Child Labor Regulations, Orders and Statements of Interpretation

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 570

RIN 1215-AA09

Child Labor Regulations, Orders and Statements of Interpretation

AGENCY: Wage and Hour Division.

ACTION: Advance notice of proposed rulemaking; request for comments.

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SUMMARY: The Department of Labor (Department or DOL) is considering

proposing revisions in the child labor regulations issued pursuant to

the Fair Labor Standards Act (FLSA), 29 CFR part 570, which set forth

the criteria for the permissible employment of minors under 18 years of

age. In particular, subparts C and E of these regulations are under

review. Subpart C (Child Labor Reg. 3) specifies permissible hours and

time standards, as well as occupational limitations, for 14- and 15-

year-old employees. Subpart E identifies occupations deemed

particularly hazardous for, or detrimental to the health or well-being

of, employees under 18 years of age. This advance notice of proposed

rulemaking seeks the views of the public on needed changes to these

regulations, and also with respect to other aspects of the regulations.

DATES: Comments are due on or before August 11, 1994.

ADDRESSES: Submit written comments to the Administrator, Wage and Hour

Division, U.S. Department of Labor, room S3506, 200 Constitution

Avenue, NW., Washington, DC 20210, Attention: J. Dean Speer, Director,

Division of Policy and Analysis. Commenters who wish to receive

notification of receipt of comments are requested to include a self-

addressed, stamped post card, or to submit them by certified mail,

return receipt requested. As a convenience to commenters, comments may

be transmitted by facsimile (``FAX'') machine to (202) 219-5122 (this

is not a toll-free number). If transmitted by facsimile and a hard copy

is also submitted by mail, please indicate on the hard copy that it is

a duplicate copy of the facsimile transmission.

FOR FURTHER INFORMATION CONTACT: J. Dean Speer, Director, Division of

Policy and Analysis, Wage and Hour Division, Employment Standards

Administration, U.S. Department of Labor, room S-3506, 200 Constitution

Avenue, NW., Washington, DC 20210. Telephone (202) 219-8412. This is

not a toll free number.

SUPPLEMENTARY INFORMATION: The child labor provisions of the Fair Labor

Standards Act (FLSA) establish a minimum age of 14 years for employment

in most nonagricultural occupations. The Secretary of Labor is

authorized to provide by regulation for the employment of young workers

14 and 15 years of age in suitable occupations other than manufacturing

or mining, and during periods and under conditions which will not

interfere with their schooling or with their health and well-being.

These provisions also permit 16- and 17-year-old minors to be employed

in the nonagricultural sector, without hours or time limitations,

subject to prohibitions in occupations found and declared by the

Secretary of Labor to be particularly hazardous, or detrimental to the

health or well-being of minors under age 18. In agriculture, minors 14

and older may be engaged in general employment, subject to prohibitions

on occupations declared particularly hazardous by the Secretary of

Labor. Additionally, in agriculture 12- and 13-year-olds may be

employed with written parental consent or on a farm where the minor's

parent is also employed. Under very limited waiver conditions, 10- and

11-year-olds may be employed outside of school hours in agriculture as

hand harvesters of short season crops for a maximum annual period of

eight weeks.

The regulations for 14- and 15-year olds are known as Child Labor

Regulation No. 3 (Reg. 3) and are contained in subpart C of 29 CFR part

570. Reg. 3, as amended, limits the hours that 14- and 15-year-olds may

work to:

(1) Outside school hours;

(2) Not more than 40 hours in any one week when school is not in

session;

(3) Not more than 18 hours in any one week when school is in

session;

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

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

(6) between 7 a.m. and 7 p.m., except during the summer (June 1

through Labor Day) when the evening hour is extended to 9 p.m.

Summer school sessions are considered to be ``outside school hours,''

i.e., nonschool weeks. Also, 14- and 15-year-olds enrolled in a State-

approved, school-supervised Work Experience and Career Exploration

Program (WECEP) may be employed for up to 23 hours in school weeks, 3

hours on school days, and during school hours.\1\

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\1\Twelve States had Departmental approval to operate WECEP

programs in the 1992-94 school-years.

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Child Labor Reg. 3 permits work by 14- and 15-year-olds in certain

occupations in retail, food service, and gasoline service

establishments, and prohibits their employment in certain other work,

including work prohibited by hazardous occupational orders.

Pursuant to the FLSA child labor provisions, the Secretary has

issued standards governing employment of minors under 18 years of age

in nonagriculture occupations. The 17 nonagricultural hazardous

occupations orders (HOs) now in effect are contained in 29 CFR part

570, subpart E. Prohibitions established by these HOs apply either on

an industry basis, specifying the occupations in the industry that are

not covered, or on an occupational basis irrespective of the industry

in which performed. The current nonagricultural HOs deal with

manufacturing and storing explosives (HO 1); motor-vehicle driving and

outside helper (HO 2); coal mining (HO 3); logging and sawmilling (HO

4); power-driven woodworking machines (HO 5); exposure to radioactive

substances (HO 6); power-driven hoisting apparatus (HO 7); power-driven

metal-forming, punching, and shearing machines (HO 8); mining, other

than coal mining (HO 9); slaughtering, or meat-packing, processing, or

rendering (HO 10); power-driven bakery machines (HO 11); power-driven

paper-products machines (HO 12); manufacturing brick, tile, and kindred

products (HO 13); power-driven circular saws (HO 14); wrecking,

demolition, and ship-breaking operations (HO 15); roofing operations

(HO 16); and excavation operations (HO 17).

Occupations in agriculture found particularly hazardous and,

consequently, prohibited by the Secretary for children below the age of

16 are contained in subpart E-1 of 29 CFR part 570.

Because of changes in the workplace and the introduction of new

processes and technologies since the adoption of current regulatory

standards, as well as changes in places where young workers find

employment opportunities, the existence of differing Federal and State

standards, and the divergent views on how best to correlate school and

work experiences, the Department is undertaking a comprehensive review

of the criteria for child labor employment, and is considering

proposing revisions to Regulations, 29 CFR part 570. Accordingly, this

advance notice of proposed rulemaking is being published to obtain the

views of the public with respect to the matters set out below as well

as to any other issues of interest under this regulation.

I. Permissible Hours, Time-of-day, and Occupational Standards Under

Child Labor Reg. 3

Since the regulations relating to hours, time and occupations were

last amended, the Department has engaged in periodic reviews of the

appropriateness of these regulations.

Thus, for example, in 1982, the Department published a proposal in

the Federal Register to, among other things, modify the permissible

periods of work for 14- and 15-year-olds.\2\ This proposal would have

increased the maximum daily hours from 3 to 4 hours on a school day,

and increased the maximum weekly hours of employment when school is in

session from 18 to 24 hours. The proposal would have further permitted

14- and 15-year-olds to work up to 36 hours in any week when school was

in session for only a portion of the week due to holidays or vacation

periods. Finally, this proposal would have generally expanded the end-

of-day time restriction from 7 to 9 p.m. on school days, and would have

established a 10 p.m. end-of-day limit on any day during the summer

months or preceding a nonschool day. The 1982 proposal generated

considerable public interest and controversy. The Department

subsequently suspended the proposal from further consideration, and it

was not implemented as a final rule.\3\

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\2\47 FR 31254, July 16, 1982; 47 FR 34166, August 6, 1982

(extending the comment period to January 13, 1983).

\3\50 FR 17434, April 29, 1985 (DOL's Semiannual Regulatory

Agenda).

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In August 1987, the Department established a Child Labor Advisory

Committee (CLAC)\4\ to provide advice and guidance in the development

of possible proposals to change existing standards. In its review of

hours and time of work issues, the Committee recommended that existing

hours and time of work standards be retained without modification.

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\4\The CLAC was composed of 21 members representing employers,

education, labor, child guidance professionals, civic groups, child

advocacy groups, State officials, and safety groups.

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In the U.S. Congress, bills have been introduced in the House and

Senate that include, among other things, hours and time restrictions

for 14- and 15-year-old employees. Bills to reform the FLSA's child

labor provisions, H.R. 1106, introduced February 24, 1993, and S. 86,

introduced January 21, 1993, would allow 14- and 15-year-olds to work

only for 3 hours a day and 15 hours a week, or between the hours of 7

a.m. and 7 p.m. when school is in session. Under H.R. 1106, 16- and 17-

year-old minors could not, for the first time, work more than 4 hours a

day or 20 hours a week, or before 6 a.m. or after 10 p.m. when school

is in session. These hours and time restrictions for 14- and 15-year-

olds are similar to the existing regulations, except that the bills set

a 15 hours-per-week limit (rather than the current, regulatory 18).

Under a model State child labor law drafted by the Child Labor

Coalition (a child labor advocacy group of 35 organizations interested

in updating child labor laws), the maximum hours of employment for 14-

and 15-year-olds would be set at 15 hours a week while in school, and

30 hours a week when school is not in session. For 16- and 17-year-

olds, the maximum work hours would be 30 when school is in session and

40 hours when it is not.

The Department has also continued to receive input from the public

suggesting that certain changes be made in the regulations.5 The

National Restaurant Association (NRA), the International Association of

Amusement Parks and Attractions (IAAPA), and the Fresno (California)

Private Industry Council, among others, have requested that the

Department change the regulations. Correspondence has also been

received from individual employers, Members of Congress, and members of

State legislatures.

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\5\ Section 570.38 of the regulations provides that persons

desiring revisions of subpart C of part 570 may submit in writing to

the Secretary of Labor a petition setting forth the changes desired

and the reasons for proposing them. In response, the Secretary may

either schedule hearings or make other provisions for affording

interested parties an opportunity to be heard.

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In 1992, for example, the NRA noted that nearly 20 percent of

employed teens work in food service occupations and that roughly 25

percent of the industry's hourly workers are in their teens. The NRA

also pointed to a high overall teen unemployment rate and suggested a

number of reforms to the regulations, including:

(1) Allowing 14- and 15-year-olds to work up to 24 hours a week

when school is in session for four days or less due to holiday or

vacation breaks (currently limited to 18 hours during weeks when

school is in session for one or more days);

(2) Expanding the limit to 4 hours on Sundays through Thursdays,

i.e., days followed by school days, and to 8 hours on Fridays and

Saturdays (currently limited to 3 hours on school days);

(3) Changing the 7 p.m. limitation during the school year to 9

p.m. on Sundays through Thursdays and to 11 p.m on Fridays and

Saturdays; and

(4) Changing the 9 p.m. limitation during the summer vacations

(from June 1 to Labor Day) to 11 p.m.

Reforms suggested by the International Association of Amusement Parks

and Attractions (IAAPA) include:

(1) Allowing 14- and 15-year-olds to work up to 24 hours a week

when school is in session for 5 days, and up to 36 hours a week when

school is in session for any part of a week due to holidays or

vacation (with the actual hours limit determined by subtracting from

40 hours, 4 hours for each day that school is in session during the

partial school week);

(2) Changing the current 3-hours-per-day limit when school is in

session to 4 hours; and

(3) Changing the 9 p.m. end-of-day limitation during the summer

period to 11 p.m.

The Department is also aware of the child labor standards

established by State governments. In this regard, nearly all States

have employment restrictions applicable to young workers and, although

many have adopted standards similar to the Federal standards for 14-

and 15-year-olds, the restrictions vary significantly. For example,

most States limit the number of hours that may be worked in a day when

school is not in session to 8 hours; only three States allow more than

8 hours of work in a day when school is not in session. Most States

limit the number of hours that may be worked in a week when school is

not in session to 40 hours; fifteen States, however, permit work in

excess of 40 hours when school is not in session, with the number of

hours allowed ranging from 44 to 56. With respect to the number of

hours that may be worked in a week when school is in session, a large

number of the States do not have any specific restrictions. Eighteen

States restrict work to no more than 18 hours; two States restrict work

to 16 and 15 hours, respectively; two States restrict work hours to 18

hours but allow more hours when school is not in session for a full

week; and seven other States have provisions that allow work in excess

of 20 hours a week when school is in session.

Of the States that restrict daily work hours, 20 provide for a 3-

hour limitation on a school day, whether or not the following day is a

school day; one State sets a 3-hour limit on days followed by a school

day; and one State permits longer hours on Saturdays and Sundays. A

daily limit of 4 hours is allowed by seven States, with one of these

States permitting additional hours on Fridays and on a school day

preceding a day when school is not in session.

Four States have established maximum permissible daily and/or

weekly combined school and work hours, i.e., 10 total hours of combined

school and work on a daily basis, or 48 total hours of combined school

and work on a weekly basis.

In 28 States, work beyond 7 p.m. is prohibited except during the

summer, on a holiday, or on a day preceding a day when school is not in

session, when work until 9 p.m. is allowed in 26 of these States, and

until 10 p.m. in the other two States. Two additional States prohibit

work after 7 p.m. at all times. An additional 19 States allow work at

least until 8 p.m.; another five States permit work until 10 p.m.

In addition to allowing more working hours during the summer, State

standards often distinguish between days preceding a school day from

those preceding a non-school day. Several States also make a

distinction between full school weeks and weeks when school is in

partial session because of holiday and vacation time, permitting more

hours to be worked in partial school weeks.

Under the Department's Work Experience and Career Exploration

Program (WECEP), which began in 1969, 14- and 15-year-old enrollees

were initially permitted to work up to 28 hours per week when school

was in session and up to 4 hours on a school day, any portion of which

could be during school hours. Studies of WECEP indicated that limited

labor market experience in a controlled school setting had a definite

positive impact on the scholastic performance and school attendance of

participating 14- and 15-year-old students. These studies also

established that the optimum hours--at which students attained the

greatest educational benefits--were fewer than the maximum hours

originally allowed. As a result, in 1975, the permissible hours of

employment under WECEP were reduced to 3 hours per day and 23 hours per

week, and these revised standards were adopted in final regulations

published in the Federal Register on September 3, 1975. See 29 CFR

570.35a(d).

The Department is also aware that some employers of young workers

have adopted special programs designed to achieve complementary

integration of educational and work experiences. Such employers may,

for example, ascertain young workers' grade point averages (GPA) at the

time of hiring; arrange work schedules, subject to parental consent, to

accommodate the scholastic needs of students; allow young workers to

study at the workplace; give bonuses for superior academic achievement

or school attendance; monitor young workers' academic performance and

school attendance during employment; and ensure that students, prior to

hiring, know their employment rights and the regulations applicable to

minors.

The Department seeks comments on whether there is a need for

changes in the requirements of Child Labor Reg. 3 for students

participating in programs under statewide School-to-Work Opportunities

systems advocated by the School-to-Work initiative jointly sponsored by

the Departments of Education and Labor (see 59 FR 5266 (February 3,

1994) and 59 FR 11154 (March 9, 1994)). Programs developed under this

initiative are intended to give youth access to education and training

opportunities that will prepare them for high-skill, high-wage careers.

The Department, for the reasons discussed above, is particularly

interested in obtaining public comment on the appropriateness and

feasibility of the following matters:

1. Should greater flexibility be allowed in the permissible hours

of work for 14- and 15-year-olds whose employers have a formal

``employer-parent-school'' program that links meaningful work

experiences with support for the attainment of the student-employee's

educational goals and ongoing academic performance? Commenters are

requested to include specific recommendations as to the standards or

criteria that should be considered for inclusion in any future

rulemaking to define such special programs, and as to the changes in

permissible work hours that would be appropriate for 14- and 15-year-

olds whose employers maintain such programs. Commenters are also

requested to provide information regarding the implications for

employer recordkeeping that might be necessary for the Department to

monitor compliance with the standards for any such programs, and

recommendations for how these recordkeeping requirements should be

addressed.

2. The current regulations contain an end-of-day restriction of 7

p.m. on days when school is in session. A less restrictive time of 9

p.m. is permitted during the summer vacation period defined in the

regulations as June 1 through the Labor Day holiday. When school is in

session, the regulations make no distinction between a day preceding a

school day and one preceding a non-school day, i.e., typically Fridays,

Saturdays, and days before a school holiday. Should there be different

restrictions on times of work on days preceding a non-school day and,

if so, why? Would any such changes interfere with the schooling,

health, or well-being of young workers? If an end-of-day restriction

different from 7 p.m. is appropriate on days preceding a non-school

day, what should the time restriction be on such days, and why? Should

the Department consider a later end-of-day time for work during the

summer months when school is not in session? If so, what should that

time be and why?

3. The regulations currently limit the daily hours that may be

worked by 14- and 15-year-olds to 3 hours on days when school is in

session; 8 hours when school is not in session. Should a distinction be

made in the number of hours that may be worked on a day preceding a

non-school day (typically Friday, Saturday, and the day before a school

holiday) and, if so, how many hours should be permitted and why?

4. Weekly hours for 14- and 15-year-olds are limited by the

regulations to 18 hours when school is in session. While some States

permit more hours, only two limit permissible weekly hours to less than

the 18-hour standard, one to 16 and another to 15. On the other hand,

the child labor reform bill pending in the U.S. House of

Representatives (H.R. 1106) and the Model state law drafted by the

Child Labor Coalition would limit the number of hours that may be

worked each week to 15. Should the existing Federal standard be changed

and, if so, how many hours should be permitted and why? Should a

distinction be made for those weeks when school is in session less than

five days?

5. Traditionally, schools were not ``in session'' during the summer

months and the regulations reflected this common schedule by providing

less-restrictive hours and time limitations during the summer vacation

period between June 1 and the Labor Day holiday. School systems,

however, have begun converting to non-traditional attendance schedules

and remain open year-round. For example, some public and private

schools have implemented academic quarter-year, trimester, or other

alternative attendance schedules under which the schools schedule

classes year-round, but not all students are attending school at any

point in time. For these schools, the traditional concept of the

``summer vacation break'' between June 1 and Labor Day has become

irrelevant. Additionally, home education programs are now more common,

not only in school jurisdictions where the public schools operate on

uniform attendance calendars applicable to all students, but also in

school jurisdictions where the public schools operate year-round or on

a platoon system. Should the regulations be changed to accommodate

different structures for when school is ``in session'' and what are the

particular changes that should be made to reflect the characteristics

of alternative school schedules? If the concept is based on the

schedule for school attendance of individual student-employees (rather

than the entire school system), how do employers and student-employees

determine when different hours restrictions are applicable and what

records would have to be maintained to ensure compliance?

The Department is also reviewing the occupational provisions

contained in Reg. 3 to determine what changes, modifications, or

clarifications, if any, are appropriate for 14- and 15-year-old

employees. The Department is interested in obtaining public comment on

all aspects of these provisions, including the following matters:

1. Section 570.34(b)(5), promulgated prior to the advent of the

fast food industry, prohibits cooking by 14- and 15-year-olds employed

by retail and food establishment cooking at soda fountains, lunch

counters, snack bars, or cafeteria serving counters. This prohibition

has been interpreted by the Department to allow cooking only when the

activity is in ``plain view'' of customers. Thus, the cooking

prohibition applies to full service restaurants and certain fast food

restaurants where the cooking configuration does not permit customers

to plainly view the cooking activity. Should cooking be permitted in

retail and food establishments, and, if so, what restrictions, if any,

would be appropriate to ensure the safety and health of young workers?

Should all cooking be prohibited, and, if so, why?

2. Section 570.33(b) prohibits the employment of 14- and 15-year-

olds in any occupation which involves ``* * * any power-driven

machinery other than office machines.'' The operation of certain power-

driven devices, equipment, and tools in retail, food service, and

gasoline service establishments is expressly permitted by Sec. 570.34.

In such industries, 14- and 15-year-olds may, for example, operate

vacuum cleaners, floor waxers, dishwashers, toasters, dumbwaiters,

popcorn poppers, milk shake blenders, and coffee grinders. Fourteen-

and 15-year-olds are also permitted to operate office machines in

connection with office and clerical work and cash registers in

connection with retail sales work. Should any of the machines, etc.,

expressly permitted in Reg. 3 be reconsidered because their use

adversely affects the health and well-being of such workers? If so,

why? Are there power-driven machines, etc., in the contemporary

workplace not now expressly permitted by Reg. 3 which 14- and 15-year-

olds should be allowed to operate? If so, identify the machines and

explain why their use should be permitted. Also, questions periodically

arise about the meaning of ``power-driven'' and whether the term

includes tools, equipment, etc., that are activated by battery power,

i.e., many tools and devices are now power-activated by rechargeable

battery units. Should the term ``power-driven'' include equipment,

tools, etc. powered by such sources, and why or why not?

3. In addition, consideration is being given to two clarifying

modifications which would incorporate existing Departmental enforcement

policy into the regulations. Section 570.34(b)(7) prohibits 14- and 15-

year-olds from working in freezers and meat coolers. Such workers 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 coolers or freezers for

prolonged periods. Inventory and cleanup work involving prolonged stays

in freezers and coolers also is prohibited. On the other hand, food

preparers in fast food restaurants or cashiers in grocery stores whose

duties require entry to such refrigeration equipment only momentarily

to retrieve items are not considered as working in coolers and freezers

for enforcement purposes. Because this traditional interpretation of

the ``cooler and freezer'' prohibition is not specifically contained in

the regulations, a regulatory clarification may be appropriate.

Similarly, a regulatory clarification to reflect longstanding

policy concerning solicitations for newspaper subscriptions may be

appropriate. Section 13(d) of the FLSA exempts from the minimum wage,

overtime, and child labor provisions (Secs. 6, 7, and 12) ``* * * any

employee engaged in the delivery of newspapers to the consumer.''

Accordingly, such work is outside the scope of the child labor

regulations. However, the Department has held, on the basis of a legal

opinion from the Solicitor, that the ``newspaper'' exemption does not

apply when the minor is performing nonexempt work such as participation

in a sales blitz where newspaper subscriptions are solicited outside

the assigned paper route for delivery by other delivery persons. Should

this enforcement position be incorporated in the provisions of Child

Labor Reg. 3?

The Department recognizes the delicate balance between the value of

jobs that provide positive, formative experiences, and the negative

effects that excessive hours of employment of youth can have on their

academic performance, and their health and well-being. Public comments,

which should include supporting data whenever available, are

specifically invited on such relevant factors as:

(1) The need for safe and healthy employment opportunities for

14- and 15-year-olds;

(2) The biological developmental factors, such as muscle

coordination and attention span, present in 14- and 15-year-olds

which should be considered with regard to their conditions of

employment;

(3) The educational needs of 14- and 15-year-olds and the effect

on their academic success of longer and/or later hours of work;

(4) The correlation between longer and/or later hours of work

and the safety and health of 14- and 15-year-olds;

(5) The correlation between employment opportunities for 14- and

15-year-olds and their personal and educational development; and

(6) The potential effects of specific changes in the regulations

on the employment opportunities of 14- and 15-year-olds.

II. Nonagricultural Hazardous Occupations Orders for the Employment of

Youth Under 18 Years of Age

The first seven HOs were developed under the direction of the

Children's Bureau between 1939 and 1946. In 1946, authority for the

program was transferred from the Children's Bureau to the Department of

Labor under Reorganization Plan No. 2. HOs 8 through 17 were issued by

the Bureau of Labor Standards between 1950 and 1963. In the intervening

years, the Department has made some clarifying modifications to these

HOs that largely incorporate Departmental interpretations and

enforcement policy, and hazardous occupations in agricultural were

promulgated in 1970.

As a result of various recommendations made by the Department's

Child Labor Advisory Committee (CLAC), a notice of proposed rulemaking

was published to clarify or modify HO 2, HO 10, and HO 12 on October

23, 1990 (55 FR 42812). The final rule, published on November 20, 1991

(56 FR 58626), clarified the existing HOs to:

(1) Eliminate exemption procedures contained in HO 2 which allowed

minors under 18 years of age to work as school bus drivers;

(2) Specify that restaurants, fast food establishments, and other

retail establishments are subject to HO 10 prohibiting minors under the

age of 18 from using power-driven meat processing equipment;

(3) Specifically provide that meat slicers are meat processing

equipment within the meaning of the HO 10 prohibitions; and

(4) Amend HO 12 to expressly prohibit minors under the age of 18

from using power-driven paper baling machinery in the processing of

waste paper.

The CLAC made a number of additional recommendations which were not

included in the HO 2, 10, and 12 rulemaking. For example, the CLAC

recommended that HO 10 be amended to also include bacon slicing

machines in the list of prohibited machines, and to prohibit the use of

such machines without regard to the purpose of their use, i.e., power-

driven meat processing machines used primarily for processing products

other than meat. The CLAC also was of the view that food processing in

industries other than meat processing, such as poultry, fish, and

seafood processing, should be studied by the Department to determine

the need for protecting young workers from hazardous activity. With

respect to HO 2, the CLAC made several recommendations, including

defining and delimiting the terms ``occasional and incidental'' driving

and ``outside helper,'' specifically prohibiting the operation of

trucks on private property, and specifically excluding motorcycles,

mopeds, or similar vehicles from the ``occasional and incidental''

exception. With respect to HO 11, the CLAC recommended a complete ban

on the operation of all power-driven bakery machinery, and also

recommended further study of power-driven paper products machines

addressed in HO 12.

Of particular concern to the CLAC was the lack of sufficient and

relevant data to support comprehensive review of existing HOs or

findings that certain contemporary occupations, processes, machinery

and worksites are particularly hazardous for employment of youths under

age 18, or detrimental to their health or well-being. The lack of

comprehensive statistics on minors injured in the workplace has been a

longstanding concern of the Department. Historically, some limited

information was generated, largely from secondary sources and

statistical records from the few States that compiled worker

compensation data, to support the case for each of the existing HOs.

Fundamental to some of the existing HOs (e.g., HO 15, shipbreaking),

however, was the notion that work found to be particularly hazardous or

detrimental to the health and well-being of adult workers would be

injurious to minor workers.

To address this concern, the Department is continuing its efforts

to develop reliable youth injury statistics through enhancements of

information reported by the Bureau of Labor Statistics (BLS). BLS is

redesigning its Occupational Safety and Health Statistical reporting

system to collect more comprehensive work-related injury and illness

data on all workers, including young workers. This new system, the

Survey of Occupational Injuries and Illnesses, will collect information

from about 280,000 establishments from a sampling frame of

approximately six million establishments. The new survey will include

data by occupation, age, gender, race, and length of service with

details on, among other things, the nature of the injury/illness, the

part of body affected, the primary and secondary sources of the injury/

illness, and the event or exposure leading to the injury/illness. BLS

has developed another major safety and health data reporting system

with its Census of Fatal Occupational Injuries program. This data base

includes information on fatally injured workers (industry, occupation,

age, sex, and race) and the fatal events (nature of the injury and how

it happened).

The Department believes that such injury data is essential to

support ongoing comprehensive and systematic reviews of occupations,

processes, machinery, and worksites which are particularly hazardous

for workers under 18 years of age, or detrimental to their health or

well-being. While such data will enhance the Department's ability to

pinpoint patterns of injuries and illness by various characteristics,

i.e., problems areas, specific information about workplaces, processes,

and machines causing injuries or illness must still be identified,

e.g., data can indicate that a ``machine'' was the object which

produced injuries in a particular industry, but specific information on

the type of machine and/or its peculiar characteristics may continue to

be a key part of HO determinations.

The Department's review of State child labor laws supports the view

of the CLAC that the existing HOs need to be revisited and that

contemporary circumstances may warrant new or different protections for

minors under the age of 18. The standards in those States that regulate

employment under age 18 prohibit employment on certain types of

machines, in work involving hazardous substances, in hazardous

locations, in dangerous occupations, and in specific industries. While

specific prohibitions vary widely among these States, a significant

number of States have promulgated work prohibitions in areas of

particular interest to the Department: At least nine States

(Connecticut, Florida, Iowa, Louisiana, Maryland, Minnesota, New

Jersey, New York, and Washington) prohibit exposure to carcinogenic,

corrosive or toxic substances; a number of States (Arkansas,

Connecticut, Delaware, Florida, Maryland, and Pennsylvania) prohibit

work on electric apparatus or wiring; four States (Illinois, North

Dakota, Washington and Wisconsin) now prohibit exposure to body fluids

and infectious agents; and several States (Colorado, Connecticut,

Florida, Minnesota, and Washington) place restrictions on work above

specified heights.

Further, the Department is aware of Congressional interest in the

updating of workplace protections for minors under the age of 18. The

bills referred to above, H.R. 1106 and S. 86, would direct the

Secretary of Labor to find and declare HOs prohibiting the employment

of minors in poultry processing, fish and seafood processing, and in

the handling of pesticides. In addition, H.R. 1106 would, among other

things, eliminate any exemption from the motor vehicle operation

prohibition in HO 2 except for driving by a 17-year-old that is

``secondary and incidental'' to the minor's main occupation; and

expressly apply HO 10 to restaurants and fast food establishments.

While the Department is interested in obtaining public comment on

any modifications, deletions, clarifications, or other changes that may

be appropriate in existing HOs, and any areas of work that should be

addressed by new HOs, public comment is specifically invited on the

appropriateness and feasibility of the following:

1. Food Processing

HO 10 currently prohibits the employment of youth under 18 in

certain occupations involving slaughtering, meat-packing or processing,

or rendering. There are no comparable restrictions involving poultry

processing and fish and seafood processing. Should the Department adopt

restrictions in these industries, and, if so, are there particular

machines or operations which should be restricted? To what extent are

minors under 18 employed in such industries, and what is the nature of

the work performed? Should such restrictions encompass all food

processing? Do studies, injury and illness data, etc., exist which

support prohibiting the employment of minors under the age of 18 in all

food processing activity?

2. Hazardous Wastes and Toxic Substances

Existing regulations do not address exposures to hazardous wastes

and toxic substances in nonagricultural employment. In agriculture, the

handling of or applying toxic agricultural chemicals by youth under the

age of 16 is prohibited (see Sec. 570.71(a)(9)). The model State child

labor law drafted by the Child Labor Coalition, discussed above, would

ban all occupations involving the loading, mixing, applying, handling,

or working around or near any fertilizer, herbicides, fungicides,

pesticides, insecticides, and/or any other chemical. In addition, this

model legislation would prohibit the loading, handling, mixing, or

applying of chemicals, including cleaning agents or disinfectants,

which could result in allergic reactions, poisonings, or internal or

external injuries. The use or handling of heavy metals, including

mercury and lead, would also be prohibited by the proposed model

legislation.

A number of States have adopted standards along the same lines.

Several States, for example, prohibit exposure to carcinogenic,

corrosive, or toxic substances. Working with lead, working in the

manufacturing of paint, acids or poisons, and exposure to asbestos and

related substances are other areas banned by particular States.

Is there a commonly understood definition of toxic or hazardous

substances, and what standards or criteria would be appropriate for use

in Federal standards for workers under 18 years old? Should different

standards apply to 14- and 15-year-olds? Are there data to support such

standards or criteria? Should specific substances or materials be

identified in an HO, or would a more generic framework be appropriate?

Is an occupational and/or industry framework a reasonable alternative,

and, if so, which occupations and/or industries create the greatest

concerns that such exposure is detrimental to the health and well-being

of youth under age 18? What are the compliance difficulties associated

with limiting employment in this area, and how can they be minimized?

3. Electric Apparatus and Wiring

Available injury and illness data indicate a high incidence of

fatal injuries in the construction industry resulting from electric

shock. A significant number of these deaths were suffered by workers

between the ages of 16 and 19. Construction industry accidents

involving electric shock are attributed to working directly with

electricity, using hand held power driven tools, from electric cords,

and from ladders, scaffolds and other equipment coming in contact with

overhead wires. While the current child labor regulations do not deal

with electricity, at least six States prohibit young workers from

working with electric apparatus and wiring.

Should consideration be given to establishing a prohibition of such

activity in the construction industry? Why? Should a broad-based

generic prohibition be considered as opposed to occupational-specific

prohibitions, and, if so, how should the prohibition be formulated?

Should an exemption be permitted for employment of 16- and 17-year-old

apprentices and student learners as in the case of certain other HOs

(HOs 5, 8, 10, 12, 14, 16, and 17)?

4. Heights

Under HO 16, all occupations in roofing operations are prohibited.

The HO's prohibition does not include gutter and downspout work; the

construction of the sheathing or base of roofs; or the installation of

television antennas, air conditioners, exhaust and ventilating

equipment, or similar appliances attached to roofs.

Several States currently restrict work above certain heights by

young workers. These standards either involve work performed at heights

above 10 feet or at heights 6 feet above ground, and include elevated

surfaces such as scaffolds and ladders.

While work in roofing occupations is specifically prohibited by HO

16, work in other occupations requiring work on a roof are not. Should

all occupations involving work on roofs be prohibited? If so, why? As

above, should consideration be given to the possible development of a

generic restriction with cross-industry application or to particular

occupations and/or industries, e.g., the construction industry? Also,

should an exemption be permitted for employment of 16- and 17-year-old

apprentices and student learners?

5. Body Fluids and Infectious Agents

The States of Wisconsin and Washington have prohibited all minors

from working in occupations involving exposure to body fluids including

blood or infectious agents, and in 1993 the States of North Dakota and

Illinois banned such employment for minors under the age of 16. Other

States accomplish a similar objective using an industry/occupation

approach. In Virginia, for example, minors under the age of 16 cannot

work as laboratory helpers, therapists, orderlies, or nurses' aides in

any hospital, nursing home, clinic, or other establishment providing

care for resident patients. Minors under the age of 18 are prohibited

by the State of Washington from employment in the occupation of nurses'

aid, except as a student or after training, and by the State of

Wisconsin from employment in hospitals and nursing homes. The model

State law drafted by the Child Labor Coalition, referred to above,

would ban all occupations involving the handling or storage of blood,

blood products, body fluids and body tissues, and medical or other

dangerous wastes.

What evidence exists to support a finding that such exposures are

particularly hazardous, or detrimental to the health or well-being of

young workers, or that they are at risk in the absence of work

prohibitions? Are other governmental safeguards, i.e., standards

established by the Occupational Safety and Health Administration

(OSHA), sufficient to protect minors? As above, would an occupation/

industry-specific approach, in contrast to a generic formulation, be

more feasible, and, if so, why?

6. Student-Learner Exceptions

Another area of the regulations under review concerns the student-

learner provisions in Sec. 570.50(c). Certain of the HOs (HO 5, 7, 10,

12, 14, 16, and 17) contain an exemption for the employment of student-

learners between the ages of 16 and 18. For the exemption to apply,

Secs. 570.50(c)(2)(i) and (ii) require a written agreement which

provides that the work of the student-learner in a vocational training

program involving these otherwise prohibited occupations and activities

must be ``incidental'' to the training and that the work is

``intermittent and for short periods of time.'' The Department is

seeking comment on whether there is a need for changes to these two

requirements for student-learners participating in programs under

statewide School-to-Work Opportunities systems advocated by the School-

to-Work initiative jointly sponsored by the Departments of Education

and Labor (see 59 FR 5266 (February 3, 1994) and 59 FR 11154 (March 9,

1994)). Programs developed under this initiative are intended to give

youth access to education and training opportunities that will prepare

them for high-skill, high-wage careers. The Department solicits public

comment on whether any changes are needed to these two requirements in

order to facilitate this objective. The changes being considered would

be limited to student-learners under School-to-Work Opportunities

programs and would affect only those HOs which have traditionally

included a student-learner exception. School-to-Work Opportunities

programs would remain subject to the requirements that the activity be

performed under the direct and close supervision of a qualified and

experienced person, that safety instructions be given by the school and

correlated by the employer with on-the-job training, and that a

schedule of organized and progressive skill development activities be

prepared. Also, work done in prohibited occupations would be an

essential and integral part of the student-learner's training program.

If there are no changes made to the student-learner exception, would

this significantly foreclose school-to-work training opportunities? If

this were the case, what other alternatives should the Department

consider to facilitate the effectiveness of employment in the School-

to-Work Opportunities program?

III. General

In soliciting comments on the above or any other aspects of the

child labor regulations considered appropriate by commenters, such as

the HO 10 exemption for bacon-slicing machines, the Department is

specifically interested in data, reports, cost-benefit analyses,

studies and other documentation which support the positions taken or

otherwise relate to the Department's objective to develop updated,

realistic health and safety standards for today's young workers. Any

impact on school-to-work transition programs should also be discussed.

This document was prepared under the direction and control of Maria

Echaveste, Administrator, Wage and Hour Division, Employment Standards

Administration, U.S. Department of Labor.

List of Subjects in 29 CFR Part 570

Child labor, Child labor occupations, Employment, Government,

Intergovernmental relations, Investigations, Labor, Law enforcement,

Minimum age.

Signed at Washington, DC, on this 4th day of May, 1994.

Maria Echaveste,

Administrator, Wage and Hour Division.

[FR Doc. 94-9947 Filed 5-12-94; 8:45 am]

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