14 and 16 Years of 
Age (29 CFR Sec. Sec.  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-.38).
    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 proposes 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 
would be contained in Sec.  570.34.
    The Department also proposes to revise Sec.  570.34(a)(8) by 
clarifying that 14- and 15-year-olds may perform car cleaning, washing, 
and polishing, but only by hand. 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 additional occupations the Department is proposing to permit 
14- and 15-year-olds to perform are discussed below.
1. Work of a Mental or Artistically Creative Nature
    The Department routinely receives 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 concern 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 is proposing to revise Reg. 3 at Sec.  570.34(b) 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 occupation standards 
contained in Sec.  570.33.
2. The Employment of 15-Year-Olds (But Not 14-Year-Olds) as Lifeguards
    The Department is proposing 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 was now 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 (1) all traditional 
swimming pools regardless of who owns, operates or manages the 
establishments, and (2) those facilities of water amusement parks that 
constitute traditional swimming pools.
    The Department proposes 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,

[[Page 19346]]

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 
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) 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.
3. The Employment of Certain Youth by Places of Business Where 
Machinery Is Used To Process Wood Products
    The provisions of the Department of Labor Appropriations Act, 2004, 
amended the FLSA by creating a limited exemption from the youth 
employment 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 is proposing 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 is proposing 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 proposes to limit the types of employers who 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

[[Page 19347]]

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 terms 
operate or assist in the operation and power-driven woodworking 
machines are well-established in 29 CFR 570.55, and the Department 
proposes to revise Reg. 3 to include these definitions 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 is proposing 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 sawmills 
where trees, logs, and lumber would be processed. 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 proposes 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 proposes 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. No other provision of the federal nonagricultural 
youth employment rules requires such a specific level of supervision. 
It is important to note that this requirement of 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 (1) 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 (2) required to use personal protecting 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 excess 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 proposes 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.

C. Periods and Conditions of Employment (29 CFR Sec.  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.
    In 1939, Reg. 3 was promulgated 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 child labor advocates expressed 
concern over the need for children to avoid fatigue, so as not to 
deplete the energy

[[Page 19348]]

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 that 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 is not proposing to change any of these hours and 
time-of-day limitations, but wishes 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 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 proposes to incorporate them into Reg. 3 to promote both 
clarity and compliance. The Department proposes 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 proposes 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 Wage and Hour Division 
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 was in session.
    The Department also proposes 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 Sec.  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 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 in1949, to clarify how these terms applied to the 
employment of youth in agricultural employment. FLSA section 13(c)(1) 
states, in relevant part: ``The provisions of section 12 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.''
    The Department, though not proposing specific regulatory language 
regarding these terms at this time, is seeking 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 that 
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; (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. Based on comments received, the 
Department will consider adding a regulatory provision defining the 
terms school hours and school is in session, as they apply to 
nonagricultural employment.

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.
    Section 570.35a establishes the criteria that must be met in order 
for

[[Page 19349]]

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, any portion of which may be 
during school hours. The other provisions of Sec.  570.35 (limiting 
employment to no more than 3 hours on any one day school is in session, 
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 dropout-prone students, especially 
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 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, five 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 is 55 percent.
    Reg. 3, as currently written, does not allow 14- and 15-year-olds 
to participate in such 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 is proposing that Reg. 3 be revised to 
accommodate such programs. The Department proposes 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 work place 
safety and youth employment 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 youth 
employment 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 
youth employment 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 for eight hours on that day. 
During the remaining week of the four-

[[Page 19350]]

week cycle, such minor would be permitted to work during school hours 
on no more than two days, and 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).

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; 
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 and 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)(2), 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 sawmills, lath mills, shingle mills, or cooperage stock 
mills to work in offices or in repair or maintenance shops; straighten, 
mark, or tally lumber on the dry chain or the dry drop sorter; pull 
lumber from the dry chain; clean up the lumberyard; pile, handle, or 
ship cooperage stock in yards or storage sheds other than operating of 
or assisting in the operation of power-driven equipment; clerical work 
in the yards or shipping sheds, such as done by ordermen, tally-men, 
and shipping clerks; clean-up work outside shake and shingle mills, 
except when the mill is in operation; split shakes manually from precut 
and split blocks with a fore and mallet, except inside the mill 
building or cover; 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 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. 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 
cruising timber, forest firefighting, 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.'' 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.
    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. In addition, NIOSH also was able to identify 16 additional 
deaths of workers of all ages that were clearly attributable to forest 
firefighting activities. These are indeed occupations that experience 
high rates of fatalities.
    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 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 youth employment 
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 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.'' The 
Department is seeking public comments about this

[[Page 19351]]

issue in the ANPRM that is being published concurrently with this NPRM.
    As mentioned earlier, the Department of Labor Appropriations Act, 
2004 (Pub. L. 108-199), amended the FLSA by creating a limited 
exemption from the youth employment 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 agrees with the Report recommendation that HO 4 
should be expanded to cover work in forest firefighting and forest fire 
prevention because of the risks inherent in those occupations. The 
Department is also inclined to adopt 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 is concerned that 
such youth may be able to be safely employed in certain facets or 
occupations within those industries without jeopardizing their health 
or well-being. Therefore, the Department is asking, in this NPRM, for 
information from the public that will help it identify which 
occupations or tasks within the timber tract, tree farm, and forestry 
services industries, if any, are not particularly hazardous or 
detrimental to the health and well-being of youth.
    The Department is proposing to revise HO 4 to add a prohibition on 
the employment of youth 16 and 17 years of age in forest firefighting 
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 
proposes to revise the title of HO 4 to reflect these changes.
    Under this proposal, all occupations in forest firefighting and 
forest fire prevention shall include the controlling and extinguishing 
of fires, the wetting down of areas or extinguishing of spot fires, the 
patrolling of burned areas to assure the fire has been extinguished, 
and the piling and burning of slash. The term shall also include the 
following tasks when performed in conjunction with, or in support of, 
efforts to extinguish an actual fire: The clearing of fire trails or 
roads; the construction, maintenance, and patrolling of firelines; 
acting as a fire lookout or fire patrolman; and tasks associated with 
the operation of a temporary firefighting base camp. The prohibition 
concerning the employment of youth in forest firefighting and forest 
fire prevention would apply to all forest locations and buildings 
located within the forest, not just where logging or sawmilling takes 
place. We note 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 
firefighting services to state and local governments.
    The Department is also proposing to incorporate into HO 4 the 
provisions of the Department of Labor Appropriations Act, 2004 (Pub. L. 
108-199), which amended the FLSA by creating a limited exemption from 
the youth employment 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 proposes 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 proposes to add 
the above definition to HO 4.
    The Department is also proposing to revise HO 4 to include the 
above definition of remanufacturing departments, as well as the all 
definitions necessitated by the incorporation of the provisions of FLSA 
section 13(c)(7) and discussed earlier in this document. The Department 
also proposes to restructure all the definitions in HO 4 in an 
alphabetical sequence to comport with guidance provided by the Federal 
Register.
    The Department has decided not to address, in this NPRM, the 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 recommends 
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. Accordingly, the 
Department is issuing an ANPRM, in conjunction with and on the same day 
as this NPRM, that requests public comment on this issue.

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

[[Page 19352]]

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 is 
proposing to include 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 is proposing to amend the 
definition of power-driven woodworking machines to include those 
machines that process trees, logs, and lumber. To ensure consistency, 
the Department is proposing 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 is also proposing to restructure the two definitions 
in this section to reflect an alphabetical sequence in accordance with 
guidance provided by the Federal Register.

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 Report recommends that the Department expand HO 7 to prohibit 
the repairing, servicing, 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 reflects substantial numbers of deaths and injuries are 
associated with operating and assisting in tasks performed by power-
driven hoisting apparatus, including deaths of youth. 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). 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. 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. 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.
    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. 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.''
    The Department is proposing 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 proposes 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 proposes to revise the definition of manlift so that, as 
recommended by the Report, it incorporates those pieces of equipment 
that perform the same

[[Page 19353]]

functions as manlifts but that do not currently fall within the 
prohibitions of the HO. The proposed definition includes 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 is also proposing 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 by 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 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. The Department prevailed despite the 
fact that 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)).

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. The term currently 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 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. 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 product manufacturing industry. Although 
the greatest number of these injuries and illnesses occurred in meat 
packing 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. 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