Child Labor Regulations, Orders and Statements of Interpretation

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Parts 570 and 579

RIN 1215-AB57

RIN 1235-AA01

Child Labor Regulations, Orders and Statements of Interpretation

AGENCY:

Wage and Hour Division, Labor.

ACTION:

Final Rule.

SUMMARY:

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

DATES:

Effective Dates:

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

FOR FURTHER INFORMATION CONTACT:

Arthur M. Kerschner, Jr., Division of Enforcement Policy, Branch of Child Labor and Special Employment Enforcement, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: (202) 693-0072 (this is not a toll free number). Copies of this Final Rule may be obtained in alternative formats (Large Print, Braille, Audio Tape, or Disc), upon request, by calling (202) 693-0023. TTY/TDD callers may dial toll-free (877) 889-5627 to obtain information or request materials in alternative formats.

Questions of interpretation and/or enforcement of regulations issued by this agency or referenced in this Final Rule may be directed to the nearest Wage and Hour Division District Office. Locate the nearest office by calling the Wage and Hour Division's toll-free help line at (866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto the Wage and Hour Division's Web site for a nationwide listing of Wage and Hour District and Area Offices at:

http://www.dol.gov/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

The revisions in this Final Rule continue the Department of Labor's tradition of fostering permissible and appropriate job opportunities for working youth that are healthy, safe, and not detrimental to their education.

The Regulatory Information Number (RIN) identified for this rulemaking changed with the publication of the 2010 Spring Regulatory Agenda due to an organizational restructuring. The old RIN was assigned to the Employment Standards Administration, which no longer exists. A new RIN has been assigned to the Wage and Hour Division.

I. Background

The child labor provisions of the Fair Labor Standards Act (FLSA) establish a minimum age of 16 years for employment in nonagricultural occupations, but the Secretary of Labor is authorized to provide by regulation for 14- and 15-year-olds to work in suitable occupations other than manufacturing or mining, and during periods and under conditions that will not interfere with their schooling or health and well-being. The child labor provisions of the FLSA permit 16- and 17-year-olds to work in the nonagricultural sector without hours or time limitations, except in certain occupations found and declared by the Secretary to be particularly hazardous or detrimental to the health or well-being of such workers.

The regulations for 14- and 15-year-olds are known as Child Labor Regulation No. 3 (Reg. 3) and are contained in subpart C of part 570 (29 CFR 570.31-.37). Reg. 3 limits the hours and times of day that such minors may work and identifies occupations that are either permitted or prohibited for such minors. Under Reg. 3, 14- and 15-year-olds may work in certain occupations in retail, food service, and gasoline service establishments, but are not permitted to work in certain other occupations (including all occupations found by the Secretary to be particularly hazardous for 16- and 17-year-olds). Reg. 3, originally promulgated in 1939, was revised to reflect the 1961 amendments to the FLSA, which extended the Act's coverage to include enterprises engaged in commerce or the production of goods for commerce and thereby brought more working youth employed in retail, food service, and gasoline service establishments within the protections of the Act.

The regulations concerning nonagricultural hazardous occupations are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68). These Hazardous Occupations Orders (HOs) apply on either an industry basis, specifying the occupations in a particular industry that are prohibited, or an occupational basis, irrespective of the industry in which the work is performed. The seventeen HOs were adopted individually during the period of 1939 through 1963. Some of the HOs, specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited exemptions that permit the employment of 16- and 17-year-old apprentices and student-learners under particular conditions to perform work otherwise prohibited to that age group. The terms and conditions for employing such apprentices and student-learners are detailed in § 570.50(b) and (c).

Because of changes in the workplace, the introduction of new processes and technologies, the emergence of new types of businesses where young workers may find employment opportunities, the existence of differing federal and state standards, and divergent views on how best to balance scholastic requirements and work experiences, the Department has long been reviewing the criteria for permissible child labor employment. A detailed discussion of the Department's review was included in the Notice of Proposed Rulemaking published in the

Federal Register

on April 17, 2007 (

see

72 FR 19339).

Congress twice amended the child labor provisions of the FLSA in the 1990s. The Compactors and Balers Safety Standards Modernization Act, Public Law 104-174 (Compactor and Baler Act), was signed into law on August 6, 1996. This legislation added section 13(c)(5) to the FLSA, permitting minors 16 and 17 years of age to load, but not operate or unload, certain scrap paper balers and paper box compactors when certain requirements are met. The Drive for Teen Employment Act, Public Law 105-334, was signed into law on October 31, 1998. This legislation added section 13(c)(6) to the FLSA which prohibits minors under 17 years of age from driving automobiles and trucks on public roadways on the job and establishes the conditions and criteria for 17-year-olds to drive automobiles and trucks on public roadways on the job.

The Department published a Notice of Proposed Rulemaking (NPRM) in the

Federal Register

on November 30, 1999 (64 FR 67130), inviting comments on revisions of regulations to implement

the 1996 and 1998 amendments and to update certain regulatory standards.

In 1998, the Department provided funds to the National Institute for Occupational Safety and Health (NIOSH) to conduct a comprehensive review of scientific literature and available data in order to assess current workplace hazards and the adequacy of the current child labor HOs to address them. This study was commissioned to provide the Secretary with another tool to use in her ongoing review of the child labor provisions, and of the hazardous occupations orders in particular. The report, entitled

National Institute for Occupational Safety and Health (NIOSH) Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders

(hereinafter referred to as the NIOSH Report or the Report), was issued in July of 2002. The Report, which makes 35 recommendations concerning the existing nonagricultural HOs and recommends the creation of 17 new HOs, also incorporated the comments NIOSH submitted in response to the 1999 NPRM. The Report is available for review on the Department's

YouthRules!

Web site at

http://www.youthrules.dol.gov/resources.htm.

The Department recognizes NIOSH's extensive research efforts in compiling and reviewing this data. However, it has cautioned readers about reaching conclusions and expecting revisions to the existing HOs based solely on the information in the Report. In the Report, NIOSH itself recognized the confines of its methodology and included appropriate caveats about the limitations of the available data and gaps in research. Of those limitations, the following are worth noting. The NIOSH Report recommendations are driven by information on high-risk activities for all workers, not just patterns of fatalities and serious injuries among young workers. There is little occupational injury, illness, and fatality data available regarding minors less than 16 years of age. In addition, such data for youth 16 and 17 years of age tend to be mixed with that of older workers whose employment is not subject to the child labor provisions of the FLSA. Also, available occupational injury, illness, fatality, and employment data on the specific operations in the specific industries covered by the NIOSH Report recommendations tend to be combined with data on other operations and/or industries. In some cases, this may result in a diminution of the risk by including less risky operations and industries in the employment estimates. In other cases, the risk may be exaggerated by including more dangerous operations/industries in the injury, illness, or fatality estimates.

In addition, as NIOSH was tasked with examining issues within the framework of the current HOs only, the Report did not consider the extent to which fatalities occur despite existing HOs, Occupational Safety and Health Administration (OSHA) standards, or state laws prohibiting the activity. If fatalities result from recognized illegal activities, such as working with fireworks or a power-driven circular saw, the best strategy for preventing future injuries may not be to revise the regulations but to increase compliance with existing laws through public awareness initiatives, targeted compliance assistance efforts, and stepped-up enforcement activities. The Report also did not consider potential approaches for decreasing workplace injuries and fatalities that provide an alternative to a complete ban on employment, such as safety training, increased supervision, the use of effective personal protective equipment, and strict adherence to recognized safe working practices.

Though cognizant of the limitations of the Report, the Department places great value on the information and analysis provided by NIOSH. Since receiving the Report, the Department has conducted a detailed review and has met with various stakeholders to evaluate and prioritize each recommendation for possible regulatory action consistent with the established national policy of balancing the benefits of employment opportunities for youth with the necessary and appropriate safety protections. The Department's 2004 Final Rule addressed six of the recommendations.

The Consolidated Appropriations Act, 2004, Public Law 108-199, § 108, which was signed into law on January 23, 2004, amended the FLSA by creating a limited exemption from the child labor provisions for minors 14 to 18 years of age who are excused from compulsory school attendance beyond the eighth grade. The exemption, contained in section 13(c)(7) of the FLSA, allows eligible youth, under specific conditions, to be employed inside and outside of places of business that use machinery to process wood products, but does not allow such youth to operate or assist in operating power-driven woodworking machines. This exemption overrides the FLSA's formerly complete prohibition on the employment of 14- and 15-year-olds in manufacturing occupations contained in section 3(l).

The Department proposed revisions of the child labor regulations to implement the 2004 legislation, address 25 of the remaining 29 NIOSH Report recommendations dealing with existing nonagricultural hazardous occupations orders, and revise and/or clarify the permitted and prohibited occupations and industries and conditions and periods of employment established for 14- and 15-year-olds by Reg. 3, in an NPRM published in the

Federal Register

on April 17, 2007 (72 FR 19337). The NPRM also proposed to incorporate into the regulations three long-standing enforcement positions regarding the cleaning of power-driven meat processing equipment, the operation of certain power-driven pizza-dough rollers, and the definition of high-lift trucks. In addition, the Department proposed to expand the HO that prohibits youth from operating power-driven circular saws, band saws, and guillotine shears to also prohibit the operation of power-driven chain saws, wood chippers, and reciprocating saws. Finally, the Department proposed to revise subpart G of the child labor regulations, entitled

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

to incorporate all the changes adopted by the agency since this subpart was last revised in 1971.

The Genetic Information Nondiscrimination Act of 2008 (GINA) (Pub. L. 110-233) was enacted into law on May 21, 2008, after the publication of the 2007 NPRM. GINA, among other things, amended FLSA section 16(e) to provide that any person who violates the provisions of sections 12 or 13(c) of the FLSA, relating to child labor, or any regulation issued pursuant to such sections, shall be subject to a civil money penalty not to exceed $11,000 for each employee who was the subject of such a violation. In addition, GINA also permits the assessment of a civil money penalty up to $50,000 with regard to each violation that caused the death or serious injury of any employee under the age of 18 years. That penalty may be doubled, up to $100,000, when such violation is determined by the Department to be a repeated or willful violation. These changes in the law became effective May 21, 2008.

As mentioned, the NIOSH Report made 35 recommendations concerning the existing nonagricultural HOs. The Department addressed six of those recommendations in the 2004 Final Rule published December 16, 2004 (

see

69 FR 75382). The Department, in the April 17, 2007 NPRM, based on its determination that there was sufficient

data available, addressed 25 of the remaining 29 NIOSH Report recommendations dealing with the existing nonagricultural hazardous occupations orders. In an attempt to acquire additional data needed to address the remaining nonagricultural NIOSH recommendations and to pursue certain other issues not explored in the NIOSH Report, the Department also published an Advance Notice of Proposed Rulemaking (ANPRM) concurrently with the 2007 NPRM (

see

72 FR 19328). Because very little substantive information was received, the Department withdrew the ANPRM on February 24, 2010. No proposed rule will result directly from that information collection effort, however, the topics discussed in the ANPRM may be the subject of a future rulemaking. The comments submitted in response to the ANPRM may be reviewed at the Federal eRulemaking Portal at

http://www.regulations.gov,

docket identification number WHD-2007-0001.

The NIOSH Report also made 14 recommendations that impact the current agricultural HOs and recommended the creation of 17 new HOs. The Department, in the ANPRM published on April 17, 2007, requested public comment on the feasibility of one of those recommendations regarding the creation of a new HO that would prohibit the employment of youth in construction occupations.

The Department is continuing to review all of the remaining NIOSH Report recommendations, but excluded them from immediate consideration in order to keep the size and scope of the 2007 ANPRM and NPRM manageable. Their absence from this current round of rulemaking is not an indication that the Department believes them to be of less importance or that they are not being given the same level of consideration as the recommendations addressing the current nonagricultural HOs. In that regard, the Department is nearing completion of its thorough review of the NIOSH recommendations that address the agricultural hazardous occupations orders.

II. Summary of Comments

A total of 28 comments were received and are available for review at the Federal eRulemaking Portal at

http://www.regulations.gov.

The Docket ID for the NPRM that generated these comments is WHD-2007-0002. Comments were received from trade and professional associations; advocacy and occupational health and safety organizations; employers; federal, state, and local government agencies; representatives of schools and organizations that provide vocational training to youth; and one private citizen. The one private citizen comment, which concerned the issue of door-to-door sales, was incorrectly submitted to the ANPRM docket by the commenter and was assigned a Document ID of WHD-2007-0001-0004. One commenter, the International Association of Amusement Parks and Attractions, included comments from three of its member organizations along with its submission. Four of the comments do not address any of the issues raised by the April 17, 2007 NPRM and focus solely on topics raised by the ANPRM that was published by the Department on that same day. One commenter, the National Children's Center for Rural and Agricultural Health and Safety, did not address any specific proposal but expressed concerns that the Department has not yet implemented the NIOSH Report recommendations for agricultural HOs. In regards to the nonagricultural youth provisions, it stated that “it does not appear that protection of youth workers is at the heart of some of the proposed changes, but rather the needs of industry and special interest groups.”

Many of the comments concerned a single issue or a cluster of issues impacting a single industry, but two comments were quite extensive and addressed almost every proposal raised by the NPRM. These comprehensive comments were submitted by the Young Workers Health and Safety Network (YWN) and the Child Labor Coalition (CLC). The Department appreciates the time and effort all of these commenters devoted to their submissions.

The YWN is a subcommittee of the Occupational Health and Safety Section of the American Public Health Association. It described itself as an informal network of public health professionals, advocates, and government agency staff that includes individuals from academia, public health, labor law enforcement, health and safety consultation and/or enforcement, labor organizations, and educators. The YWN reported that, in formulating its comments, it tried to use the following principles: The regulations should protect youth from significant hazards; where possible, the regulations should be kept clear and consistent, limiting the number of exceptions or exemptions, thus fostering better compliance and more effective enforcement; and, the regulations should allow youth to do a broad variety of different types of potentially rewarding work.

The CLC, which has more than 30 member organizations, described itself as the largest grouping in the United States of advocates for the protection of the safety, health, and education of working children. The CLC reported that its comments are also endorsed by the following organizations: A Better World Foundation, A Minor Consideration, American Federation of Teachers, American Federation of School Administrators, Americans for Democratic Action, Association of Farmworker Opportunity Programs, Farmworker Justice, International Initiative to End Child Labor, Migrant Legal Action Program, National Association of State Directors of Migrant Education, National Consumers League, Ramsay Merriam Fund, and the United Food and Commercial Workers International Union. The CLC stated that its comments are in line with its stated mission and objectives, which include creating a network for the exchange of information about child labor, providing a forum and a unified voice on protecting working minors and ending child labor exploitation, and developing informational and educational outreach to the public and private sectors to combat child labor abuses and to promote progressive initiatives and legislation. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), while submitting its own comments, also endorsed those submitted by the CLC.

III. Regulatory Revisions

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

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

Section 3(l) of the FLSA defines

oppressive child labor

to expressly prohibit children under the age of 16 from performing any work other than that which the Secretary of Labor permits, by order or regulation, upon

finding that it does not interfere with their schooling or health and well-being (

see

29 U.S.C. 203(l),

see also

29 CFR 570.117-.119). Before 14- and 15-year-olds may legally perform work covered by the FLSA, the Act requires that the work itself be exempt, or that the Secretary determines that the work to be performed does not constitute oppressive child labor. The Secretary's declarations of what work is not deemed oppressive for children between the ages of 14 and 16 appear in Reg. 3 (29 CFR 570.31-.37).

Reg. 3 identifies a number of occupations and activities that are specifically prohibited for these minors without regard to the industry or the type of business in which their employer is engaged (

e.g.,

operating or tending any power-driven machinery other than office machines,

see

§ 570.33(b) (old) and § 570.33(e) (new)). Reg. 3 also incorporates by reference all of the prohibitions contained in the Hazardous Occupations Orders (29 CFR 570.50-.68), which identify occupations that are “particularly hazardous” and, therefore, prohibited for 16- and 17-year-olds (

e.g.,

occupations involved in the operation of power-driven metal forming, punching, and shearing machines,

see

§ 570.33(e) (old) and § 570.33(b) (new)).

As previously mentioned, Reg. 3 was revised to reflect the 1961 amendments to the FLSA which extended the Act's coverage to include enterprises engaged in commerce or the production of goods for commerce and thereby brought more working youth employed in retail, food service, and gasoline service establishments within the protections of the Act. The current § 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 § 570.34(b) details those activities that 14- and 15-year-olds are expressly prohibited from performing in such establishments. For example, clerical work, cashiering, and clean-up work are authorized, whereas “all work requiring the use of ladders, scaffolds, or their substitutes” is prohibited. These special rules currently apply only in the designated types of business.

Since 1961, new, positive, and safe employment opportunities have opened up for youth in industries other than retail, food service, and gasoline service that the existing Reg. 3 does not specifically address. Jobs in such areas as state and local governments, banks, insurance companies, advertising agencies, and information technology firms all normally fall outside of the permitted establishments declared in Reg. 3. Because these jobs are not specifically permitted by § 570.33 (old), they are prohibited. There has been some confusion about this over the years. Some employers believe that 14- and 15-year-olds are permitted to be employed in any industry or occupations not expressly prohibited by Reg. 3, or that any employer in any industry is permitted to employ such youth in the occupations permitted by § 570.34(a) (old). However, when those jobs are not located in retail, food service, or gasoline service establishments, the provisions of § 570.34 (old) (both authorizations and prohibitions) do not apply to the employment of 14- and 15-year-olds. The exception to this rule is where there is some discrete operation or division that could legitimately be characterized as such an establishment and therefore would be subject to these rules (

e.g.,

minors employed in a food service operation at a city park or a publicly owned sports stadium). The existing Reg. 3 prohibits employers such as state and local governments, banks, insurance companies, advertising agencies, and information technology firms from employing 14- and 15-year-old workers in any jobs other than those that occur in those discrete operations or divisions that could be characterized as retail, food service, or gasoline service establishments.

In 2004, in recognition of the importance of youth employment programs operated by public sector employers that provide safe and meaningful developmental opportunities for young people, and in response to specific requests received from two municipalities, the Department adopted an enforcement position that permits state and local governments to employ 14- and 15-year-old minors under certain conditions. Consistent with its enforcement position, the Department exercised its prosecutorial discretion, as authorized by 29 U.S.C. 216(e), and declined to cite Reg. 3 occupations violations for the employment of 14- and 15-year-olds by state and local governments as long as that employment fell within the occupations authorized by Reg. 3 (§ 570.34(a) (old)) and did not involve any of the tasks or occupations prohibited by Reg. 3 (§§ 570.33 and 570.34(b) (old)). The Department enforced all the other provisions of Reg. 3, including the restrictions on hours of work, with respect to the employment of such minors.

The Department's administration of this enforcement position permitting the employment of 14- and 15-year-olds by state and local governments has had extremely positive results. There are indications, as reported by state and local governments and reflected in WHD enforcement findings, that when such youth are employed under the guidelines established by the enforcement position, that employment does not interfere with their schooling or with their health and well-being, and thus is in accordance with the directive of the FLSA.

Based upon the success of the above enforcement position, the Department, in the April 17, 2007 NPRM, proposed to revise and reorganize §§ 570.33 and 570.34 to clarify and to expand the list of jobs that are either permitted or prohibited for minors who are 14 and 15 years of age. The Department also proposed to remove the language that limited the application of § 570.34 to only retail, food service, and gasoline service establishments. As proposed, the revised § 570.33 detailed certain specific occupations prohibited for 14- and 15-year-olds. This revision also necessitates a change to § 570.35a(c)(3) (old) because it references §§ 570.33 and 570.34 as they pertain to Work Experience and Career Exploration Programs (WECEPs). The Department proposed to retain all the current prohibitions contained in § 570.33 but would modify the prohibition regarding the employment of 14- and 15-year-olds in manufacturing occupations to comport with the provisions of the Consolidated Appropriations Act, 2004, which enacted section 13(c)(7) of the FLSA. The NPRM proposed to continue to allow the employment of 14- and 15-year-olds in all those retail, food service, and gasoline service establishment occupations in which they are currently permitted to be employed.

The Department also proposed to apply to FLSA-covered nonagricultural employers of minors, with certain modifications, all the permitted occupations contained in § 570.34(a) (old) and all the prohibited occupations contained in § 570.34(b) (old) that currently apply only to retail, food service, and gasoline service establishments. This proposal would be accomplished by revising § 570.34 to identify permitted occupations. The Department also proposed to continue to permit youth 14- and 15-years of age to perform those occupations involving processing, operating of machines, and working in rooms where processing and manufacturing take place, that are currently permitted under § 570.34(a) (old), as referenced in § 570.34(b)(1) (old).

As mentioned, certain modifications to the existing lists of permissible and prohibited occupations were also

proposed. The traditionally prohibited occupations and industries would, after adoption of the proposal, be contained in a revised § 570.33, and all the permitted occupations and industries would be contained in a revised § 570.34. The Department is aware that, given the FLSA's mandate that before 14- or 15-year-olds may legally be employed to perform any covered work, the Secretary of Labor must first determine that the work to be performed does not constitute oppressive child labor, it could choose to publish only a list of permissible occupations and industries, and not provide a list of certain commonly arising prohibited occupations and industries. However, the Department believes that by continuing the long-standing Reg. 3 tradition of publishing lists of those occupations and industries in which such youth may be employed as well as detailed examples of those industries and occupations in which the employment of such youth is prohibited, it can greatly enhance the public's understanding of these important provisions. The list of prohibited industries and occupations helps to define and to provide clarity to the list of permitted industries and occupations. However, the list of prohibited occupations is not intended to identify every prohibited occupation, but rather only to provide examples of those prohibited occupations that have historically been the most common sources of violations or concern. As previously explained, any job not specifically permitted is prohibited.

The Department also understands that, given the constant development and changes occurring in the modern workplace, in continuing to provide a definitive list of permitted occupations and industries, it may unintentionally discourage the creation of positive and safe employment opportunities for young workers. But the Department believes that, by continuing its past practice of carefully reviewing inquiries regarding individual occupations or industries not currently addressed by Reg. 3 and then exercising its prosecutorial discretion and issuing enforcement positions that may eventually lead to rulemaking—as evidenced by certain revisions contained in this Final Rule—it has developed an efficient and effective mechanism which overcomes the limitations of a definitive list. The Department firmly believes that the limited and public exercise of its prosecutorial discretion is an efficient and legal tool available to the Secretary in the administration of the child labor provisions of the FLSA.

The modifications to the list of prohibited occupations are as follows:

1. Prohibited Machinery (§§ 570.33-.34)

Section 570.33(b) (old) prohibits youth 14 and 15 years of age from employment in occupations involving the operation or tending of any power-driven machinery other than office equipment. The Department has always interpreted the term

power-driven machinery

very broadly to include machines driven by electrical, mechanical, water, or other power such as steam or hydraulic. The term also includes battery-operated machines and tools, but does not apply to machines or tools driven exclusively by human hand or foot power.

Even though this prohibition is clear and quite broad, other sections of Reg. 3 have traditionally named certain pieces of power-driven machinery so as to eliminate any doubt or confusion as to their prohibited status. For example, § 570.34(a)(6) (old) prohibits the employment of 14- and 15-year-olds in the operation of power-driven mowers or cutters and § 570.34(b)(6) (old) prohibits the employment of such minors in occupations that involve operating, setting up, adjusting, cleaning, oiling, or repairing power-driven food slicers, grinders, choppers, and cutters, and bakery-type mixers.

The Department proposed to combine §§ 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 § 570.33(e) and expand the list of examples of prohibited equipment to include power-driven trimmers, weed-eaters, edgers, golf carts, food processors, and food mixers. Even though Reg. 3 for many years has prohibited the employment of 14- and 15-year-olds to operate any power-driven equipment other than office machines, the Department routinely receives inquiries as to the status of these individual pieces of equipment under Reg. 3. The Department believes that by continuing to reference certain common prohibited machinery by name, both clarity and compliance will be increased.

The Department received six comments on this proposal. The YWN, CLC, and AFL-CIO supported the proposal to consolidate those subsections of Reg. 3 dealing with power-driven machinery into a single, new subsection located at § 570.33(e) and to expand the list of prohibited machinery, with certain caveats. The YWN and the AFL-CIO recommended that 14- and 15-year-olds also be prohibited from using espresso makers because, as the YWN reported, these machines involve a potential for serious burns. They create steam at a temperature that “clearly exceeds the temperature limits established for prohibiting use of other equipment such as anything related to hot oil that exceeds a temperature of 100 degrees F.” A representative of the Billings, Montana Job Service also questioned how the Department's proposal addresses the employment of youth who operate espresso machines.

The AFL-CIO and the CLC recommended that all-terrain vehicles (ATVs) be added to the list of prohibited machinery because, as the CLC reported “The serious hazards of operating ATVs have been extensively documented.” Neither commenter provided any data or insight regarding how extensively ATVs are used by youth in nonagricultural employment or whether the documented hazards resulted in occupational injuries. The CLC also recommended that the proposed § 570.33 include an introductory statement reinforcing the principle detailed in § 570.32 (new) that all work that is not specifically permitted is prohibited.

The YWN also recommended that the Department specifically list “bladed blenders used to chop food items such as cookies or candy with ice cream to make ice cream desserts” as a prohibited machine in the revised § 570.33(e) as that subsection already prohibits the operating or tending of food grinders, food choppers, and cutters (

see

§ 570.34(b)(6) (old)).

The National Council of Chain Restaurants (the Council), which described itself as a national trade industry group representing the interests of the nation's largest multi-unit, multi-state chain restaurant companies, requested that the proposed § 570.33(e) include additional language which would emphasize that 14- and 15-year-olds would continue to be permitted to operate all those pieces of kitchen equipment listed in § 570.34(a)(7) (old) once the Final Rule becomes effective.

The Council commented that it believes table top food processors and food mixers pose little risk of harm to the safety and well-being of 14- and 15-year-olds and questions why the Department continues to prohibit such youth from operating them (

see

§ 570.34(b)(6) (old) and § 570.33(e) (new)). The Council submitted no data to substantiate this comment.

The Director of the Labor Standards and Safety Division of the Alaska State Department of Labor and Workforce

Development (DOLWD) also supported the consolidation and listing of prohibited equipment with some exceptions. The DOLWD recommended that 14- and 15-year-olds should be permitted to operate weed eaters that use monofilament line (but not weed eaters that use metal blades) provided adequate eye and hearing protection are in place. That same office recommended that such youth be permitted to operate certain small, residential-sized washing machines and dryers when all safety equipment is properly installed.

The Department has carefully reviewed the comments and has decided to adopt the proposal, as presented, with one modification. The Department will add ATVs to the list of prohibited equipment presented in the revised § 570.33(e) (new) as recommended by the AFL-CIO and CLC. As power-driven equipment, ATVs were, and continue to be, included in the broad prohibitions of this subsection. In addition, because ATVs are

motor vehicles

as defined by § 570.52(c) (old and new), 14- and 15-year-olds would be prohibited from operating such equipment under § 570.33(c) (old) and § 570.33(f) (new). But because greater clarity and protections can be realized, the Department will add ATVs to the list of named equipment.

With regard to cooking and the use of kitchen equipment, the Department notes that it implemented new rules concerning the types of cooking that may be performed by 14- and 15-year-olds in its Final Rule published in the

Federal Register

on December 16, 2004 (69 FR 75382). That Final Rule limited permitted cooking duties to cooking (1) with electric or gas grills which does not involve an open flame (

see

§ 570.34(b)(5)(i) (old) and § 570.34(c) (new)), and (2) cooking with deep fryers that are equipped with and utilize a device which automatically lowers the baskets into the hot oil or grease and automatically raises the baskets from the hot oil or grease (

see

§ 570.34(b)(5)(ii) (old) and § 570.34(c) (new)). The 2004 Final Rule, however, did not change the types of equipment and devices that 14- and 15-year-olds were permitted to, and continue to be permitted to, operate in accordance with § 570.34(a)(7) (old) and § 570.34(i) (new). The list of permitted equipment includes, but is not limited to, dishwashers, toasters, dumbwaiters, popcorn poppers, milk shake blenders, coffee grinders, automatic coffee machines, devices used to maintain the temperature of prepared foods, and microwave ovens that do not have the capacity to warm above 140 °F.

Although there may have been some confusion among employers, the Department has long interpreted the term

toaster

to mean that type of equipment that was generally found in snack bars and lunch counters when Reg. 3 was issued and used to toast such items as slices of bread and English muffins. This includes such equipment as the two- or four-slice “pop-up” toasters similar to those manufactured for home use and the conveyor-type bread toaster now often found at self-service breakfast buffets. Broilers, automatic broiler systems, high speed ovens, and rapid toaster machines used at both quick service and full-service restaurants to toast such items as buns, bagels, sandwiches, and muffins—all of which operate at high temperatures, often in excess of 500 °F—are not

toasters

under § 570.34(a)(7) (old) and § 570.34(i) (new) and minors generally must be at least 16 years of age to operate them.

There has also been some confusion among employers as to what constitutes a

milk shake blender

under Reg. 3. The Department has long interpreted this term to mean that type of equipment that was generally found in snack bars and lunch counters when Reg. 3 was issued and used to prepare a “to-order” milk shake for an individual customer. Such equipment required that the worker place the ice cream, milk, and flavorings in a stainless steel mixing cup that generally has a maximum capacity of 20 ounces. The cup was then positioned on the machine so that the single spindle—with an aeration disk or disks mounted at the bottom—could blend the milk shake. Some permitted milk shake blenders had more than one spindle so multiple products could be processed simultaneously. Most of these blenders were free standing counter-top models while others were incorporated into other equipment such as milk dispensers. These are the types of milk shake blenders that 14- and 15-year-olds may operate under Reg. 3.

Except as described below, other types of blenders, mixers, and “blixers”—used for a variety of food preparation operations including the blending of milk shakes—continue to be prohibited to that age group. Such prohibited equipment often have containers or mixing chambers that exceed a 20-ounce capacity—some can accommodate up to 60 quarts. In addition, some of this prohibited equipment, when used to process meat or mix batter—with or without the use of special “attachments”—may not be operated by employees under the age of 18 because of the prohibitions of HO 10 or HO 11, respectively.

The Department has also included certain countertop blenders used to make beverages such as milk shakes, fresh fruit drinks, and smoothies within the term

milk shake blender

as used in Reg. 3. Such machines generally consist of a base motor that supports a glass jar. The blending blades are attached, often permanently, to the bottom of the glass jar. Operators place the glass jar on top of the base, place the ingredients in the jar, affix the lid to the jar, press the appropriate button or switch, and blend the product. The permitted blenders are identical to models used in private homes, generally do not operate at more than 600 watts, and have jar capacities that do not exceed 8 cups (64 ounces). As with the blenders discussed above, their operation by minors under the age of 18 is prohibited under HO 10 when used to process meat.

For these reasons, the Department does not agree with the YWN's understanding that the existing regulation prohibits 14- and 15-year-olds from operating blenders that create ice cream desserts as the Department has previously opined that this equipment is a type of “milk shake blender” which has long been permitted by § 570.34(a)(7) (old) and will continue to be permitted by § 570.34(i) (new).

The Department also notes that Reg. 3 has for many years prohibited young workers from operating compact power mixers or blenders, also know as “immersible wands” and “immersion blenders,” used for such tasks as liquefying soups and sauces and pureeing fruits, meats, and vegetables. Such equipment is often used in kitchens and by dietary aides at hospitals and nursing homes. The use of such equipment would also be prohibited by HO 10 when the mixer or wand is equipped with knives, blades, or cutting tools designed for use on meat and poultry.

The Department did not propose to prohibit, and the Final Rule does not prohibit, 14- and 15-year-olds from operating espresso machines as recommend by the YWN, the AFL-CIO, and the representative of the Billings, Montana Job Service. Section 570.34(a)(7) (old) specifically includes automatic coffee machines on the list of equipment that 14- and 15-year-olds may operate (

see

§ 570.34(i) (new)). The Department has previously opined that espresso makers and cappuccino makers are types of automatic coffee machines and therefore 14- and 15-year-olds are permitted to operate them under the provisions of Reg. 3. The Department notes that the YWN's comment that the temperature reached by espresso makers “exceeds the temperature limits

established for prohibiting use of other equipment such as anything related to hot oil that exceeds a temperature of 100 degrees F” does not comport with either the previous or revised provisions of Reg. 3. The temperature of 100° F, when presented in § 570.34(a)(7) (old) and § 570.34(i) (new), does not apply to the operation of kitchen equipment or to such permitted activities as cooking with certain grills or deep fryers. Instead, these subsections state that the minors are permitted to “clean kitchen equipment (not otherwise prohibited), remove oil or grease, pour oil or grease through filters, and move receptacles containing hot grease or hot oil, but only when the equipment surfaces, containers, and liquids do not exceed a temperature of 100 °F.”

The Department has decided not to adopt the Council's recommendation to revise Reg. 3 to permit 14- and 15-year-olds to operate table top food processors and food mixers as no such proposal was contemplated by the NPRM and no data has been received that demonstrates that 14- and 15-year-olds can safely operate such equipment. The Department does, however, address the issue of older youth operating certain counter-top mixers later in this Final Rule with regard to HO 11.

The Department does not accept the DOLWD's recommendation that Reg. 3 be revised to permit 14- and 15-year-olds to operate certain weed-eaters because of the potential for injury associated with the operation of such equipment. In fact, as discussed earlier, weed-eaters are among the equipment the Department is adding as an example of power-driven machinery such youth are prohibited from operating (

see

§ 570.33(e) (new)). The Department continues to be concerned about issues involving injuries to workers resulting from flying objects, burns, fuel safety, and improper ergonomics. In its Document #5108,

Weed Trimmers Can Throw Objects and Injure Eyes,

the U.S. Consumer Product Safety Commission estimated that, in 1989, there were approximately 4,600 injuries associated with power lawn trimmers or edgers that required emergency room treatment. It reported that about one-third of those injuries were to the eye. Nor does the Department accept DOLWD's recommendation to allow 14- and 15-year-olds to operate certain residential-style clothes washers and dryers. Not only is the operation of such power-driven machinery prohibited by § 570.33(b) (old) and § 570.33(e) (new), the laundering of clothes and other materials generally constitutes a “processing occupation” which is prohibited under § 570.33(a) (old and new).

Finally, the Department has determined that the Final Rule provides sufficient clarity that it is not necessary to adopt the CLC's recommended revision to the opening sentence of § 570.33 to repeat the statement contained in § 570.32 (“Employment that is not specifically permitted is prohibited.”). For the same reason, the Department has decided not to accept the Council's recommendation that § 570.33(e) be revised to emphasize that youth will continue to be permitted to operate all kitchen equipment they were permitted to operate prior to the adoption of this Final Rule, as the list of permissible kitchen equipment is set forth in § 570.34(i)(new).

2. Loading of Personal Hand Tools Onto Motor Vehicles and Riding on Motor Vehicles (§§ 570.33(f) and 570.34(b)(8))

Section 570.33(c) (old) prohibits the employment of 14- and 15-year-olds in the operation of motor vehicles or service as helpers on such vehicles. The term motor vehicle is defined in § 570.52(c)(1). The Department has interpreted the Reg. 3 prohibition regarding service as helpers on a motor vehicle to preclude youth under the age of 16 from riding anywhere outside the passenger compartment of the motor vehicle. Such youth may not ride in the bed of a pick-up truck, on the running board of a van, or on the bumper of a refuse truck. This interpretation dates back to at least the 1940 enactment of HO 2, which prohibits 16- and 17-year-olds from serving as outside helpers on motor vehicles.

The Department does not interpret the helper prohibition as applying to 14- and 15-year-olds who simply ride inside a motor vehicle as passengers and, thus, Reg. 3 permits a 14- or 15-year-old, under certain circumstances, to ride inside the enclosed passenger compartment of a motor vehicle operated by a driver whose employment complies with the conditions specified in HO 2. For example, a minor may ride in a motor vehicle to reach another work site where he or she will perform work, to receive special training or instructions while riding, or to meet other employees or customers of the employer. While a 14- or 15-year old may be a passive passenger in a vehicle, that same minor is not permitted to ride in a motor vehicle when a significant reason for the minor being a passenger is for the purpose of performing work in connection with the transporting—or assisting in the transporting—of other persons or property. Such work would include, for example, delivering items to a customer or assisting passengers with the loading and unloading of their luggage in conjunction with the operation of an airport shuttle van. This interpretation comports with the provision of § 570.33(f)(1) (old), which prohibits the employment of 14- and 15-year-olds in occupations in connection with the transportation of persons or property by highway. Performing work in connection with the transportation of other persons or property does not have to be the primary reason for the trip for this prohibition to apply.

The Department proposed to include its long-standing interpretation that prohibits 14- and 15-year-olds riding outside of motor vehicles in Reg. 3 at § 570.33(f) (new). The Department also proposed to revise Reg. 3 at § 570.34(o) (new) to permit 14- and 15-year-olds to ride in the enclosed passenger compartments of motor vehicles, except when a significant reason for the minors being passengers in the vehicle is for the purpose of performing work in connection with the transporting—or assisting in the transporting—of other persons or property. The proposal required that each minor must have his or her own seat in the passenger compartment, each seat must be equipped with a seat belt or similar restraining device, and the employer must instruct the minors that such belts or other devices must be used. These provisions mirror the requirements of the Drive for Teen Employment Act as contained in HO 2.

In addition, the Department's interpretation of prohibited helper services under § 570.33(c) (old), since at least the mid-1950s, has included the loading and unloading of materials from motor vehicles when the purpose of the operation of the vehicle is the transportation of such materials. Section 570.33(f)(1) (old) furthers this prohibition by banning the employment of minors in occupations in connection with the transportation of property by highway. Section 570.34(b)(8) (old) prohibits the employment of such youth by retail, food service, and gasoline service establishments to load or unload goods to and from trucks, railroad cars, or conveyors. These prohibitions are designed to protect young workers from the hazards associated with loading docks, motor vehicles, and receiving departments; strains from lifting and moving heavy items; and falls and falling items. Accordingly, 14- and 15-year-olds generally have been prohibited from loading and unloading any property (not just “goods”) onto and from motor vehicles, including the light personal hand tools they use in performing their duties.

In 2000, the Department was requested by a municipality (the City) to review certain aspects of the prohibitions against employing 14- and 15-year-olds to load onto and unload items from motor vehicles. The City advised the Department that, even with the adoption of the enforcement position that permits state and local governments to employ minors under certain conditions, it was being forced to abandon a youth-employment program that provided 14- and 15-year-olds with certain jobs because of the prohibition against loading materials into vehicles. The City specifically requested permission to allow such minors to load and unload, onto and from motor vehicles, the light, non-power-driven tools each youth would personally use as part of his or her employment. The Department carefully considered this request and, again using its prosecutorial discretion, decided that it would not assert a violation of the child labor provisions when 14- and 15-year-old employees of state and local governments loaded and unloaded the light non-power-driven hand tools—such as rakes, hand-held clippers, and spades—that they personally use as part of their employment. The City was advised that this enforcement policy did not extend to other prohibited transportation-related work such as the loading or unloading of materials other than the light hand tools the minors may use on-the-job, such as trash or garbage, or power-driven equipment such as lawn mowers, edgers, and weed trimmers—the use of which by this age group is prohibited under Reg. 3.

The Department proposed to revise Reg. 3 at new §§ 570.33(f) and (k) and 570.34(k) to incorporate the enforcement position that allows 14- and 15-year-olds to be employed to load onto and unload from motor vehicles the light non-power-driven personal hand tools they use as part of their employment and to make it available to all covered employers, not just state and local governments. Such light non-power-driven hand tools would include, but are not limited to, rakes, hand-held clippers, shovels, and brooms, but would not include items like lawn mowers or other power-driven lawn maintenance equipment. In addition, such minors would be permitted to load onto and unload from motor vehicles any personal protective equipment they themselves will use at the work site and any personal items such as backpacks, lunch boxes, and coats their employers allow them to take to the work site. Such minors would not be permitted to load or unload such jobsite-related equipment as barriers, cones, or signage.

The Department received four comments addressing the proposal regarding riding on motor vehicles. The AFL-CIO and the DOLWD supported this proposal as written. The YWN supported the proposal with additional requirements. The YWN recommended that the proposed requirements that each seat occupied by a minor be equipped with a seat belt or similar restraining device and that the employer instruct the minors that such belts or other device must be used so that the employer is required to ensure that the seat belt or other device is actually used. In addition, the YWN would require that the driver of the vehicle transporting the minors have a valid driver's license. The CLC objected to the Department's proposal, stating that it did not have sufficient information on the underlying rationale for the proposed change to adequately comment on it. The CLC did, however, recommend that the seat restraining devices should “be required to be manufacturer-issued and not homemade, and the employer should be required to `ensure,' and not just `instruct' that the restraining devices be used by the children.”

The Department received four comments concerning the loading of personal hand tools onto motor vehicles at § 570.34(k) (new). The AFL-CIO supported the proposal as written. The CLC again stated that it did not have enough information to adequately comment on the proposal. The YWN agreed with this proposal with the added requirements that “[w]ritten permission from parent or legal guardian is required to permit employer to transport 14- and 15-year-olds and a copy of written permission must be maintained by employer” and “[a] minor cannot be abandoned at worksite without adult supervision.” The DOLWD supported the proposal provided adequate safety provisions were in place. The DOLWD stated that “[t]hese provisions would include that the vehicle shall not be running and must be properly secured with the wheels blocked during any loading and unloading operations.”

After carefully considering all the comments, the Department has decided to adopt the proposal as originally written, with one modification and minor editorial changes. The Department noted in its 2007 NPRM that it did not interpret the Reg. 3 helper prohibitions as applying to 14- and 15-year-olds who ride inside the enclosed passenger compartment of a motor vehicle when driven by a driver whose employment complies with HO 2 under specified conditions (

see

72 FR 19343). The Department believes this long-standing important safety-affecting interpretation requiring compliance with HO 2 should be included in the regulatory language. In addition, the Department believes that the drivers of the vehicles transporting the young workers should, as recommended by the YWN, hold valid state drivers' licenses. Accordingly, the Department has added the following sentence at the end of § 570.34(o):

In addition, each driver transporting the young workers must hold a State driver's license valid for the type of driving involved and, if the driver is under the age of 18, his or her employment must comply with the provisions of § 570.52.

While the Department appreciates the remaining safety-affecting recommendations made by the YWN, CLC, and DOLWD, it believes the provisions of the original proposal, when coupled with other existing state and federal provisions dealing with the safe operation of motor vehicles, will provide ample protections to young workers. In addition, when drafting the proposal regarding youth riding as passive passengers in motor vehicles, the Department looked for guidance for establishing the criteria regarding the use of seat belts or other safety restraining devices. The most recent guidance came from Congress with the enactment of The Drive for Teen Employment Act, Public Law 105-334, in 1998. This legislation added section 13(c)(6) to the FLSA, which permits 17-year-olds to perform certain limited on-the-job driving under very specific conditions. One such condition is that the vehicle be equipped with a seat belt for the driver and any passengers and that the young driver's employer has instructed the youth that the seat belts must be used when driving the vehicle. The Department believes by adopting in Reg. 3 the identical language contained in HO 2 (

see

§ 570.52(b)), it not only provides a high degree of protection to young workers but also avoids potential confusion.

3. Work in Meat Coolers and Freezers (§ 570.34(b)(7))

Section 570.34(b)(7) (old) prohibits 14- and 15-year-olds from working in freezers and meat coolers. Since this section's inception, the Department has interpreted it to mean that such youth are prohibited from working as dairy stock clerks, meat clerks, deli clerks, produce clerks, or frozen-food stock clerks where their duties would require them to enter and remain in the freezer or meat cooler for prolonged periods.

Inventory and cleanup work, involving prolonged stays in freezers or meat coolers, are also prohibited. On the other hand, the Department has adopted an enforcement position since at least 1981 that counter workers in quick service establishments or cashiers in grocery stores whose duties require them to occasionally enter freezers only momentarily to retrieve items are not considered to be working in the freezers. In order to provide clarification, the Department proposed to incorporate this long-standing interpretation into the regulations at § 570.33(i) (new).

The Department received four comments on this proposal. The Council supported the proposal as written. The YWN not only disagreed with the proposal but suggested that the current prohibitions detailed at § 570.34(b)(7) (old) be expanded to include “any freezer or cooler regardless of product, including but not limited to meat, seafood, poultry or other produce.” The AFL-CIO supported the proposal but suggested that employers be required to keep the door open while the minor was inside the freezer, that the freezer door be equipped with an emergency release mechanism to ensure the youth can escape if the door is mistakenly shut, and that the employer provide unobstructed entry to and egress from the freezer. The CLC also made the same three recommendations as the AFL-CIO and stated that “[e]ven if DOL's Occupational Safety and Health Administration (OSHA) has similar rules, these should be incorporated into the child labor regulations so that a DOL Wage and Hour Division inspector could assert a child labor violation rather than having the employer face two inspections, one by the Wage and Hour Division and another by OSHA.”

The Department has carefully reviewed the comments and has decided to adopt the proposal as originally written with a conforming clarification in § 570.34(i). Even though, under this rule, 14- and 15-year-olds may only occasionally enter freezers momentarily to retrieve items (

see

§ 570.33(i) (new) and § 570.34(i) (new)), requiring that the door be kept open while they are inside the freezer could be unnecessarily burdensome in that, for energy efficiency and food sanitation, most freezers are equipped with self-closing doors. We note, as reported by the CLC, that OSHA, which is the recognized expert in occupational safety and health issues, already has in place important safety standards addressing emergency release mechanisms, panic bars, and unobstructed paths in the workplace—and that these standards protect all workers, not just those under the age of 16. The Department believes that all these additional safety requirements, when coupled with the provisions of the revised § 570.33(i), adequately protect young workers who momentarily enter freezers. WHD and OSHA, as recommended by the CLC, will continue their partnership to leverage the education and outreach efforts and enforcement actions of each agency. Finally, the YWN's recommendation that the proposal be expanded to include specific items being stored in the freezer or cooler, such as seafood and poultry, is unnecessary because, as discussed above, § 570.33 is a non-exhaustive list that only sets forth common examples of prohibited occupations.

4. Youth Peddling

The Department proposed to amend Reg. 3 and create § 570.33(j) to ban the employment of 14- and 15-year-old minors in occupations involving youth peddling, also referred to as “door-to-door sales” and “street sales.” Controversies regarding young children conducting commercial sales of items, often on a “door-to-door” basis, are not new. The Department has over the years documented reports of minors, many as young as 10 or 11 years of age, working as part of mobile sales crews, selling such items as candy, calendars, and greeting cards for profit-making companies. Injuries, and even deaths, have occurred as the result of young children engaging in youth peddling activities. The door-to-door sales industry employing these minors generally is composed of a number of crew leaders who, during the course of a year, operate in many different states. The crew leaders, who often have ties to regional or national businesses, mistakenly claim that they and their young sales crews are independent contractors. Typically, a crew leader attempts to saturate a particular area with sales crews, make as many sales as possible, and then quickly move to a new location. Crews often work from late afternoon to late at night as that is when most of the potential customers are likely to be at home. Because youth peddlers typically qualify as outside sales employees under FLSA section 13(a)(1), they are usually exempt from the minimum wage and overtime requirements of the FLSA (

see

29 CFR 541.500).

Congressional hearings and the Department's enforcement experience have shown that the problems associated with children performing door-to-door sales and street sales are numerous. These youth are often transported by crew leaders in vans, which fail to meet proper safety and insurance requirements, to areas quite distant from their home neighborhoods. They are often required to work many hours on school nights and late into the evening. These minors are frequently placed by employers, without adult supervision, at subway entrances, outside large office buildings, at high-traffic street corners, and on median strips at busy intersections where they can attract potential customers. Reports of children being abandoned, suffering injuries from violence and motor vehicle crashes, and being exposed to the elements have been substantiated. Youth have been injured and have died as a result of these activities. Intimidation by crew leaders is commonly reported.

In 1987, the permanent Subcommittee on Investigations of the Committee on Governmental Affairs of the United States Senate held hearings on the Exploitation of Young Adults in Door-to-Door Sales. The hearings included a staff study that documented many abuses that had occurred in this industry, including indentured servitude, physical and sexual abuse, and criminal activity. In 1998, the Interstate Labor Standards Association created a subcommittee to work towards ending door-to-door sales by children and recommended that the Department of Labor act as a national clearinghouse regarding information concerning door-to-door sales operations. In response to the 1994 ANPRM issued by the Department, calls for banning door-to-door sales by those under 18 years of age were received from the National Consumers League, the Defense for Children International, USA, and the Food and Allied Service Trades Department, AFL-CIO. At least 17 states have rules prohibiting or regulating door-to-door sales by minors.

The Department's proposal to prohibit youth peddling was not limited to just the attempt to make a sale or the actual consummation of a sale, but includes such activities normally associated with and conducted as part of the individual youth peddler's sales activities, such as the loading and unloading of vans or other motor vehicles, the stocking and restocking of sales kits and trays, the exchanging of cash and checks, and the transportation of minors to and from the various sales areas by the employer.

As used here, the terms youth peddling, door-to-door-sales, and street sales do not include legitimate fund-raising activities by eleemosynary organizations such as cookie sales conducted by the Girl Scouts of America or school fund-raising events where the

students are truly volunteers and are not promised compensation for the sales they make. The term compensation would not include the small prizes, trophies, or other awards of minimal value that the eleemosynary organization may give a volunteer in recognition of his or her fund raising efforts. In administering the FLSA, the Department does not consider such individuals, who volunteer or donate their services, usually on a part-time basis, for public service, religious, or humanitarian objectives, without contemplation of pay, to be employees of the religious, charitable, or similar nonprofit corporations that receive their services. In addition, FLSA section 3(e)(4)(A) excludes from the definition of “employee” individuals who volunteer to perform services for public agencies. These provisions apply equally whether the volunteer is an adult or a minor.

The Department received five comments on this proposal. One private citizen, who submitted his comment to the electronic docket for the ANPRM published on April 17, 2007, was the only commenter to oppose the proposal. This commenter stated that through door-to-door sales “many kids learn how to be confident and build communication skills with adults.”

The DOLWD supported this proposal and noted that Alaska State regulations restrict any worker under the age of 18 from working in door-to-door sales. The YWN, the AFL-CIO, and the CLC also supported this proposal and recommended that the prohibitions against youth peddling be extended to the employment of 16- and 17-year-olds.

In addition, the YWN recommended that the Department amend the first sentence of proposed § 570.33(j) to prohibit sales by youth “in front or around the outside of retail establishments” as “many youth peddle wares outside grocery stores, large chain or box stores, etc.” The YWN also recommended that the Department not use the term “eleemosynary” in the regulations but replace it with “plain English words, such as `non-profit, religious or charitable organizations' to assure understanding by all parties.”

The YWN assumed that the Department's proposal would also ban the employment of 14- and 15-year-olds to perform sign waving, “including holding or carrying of any type, posing or acting as a sign not directly in front of a retail establishment, or where no direct supervision exists” (emphasis in original). The YWN recommended that such sign waving activities also be prohibited along public roads and grassy areas or median areas next to public streets or traffic. The CLC stated that it is not clear whether such sign waving activities would be prohibited under the Department's proposal.

The CLC recommended that the proposal clarify where young employees of retail establishments may legally make sales. The CLC assumed that the youth-employer's establishment “means inside or directly outside the establishment, but not away from the establishment, such as on a street corner or parking lot. This should be made more explicit by barring youth peddling `in front or around the outside of the establishment.'” Finally, the CLC noted the Department's statement that youth peddlers performing outside sales are usually exempt from the minimum wage and overtime provisions of the FLSA and took issue with the Department's failure to ban peddling by 16- and 17-year-olds as well. The CLC commented that “DOL's approach here hardly comports with its stated desire to balance `the benefits of employment opportunities with the necessary and appropriate safety protections' (72 FR 19337). The benefits of an employment opportunity in which the children experiencing it are `usually' not entitled to minimum wage or overtime pay are difficult to understand.”

The Department has carefully reviewed the comments and has decided to adopt the proposal with certain clarifying modifications. The Department appreciates the concerns raised by the YWN, the AFL-CIO, and the CLC regarding the scope of the term

youth-employer's establishment.

Under § 570.33(j) as originally proposed, a retail establishment that sets up an outside sales center to sell such things as garden supplies, plants, outdoor furniture, portable grills, Christmas trees, etc., that participates in a retailer association neighborhood “sidewalk sale” event, or that routinely displays its wares outside its building may question whether it could use its young sales staff in such endeavors. In order to eliminate confusion and provide clarity, the Department has added a statement to § 570.33(j) noting that the ban on youth peddling does not prohibit a young salesperson from conducting sales for his or her employer on property controlled by the employer that is out of doors but may still properly be considered part of the employer's establishment. Fourteen- and 15-year-olds may conduct sales in such employer's exterior facilities, whether temporary or permanent, as garden centers, sidewalk sales, and parking lot sales, when they are employed by that establishment.

The Department agrees with the recommendations of both the YWN and CLC that the regulatory text be revised to specifically state that 14- and 15-year-olds may not be employed as sign-wavers, promoting particular products, services, or events, except when performing the sign waving activities directly in front of an establishment providing the product, service or event. Because sign wavers and those hired to wave or hold up other products, or wear placards, sandwich boards, or costumes to attract potential customers are exposed to many of the same dangers associated with youth peddling, the following sentence has been added to § 570.33(j): Prohibited youth peddling also includes such promotion activities as the holding, wearing, or waving of signs, costumes, sandwich boards, or placards in order to attract potential customers, except when performed inside of, or directly in front of, the employer's establishment providing the product, service, or event being advertised.

The Department appreciates the concerns of those commenters who recommended that the ban on youth peddling should be extended to all youth under the age of 18 years, but considers such a change too substantive to adopt without additional rulemaking. The Department notes that the NIOSH Report, after carefully reviewing the available data, did not include youth peddling as one of the 17 occupations warranting the creation of a new Hazardous Occupations Order (HO). However, the Department appreciates the AFL-CIO's recommendation that “DOL begin gathering the necessary data to substantiate and justify the need for extension of this coverage for future proposed regulations as quickly as possible.”

Finally, with regard to the CLC's comment regarding wages, the fact that youth who conduct door-to-door sales usually are exempt from the minimum wage and overtime provisions of the FLSA in no way detracts from the Department's stated objective to develop updated, realistic health and safety standards for today's young workers that are consistent with the established national policy of balancing the benefits of employment opportunities for youth with the necessary and appropriate safety protections. When Congress enacted the FLSA in 1938, it created section 13(a)(1), which provides a complete exemption from the minimum wage and overtime provisions for employees employed in the capacity of outside salesman. The definition of that term, contained in 29 CFR 541.500, applies regardless of the age of the

employee and clearly includes youth peddlers as described in § 570.33(j) (new). The FLSA, as amended, includes other exemptions from the minimum wage and overtime provisions that impact jobs often performed by young workers, such as those contained in section 13(a)(3) (involving employees employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or non-profit educational conference center); section 13(a)(15) (involving any employee employed on a casual basis in domestic service employment to provide babysitting services); and section 13(d) (involving any employee engaged in the delivery of newspapers to the consumer). The Department cannot enforce a minimum wage requirement for employees whom the Congress has statutorily exempted from the minimum wage and overtime provisions of the FLSA. Nor can it ban certain employment for young workers solely because the employees engaged in such employment are exempt from the FLSA's minimum wage and/or overtime requirements. The Department notes that the exemption from minimum wage and overtime contained in section 13(a)(1) for outside salespeople does not apply to individuals employed solely to wave signs or wear placards, sandwich boards, or costumes to attract potential customers as such promotion work is not performed in conjunction with sales actually made by those individuals (

see

§ 541.503).

5. Poultry Catching and Cooping

The Department has long taken the position that 14- and 15-year-olds may not be employed to catch and coop poultry in preparation for transportation or for market because it is a “processing” occupation prohibited by § 570.33(a) (old and new). Such employees are often referred to as “chicken catchers” or “poultry catchers.” In addition, the prohibitions against operating or tending power-driven equipment contained in § 570.33(b) (old) and § 570.33(e) (new) and the prohibition against employment in occupations in connection with the transportation of property contained in § 570.33(f)(1) (old) and § 570.33(n)(1) (new) generally preclude the employment of such youth as poultry catchers. These activities are normally performed in environments and under conditions that present risks of injury and illness to young workers. Working in the dark, with the only illumination provided by “red lights” which the fowl cannot see, and in poorly ventilated rooms, is not uncommon. The risks associated with poultry catching also occur in the catching and cooping of poultry other than chickens—for example, processors of turkeys and Cornish game hens employ similar methods of moving their products to slaughter.

Despite the Department's consistent interpretation that 14- and 15-year-olds may not be employed as poultry catchers, employers still have questions concerning how the regulations address such work, and violations still occur. For example, the Department investigated the death of a 15-year-old male in 1999 who was employed as a poultry catcher, working in the dark and under red lighting, in Arkansas. The youth was electrocuted shortly after midnight when he bumped into a fan while performing his “catching” duties. In order to remove any confusion and increase employer compliance, the Department proposed to amend Reg. 3 and create § 570.33(l) to specifically prohibit the employment of 14- and 15-year-old minors in occupations involving the catching and cooping of poultry for preparation for transport or for market. The prohibition would include the catching and cooping of all poultry, not just chickens.

It is important to note that in those rare instances when the catching activities would be agricultural in nature, such as where poultry catchers are employed solely by a farmer on a farm to catch poultry raised by that farmer, the catchers would be subject to the agricultural child labor provisions contained in FLSA sections 13(c)(1) and (2).

The Department received three comments on this proposal. The YWN, AFL-CIO, and CLC all supported the proposal as written. The CLC stated that it welcomes the change as this work is plainly too hazardous for 14- and 15-year-olds to perform. The Department is adopting this proposal as written with one grammatical change.

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

As mentioned, section 3(l) of the FLSA expressly prohibits children under the age of 16 from performing any work other than that which the Secretary of Labor permits, by order or regulation, upon finding that it does not interfere with their schooling or health and well-being (

see

29 U.S.C. 203(l)). Before a 14- or 15-year-old may legally perform work covered by the FLSA, the Act requires that the work itself be exempt, or that the Secretary of Labor has determined that the work to be performed does not constitute oppressive child labor. The Secretary's declarations of what forms of labor are not deemed oppressive for children between the ages of 14 and 16 appear in Reg. 3 (29 CFR 570.31-.37) (old).

Reg. 3 identifies a number of occupations or activities that are specifically permitted for the employment of youth 14 and 15 years of age in retail, food service, and gasoline service establishments. As mentioned, the Department proposed to revise this list of permitted occupations by clarifying it, adding to it, and extending its application to all employment covered by the FLSA, except those employers engaged in mining or manufacturing, or any industry or occupation prohibited by the proposed § 570.33. This revised list will be contained in § 570.34 in the Final Rule.

The Department received six comments concerning the revision of the list of permitted occupations and/or the expansion of the list to include establishments other than retail, food service, and gasoline service. Two of the commenters made recommendations that are beyond the purview of the Department as they would require changes to the statute. The DOLWD recommended that the Department focus on identifying the specific areas and occupations where work is prohibited and eliminate the specific provisions concerning where work is permitted. A representative of an educational management company called White Hat Management, LLC (White Hat) recommended that the FLSA's blanket prohibition against 14- and 15-year-old being employed in manufacturing occupations should be relaxed, stating that “in today's day and age when so many manufacturing jobs are automated and operated by computers or buttons, that a blanket prohibition for manufacturing employment hardly seems appropriate.” Such recommendations do not comport with the FLSA's statutory directive that 14- and 15-year-olds may not be employed in manufacturing or mining occupations and may only hold such employment that the Secretary has determined, by regulation or order, does not constitute oppressive child labor (

see

29 U.S.C. 203(l)).

The AFL-CIO, YWN, and CLC all expressed concern about this proposal, stating that such sweeping changes would allow 14- and 15-year-olds to work in many more industries, and they recommended that the Department conduct further analysis. They specifically mentioned and questioned the efficacy of permitting youth employment in particular industries and employment situations.

The AFL-CIO, YWN, and CLC also noted that this proposal would allow

youth to perform janitorial and clean-up work, work already permitted within retail, food service, and gasoline service establishments by § 570.34(a)(6) (old), in additional types of establishments. They stated that such employment includes the potential for exposure to hazardous and toxic chemicals or to bloodborne pathogens, particularly in medical and dental offices, hospitals and nursing homes, and when youth accept employment with professional janitorial services. There were also concerns that 14- and 15-year-olds could now become full-time janitors and spend an entire shift performing cleaning duties.

In addition, the CLC interpreted this proposal as having a major impact on messenger services. It stated that because § 570.33(d) (old) and § 570.33(m) (new) prohibit the employment of 14- and 15-year-olds by a public messenger service, adoption of this proposal implies that employment of such youth by a private messenger service would be permitted. The CLC described

private messenger services

as those that “have standing contracts with law firms, accounting firms, and other types of businesses” to deliver documents or packages. The CLC stated “[a]ny reasonable person who has seen such couriers rushing through city streets, dodging cars, pedestrians, and other cyclists to deliver important documents, would shudder to think that 14- and 15-year-olds would be able to do this work, if DOL's proposal becomes the final regulation.”

The CLC stated that adoption of this proposal would allow 14- and 15-year-olds to perform office work for such employers as accounting firms, advertising agencies, mass mailing businesses, insurance companies, and many similar businesses. It expressed concerns that office equipment, such as large paper shredders and data processing machines with exposed moving parts, may present hazards to young workers. In addition, the CLC noted that such minors would be permitted to work up to eight hours a day and up to forty hours a week at computers, typing or inputting data, during non-school weeks.

Finally, a representative of the Coosa Valley Regional Development Center requested that 14- and 15-year-olds be permitted to be employed in painting activities because the “paint products in use today do not contain lead or other hazardous materials.” She stated that prohibiting this age group from painting activities restricts their employment activities. She recommended that the prohibitions involving the use of ladders and scaffolds by this age group be retained.

The Department has carefully reviewed all the comments and has decided to adopt the proposal as written. The concerns of the AFL-CIO, YWN, and CLC about increased youth employment in several industries, such as dry cleaning and laundry services, treating and disposing of waste, mass mailing enterprises, and the painting of houses and automobiles, are unfounded. This is because § 570.33(a) (old and new) prohibits the employment of 14- and 15-year-olds in almost all occupations involving processing operations—which the Department has interpreted to include dry cleaning and laundering, the treating and disposing of waste, the conducting of mass mailings, and the painting of houses and automobiles. The Department does not believe it is appropriate to overturn the long-standing prohibitions against 14- and 15-year-olds being employed in construction or processing occupations by accepting the recommendation of the Coosa Valley Regional Development Center to allow such youth to perform painting activities.

In addition, § 570.33(a) (old and new) provides additional protections as it prevents the employment of such youth in work places where goods are manufactured, mined, or otherwise processed. Fourteen- and 15-year-olds could not be employed to clean such work places, even after hours, because of WHD's long-standing interpretation that a work place retains its character—and child labor continues to be prohibited—even at times when nothing is being mined, processed, or manufactured. It is also important to note that all the prohibited occupations detailed in § 570.33 (new) would be applicable to the employment of 14- and 15-year-olds, regardless of the industries in which they are employed.

The Department appreciates and understands the commenters' concerns about the potential occupational exposure of young workers to hazardous and toxic chemicals or to bloodborne pathogens. The Department believes that the standards established by OSHA to address such potential exposures, which are continually under agency review, provide vigorous protections to all workers. The WHD is also reviewing prohibitions regarding the potential exposure of young workers to ionizing radiation, as reflected in the publication of the 2007 ANPRM.

The Department would also note that, as mentioned by the CLC, 14- and 15-year-olds have been permitted to be employed by hospitals and nursing homes for many years. This is because historically such facilities, when open to the general public, have been considered to have a retail concept. The Department continues to issue full-time student subminimum wage certificates to such employers under FLSA section 14(b) because of their retail character. In addition, such youth have been permitted to be employed, and have been safely employed, as janitors at many retail and food service establishments over the years, including department stores, hotels, amusement parks, restaurants, and large discount stores.

It is important to note that the CLC is incorrect in its assumption that this proposal would permit the employment of 14- and 15-year-olds by messenger service firms that “have standing contracts with law firms, accounting firms, and other types of businesses” to deliver documents or small packages. The Department has opined, as early as 1989, that the term

public messenger service

involves that delivery service rendered to a company which takes messages, small parcels, etc. from one party for delivery to another party. The public messenger goes between two parties, neither of whom is necessarily known to the messenger. The term

public

in this context refers to the customers being served and not the nature of the ownership of the firm. Accordingly, a 16-year minimum age is required for employment in such messenger services. The CLC is correct in its interpretation that 14- and 15-year-olds are permitted under § 570.34(a)(4) (old) and § 570.34(g) (new) to perform errand and delivery work by foot, bicycle, and public transportation for their employers when their employers are not engaged in the business of providing messenger services to others.

The Department agrees with the CLC that the adoption of this proposal will allow 14- and 15-year-olds to be employed to perform office work for such employers as accounting firms, advertising agencies, and insurance companies; and that such youth could, under the proper circumstances, work as many as eight hours in a day and forty hours in a week when school is not in session. The Department, however, does not agree that such an expansion of positive youth opportunities is improper or in any way fails to comport with the requirements and spirit of FLSA section 3(l). Office work continues to be one of the safest occupations available to young workers. Moreover, this rule does not change the limitations on the number of hours per day or per week that 14- and 15-year-olds may work when school is not in session.

The Department also proposed to revise § 570.34(a)(8) (old) by clarifying that 14- and 15-year-olds may perform car cleaning, washing, and polishing, but only by hand (

see

§ 570.34(n) (new)). Such youth are prohibited from operating or tending any power-driven machinery, other than office equipment, and this prohibition has always included automatic car washers, power-washers, and power-driven scrubbers and buffers. The Department believes this clarification will provide guidance to employers.

The Department received three comments on this proposal. The YWN supported the proposal as written. The CLC supported this proposal but again expressed concern based on its erroneous assumption that such youth could be employed to paint automobiles. The National Automobile Dealers Association (NADA) took “

strong exception to this ‘clarification’

” (emphasis in original). NADA stated that vehicle washing “anecdotally is known as

the

classic entry-level dealership employment activity * * * Vehicle cleaning, washing, and polishing activities commonly involve small portable power-washers and hand-tool buffers” (emphasis in the original). NADA stated that nowhere in the regulatory history of § 570.34(a)(8) or in the NIOSH Report has any suggestion been made that power-equipment-assisted motor vehicle cleaning, washing, and polishing activities pose “significant safety or health risks to 14- and 15-year-olds.” NADA also recommended that the word car in § 570.34(a)(8) (old) be replaced with the words motor vehicles so such youth may be permitted to wash additional types of motor vehicles such as SUVs, station wagons, and vans.

The Department has considered the comments and has decided to adopt the proposal as written. The Department believes this revision to be nothing more than a clarification of its long-standing interpretation of the regulations. Contrary to NADA's statement, Reg. 3, of which § 570.34(a)(8) is a part, has clearly stated in § 570.33(b) for many years that 14- and 15-year-olds may not be employed in “occupations which involve the operation or tending of hoisting apparatus or of any power-driven machinery other than office machines” (emphasis added). If employers have allowed FLSA covered and nonexempt 14- and 15-year-olds to wash or polish cars and trucks using power-driven washers or hand-tool buffers, they have done so in violation of the federal child labor provisions. The NIOSH Report did not mention the provisions of § 570.34(a)(8) because the Report dealt exclusively with HOs, which address work that is particularly hazardous or detrimental to the health and well-being of 16- and 17-year-old minors. Even if NADA had presented data supporting its statement that power-equipment-assisted motor vehicle washing and polishing poses “no significant safety or health risks to 14- and 15-year-olds,” the Department notes that such a standard is considerably more lax than the FLSA section 3(l) standard the Secretary must apply when determining permissible employment opportunities for such youth. Finally, the Department does not accept NADA's recommendation to expand § 570.34(a)(8) (old) to include all motor vehicles. The Department has long interpreted the term

cars and trucks

as used in § 570.34(a)(8) to include station wagons, SUVs, and passenger vans. The term does not include larger vehicles such as buses, tractor-trailers, and heavy-construction equipment—all of which would generally be considered motor vehicles under Reg. 3 and HO 2.

The additional occupations the Department proposed to permit 14- and 15-year-olds to perform are discussed below:

1. Work of a Mental or Artistically Creative Nature

The Department has routinely received inquiries asking whether 14- and 15-year-old youth may be employed to perform certain mental or artistically creative activities in industries not specifically permitted by Reg. 3. The inquiries have concerned such jobs as a computer programmer and computer applications demonstrator for a college, print and runway model, and musical director at a church or school. Often, these inquiries involved students who are especially gifted or career oriented in a particular field. A strict adherence to Reg. 3 requirements would not permit the employment of a 14- or 15-year-old in any of these scenarios, even though talented and motivated youth could safely and successfully perform these tasks without interfering with their schooling or health and well-being.

The Department proposed to revise Reg. 3 at § 570.34(b) (new) to permit the employment of 14- and 15-year-olds to perform work of a mental or artistically creative nature, such as computer programming, the writing of software, teaching or performing as a tutor, serving as a peer counselor or teacher's assistant, singing, playing a musical instrument, and drawing. Permitted work of a mental nature would be limited to work that is similar to that performed in an office setting and not involving the use of any power-driven equipment other than office machines. Artistically creative work would be limited to work in a recognized field of artistic or creative endeavor. The employment would be permitted in any industry other than those prohibited by Reg. 3 and would also be subject to all the applicable hours and times standards established in § 570.35 and the prohibited occupation standards contained in § 570.33.

The Department received comments from the YWN and CLC on this proposal. Both commenters supported the proposal, but made additional recommendations. The YWN suggested that the Department replace the word mental with intellectual, so that the phrase in the subsection would read “work of an intellectual or artistically creative nature.” The YWN recommended that, for work of an artistic nature, certain locations such as tattoo and body piercing establishments should be excluded due to the potential for exposure to bloodborne pathogens. The YWN also stated that the proposal should prohibit youth employed in artistic endeavors from performing work that would expose them to carcinogenic, toxic, or hazardous substances, or to high heat. “For example, 14- and 15-year-olds would be permitted to work on a pottery wheel, but would be prohibited from applying certain glazes and would be prohibited from any work on or around the high heats of a pottery kiln. Another example would be that 14- and 15-year-olds would be permitted to sculpt, but would be prohibited from welding and soldering or any functions that expose them to heat, or to height or other existing restrictions.” Finally, the YWN believed that some artistically creative work may “push the envelope on exploitative labor and/or prove detrimental to the morals of youth.”

The CLC also supported this proposal with additional comments and recommendations. The CLC noted that although the proposed § 570.34(b) contains the statement that artistically creative work is limited to work in a recognized field of artistic or creative endeavor, it does not define the term

artistic or creative endeavor.

The CLC correctly stated that another of the Department's regulations, 29 CFR 541.302(b), advises this term includes such fields as music, writing, acting, and the graphic arts. The CLC also expressed concerns that singing and the playing of musical instruments are often in demand “in bars, lounges, cabarets, and other places that 14- and 15-year-olds might best avoid. These and other settings could cause untoward effects on

such youngsters' moral health, even if not on their physical health and safety.”

The Department has carefully considered the comments and has decided to adopt the proposal with one modification. The Department agrees with the YWN that the word intellectual better comports with the intent of this proposal than the word mental. Accordingly, the Department is revising the proposed § 570.34(b) to reflect this suggested change.

The Department understands the concerns of both commenters as to the types of tasks young workers would be permitted to perform under the umbrella of “artistic or creative endeavors” and notes that it will rely on 29 CFR 541.302(b)—which limits the scope of this term to such fields as music, writing, acting, and the graphic arts—for guidance. The Department wishes to address concerns raised by the YWN by stating that it does not consider tattooing or body piercing performed by employees under the age of 16 years to be artistically creative endeavors under § 541.302(b).

The Department also notes that 14- and 15-year-olds who are employed in artistic or creative endeavors will continue to be prohibited from performing any of the occupations or tasks detailed in the revised § 570.33. These prohibitions, which include work in manufacturing and processing occupations, the operation of most power-driven equipment, and any duties in work rooms or work places where goods are manufactured or processed, should alleviate many of the concerns raised by the YWN and CLC. These prohibitions would prevent a 14- or 15-year-old from working in a factory or workroom as a “molder” or “hand painter” producing mass quantities of nearly identical pottery or ceramic items, but when coupled with this Final Rule, they would permit the youth to express his or her artistic talents to shape by hand a unique clay pot or sculpt a piece of art. Likewise, a 14- or 15-year-old could be employed, with all the safeguards of §§ 570.33-.35, as a painter of portraits but not as a painter of automobiles or houses. Similarly, a youth could be employed to create unique photographs that rise to the level of art, but would be prohibited from developing those photographs and working with the chemicals and solvents commonly used in such processing activities. In addition, the hours standards provisions of § 570.35 restrict the number of hours and times of day that 14- and 15-year-olds may be employed in any FLSA-covered work, including artistic or creative endeavors.

Finally, the Department appreciates the concerns of both the YWN and CLC that under the guise of “artistic or creative endeavors” some employers have attempted to employ youth in unsafe or unsavory lines of work that, as the commenters note, jeopardize the morals of the young workers. For example, the Department has encountered a situation involving the employment of very young females as “taxi-dancers” who were recruited and paid by bars and nightclubs to dance with male patrons, often late into the evening. The Department was able to quickly put an end to this unacceptable employment by not only enforcing the child labor and minimum wage provisions of the FLSA, but by partnering with local law enforcement authorities to ensure that city and state laws addressing community standards were enforced. The Department believes that the strict enforcement of such ordinances by the appropriate authorities will continue to be important supplements to the effectiveness of the federal child labor laws.

2. The Employment of 15-Year-Olds (But Not 14-Year-Olds) as Lifeguards

The Department proposed to revise Reg. 3 at § 570.34(l) to permit the employment of 15-year-olds as lifeguards at swimming pools and water amusement parks under certain conditions. A local chapter of the American Red Cross (Chapter) first raised this issue in 2000. The Chapter advised the Department that the Red Cross had revised its own rules and had begun certifying 15-year-olds as lifeguards. Prior to 2000, according to the Chapter, 16 years was generally the minimum age at which the Red Cross would provide such certification. The Chapter inquired as to whether Reg. 3 would permit the employment of 15-year-olds as lifeguards. Also in 2000, a municipality contacted the Department inquiring whether it could legally employ such youth as lifeguards at its city-owned swimming pools.

The occupation of lifeguard is not specifically authorized in Reg. 3 as an occupation that 14- and 15-year-olds may perform. In response to the inquiries, the Department adopted an enforcement policy in 2000 that allowed 15-year-olds (but not 14-year-olds) to be employed at swimming pools owned and operated by state and local governments or private-sector retail establishments under certain conditions. Those conditions included that the youth be trained and certified in aquatics and water safety by the Red Cross or by some similarly recognized certifying organization, and that the youth work under conditions acceptable to the Red Cross or some similarly recognized certifying organization. This enforcement position permitted such employment at swimming pools operated by hotels, amusement parks, cities, and state-owned universities, but did not permit such employment at pools operated by non-public and non-retail establishments such as apartment houses, country clubs, private schools, home-owner associations, and private health clubs. In early 2005, the Department, after reviewing additional information, extended this enforcement position to permit the employment of 15-year-olds as lifeguards at all traditional swimming pools regardless of who owns, operates or manages the establishments, and at those facilities of water amusement parks that constitute traditional swimming pools.

The Department proposed to revise Reg. 3 by creating § 570.34(l) to incorporate portions of the current enforcement position. The revision would permit 15-year-olds, but not 14-year-olds, to be employed as lifeguards, performing lifeguard duties, at traditional swimming pools and certain areas of amusement water parks operated by all types of employers, if the minors have been trained and certified by the Red Cross or a similarly recognized certifying organization.

The occupation of lifeguard, as used in this subpart, entails the duties of rescuing swimmers in danger of drowning, the monitoring of activities at a swimming pool to prevent accidents, the teaching of water safety, and assisting patrons. Lifeguards may also help to maintain order and cleanliness in the pool and pool areas, give swimming instructions, conduct or officiate at swimming meets, and administer first aid. Additional ancillary lifeguard duties may include checking in and out such items as towels, rings, watches and apparel. Permitted duties for 15-year-olds would include the use of a ladder to access and descend from the lifeguard chair; the use of hand tools to clean the pool and pool area; and the testing and recording of water quality for temperature and/or pH levels, using all of the tools of the testing process including adding chemicals to the test water sample. Fifteen-year-olds employed as lifeguards would, however, be prohibited from entering or working in any mechanical rooms or chemical storage areas, including any areas where the filtration and chlorinating systems are housed. The other provisions of Reg. 3, including the restrictions on hours of work contained at § 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 § 570.33(b) (old) prohibits the employment of 14- and 15-year-olds in occupations involving the operation or tending of power-driven machinery, except office machines. This prohibition has always encompassed the operation or tending of all power-driven amusement park and recreation establishment rides—including elevated slides found at water amusement parks. Such slides, which often reach heights of over 40 feet, rely on power-driven machinery that pump water to the top of the slides which facilitates the descents of the riders to the “splash-down” areas at the base of the slides. Minors less than 16 years of age may not be employed as dispatchers or attendants at the top of elevated water slides—employees who maintain order, direct patrons as to when to depart the top of the slide, and ensure that patrons have safely begun their ride—because such work constitutes “tending” as used in Reg. 3. In addition, when serving as dispatchers or attendants at the top of an elevated water slide, minors under 16 years of age are not performing, nor can they reasonably be expected to perform, the core lifeguard duty of rescuing swimmers because they are so far removed from the splash-down area of the slide. Accordingly, even if 15-year-old minors have been certified as lifeguards, the provisions of § 570.34(l) would not apply to the time spent as dispatchers or attendants at an elevated water slide. Properly certified 15-year-old lifeguards, however, may be stationed at the “splashdown pools” located at the bottom of the elevated water slides to perform traditional lifeguard duties.

The Department is aware that permitting 15-year-olds to be employed as lifeguards at such water amusement park facilities as lazy rivers, wave pools, and the splashdown pools of elevated slides could be construed as allowing these youth to tend power-driven machinery. But the Department believes that the overall predominance of their responsibility to perform the core life-saving duty of rescuing patrons who are in the water, which they have been properly trained and certified to perform, outweighs the minimum, isolated, and sporadic amount of tending such lifeguards may potentially be called upon to do when stationed at wave pools, lazy rivers, and splashdown pools.

The Department received eleven comments in response to this proposal. This includes three comments that were submitted as attachments to the comments of the International Association of Amusement Parks and Attractions (IAAPA). The comments centered around the following elements of the proposal: (1) Whether 15 should be the minimum age for employment as a lifeguard at a traditional swimming pool or water amusement park; (2) whether 16 should be the minimum age for employment as a lifeguard at natural environments such as lakes, rivers, and oceanside beaches; and (3) whether 15-year-olds should be prohibited from being employed as dispatchers or attendants at the top of elevated water slides.

Some of the commenters supported the entire proposal as written or suggested only minor modifications. The IAAPA, which describes itself as the largest international trade association for permanently-situated amusement facilities worldwide, supported this proposal. The proposal was supported by the General Manager of Shipwreck Island Waterpark of Panama Beach City, Florida, whose comments were submitted by the IAAPA. A representative of Six Flags, Inc. also supported the proposal and stated that “[w]hile we still believe that 15-year-olds could safely work as dispatchers on elevated water elements, we find the proposed changes to be an acceptable compromise.”

The National Recreation and Park Association (NRPA), which described itself as “a non-profit organization seeking to enhance public park facilities and expand recreation opportunities,” supported the adoption of the proposed change in regulations that would revise Reg. 3 in order to “conditionally allow” 15-year-olds to be employed at traditional swimming pools and water parks. The NRPA also supported establishing a minimum age of 16 for the employment of lifeguards at natural environments. In addition, the NRPA commented that “[l]ocal park and recreation agencies have a great need to find qualified, capable, and certified lifeguards to work in their outdoor pools, indoor pools, water amusement park facilities, and natural bodies of water. In proposing these regulations, the Department will help agencies meet their needs to hire certified lifeguards by allowing lifeguards to begin work at the age of 15. Expanding the eligible age for employment as a lifeguard at traditional swimming pools could help these communities enhance pool safety by providing a wider and larger applicant pool from which to select qualified candidates, and by increasing lifeguard availability, make shorter shifts an increasingly real probability.”

The American Red Cross (Red Cross), which has been developing and implementing lifeguard training and certification programs since 1914, stated that it is “comfortable” with the Department's proposal with one small change. The Red Cross objected to the Department including the task of “giving swimming instructions” in the list of duties that 15-year-olds may perform because the Red Cross lifeguard training course does not include training on how to give swimming instructions. Such training is available to 15-year-olds via a separate Red Cross Water Safety Instructor (WSI) course. The Red Cross recommended that the Department

alleviate possible public misunderstanding by deleting “giving swimming instructions” from the list of permitted lifeguard duties.

The United States Lifesaving Association (USLA), which described itself as America's nonprofit, professional association of beach lifeguards and open water rescuers, reported that it “works to reduce the incidence of death and injury in the aquatic environment through public education, promulgation of national lifeguard standards, training programs, promotion of high levels of lifeguard readiness, and other means.” The USLA commented that, since 1980, it has maintained the position that lifeguards serving at natural environments, whether surf or non-surf beaches, should be at least 16 years of age. The USLA further commented that this position was also reached by participants at a national conference held in 1980 which issued a report entitled “Guidelines for Establishing Open-Water Recreational Beach Standards.” Participants included representatives of the American Camping Association, Red Cross, National Safety Council, YMCA of the USA, Council for National Cooperation in Aquatics, Centers for Disease Control and Prevention, U.S. Coast Guard, Boy Scouts of America, the National Park Service, several major municipal lifeguard agencies from throughout the USA, and several medical experts. The USLA noted that the participants at this conference, which used a consensus-based process to issue its recommendations, considered such factors as the physical and cultural parameters of the natural environments to be guarded; the psychological and physiological stresses of public safety employment; the lack of physical stamina, maturity, and experience of those under 16 years of age; and the varying levels of supervision provided young lifeguards. The USLA summarized its comments by stating “people under the age of 16 should not be permitted to work as lifeguards at natural environments.” It also commented that it found it difficult to construct reasons that differentiate the natural environment from the pool environment, given that many of the reasons for establishing a minimum age of 16 years for employment as a lifeguard at a natural environment facility are equally applicable at traditional pools.

The YWN and the CLC opposed this proposal and both, apparently, support the comments submitted by the USLA, although this is not clear. The YWN referred to comments of the US Lifeguarding Association and the CLC referred to comments of the Lifeguard Standards Association. The Department has not been contacted by any organizations using those names in regards to this proposal.

The YWN also stated that work as a lifeguard may entail exposure to combative individuals, bloodborne pathogens, and chemicals. It added that, for these reasons, other organizations like the YMCA do not certify lifeguards until age 16 and thus “DOL's argument that this proposal ties DOL enforcement practice to `standards' in the industry is not accurate.” The YWN also questioned the justification for adding a new and unique age cut-off for this one particular job, when all other regulations group 15-year-olds with 14-year-olds.

The CLC stated that “most distressing is the fact that DOL gives no indication of what the Red Cross training requires.” It also commented that the fact that DOL would require the lifeguards to be certified by the Red Cross (or a similar certifying organization) in aquatics and water safety “in no way assures that the DOL proposal is prudent.”

The World Waterpark Association (WWA) supported the proposal to permit the employment of 15-year-olds as lifeguards at traditional swimming pools and water amusement parks, but opposed that portion of the proposal that would prohibit such youth from working as dispatchers or attendants at the top of elevated water slides. The WWA opined that “[it] is a universally accepted position of the aquatic community that a lifeguard's first responsibility is to prevent accidents and injuries by enforcing rules and educating patrons * * *. Therefore, 15-year-olds working at the tops of waterslides are fulfilling one of the core duties of properly trained lifeguards, in a manner which places them at the least possible risk.” The WWA also disagreed with the Department's position that working as a dispatcher or attendant at the top of an elevated water slide constitutes tending of power-driven machinery under the provisions of Reg. 3 where there are no mechanized conveyance systems or emergency ride controls at the top.

A representative of Morey's Pier of Wildwood, New Jersey, whose comments were submitted by the IAAPA, supported the proposal to allow the employment of 15-year-olds as lifeguards at traditional swimming pools and water amusement parks. She also addressed the position of water slide dispatcher, stating “we see no reason or evidence that this is a dangerous job that should be restricted.” She also opined that such dispatchers are not in contact with any power-driven machinery.

A representative of the Pleasant Hill Recreation and Park District (Pleasant Hill) of Pleasant Hill, California, expressed concern about how this proposal would affect youth who volunteer in her District's “junior lifeguard program.” After reviewing the list of permitted lifeguard duties presented in § 570.34(l)(2), she noted that her facility has “swim instructors who are certified by the American Red Cross as Water Safety Instructors, but are not lifeguard certified.” Her facility has “cashiers who are not lifeguard certified, but who help maintain order/cleanliness in the pool area (deck, locker rooms, crowd control during emergency, etc.). She questioned whether such employees, who are not employed as lifeguards, must be at least 16 years of age or be 15 years of age with proper lifeguard certification.

The representative of Pleasant Hill also noted that youth aged 11 to 14 years of age participate in her facility's junior lifeguard program. The participants attend 8 hours of training, which follows the Red Cross's Guard Start Program, and then volunteer at the pool as aides during swim lessons. Participating youths are assigned to assist an instructor, are never left alone to teach a class, and also help during recreational swims “by checking in/out patrons bags/apparel/belongings.” She noted that the junior lifeguard program is an important tool for recruiting and developing future lifeguards.

The Department has carefully considered all the comments and has decided to adopt the proposal as written, with two modifications. The Department appreciates the concerns raised by the Red Cross that certified lifeguards may not have received the proper training, and therefore the proper certification, to give swimming instruction. This same issue was mentioned by Pleasant Hill, which noted that it had swimming instructors who were properly certified by the Red Cross but were not certified as lifeguards. In order to address the concerns of the Red Cross, ensure the maximum possible safety for young workers and their charges who are learning to swim, and eliminate confusion, the Department is modifying the language in the proposed § 570.34(l)(2) to reflect that 15-year-olds may be employed as swimming instructors only when they have been certified to perform both lifeguard and swimming instruction by the Red Cross or some other recognized certifying organization. This requirement for dual certification, like the other lifeguard

requirements contained in Reg. 3, will end when the minor reaches his or her 16th birthday.

The Department received an inquiry after the publication of the NPRM asking why ponds and quarries, places where swimming often occurs, were not specifically listed as natural environment swimming facilities in § 570.34(l)(2) where the term

traditional swimming pool

is defined. In order to clarify the Final Rule, the Department has decided to add ponds and quarries to the non-exhaustive list of examples of natural environment swimming facilities that currently includes rivers, streams, lakes, reservoirs, wharfs, piers, canals, and oceanside beaches.

The Department appreciates the concerns of the YWN, CLC, and USLA about lowering the employment age for lifeguards at traditional swimming pools and certain water amusement park facilities to 15, but believes that such safeguards as proper certification in aquatics and water safety by a recognized certification organization, the prohibition against tending power-driven machinery which prevents 15-year-olds from working as dispatchers or attendants at the top of elevated water slides, the OSHA standards addressing potential exposures to bloodborne pathogens and chemicals, and the hours and times of day standards established by § 570.35 combine to provide adequate protections to these young workers. The Department does not share the YWN's concerns about adding “a new and unique age cut-off for this one particular job, when all other regulations group 15-year-olds with 14-year-olds.” The Department notes that when rules are clearly written and adequately explained, public understanding and compliance follow. This was evidenced by the revisions to HO 2 published on December 16, 2004 (

see

69 FR 75382,

see also

§ 570.52(b)) necessitated by the enactment of FLSA section 13(c)(6), which permits limited on-the-job driving by 17-year-olds under certain conditions, but not by 16-year-olds.

The Department does not agree with the CLC's comment that the DOL gives no indication of what Red Cross training requires and the YWN's comment that this proposal is not “tied to standards in the industry.” The Red Cross, just like other nationally recognized certifying organizations, spends a great deal of time and effort formulating, refining, disseminating, and publicizing the elements and standards of its lifeguard certification program. It is difficult to argue that the Red Cross is not the “industry standard” when it estimates that about 90% of all lifeguards in the USA have received training through its lifeguard training program.

The Department appreciates the concerns of certain commenters that 15-year-olds should be permitted to be employed as dispatchers or attendants at the top of elevated water slides, but believes that continuation of its long-held position that such employment constitutes the prohibited tending of power-driven equipment—just as it is for attendants on roller coasters, merry-go-rounds, and ski-lifts—is both prudent and proper.

Finally, the Department acknowledges the concerns of Pleasant Hill which raised the issue of “junior lifeguard programs” and the “volunteer” participation of youths between the ages of 11 and 14 in such endeavors. The Department notes that when such programs do not involve an employer-employee relationship, they fall outside the provisions of the FLSA. But when it is determined that an employer-employee relationship does exist, and the employee is engaged in work that is subject to the FLSA, the minimum age for such employment at a traditional swimming pool would be 14. Such 14-year-old employees could not be employed as lifeguards or swim instructors, but could perform such tasks as maintaining the cleanliness of the pool area and locker rooms, signing in and signing out patrons, and checking in and out such items as towels, watches, and apparel. Such youth would not be permitted to perform any of the core functions of a lifeguard nor be employed in a situation where their employers could reasonably expect them to rescue swimmers in danger of drowning. Under this Final Rule, properly certified 15-year-olds could be employed at such pools as lifeguards.

3. The Employment of Certain Youth by Places of Business Where Machinery Is Used To Process Wood Products

The provisions of the Consolidated Appropriations Act, 2004, amended the FLSA by creating a limited exemption from the child labor provisions for certain minors 14 through 17 years of age who are excused from compulsory school attendance beyond the eighth grade. The exemption, contained at section 13(c)(7) of the FLSA, allows eligible youth to work inside and outside of places of businesses that use machinery to process wood products, subject to specified limitations. The Department is incorporating the new requirements of this amendment into its regulations. The Department proposed to incorporate the amendment into Reg. 3 at § 570.34(m), and into § 570.54, Logging occupations and occupations in the operation of any sawmill, lath mill, shingle mill, or cooperage stock mill (Order 4).

Section 13(c)(7) overrides the heretofore complete prohibition on the employment of 14- and 15-year-olds in manufacturing occupations contained in section 3(l) of the FLSA. Accordingly, to meet the requirements of this legislation, the Department proposed to revise Reg. 3 to permit the employment of qualifying 14- and 15-year-olds inside and outside of places of business where manufacturing (the processing of wood products by machinery) takes place, subject to specified conditions and limitations.

The Department proposed to limit the types of employers that may employ such minors, as well as the worksites at which such minors may be employed, to those contemplated by the language of the statute and mentioned by the sponsors of the legislation and the interested parties that testified at the hearings held by Congress prior to the enactment of the legislation (

see, e.g.,

Testimony Before Senate Labor, Health and Human Services, and Education Subcommittee of the Committee on Appropriations, The Employment Needs of Amish Youth, 107th Cong. 2 (2001)). The term

places of business where machinery is used to process wood products

shall mean such permanent workplaces as sawmills, lath mills, shingle mills, cooperage stock mills, furniture and cabinet making shops, gazebo and shed making shops, toy manufacturing shops, and pallet shops. The term shall not include construction sites, portable sawmills, areas where logging is being performed, or mining operations. The term

inside or outside places of business

refers to the distinct physical place of the business,

i.e.,

the buildings and the immediate grounds necessary for the operation of the business. This exemption would not apply to tasks performed at locations other than inside or outside the place of business of the employer such as the delivery of items to customers or the installation of items at customers' establishments or residences.

Although section 13(c)(7) permits the employment of certain youth inside and outside of places of business where machinery is used to process wood products, it does so only if the youth do not operate or assist in the operation of power-driven woodworking machines. The occupations of

operating

or

assisting in the operation of

and the term

power-driven woodworking machines

are well-established in the regulations, including in § 570.55. The Department proposed to revise Reg. 3 to

include definitions of these terms along with the specific prohibition against operating or assisting in the operation of power-driven woodworking machines. Section 570.55 lists, when discussing the prohibited occupations involved in the operation of power-driven woodworking machines, such activities as supervising or controlling the operation of the machines, feeding materials into such machines, and helping the operator feed material into such machines. The list also includes the occupations of setting up, adjusting, repairing, oiling, or cleaning the machines. That same section defines

power-driven woodworking machines

to mean all fixed or portable machines or tools driven by power and used or designed for cutting, shaping, forming, surfacing, nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer. The Department proposed to amend the definition of

power-driven woodworking machines

to include those machines that process trees, logs, and lumber in recognition that section 13(c)(7) now permits certain youth 14 through 17 years of age to work in such places of business as sawmills, lath mills, and shingle mills where trees, logs, and lumber would be processed. Expanding this definition thus clarifies that youth are prohibited from operating or assisting in the operation of wood-processing machinery typically found in the workplaces covered by the 2004 amendment. This revised definition of power-driven woodworking machines would be included in § 570.34(m) of Reg. 3 and both § 570.54 (HO 4) and § 570.55 (HO 5).

The limited exemption contained in section 13(c)(7) applies only to certain youth—new entrants into the workforce—and only when certain additional criteria are met. Section 13(c)(7) defines a new entrant into the workforce as an individual who is under the age of 18 and at least the age of 14, and, by statute or judicial order, is exempt from compulsory school attendance beyond the eighth grade.

In addition, in order to be employed inside or outside of places of business where machinery is used to process wood products, the new entrant must be supervised by an adult relative or an adult member of the same religious sect or division as the entrant. The term

supervised

refers to the requirement that the youth's on-the-job activities be directed, monitored, overseen, and controlled by a specified named adult. Although the statute does not define the terms

adult

and

relative,

the Department proposed that, for purpose of this exemption, a

relative

would include a parent (or person standing in place of a parent), a grandparent, an aunt, an uncle, and a sibling; and an

adult

would be someone who has reached his or her eighteenth birthday. The Department also proposed that the term

adult member of the same religious sect or division as the youth

would mean an adult who professes membership in the same religious sect or division to which the youth professes membership. The Department believes that in order to ensure these youth receive the degree of protection from injury Congress intended, the supervision of the minors must be close, direct, and uninterrupted. It is important to note that this requirement of close, direct, and uninterrupted supervision, just like the requirement that youth not operate or assist in the operation of power-driven woodworking machinery, applies to the employment of 16- and 17-year-olds as well as 14- and 15-year-olds.

Furthermore, section 13(c)(7) permits the employment of a new entrant inside or outside places of business where machinery is used to process wood products only if the youth is protected from wood particles or other flying debris within the workplace by a barrier appropriate to the potential hazard of such wood particles or flying debris or by maintaining a sufficient distance from machinery in operation, and is required to use personal protective equipment to prevent exposure to excessive levels of noise and saw dust. It is the Department's position that section 13(c)(7)'s prerequisite that the youth is “required to use personal protective equipment to prevent exposure to excessive levels of noise and saw dust” includes the youth's actual use of such equipment and not just the employer's obligation to mandate such use.

The Wage and Hour Division has consulted with representatives of the Department's Occupational Safety and Health Administration (OSHA) and will defer to that agency's expertise and guidance when determining whether an employer is in compliance with the safety provisions of this exemption—

i.e.,

whether a workplace barrier is appropriate to the potential hazard, whether a sufficient distance has been maintained from machinery in operation, and whether the youth is exposed to excessive levels of noise and saw dust. The Department proposed that compliance with the safety and health provisions discussed in the previous paragraph will be accomplished when the employer is in compliance with the requirements of the applicable governing standards issued by OSHA or, in those areas where OSHA has authorized the state to operate its own Occupational Safety and Health Plan, the applicable standards issued by the Office charged with administering the State Occupational Safety and Health Plan.

The Department received three comments on this proposal. Although both the YWN and CLC stated that they did not support enactment of FLSA section 13(c)(7), they strongly supported the Department's efforts to ensure that the regulations provide adequate protections for youths who are now permitted to be employed inside and outside places of business where machinery is used to process wood products. Both of these commenters, along with the AFL-CIO, made additional recommendations to the proposal.

Both the YWN and the AFL-CIO recommended that the Department add a requirement to the revised § 570.34(m)(1) that all youth who come within the exemption provided by FLSA section 13(c)(7) must receive safety training or certification for the specific activities allowed under the proposal.

The CLC labeled as a “wise approach” the Department's proposal to rely on the expertise of OSHA, or the Office charged with administering an OSHA-authorized state plan where appropriate, to determine if employers are complying with certain of the safety standards established by FLSA section 13(c)(7). As an outgrowth of this proposal, it stated that “it would make sense either for the Wage and Hour Division to enforce OSHA in this context by issuing OSHA citations that assert OSHA violations, or for the Wage and Hour Division investigator to notify OSHA of an OSHA violation and direct OSHA to investigate the matter as well for OSHA violations. The reason for this recommendation that the CLC makes here is that if there are OSHA violations that give rise to child labor violations, then the adults who work with the woodworking machinery are subject to the same workplace hazards as the children.”

The CLC commented that the Department's proposal that the supervision received by young workers employed under the provisions of FLSA section 13(c)(7) be close, direct, constant, and uninterrupted is essential in view of the serious hazards that such youth will face. The CLC recommended that the proposal should also require that the supervision be “one-on-one” and that the supervisors of the young workers should be required to have experience within the wood processing industry or that workplace.

The CLC also expressed concern that neither the statute nor the proposal

addresses the potential exposure of young workers to “the toxic chemicals present in adhesives and coating agents that are used in woodworking operations.” The CLC noted that many of these chemicals pose risks of both short-term and long-term effects on the human body and also are extremely flammable, and hence pose significant fire and explosion hazards. CLC stated “DOL's OSHA experts are familiar with these hazards.”

Finally, the CLC noted that the statute did not require woodworking establishments that employ youth under the provisions of FLSA section 13(c)(7) to report all work-related accidents and deaths of such workers to the Department. The CLC stated that even in the absence of such a reporting requirement, the Department can play an important role by publicizing not only the hazards of working in such places of business, but also the results of any child labor investigations involving woodworking machines. The CLC believed that such publicizing will remind all American youth, their parents, and their employers “of the grave dangers that these machines represent to working children.”

The Department has carefully reviewed the comments of the YWN, AFL-CIO, and CLC. It has decided to adopt the proposal as written, with one clarifying modification.

Since the enactment of FLSA section 13(c)(7) on January 23, 2004, the Department's enforcement position has been that the employment of 14- and 15-year-olds employed under the provisions of that section must still be in compliance with all other provisions of Reg. 3, including the hours and time of day standards of § 570.35. Although this is evidenced by the Department's compliance and enforcement guidance and the structure of the NPRM, it was not explicitly stated in the proposed rule. The Department received an inquiry on this issue after the publication of the proposal. In order to prevent any possible confusion and to provide maximum clarity, the Department has revised the Final Rule by adding the following sentence to the end of § 570.34(m)(2): The employment of youth under this section must comply with the other sections of this subpart, including the hours and time of day standards established by § 570.35.

The Department appreciates the support and concerns of the commenters. The Department believes that the youths who will be employed under the provisions of FLSA section 13(c)(7) will receive significant workplace protections from the statute and these resulting regulations. Requiring pre-employment certification or training of youth was not envisioned by Congress, especially for a population of young workers whose formal education ends at such an early age. The Department also believes that the CLC recommendations that the ratio of supervisors to young workers should be one-to-one and that all adults supervising have experience in the workplace or the industry were not contemplated by Congress and would be viewed as excessive. Similarly, the Department believes that the CLC recommendation regarding the mandatory reporting of work-related injuries and deaths that might occur to youth employed under the provisions of FLSA section 13(c)(7) would be duplicative of the reporting requirements already established by OSHA.

The Department has long recognized the importance of, and the benefits resulting from, OSHA and WHD working together to share enforcement expertise and information, and to leverage compliance assistance initiatives. As recognized by the CLC, these two agencies have a long and productive history of partnering for the benefit of American workers and those who employ them. It is the Department's intention that this relationship will continue to grow and accommodate additional partnering opportunities as they arise. As stated in the Final Rule, WHD will continue to rely on OSHA's expertise for guidance when applying the specific occupational health and safety-affecting requirements of FLSA section 13(c)(7) (

see

§ 570.34(m)(1)(iii) and (iv)) as well as when assessing the risks from potential exposures to toxic chemicals; but WHD will not itself issue citations for violations of OSHA standards. As the CLC stated, “DOL's OSHA experts are familiar with these hazards.”

Finally, the Department is well aware of the importance of keeping all stakeholders informed of its compliance assistance initiatives and enforcement findings, and of serious occupational injuries involving youth. WHD, OSHA, and NIOSH have, for many years, shared information among themselves concerning occupational injuries that have contributed to the deaths of young workers as soon as one of the parties learned of the death. WHD, OSHA, and NIOSH then work together to ensure that the appropriate rules are followed and enforced and to learn from each event in the hopes that future tragedies can be prevented. This cooperation will continue after the adoption of the Final Rule.

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

FLSA section 3(l) authorizes the Secretary of Labor to provide by regulation for the employment of young workers 14 and 15 years of age in suitable nonagricultural occupations and during periods and under conditions that will not interfere with their schooling or with their health and well-being. In enacting FLSA section 3(l), Congress intended to assure the health and educational opportunities of 14- and 15-year-olds, while allowing them limited employment opportunities.

Reg. 3 was promulgated in 1939 under the direction of the Chief of the Children's Bureau, in whom Congress vested the original delegation of authority to issue child labor regulations. The record on which Reg. 3 was based included hearings where advocates of children expressed concern over the need for children to avoid fatigue, so as not to deplete the energy required for their school work. Similarly, witnesses stressed that early morning and late evening work hours, which interfered with sleep and often fostered exhaustion, were unhealthful for children and also diminished the time that children should have spent with the family (

see

In the Matter of Proposed Regulation Relating to the Employment of Minors Between 14 and 16 Years of Age Under the Fair Labor Standards Act, Official Report of the Proceedings Before the Children's Bureau,

February 15, 1939, at 19, 21, 34, 82). Reg. 3 limits the hours that 14- and 15-year-olds may work to:

(1) Outside school hours;

(2) Not more than 40 hours in any 1 week when school is not in session;

(3) Not more than 18 hours in any 1 week when school is in session;

(4) Not more than 8 hours in any 1 day when school is not in session;

(5) Not more than 3 hours in any 1 day when school is in session; and

(6) Between 7 a.m. and 7 p.m. in any 1 day, except during the summer (June 1 through Labor Day) when the evening hour will be 9 p.m.

The Department did not propose to change any of these hours and time-of-day limitations, but wished to foster both understanding of, and compliance with, these provisions by incorporating into the regulations certain long-standing Departmental enforcement positions and interpretations. For example, the Department has developed long-standing enforcement positions regarding the application of certain of the hours standards limitations to minors who, for differing reasons, no

longer attend or are unable to attend school. Some of these positions have been in place since the 1970s and all have been detailed in the Wage and Hour Division's Field Operations Handbook since 1993. The Department proposed to incorporate them into Reg. 3 to promote both clarity and compliance. The Department proposed to amend § 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 §§ 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 §§ 570.35(a)(2), (a)(4), and (a)(6).

The Department also proposed to clarify the hours restriction contained in § 570.35(a)(5), which limits the employment of 14- and 15-year-olds in nonagricultural employment to no more than 3 hours on a day when school is in session, by adding a statement that this restriction also applies to Fridays. The WHD occasionally receives requests for clarification from employers seeking to lengthen the work shifts of younger employees on nights that do not precede a school day. As the stated purposes of the hours standards limitations include the protection of young workers from exhaustion and the preservation of time for rest and family relations, no more than 3 hours of work is permitted on any day when school is in session.

The Department also proposed to incorporate into Reg. 3 its long-standing position that the term

week

as used in Reg. 3 means a standard calendar week of 12:01 a.m. Sunday through midnight Saturday, not an employer's workweek as defined in 29 CFR 778.105. The calendar week would continue to serve as the timeframe for determining whether a minor worked in excess of 18 hours during any week when school was in session or in excess of 40 hours in any week when school was not in session.

Finally, as noted above, Reg. 3 limits the employment of 14- and 15-year-olds to periods that are outside of school hours and to designated hours depending upon whether or not school is in session. Although neither the FLSA nor Reg. 3 defines the terms

school hours

and

school is in session

as they apply to nonagricultural employment, the Department has developed and applied a long-standing enforcement position that these terms refer to the normal hours of the public school system in the child's district of residence. This enforcement position mirrors the provisions of FLSA section 13(c)(1), which Congress added in 1949, to clarify how these terms apply to the employment of youth in agricultural employment. FLSA section 13(c)(1) states, in relevant part: “The provisions of section 212 of this title relating to child labor shall not apply to any employee employed in agriculture outside of school hours for the school district where such employee is living while he is so employed, if such employee * * *. (C) is fourteen years of age or older.”

Though the Department did not propose specific regulatory language regarding these terms when it published the NPRM, it did seek information from the public regarding whether such regulatory provisions would be appropriate, including whether: (1) The Department should continue to use the hours of operation of the local public school where a minor resides to determine when he or she may legally be employed, even when that minor does not attend that local public school or, for whatever reason, may actually have attendance requirements that differ from those of the rest of the students attending that local school; (2) the FLSA's requirement that such a minor only be employed under conditions and during periods that will not interfere with his or her schooling or health and well-being would be equally or better served if it were based on the minor's own actual academic schedule; and (3) using the academic schedule and attendance requirements of each minor when determining when school was in session for that minor would provide working youths greater opportunities and flexibility when seeking safe, positive and legal employment. The Department stated that, based on the comments it received, it would consider adding regulatory provisions to the Final Rule defining the terms school hours and school is in session as they apply to nonagricultural employment.

The Department received nine comments on this proposal. Two commenters, the YWN and the CLC, addressed the proposal to incorporate into § 570.35 certain long-standing departmental enforcement positions regarding the application of the hours standards. Both supported the Department's enforcement positions that school should not be considered in session for a 14- or 15-year-old youth who has graduated from high school; has been excused from compulsory school attendance by the state or other jurisdiction once he or she has completed the eighth grade and his or her employment complies with all the provisions of the state school attendance law; or is subject to an order prohibiting him or her from attending school. Although the YWN supported the proposals that school should also not be considered in session for a youth who (1) has a child to support and appropriate state officers, pursuant to state law, have waived school attendance requirements for that minor, or (2) has been permanently expelled from the local public school he or she would normally attend, the CLC did not. The CLC stated that it believes it is “ill-advised to excuse 14- and 15-year-olds from compulsory school attendance on the basis of parental status. It serves the best interests of the 14- and 15-year-old parent, as well as the young parent's child, for the parent to complete his or her education, thus realizing a long-term benefit of increased and better employment in the future.” The CLC stated that a child permanently expelled from public school might still be required, under state or local law or perhaps court order, to attend some other school. The CLC recommended that the Department amend its proposed revision to read “Has been permanently expelled from the local public school he or she would normally attend, unless the child is required, by state or local law or ordinance, or by court order, to attend another school.”

Only the YWN and CLC commented on the Department's proposal to clarify the Reg. 3 limitation that 14- and 15-year-olds may not be employed to work more than three hours on any one day when school is in session by adding the phrase “including Fridays.” Both the YWN and the CLC supported this proposal. The representative of White Hat recommended that participants in programs similar to those of the charter schools he advises should be permitted to work up to five hours on a school day.

The Department received six comments that addressed its proposal to incorporate into Reg. 3 its long-standing

position that the term “week” as used in Reg. 3 means a standard calendar week of 12:01 a.m. Sunday through midnight Saturday, not an employer's workweek as defined in 29 CFR 778.105. The proposal stated that the calendar week would continue to serve as the timeframe for determining whether a minor worked in excess of 18 hours during any week when school was in session or in excess of 40 hours in any week when school was not in session.

Both the YWN and CLC supported this proposal. Four commenters, the Food Marketing Institute (FMI), Six Flags, the WWA, and the representative of Morey's Pier, opposed the proposal. The FMI described itself as a conductor of “programs in research, education, industry relations and public affairs on behalf of its 1,500 member companies—food retailers and wholesalers—in the United States and around the world.” The FMI reported that its retail membership is composed of large multi-store chains, regional firms and independent supermarkets. The FMI stated “[w]e strongly object to this change, which would create an administrative nightmare, and see no reason for it.” The FMI commented that most of its members already have systems in place based on their own workweeks that automatically check hours worked to make sure minors do not exceed their allowable hours. “By requiring the use of a Sunday to Saturday midnight week, employers would be forced to check hours worked manually, making it more likely that mistakes would be made.”

The WWA echoed the concerns of the FMI and asked that the proposed rule be amended to allow employers to calculate hours worked so that Saturday and Sunday hours may be included within the same workweek. Six Flags expressed the same concern regarding its ability to use its payroll tracking system as a compliance tool and recommended that the Department allow employers to use any reasonable system such as labor tracking and payroll monitoring tools that complement their record keeping systems. The representative of Morey's Pier recommended that the term

workweek

should be defined, but not necessarily by the calendar.

The Department received six comments on its enforcement position that defines the term

school in session

as applying to the normal hours of the public school system in the minor employee's district of residence. The YWN and the CLC supported using the hours of the local public school district the minor would attend if he or she attended public school when defining the term

school in session.

The YWN praised the enforcement benefits that would arise from having only one standard in each school district, thereby avoiding multiple schedules that would create unworkable and needlessly complex enforcement standards. The YWN also suggested that the Department should clearly state in the Final Rule that school is considered to be in session during any week in which school attendance is required for one or more days. The CLC commented that “[if] the school day schedules established by private schools and by parents of home-schooled children could determine when children being educated in those settings governed here, there would be nothing in the DOL child labor regulations that would prevent such a school or parent from setting a schedule that would permit children to work during the hours that the public school system is in session. Indeed, non-public schools could be established by organizations whose prime goal is to provide 14- and 15-year-old working children to employers during normal business hours in the middle of the day, rather than to make sure that the children are in school during the hours when they are most alert and receptive to classroom instruction. We do not say that there would be many such schools or home-schooling parents, but the mere fact that such outcomes could occur should be reason enough to cause DOL to reject this approach.” The CLC, when commenting on the Department's inquiry regarding whether employers of working youth should be given greater flexibility, stated “[t]here is no need for DOL to bend over backwards to try to assure that children have the absolute maximum opportunity to squeeze every possible minute of the day into the three hours that they can work during a school day. This approach seems to us to give far more emphasis to work experiences for 14- and 15-year-olds than to their education.”

The National Council of Chain Restaurants (Council), the representative of Morey's Pier, and the FMI supported defining the term

school in session

by following the academic schedule and attendance requirements of each minor, rather than that of the local public school. The Council noted that frequently “the academic schedule and attendance requirements followed by public schools do differ, sometimes significantly, from the schedule followed by private schools. By applying each minor's actual school schedule, rather than arbitrarily applying the local public school schedule, job opportunities would be expanded for minors subject to Child Labor Reg. 3 without adversely impacting the school work of such minors.” The FMI stated that adopting the hours of the local public school when defining the term

school is in session

would “make no sense” for the many young people who do not go to public schools. The FMI found it “hard to understand why their work hours should be governed by a school system they have nothing to do with.” The representative of Morey's Pier believed that each minor should be treated individually and that his or her own academic schedule and attendance requirements should be used when determining when school was in session for the minor. Barring adoption of her recommendation, she believed the Department's enforcement position to be the “second best option.”

The DOLWD did not oppose this enforcement position but suggested that an “exception” from the definition of

school is in session

should be created for youth enrolled in home school or other alternative school programs based on considerations of “whether the work interferes with the individual's schooling, health or well being rather than the hours of operation for public schools.” The DOLWD also suggested that the federal regulations on the number of hours that 14- and 15-year-olds may work should be amended to be consistent with the more permissive standards established in Alaska. The Council also recommended that the Department expand the number of hours that such youth may be employed to four hours on any school day; to as late as 8 p.m. on any evening between Labor Day and May 31st; and as late as 10 p.m. on any evening between June 1st and Labor Day. The YWN recommended that the Department eliminate the reference to between June 1st and Labor Day and replace it with the actual calendar of each public school, noting that an increasing number of school districts have year-round schedules.

After carefully reviewing the comments, the Department has decided to continue its long-standing enforcement position that

school hours

are defined by the hours that the local public school district where the minor resides when employed is in session, and to add this definition to § 570.35(b) to avoid confusion and to simplify both compliance and enforcement of the hours standards of Reg. 3. The Department has also included in this definition the YWN's recommended clarifying statement that school should be considered to be in session during any week when school attendance is

required for any portion of a day. The Department is also adding to that section its long-standing position that

outside school hours

means such periods as before and after school hours, holidays, summer vacations, weekends, and any other day or part of a day when the local public school district where the minor resides while employed is not in session. This section will also note that summer school sessions, held in addition to the regularly scheduled school year, are considered to be outside of school hours.

The Department appreciates the concerns of the one employer and two employer associations that recommended that an employee's own academic schedule and individual attendance requirements should be used to determine when school is in session for that minor and recognizes how such a position could be seen as a means of providing minors with more work experiences while addressing employer staffing problems. But the Department is concerned that such a system may not give the proper emphasis to obtaining an education and would make employer compliance and WHD enforcement more difficult and more complicated than necessary, given the broad variety of daily school schedules that each young employee could have.

The Department believes that the continuation and incorporation of this enforcement position brings clarity in that employers need only look to the hours of operation of the local public school where the minor resides to attain compliance. It also ensures that the consistent application of these terms for both agricultural and nonagricultural employment will continue, thereby avoiding confusion among those employers who offer both agricultural and nonagricultural employment to young workers. Finally, continuation of this enforcement position facilitates the enforcement of the Reg. 3 hours standards by establishing a single, easily determinable standard.

The Department also believes that continuation of this enforcement position is appropriate as it does not provide any minor or class of minors with an incentive to leave public school or with an unfair and improper advantage over public school youth when competing for employment. The Department notes the CLC's concerns that determining when school is in session by using each student's individual academic schedule could foster the development of nonpublic schools or home-schooling programs created primarily to provide 14- and 15-year-old working children to employers during the hours they would normally have attended public school. While the Department agrees with the CLC that it is unlikely that many such schools or home-schooling programs would materialize, it does note that the emergence of schools that were designed to allow migrant children to work on farms during the daylight hours when the local public school was in session, was an impetus for the 1949 amendment to the FLSA that codified this very same enforcement position as it relates to agricultural employment.

The Department has decided not to incorporate into Reg. 3 its long-standing enforcement position that

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