[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Proposed Rules]
[Pages 19337-19373]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-7053]
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 570
RIN 1215-AB57
Child Labor Regulations, Orders and Statements of Interpretation
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Department of Labor (Department or DOL) is proposing to
revise the child labor regulations in order to implement an amendment
to the Fair Labor Standards Act's child labor provisions, contained in
the Department of Labor Appropriations Act, 2004 (Pub. L. 108-199),
which authorizes under specified conditions the employment of certain
youth between the ages of 14 and 18 years inside and outside of places
of business that use machinery to process wood products.
The Department is proposing to revise Child Labor Regulation No. 3,
subpart C of 29 CFR part 570, which governs the employment of 14- and
15-year-olds in nonagricultural occupations by revising the lists of
occupations and industries
[[Page 19338]]
in which such youth may and may not be employed. The Department is also
proposing to clarify, but not change, the standards addressing the
permitted periods and conditions under which such youth may be employed
and to create a limited exemption from those standards for certain
academically motivated youth enrolled in work-study programs.
The Department is also proposing to revise several of the
nonagricultural Hazardous Occupations Orders (HOs) to implement
specific recommendations made by the National Institute for
Occupational Safety and Health in its 2002 report entitled National
Institute for Occupational Safety and Health (NIOSH) Recommendations to
the U.S. Department of Labor for Changes to Hazardous Orders. The HOs
affected by this proposal concern occupations involved with logging and
sawmilling; meat processing; and the operation of power-driven hoisting
equipment, bakery equipment, compacting and baling equipment, and
certain cutting, shearing, and guillotining equipment.
In addition, the Department is proposing to provide clarity by
incorporating into the regulations three long-standing enforcement
positions regarding the cleaning of power-driven meat processing
equipment, the operation of certain power-driven pizza-dough rollers,
and the definition of high-lift trucks. The Department is also
proposing to expand the HO that prohibits youth from operating power-
driven circular saws, band saws, and guillotine shears to include
prohibitions concerning the operation of power-driven chain saws, wood
chippers, and reciprocating saws.
Finally, the Department proposes to revise subpart G of the child
labor regulations, which is entitled General Statements of
Interpretation of the Child Labor Provisions of the Fair Labor
Standards Act of 1938, as Amended. The proposal would incorporate into
this subpart all the regulatory changes made since this subpart was
last revised in 1971.
DATES: Comments are due on or before July 16, 2007.
ADDRESSES: You may submit comments, identified by RIN 1215-AB57, by
either one of the following methods:
Electronic comments, through the Federal eRulemaking
Portal: http://www.regulations.gov. Follow the instructions for
submitting comments.
Mail: Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Room S-3502, 200 Constitution
Avenue, NW., Washington, DC 20210.
Instructions: Please submit one copy of your comments by only one
method. All submissions received must include the agency name and
Regulatory Information Number (RIN) identified above for this
rulemaking. All comments received will be posted without change to
http://www.regulations.gov, including any personal information
provided. Because we continue to experience delays in receiving mail in
the Washington, DC area, commenters are strongly encouraged to transmit
their comments electronically via the Federal eRulemaking Portal at
http://www.regulations.gov or to submit them by mail early. For
additional information on submitting comments and the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Arthur M. Kerschner, Jr., Office of
Enforcement Policy, Child Labor and Special Employment Team, Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor, Room S-3510, 200 Constitution Avenue, NW., Washington, DC 20210;
telephone: (202) 693-0072 (this is not a toll free number). Copies of
this notice of proposed rulemaking may be obtained in alternative
formats (Large Print, Braille, Audio Tape, or Disc), upon request, by
calling (202) 693-0023. TTY/TDD callers may dial toll-free (877) 889-
5627 to obtain information or request materials in alternative formats.
Questions of interpretation and/or enforcement of regulations
issued by this agency or referenced in this notice may be directed to
the nearest Wage and Hour Division District Office. Locate the nearest
office by calling the Wage and Hour Division's toll-free help line at
(866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local
time zone, or log onto the Wage and Hour Division's Web site for a
nationwide listing of Wage and Hour District and Area Offices at:
http://www.dol.gov/esa/contacts/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Electronic Access and Filing Comments
Public Participation: This notice of proposed rulemaking is
available through the Federal Register and the http://www.regulations.gov Web site. You may also access this document via the
WHD home page at http://www.wagehour.dol.gov. To comment electronically
on federal rulemakings, go to the Federal eRulemaking Portal at http://www.regulations.gov, which will allow you to find, review, and submit
comments on federal documents that are open for comment and published
in the Federal Register. Please identify all comments submitted in
electronic form by the RIN docket number (1215-AB57). Because of delays
in receiving mail in the Washington, DC area, commenters should
transmit their comments electronically via the Federal eRulemaking
Portal at http://www.regulations.gov, or submit them by mail early to
ensure timely receipt prior to the close of the comment period. Submit
one copy of your comments by only one method.
II. Background
The child labor provisions of the Fair Labor Standards Act (FLSA)
establish a minimum age of 16 years for employment in nonagricultural
occupations, but the Secretary of Labor is authorized to provide by
regulation for 14- and 15-year-olds to work in suitable occupations
other than manufacturing or mining, and during periods and under
conditions that will not interfere with their schooling or health and
well-being. The FLSA provisions permit 16- and 17-year-olds to work in
the nonagricultural sector without hours or time limitations, except in
certain occupations found and declared by the Secretary to be
particularly hazardous, or detrimental to the health or well-being of
such workers.
The regulations for 14- and 15-year-olds are known as Child Labor
Regulation No. 3 (Reg. 3) and are contained in subpart C of part 570
(29 CFR 570.31-.38). Reg. 3 limits the hours and times of day that such
minors may work and identifies occupations that are either permitted or
prohibited for such minors. Under Reg. 3, 14- and 15-year-olds may work
in certain occupations in retail, food service, and gasoline service
establishments, but are not permitted to work in certain other
occupations (including all occupations found by the Secretary to be
particularly hazardous for 16- and 17-year-olds). Reg. 3, originally
promulgated in 1939, was revised to reflect the 1961 amendments to the
FLSA, which extended the Act's coverage to include enterprises engaged
in commerce or the production of goods for commerce. Because of the
statutory amendments, the FLSA's child labor protections became
applicable to additional areas of employment for
[[Page 19339]]
young workers in retail, food service, and gasoline service
establishments.
The regulations concerning nonagricultural hazardous occupations
are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68).
These Hazardous Occupations Orders (HOs) apply on either an industry
basis, specifying the occupations in a particular industry that are
prohibited, or an occupational basis, irrespective of the industry in
which the work is performed. The seventeen HOs were adopted
individually during the period of 1939 through 1963. Some of the HOs,
specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited
exemptions that permit the employment of 16- and 17-year-old
apprentices and student-learners under particular conditions to perform
work otherwise prohibited to that age group. The terms and conditions
for employing such apprentices and student-learners are detailed in
Sec. 570.50(b) and (c).
Because of changes in the workplace, the introduction of new
processes and technologies, the emergence of new types of businesses
where young workers may find employment opportunities, the existence of
differing federal and state standards, and divergent views on how best
to balance scholastic requirements and work experiences, the Department
has long been reviewing the criteria for permissible child labor
employment. In this review, the Department published a Notice of
Proposed Rulemaking (NPRM) in 1982, an NPRM in 1990, a Final Rule in
1991, both an Advance Notice of Proposed Rulemaking (ANPRM) and an NPRM
in 1994, a Final Rule in 1995, an NPRM in 1999, and a Final Rule in
2004.
On July 16, 1982, an NPRM was published in the Federal Register (47
FR 31254) which proposed to revise several elements of Reg. 3,
including the permissible hours and times of employment for 14- and 15-
year-olds and the types of cooking operations those minors would be
permitted to perform. The NPRM generated considerable public interest,
mostly relating to the expansion of the hours and times of work for
this age group. The Department subsequently suspended the proposal from
further consideration and no final rule was implemented.
The Department continued to receive suggestions from the public
that certain changes should be made to the child labor regulations on a
number of issues. In 1987, the Department established a Child Labor
Advisory Committee (CLAC) composed of 21 members representing
employers, education, labor, child guidance professionals, civic
groups, child advocacy groups, state officials, and safety groups. The
mission of the CLAC was to give advice and guidance in developing
possible proposals to change existing standards. After reviewing a
number of issues, the CLAC proposed making certain changes to the child
labor regulations. The Department considered the CLAC's suggestions, as
well as suggestions received from the public as noted above, and
published an NPRM in October 1990, proposing changes to three HOs (55
FR 42612). In December 1991, the Department promulgated a Final Rule
which revised the three HOs (56 FR 58626).
The Department continued to review the child labor regulations and
on May 13, 1994, in an effort to accumulate data concerning all aspects
of the provisions, published both an NPRM (59 FR 25164) and an ANPRM
(59 FR 25167). The NPRM proposed to exempt 14- and 15-year-olds from
Reg. 3 hours standards when employed under certain restrictions as
sports attendants for professional sports teams, to standardize the
Reg. 3 process for issuing occupational variances for Work Experience
and Career Exploration Program (WECEP) participants, to remove an
outdated exemption for enrollees in certain work training programs, and
to revise the process by which HOs are promulgated. A Final Rule on
these issues was published April 17, 1995 (60 FR 19336).
The 1994 ANPRM requested public comment on several specific topics
as well as all aspects of the child labor provisions. Several
individuals and organizations submitted comments. The National
Institute for Occupational Safety and Health (NIOSH) provided the
Department with epidemiological data on a number of issues related to
both Reg. 3 and the HOs. NIOSH also provided the Department with
statistics regarding occupational injuries and made several
recommendations. A number of child guidance professionals, educators,
unions, employer associations, and child labor advocates also commented
and made various recommendations.
Congress has amended the child labor provisions of the FLSA three
times since 1996. The Compactors and Balers Safety Standards
Modernization Act, Pub. L. 104-174 (Compactor and Baler Act), was
signed into law on August 6, 1996. This legislation added section
13(c)(5) to the FLSA, permitting minors 16 and 17 years of age to load,
but not operate or unload, certain scrap paper balers and paper box
compactors when certain requirements are met. The Drive for Teen
Employment Act, Pub. L. 105-334, was signed into law on October 31,
1998. This legislation added section 13(c)(6) to the FLSA, prohibiting
minors under 17 years of age from driving automobiles and trucks on
public roadways on-the-job and establishing the conditions and criteria
for 17-year-olds to drive automobiles and trucks on public roadways on-
the-job. The Department of Labor Appropriations Act, 2004, Pub. L. 108-
199, amended the FLSA by creating a limited exemption from the youth
employment provisions for minors 14 to 18 years of age who are excused
from compulsory school attendance beyond the eighth grade. The
exemption, contained in section 13(c)(7) of the FLSA, allows eligible
youth, under specific conditions, to be employed inside and outside of
places of business that use machinery to process wood products, but
does not allow such youth to operate or assist in operating power-
driven woodworking machines. This exemption overrides the FLSA's
formerly complete prohibition on the employment of 14- and 15-year-olds
in manufacturing occupations contained in section 3(l).
The Department published an NPRM in the Federal Register on
November 30, 1999 (64 FR 67130), inviting comments on revisions of
regulations to implement the 1996 and 1998 amendments and to update
certain regulatory standards. The Compactor and Baler Act affected the
HO 12 standards (Occupations involved in the operation of paper-
products machines) (29 CFR 570.63) and certain other related
regulations; amendments of those regulations were proposed. The Drive
for Teen Employment Act affected the HO 2 standards (Occupations of
motor-vehicle driver and outside helper) (29 CFR 570.52); an amendment
of that regulation was proposed. As a result of its ongoing review of
the child labor provisions, the Department also proposed changes to HO
1 (Occupations in or about plants or establishments manufacturing or
storing explosives or articles containing explosive components) (29 CFR
570.51), HO 16 (Occupations in roofing operations) (29 CFR 570.67), the
Reg. 3 limitations on cooking (29 CFR 570.34), and 29 CFR 570.6(b)(1)
which deals with the disposition of a Certificate of Age when the named
individual's employment ends. A Final Rule, addressing the above issues
and implementing procedural changes dealing with administrative
hearings and appeals of child labor civil money penalties, was issued
on December 16, 2004 (69 FR 75382).
[[Page 19340]]
In 1998, the Department provided funds to NIOSH to conduct a
comprehensive review of scientific literature and available data in
order to assess current workplace hazards and the adequacy of the
current youth employment HOs to address them. This study was
commissioned to provide the Secretary with another tool to use in her
ongoing review of the youth employment provisions, and of the hazardous
occupations orders in particular. The report, entitled National
Institute for Occupational Safety and Health Recommendations to the
U.S. Department of Labor for Changes to Hazardous Orders (hereinafter
referred to as the NIOSH Report or the Report), was issued in July of
2002. The Report, which makes 35 recommendations concerning the
existing nonagricultural HOs and recommends the creation of 17 new HOs,
also incorporated the comments NIOSH submitted in response to the 1999
NPRM. The report is available for review on the Department's
YouthRules! Web site at http://www.youthrules.dol.gov/resources.htm.
The Department recognizes NIOSH's extensive research efforts in
compiling and reviewing this data. However, it has cautioned readers
about reaching conclusions and expecting revisions to the existing HOs
based solely on the information in the Report. In the Report, NIOSH
itself recognized the confines of its methodology and included
appropriate caveats about limitations in available data and gaps in
research. Of those limitations, the following are worth noting. The
NIOSH Report recommendations are driven by information on high-risk
activities for all workers, not just patterns of fatalities and serious
injuries among young workers. There is little occupational injury,
illness, and fatality data available regarding minors less than 16
years of age. In addition, such data for youth 16 and 17 years of age
tend to be mixed with that of older workers whose employment is not
subject to the youth employment provisions of the FLSA. Also, available
occupational injury, illness, fatality, and employment data on the
specific operations in the specific industries covered by the NIOSH
Report recommendations tend to be combined with data on other
operations and/or industries. In some cases, this may result in a
diminution of the risk by including less risky operations and
industries in the employment estimates. In other cases, the risk may be
exaggerated by including more dangerous operations/industries in the
injury, illness, or fatality estimates.
In addition, as NIOSH was tasked with examining issues within the
framework of the current HOs only, the Report did not consider the
extent to which fatalities occur despite existing HOs, Occupational
Safety and Health Administration (OSHA) standards, or state laws
prohibiting the activity. If fatalities result from recognized illegal
activities, such as working with fireworks or a power-driven circular
saw, the best strategy for preventing future injuries may not be to
revise the regulations but to increase compliance with existing laws
through public awareness initiatives, targeted compliance assistance
efforts, and stepped-up enforcement activities. The Report also did not
consider potential approaches for decreasing workplace injuries that
provide an alternative to a complete ban on employment, such as safety
training, increased supervision, the use of effective personal
protective equipment, and strict adherence to recognized safe working
practices.
Though cognizant of the limitations of the Report, the Department
places great value on the information provided by NIOSH. Since
receiving the Report, the Department has conducted a detailed review
and has met with various stakeholders to evaluate and prioritize each
recommendation for possible regulatory action consistent with the
established national policy of balancing the benefits of employment
opportunities for youth with the necessary and appropriate safety
protections. The 2004 Final Rule addressed six of the recommendations.
As an adjunct to its review of these issues the Department
contracted with a private consulting firm, SiloSmashers, Inc., to
construct a model that, using quantitative analysis, would help
determine the costs and benefits associated with implementing, or not
implementing, each of the Report's recommendations. The SiloSmashers
report, Determination of the Costs and Benefits of Implementing NIOSH
Recommendations Relating to Child Labor Hazardous Orders, was completed
in November 2004 and covers 34 of the NIOSH HO recommendations in
agricultural and nonagricultural occupations, as well as several
occupations or activities not presently addressed by an existing HO.
The methodology used by SiloSmashers was to compare the direct
costs and benefits of implementing or revising an HO, as recommended by
NIOSH, with the costs and benefits of not implementing or revising the
HO based on the NIOSH recommendations. Each SiloSmashers analysis was
conducted on a mutually exclusive basis to yield a net present value
(NPV). SiloSmashers defines NPV as ``the discounted dollar value of an
investment across the expected planning horizon. As a dollar figure,
NPV is presented at the full value level for each implementation
approach (implementing versus not implementing) as well as at the
incremental approach (the difference between implementing versus not
implementing). As a comparison tool and under the incremental approach,
the higher the NPV, the higher the expected value of implementation.''
The NPVs reported by SiloSmashers for each of the NIOSH recommendations
addressing the current nonagricultural HOs range from a negative
$9,537,000 to a positive $113,556,000.
Although the SiloSmashers report includes both a quantitative
analysis and a qualitative analysis of each NIOSH recommendation, the
Department is concerned that some readers might try to rank each
recommendation solely on the basis of the quantitative results (i.e.,
on the basis of the NPVs) listed in the HO Comprehensive Summary. This
simplistic ranking would not be appropriate due to several constraints
inherent in the methodology adopted by SiloSmashers, especially the
lack of reliable and pertinent data.
In addition, not only was the methodology used by SiloSmashers to
generate the NPVs subject to the same data limitations faced by NIOSH
regarding the employment, fatality, and injury rates of young workers,
but it also raises additional concerns. First, if SiloSmashers were
unable to identify any minors who were fatally injured while performing
work that was the subject of the NIOSH recommendation being examined,
even if many adult workers were killed while performing that exact same
work, the analysis would reflect that implementation of the
recommendation would have no benefit in reducing occupational hazards
to youth. Such an assumption is contrary to the Department's long-held
position that work which is dangerous for adults is inherently
dangerous for youth. For example, because SiloSmashers found no deaths
of youth resulting from the operation of chainsaws, it concluded that
implementation of the NIOSH recommendation to expand HO 14 to prohibit
the operation of chainsaws on all materials, and not just on wood and
wood products as currently prohibited by HOs 4 and 5, would have no
impact on the number of occupational fatalities suffered by 16- and 17-
year-olds. The Department strongly disagrees with this conclusion.
NIOSH based its
[[Page 19341]]
recommendation on data that demonstrate that chainsaws continue to be
the source of substantial numbers of fatalities as well as nonfatal
injuries which may be unusually severe. Accordingly, the Department
believes that the operation of chainsaws is inherently dangerous for
young workers, regardless of the lack of youth-specific injury and
fatality data. The Department agrees with NIOSH that the prudent course
of action is to prohibit the use of chainsaws by all workers under the
age of 18.
Secondly, when youth fatalities were identified, the values the
SiloSmashers report placed on the lives saved and injuries prevented
under the various NIOSH Report recommendations are based on estimates
published in economic literature that are based on adult populations.
Applying those estimates to children may result in an underestimate of
the risk to children because the susceptibility of a developing child's
body to illness, injury, or death will most likely differ from that of
the fully developed body of an adult. These differences are important
in any such analysis, as society tends to place a higher value on the
lives of children compared to adults. By their very nature, child labor
laws are intended to protect children from situations that are
permissible for adults. Thus, even without some of the other data
limitations discussed above, the estimates presented in the
SiloSmashers report consistently understate the benefits of
implementing the NIOSH recommendations. Because of the data limitations
and flaws in methodology, the Department does not consider the
individual analysis prepared by SiloSmashers to be influential for
rulemaking purposes.
It was the Department's intention that the SiloSmashers analysis
would help in identifying and defining the scope of each recommendation
and provide additional information to consider after the decision was
made to implement or not to implement a particular recommendation. This
is in keeping with the ultimate recommendation made in the SiloSmashers
report that the Department consider both quantitative and qualitative
factors, as well as other internal and external factors-such as budget
constraints, priorities established by the Department or
Administration, additional stakeholder input, etc.--when determining
which NIOSH Report recommendations to implement. The entire report
provided to the Department by SiloSmashers can be viewed on the
Internet at http://www.youthrules.dol.gov/clri/Final_Report.pdf.
As mentioned, the NIOSH Report made 35 recommendations concerning
the existing nonagricultural HOs. The Department addressed six of those
recommendations in the 2004 Final Rule (see 69 FR 75382; Dec. 16,
2004). The Department has decided that, in this first proposal since
the dissemination of the NIOSH Report, it will address 25 of the
remaining 29 Report recommendations dealing with existing
nonagricultural hazardous occupations orders. The Department believes
there is sufficient data to support implementing its proposals. In an
attempt to acquire additional data in order to address the remaining
nonagricultural NIOSH recommendations, as well as pursue items not
explored in the NIOSH Report, the Department is publishing an ANPRM
concurrently with this NPRM.
The NIOSH Report also makes 11 recommendations that impact the
current agricultural HOs as well as 17 recommendations that urge the
creation of new HOs. The Department, in the ANPRM being published on
the same day as this NPRM, is requesting public comment on the
feasibility of one of those recommendations regarding the creation of
an HO that would prohibit the employment of youth in construction
occupations. The Department is continuing to review the remaining
recommendations, but for administrative reasons excluded them from its
consideration of the NIOSH proposals covered in this phase to keep the
size and scope manageable. Their absence from this current round of
rulemaking is not an indication that the Department believes them to be
of less importance or that they will not be given the same level of
consideration as the recommendations addressing the current
nonagricultural HOs.
III. Proposed Regulatory Revisions
A. Occupations That Are Prohibited for the Employment of Minors Between
the Ages of 14 and 16 Years of Age (29 CFR 570.31-.34)
Section 3(l) of the FLSA, defining oppressive child labor,
expressly prohibits children under the age of 16 from performing any
work other than that which the Secretary of Labor permits, by order or
regulation, upon finding that it does not interfere with their
schooling or health and well-being (see 29 U.S.C. 203(l), see also 29
CFR 570.117-.119). Before 14- and 15-year-olds may legally perform work
covered by the FLSA, the Act requires that the work itself be exempt,
or that the Secretary determines that the work to be performed does not
constitute oppressive child labor. The Secretary's declarations of what
forms of labor are not deemed oppressive for children between the ages
of 14 and 16 appear in Reg. 3 (29 CFR 570.31-.38).
Reg. 3 identifies a number of occupations or activities that are
specifically prohibited for these minors without regard to the industry
or the type of business in which their employer is engaged (e.g.,
operating or tending any power-driven machinery other than office
machines, see Sec. 570.33(b)). Reg. 3 also incorporates by reference
all of the prohibitions contained in the Hazardous Occupations Orders
(29 CFR 570.50-.68), which identify occupations that are ``particularly
hazardous'' and, therefore, banned for 16- and 17-year-olds (e.g.,
occupations involved in the operation of power-driven metal forming,
punching, and shearing machines, see Sec. 570.33(e)).
As previously mentioned, Reg. 3 was revised to reflect the 1961
amendments to the FLSA, which by extending the Act's coverage to
include enterprises engaged in commerce or the production of goods for
commerce, brought more working youth employed in retail, food service,
and gasoline service establishments within the protections of the Act.
Section 570.34(a) expressly authorizes the performance of certain
activities by 14- and 15-year-olds in retail, food service, and
gasoline service establishments, while Sec. 570.34(b) details those
activities that 14- and 15-year-olds are expressly prohibited from
performing in such establishments. For example, clerical work,
cashiering, and clean-up work are authorized, whereas ``all work
requiring the use of ladders, scaffolds, or their substitutes'' is
prohibited. These special rules apply only in the designated types of
business.
Since 1961, new, positive, and safe employment opportunities have
opened up for youth in industries other than retail, food service, and
gasoline service that Reg. 3 does not currently specifically address.
Jobs in such areas as state and local governments, banks, insurance
companies, advertising agencies, and information technology firms all
normally fall outside of the declarations made in Reg. 3. Because these
jobs are not specifically permitted by Sec. 570.33, they are
prohibited. There has been some confusion about this over the years.
Some employers have believed that 14- and 15-year-old are permitted to
be employed in any industry or occupations not expressly prohibited by
Reg. 3, or that any employer in any industry may employ such youth in
the occupations permitted
[[Page 19342]]
by Sec. 570.34(a). However, where these jobs are not located in
retail, food service, or gasoline service establishments, the
provisions of Sec. 570.34 (both authorizations and prohibitions) do
not apply to the employment of 14- and 15-year-olds. The exception to
this rule is where there is some discrete operation or division that
could legitimately be characterized as such an establishment and
therefore would be subject to these rules (e.g., minors employed in a
food service operation at a city park or a publicly owned sports
stadium). The Department's interpretation of Reg. 3 would prohibit
employers such as state and local governments, banks, insurance
companies, advertising agencies, and information technology firms from
employing 14- and 15-year-old workers in any jobs other than those that
occur in those discrete operations or divisions that may be
characterized as retail, food service, or gasoline service
establishments.
In 2004, in recognition of the importance of youth employment
programs operated by public sector employers that provide safe and
meaningful developmental opportunities for young people, and in
response to specific requests received from two municipalities, the
Department adopted an enforcement position that permits state and local
governments to employ 14- and 15-year-old minors under certain
conditions. Consistent with its enforcement position, the Department
has exercised its prosecutorial discretion, as authorized by 29 U.S.C.
216(e), in declining to cite Reg. 3 occupations violations for the
employment of 14- and 15-year-olds by state and local governments as
long as that employment falls within the occupations authorized by Reg.
3 (Sec. 570.34(a)) and does not involve any of the tasks or
occupations prohibited by Reg. 3 (Sec. Sec. 570.33 and 570.34(b)). The
other provisions of Reg. 3, including the restrictions on hours of
work, remain fully applicable to the employment of such minors and
continue to be enforced.
The Department's administration of this enforcement position
permitting the employment of 14- and 15-year-olds by state and local
governments has had extremely positive results. There are strong
indications that when such youth are employed under the guidelines
established by this enforcement position, the employment does not
interfere with their schooling or with their health and well-being, and
thus accords with the FLSA.
Based upon the success of the above enforcement position, the
Department is proposing to revise and to reorganize Sec. Sec. 570.33
and 570.34 to clarify and to expand the list of jobs that are either
permitted or prohibited for minors who are 14 and 15 years of age and
to remove the language that limits the application of Sec. 570.34 to
only retail, food service, and gasoline service establishments. The
revised Sec. 570.33 would detail certain specific occupations that are
prohibited for 14- and 15-year-olds. This revision also necessitates a
change to Sec. 570.35a(c)(3), which references the current Sec. Sec.
570.33 and 570.34 as they pertain to WECEPs. The Department proposes to
retain all the current prohibitions contained in Sec. 570.33 but will
modify the prohibition regarding the employment of 14- and 15-year-olds
in manufacturing occupations to comport with the provisions of the
Department of Labor Appropriations Act, 2004, which enacted section
13(c)(7) of the FLSA. Fourteen- and 15-year-olds would continue to be
permitted to be employed in all those retail, food service, and
gasoline service establishment occupations in which they may currently
be employed.
The Department also proposes to apply to FLSA-covered
nonagricultural employers of minors, with certain modifications, all
the permitted occupations contained in Sec. 570.34(a) and all the
prohibited occupations contained in Sec. 570.34(b) that currently
apply only to retail, food service, and gasoline service
establishments. This proposal would be accomplished by revising Sec.
570.34 to identify permitted occupations. The Department also proposes
to continue to permit youth 14- and 15-years of age to perform those
occupations involving processing, operating of machines, and working in
rooms where processing and manufacturing take place, that are currently
permitted under Sec. 570.34(a), as referenced in Sec. 570.34(b)(1).
As mentioned, certain modifications to the existing lists of
permissible and prohibited occupations are being proposed. The
traditionally prohibited occupations and industries would be contained
in a revised Sec. 570.33, and all the permitted occupations and
industries would be contained in a revised Sec. 570.34. The Department
is aware that, given the FLSA's mandate that before 14- or 15-year-olds
may legally be employed to perform any covered work the Secretary of
Labor must first determine that the work to be performed does not
constitute oppressive child labor, it could choose to publish only a
list of permissible occupations and industries, and not provide a list
of certain commonly arising prohibited occupations and industries.
However, the Department believes that by continuing the long-standing
Reg. 3 tradition of publishing lists of those occupations and
industries in which such youth may be employed as well as detailed
examples of those industries and occupations in which the employment of
such youth is prohibited, it can greatly enhance the public's
understanding of these important provisions. The list of prohibited
industries and occupations helps to define and to provide clarity to
the list of permitted industries and occupations. However, the list of
prohibited occupations is not intended to identify every prohibited
occupation, but rather only to provide examples of those prohibited
occupations that have historically been the most common sources of
violations or concern. As previously explained, any job not
specifically permitted is prohibited.
The Department also understands that, given the constant
development and changes occurring in the modern workplace, in
continuing to provide a definitive list of permitted occupations and
industries, the Department may unintentionally discourage the creation
of positive and safe employment opportunities for young workers. But
the Department believes that, by continuing its past practice of
carefully reviewing inquiries regarding individual occupations or
industries not currently addressed by Reg. 3 and then exercising its
prosecutorial discretion and issuing enforcement positions that may
eventually lead to rulemaking--as evidenced by certain proposals
contained in this NPRM--it has developed an efficient and effective
mechanism which overcomes the limitations of a definitive list.
The proposed modifications to the list of prohibited occupations
are as follows:
1. Prohibited Machinery (Sec. Sec. 570.33-.34)
Section 570.33(b) prohibits youth 14 and 15 years of age from
employment in occupations involving the operation or tending of any
power-driven machinery other than office equipment. Even though this
prohibition is clear and quite broad, other sections of Reg. 3 have
traditionally named certain pieces of power-driven machinery so as to
eliminate any doubt or confusion as to their prohibited status. For
example, Sec. 570.34(a)(6) prohibits the employment of 14- and 15-
year-olds in the operation of power-driven mowers or cutters and Sec.
570.34(b)(6) prohibits the employment of such minors in occupations
that involve operating, setting up, adjusting, cleaning, oiling, or
repairing power-
[[Page 19343]]
driven food slicers, grinders, choppers, and cutters, and bakery-type
mixers.
The Department proposes to combine Sec. Sec. 570.33(b),
570.34(a)(6), and 570.34(b)(6)--all of which address power-driven
machinery--into a single paragraph located at Sec. 570.33(e) and
expand the list of examples of prohibited equipment to include power-
driven trimmers, weed-eaters, edgers, golf carts, food processors, and
food mixers. Even though Reg. 3 for many years has prohibited the
employment of 14- and 15-year-olds to operate any power-driven
equipment other than office machines, the Department routinely receives
inquiries as to the status under Reg. 3 of these individual pieces of
equipment. The Department believes that by continuing to reference
certain common prohibited machinery by name, both clarity and
compliance will be increased.
2. Loading of Personal Hand Tools Onto Motor Vehicles and Riding on
Motor Vehicles (Sec. Sec. 570.33(f) and 570.34(b)(8))
Section 570.33(c) prohibits the employment of 14- and 15-year-olds
in the operation of motor vehicles or service as helpers on such
vehicles. The term motor vehicle is defined in Sec. 570.52(c)(1). The
Department has interpreted the Reg. 3 prohibition regarding service as
helpers on a motor vehicle to preclude youth under the age of 16 from
riding outside the passenger compartment of the motor vehicle. Such
youth may not ride in the bed of a pick-up truck, on the running board
of a van, or on the bumper of a refuse truck. This interpretation dates
back to at least the 1940 enactment of HO 2 which prohibits 16- and 17-
year-olds from serving as outside helpers on motor vehicles.
The Department does not interpret the helper prohibition as
applying to 14- and 15-year-olds who simply ride inside a motor vehicle
as passengers and, thus, Reg. 3 permits a 14- or 15-year-old to ride
inside the enclosed passenger compartment of a motor vehicle when
driven by a driver whose employment complies with HO 2 under certain
circumstances. For example, a minor may ride in a motor vehicle to
reach another work site where he or she will perform work, to receive
special training or instructions while riding, or to meet other
employees or customers of the employer. While a 14- or 15-year old may
be a passive passenger in a vehicle, that same minor is not permitted
to ride in a motor vehicle when a significant reason for the minor
being a passenger is for the purpose of performing work in connection
with the transporting--or assisting in the transporting--of other
persons or property. This interpretation comports with the provision of
Sec. 570.33(f)(1), which prohibits the employment of 14- and 15-year-
olds in occupations in connection with the transportation of persons or
property by highway. Performing work in connection with the
transportation of the other persons or property does not have to be the
primary reason for the trip for this prohibition to apply.
The Department is proposing to include its long-standing
interpretation that prohibits 14- and 15-year-olds riding outside of
motor vehicles in Reg. 3 at Sec. 570.33(f). The Department is also
proposing to revise Reg. 3 at Sec. 570.34(o) to permit 14- and 15-
year-olds to ride in the enclosed passenger compartments of motor
vehicles, except when a significant reason for the minors being
passengers in the vehicle is for the purpose of performing work in
connection with the transporting--or assisting in the transporting--of
other persons or property. Each minor must have his or her own seat in
the passenger compartment, each seat must be equipped with a seat belt
or similar restraining device, and the employer must instruct the
minors that such belts or other devices must be used. These provisions
mirror the requirements of Drive for Teen Employment Act as contained
in HO 2.
In addition, the Department's interpretation of prohibited helper
services under Sec. 570.33(c), since at least the mid-1950s, has
included the loading and unloading of materials from motor vehicles
when the purpose of the operation of the vehicle is the transportation
of such materials. Section 570.33(f)(1) furthers this prohibition by
banning the employment of minors in occupations in connection with the
transportation of property by highway. Section 570.34(b)(8) prohibits
the employment of such youth by retail, food service, and gasoline
service establishments to load or unload goods to and from trucks,
railroad cars, or conveyors. These prohibitions are designed to protect
young workers from the hazards associated with loading docks, motor
vehicles, and receiving departments; strains from lifting and moving
heavy items; and falls and falling items. Accordingly, 14- and 15-year-
olds generally are prohibited from loading and unloading any property
(not just ``goods'') onto and from motor vehicles, including the light
personal hand tools they use in performing their duties.
In 2000, the Department was requested by a municipality (the City)
to review certain aspects of the prohibitions against employing 14- and
15-year-olds to load and unload items onto and from motor vehicles. The
City advised the Department that, even with the adoption of the
enforcement position that permits state and local governments to employ
minors under certain conditions, it was being forced to abandon a
youth-employment program that provided 14- and 15-year-olds with
certain jobs because of the prohibition against loading materials into
vehicles. The City specifically requested permission to allow such
minors to load and unload, onto and from motor vehicles, the light,
non-power-driven tools each youth would personally use as part of his
or her employment. The Department carefully considered this request
and, again using its prosecutorial discretion, decided that it would
not assert a violation of the child labor provisions when 14- and 15-
year-old employees of state and local governments loaded and unloaded
the light non-power-driven hand tools--such as rakes, hand-held
clippers, and spades--that they personally use as part of their
employment. The City was advised that this enforcement policy did not
extend to other prohibited transportation-related work such as the
loading or unloading of materials other than the light hand tools the
minors may encounter on-the-job, such as trash or garbage, or power-
driven equipment such as lawn mowers, edgers, and weed trimmers--the
use of which by this age group is prohibited under Reg. 3.
The Department proposes to revise Reg. 3 at Sec. Sec. 570.33(f)
and (k) and 570.34(k) to incorporate the enforcement position that
allows 14- and 15-year-olds to be employed to load onto and unload from
motor vehicles the light non-power-driven personal hand tools they use
as part of their employment and to make it available to all covered
employers, not just state and local governments. Such light non-power-
driven hand tools would include, but not be limited to, rakes, hand-
held clippers, shovels, and brooms, but would not include items like
lawn mowers or other power-driven lawn maintenance equipment. In
addition, such minors would be permitted to load onto and unload from
motor vehicles any personal protective equipment they themselves will
use at the work site and any personal items such as backpacks, lunch
boxes, and coats their employers allow them to take to the work site.
Such minors would not be permitted to load or unload such jobsite-
related equipment as barriers, cones or signage.
[[Page 19344]]
3. Work in Meat Coolers and Freezers (Sec. 570.34(b)(7))
Section 570.34(b)(7) prohibits 14- and 15-year-olds from working in
freezers and meat coolers. Since its inception, the Department has
interpreted this section to mean that such youth are prohibited from
working as dairy stock clerks, meat clerks, deli clerks, produce
clerks, or frozen-food stock clerks where their duties would require
them to enter and remain in the freezer or meat cooler for prolonged
periods. Inventory and cleanup work, involving prolonged stays in
freezers or meat coolers, are also prohibited. On the other hand, the
Department has taken the position since at least 1981 that counter
workers in quick service establishments or cashiers in grocery stores
whose duties require them to occasionally enter freezers only
momentarily to retrieve items are not considered to be working in the
freezers for enforcement purposes. In order to provide clarification,
the Department is proposing to incorporate this long-standing
interpretation into the regulations at Sec. 570.33(i).
4. Youth Peddling
The Department is proposing to amend Reg. 3 and create Sec.
570.33(j) to ban the employment of 14- and 15-year-old minors in
occupations involving youth peddling, also referred to as ``door-to-
door sales'' and ``street sales.'' Controversies regarding young
children conducting commercial sales of items, often on a ``door-to-
door'' basis, are not new. The Department has over the years documented
reports of minors, many as young as 10 or 11 years of age, working as
part of mobile sales crews, selling such items as candy, calendars, and
greeting cards for profit-making companies. Injuries, and even deaths,
have occurred as the result of young children engaging in youth
peddling activities. The door-to-door sales industry employing these
minors generally is composed of a number of crew leaders who, during
the course of a year, operate in many different states. The crew
leaders, who often have ties to regional or national businesses,
mistakenly claim that they and their young sales crews are independent
contractors. Typically, a crew leader attempts to saturate a particular
area with sales crews, make as many sales as possible, and then quickly
move to a new location. Crews often work from late afternoon to late at
night as that is when most of the potential customers are likely to be
at home. Because youth peddlers typically qualify as outside sales
employees under FLSA section 13(a)(1), they are usually exempt from the
minimum wage and overtime requirements of the FLSA (see 29 CFR
541.500).
Congressional hearings and the Department's enforcement experience
have shown that the problems associated with children performing door-
to-door sales and street sales are numerous. These youth are often
transported by crew leaders in vans, which fail to meet proper safety
and insurance requirements, to areas quite distant from their home
neighborhoods. They are often required to work many hours on school
nights and late into the evening. These minors are frequently placed by
employers, without adult supervision, at subway entrances, outside
large office buildings, at high-traffic street corners, and on median
strips at busy intersections where they can attract potential
customers. Reports of children being abandoned, suffering injuries from
violence and motor vehicle crashes, and being exposed to the elements
have been substantiated. Youth have been injured and have died as a
result of these activities. Intimidation by crew leaders is commonly
reported.
In 1987, the permanent Subcommittee on Investigations of the
Committee on Governmental Affairs of the United States Senate held
hearings on the Exploitation of Young Adults in Door-to-Door Sales. The
hearings included a staff study that documented many abuses that had
occurred in this industry, including indentured servitude, physical and
sexual abuse, and criminal activity. In 1998, the Interstate Labor
Standards Association created a subcommittee to work toward ending
door-to-door sales by children and recommended that the Department of
Labor act as a national clearinghouse regarding information concerning
door-to-door sales operations. In response to the 1994 ANPRM issued by
the Department, calls for banning door-to-door sales by those under 18
years of age were received from the National Consumers League, the
Defense for Children International, USA, and the Food and Allied
Service Trades Department, AFL-CIO. At least 17 states have rules
prohibiting or regulating door-to-door sales by minors.
The Department's proposal to prohibit youth peddling would not be
limited to just the attempt to make a sale or the actual consummation
of a sale, but would include such activities normally associated with
and conducted as part of the individual youth peddler's sales
activities, such as the loading and unloading of vans or other motor
vehicles, the stocking and restocking of sales kits and trays, the
exchanging of cash and checks, and the transportation of minors to and
from the various sales areas by the employer.
As used here, the terms youth peddling, door-to-door-sales, and
street sales do not include legitimate fund-raising activities by
eleemosynary organizations such as cookie sales conducted by the Girl
Scouts of America or school fund-raising events where the students are
truly volunteers and are not promised compensation for the sales they
make. The term compensation would not include the small prizes,
trophies, or other awards of minimal value that the eleemosynary
organization may give a volunteer in recognition of his or her efforts.
In administering the FLSA, the Department considers such individuals,
who volunteer or donate their services, usually on a part-time basis,
for public service, religious, or humanitarian objectives, without
contemplation of pay, not to be employees of the religious, charitable,
or similar nonprofit corporations that receive their services. In
addition, FLSA section 3(e)(4) excludes from the definition of
``employee'' individuals who volunteer to public agencies. These
provisions apply equally whether the volunteer is an adult or a minor.
5. Poultry Catching and Cooping
The Department has long taken the position that 14- and 15-year-
olds may not be employed to catch and coop poultry in preparation for
transportation or for market because it is a ``processing'' occupation
prohibited by Sec. 570.33(a). Such employees are often referred to as
``chicken catchers or poultry catchers.'' In addition, the prohibitions
against operating or tending power-driven equipment contained in Sec.
570.33(b) and the prohibition against employment in occupations in
connection with the transportation of property contained in Sec.
570.33(f)(1) generally preclude the employment of such youth as poultry
catchers. These activities are normally performed in environments and
under conditions that present risks of injury and illness to young
workers. Working in the dark, with the only illumination provided by
``red lights'' which the fowl cannot see, and in poorly ventilated
rooms, is not uncommon. The risks associated with poultry catching also
occur in the catching and cooping of poultry other than chicken--for
example, processors of turkeys and Cornish game hens employ similar
methods of moving their products to slaughter.
Despite the Department's consistent interpretation that 14- and 15-
year-olds
[[Page 19345]]
may not be employed as poultry catchers, employers still have questions
concerning how the regulations address such work, and violations still
occur. For example, the Department investigated the death of a 15-year-
old male in 1999 who was employed as a poultry catcher, working in the
dark and under red lighting, in Arkansas. The youth was electrocuted
shortly after midnight when he bumped into a fan while performing his
``catching'' duties. In order to remove any confusion and increase
employer compliance, the Department is therefore proposing to amend
Reg. 3 and create Sec. 570.33(l) to specifically prohibit the
employment of 14- and 15-year-old minors in occupations involving the
catching and cooping of poultry for preparation for transport or for
market. The prohibition would include the catching and cooping of all
poultry, not just chickens.
It is important to note that in those rare instances when the
catching activities would be agricultural in nature, such as where
poultry catchers are employed solely by a farmer on a farm to catch
poultry raised by that farmer, the catchers would be subject to the
agricultural child labor provisions contained in FLSA sections 13(c)(1)
and (2).
B. Occupations That Are Permitted for Minors Between 14 and 16 Years of
Age (29 CFR Sec. Sec. 570.33-.34)
As mentioned, section 3(l) of the FLSA expressly prohibits children
under the age of 16 from performing any work other than that which the
Secretary of Labor permits, by order or regulation, upon finding that
it does not interfere with their schooling or health and well-being
(see 29 U.S.C. 203(l)). Before a 14- or 15-year-old may legally perform
work covered by the FLSA, the Act requires that the work itself be
exempt, or that the Secretary of Labor has determined that the work to
be performed does not constitute oppressive child labor. The
Secretary's declarations of what forms of labor are not deemed
oppressive for children between the ages of 14 and 16 appear in Reg. 3
(29 CFR 570.31-.38).
Reg. 3 identifies a number of occupations or activities that are
specifically permitted for the employment of youth 14 and 15 years of
age in retail, food service, and gasoline service establishments. As
mentioned, the Department proposes to revise this list of permitted
occupations by clarifying it, adding to it, and extending its
application to all employment covered by the FLSA, except those
employers engaged in mining or manufacturing, or any industry or
occupation prohibited by the proposed Sec. 570.33. This revised list
would be contained in Sec. 570.34.
The Department also proposes to revise Sec. 570.34(a)(8) by
clarifying that 14- and 15-year-olds may perform car cleaning, washing,
and polishing, but only by hand. Such youth are prohibited from
operating or tending any power-driven machinery, other than office
equipment, and this prohibition has always included automatic car
washers, power-washers, and power-driven scrubbers and buffers. The
Department believes this clarification will provide guidance to
employers.
The additional occupations the Department is proposing to permit
14- and 15-year-olds to perform are discussed below.
1. Work of a Mental or Artistically Creative Nature
The Department routinely receives inquiries asking whether 14- and
15-year-old youth may be employed to perform certain mental or
artistically creative activities in industries not specifically
permitted by Reg. 3. The inquiries have concerned such jobs as a
computer programmer and computer applications demonstrator for a
college, print and runway model, and musical director at a church or
school. Often, these inquiries concern students who are especially
gifted or career oriented in a particular field. A strict adherence to
Reg. 3 requirements would not permit the employment of a 14- or 15-
year-old in any of these scenarios, even though talented and motivated
youth could safely and successfully perform these tasks without
interfering with their schooling or health and well-being.
The Department is proposing to revise Reg. 3 at Sec. 570.34(b) to
permit the employment of 14- and 15-year-olds to perform work of a
mental or artistically creative nature such as computer programming,
the writing of software, teaching or performing as a tutor, serving as
a peer counselor or teacher's assistant, singing, playing a musical
instrument, and drawing. Permitted work of a mental nature would be
limited to work that is similar to that performed in an office setting
and not involving the use of any power-driven equipment other than
office machines. Artistically creative work would be limited to work in
a recognized field of artistic or creative endeavor. The employment
would be permitted in any industry other than those prohibited by Reg.
3 and would also be subject to all the applicable hours and times
standards established in Sec. 570.35 and occupation standards
contained in Sec. 570.33.
2. The Employment of 15-Year-Olds (But Not 14-Year-Olds) as Lifeguards
The Department is proposing to revise Reg. 3 at Sec. 570.34(l) to
permit the employment of 15-year-olds as lifeguards at swimming pools
and water amusement parks under certain conditions. A local chapter of
the American Red Cross (Chapter) first raised this issue in 2000. The
Chapter advised the Department that the Red Cross had revised its own
rules and was now certifying 15-year-olds as lifeguards. Prior to 2000,
according to the Chapter, 16 years was generally the minimum age at
which the Red Cross would provide such certification. The Chapter
inquired as to whether Reg. 3 would permit the employment of 15-year-
olds as lifeguards. Also in 2000, a municipality contacted the
Department inquiring whether it could legally employ such youth as
lifeguards at its city-owned swimming pools.
The occupation of lifeguard is not specifically authorized in Reg.
3 as an occupation that 14- and 15-year-olds may perform. In response
to the inquiries, the Department adopted an enforcement policy in 2000
that allowed 15-year-olds (but not 14-year-olds) to be employed at
swimming pools owned and operated by state and local governments or
private-sector retail establishments under certain conditions. Those
conditions included that the youth be trained and certified in aquatics
and water safety by the Red Cross, or by some similarly recognized
certifying organization, and that the youth work under conditions
acceptable to the Red Cross, or some similarly recognized certifying
organization. This enforcement position permitted such employment at
swimming pools operated by hotels, amusement parks, cities, and state-
owned universities, but did not permit such employment at pools
operated by non-public and non-retail establishments such as apartment
houses, country clubs, private schools, home-owner associations, and
private health clubs. In early 2005, the Department, after reviewing
additional information, extended this enforcement position to permit
the employment of 15-year-olds as lifeguards at (1) all traditional
swimming pools regardless of who owns, operates or manages the
establishments, and (2) those facilities of water amusement parks that
constitute traditional swimming pools.
The Department proposes to revise Reg. 3 by creating Sec.
570.34(l) to incorporate portions of the current enforcement position.
The revision would permit 15-year-olds, but not 14-year-olds, to be
employed as lifeguards,
[[Page 19346]]
performing lifeguard duties, at traditional swimming pools and certain
areas of amusement water parks operated by all types of employers, if
the minors have been trained and certified by the Red Cross or a
similarly recognized certifying organization.
The occupation of lifeguard, as used in this subpart, entails the
duties of rescuing swimmers in danger of drowning, the monitoring of
activities at a swimming pool to prevent accidents, the teaching of
water safety, and assisting patrons. Lifeguards may also help to
maintain order and cleanliness in the pool and pool areas, give
swimming instructions, conduct or officiate at swimming meets, and
administer first aid. Additional ancillary lifeguard duties may include
checking in and out such items as towels, rings, watches and apparel.
Permitted duties for 15-year-olds would include the use of a ladder to
access and descend from the lifeguard chair; the use of hand tools to
clean the pool and pool area; and the testing and recording of water
quality for temperature and/or pH levels, using all of the tools of the
testing process including adding chemicals to the test water sample.
Fifteen-year-olds employed as lifeguards would, however, be prohibited
from entering or working in any mechanical rooms or chemical storage
areas, including any areas where the filtration and chlorinating
systems are housed. The other provisions of Reg. 3, including the
restrictions on hours of work contained at Sec. 570.35(a), would
continue to apply to the employment of 15-year-old lifeguards.
Under the proposed rule, no youth under 15 years of age, whether
properly certified or not, could legally perform any portion of the
lifeguard duties detailed above as part of his or her FLSA covered
employment. The core and defining duty of a lifeguard is the rescuing
of swimmers in danger of drowning, often by entering the water and
physically bringing the swimmer to safety. Under the Department's
proposal, any employee under the age of 16 whose duties include this
core duty--such as a ``junior lifeguard'' or a ``swim-teacher aide''--
or whose employment could place him or her in a situation where the
employer would reasonably expect him or her to perform such rescue
duties, would be performing the duties of a lifeguard while working in
such a position. For such employment to comply with Reg. 3, the
employee would have to be at least 15 years of age and be properly
certified.
A traditional swimming pool, as used in this subpart, would mean a
water-tight structure of concrete, masonry, or other approved materials
located either indoors or outdoors, used for bathing or swimming and
filled with a filtered and disinfected water supply, together with
buildings, appurtenances and equipment used in connection therewith. A
water amusement park means an establishment that not only encompasses
the features of a traditional swimming pool, but may also include such
additional attractions as wave pools; lazy rivers; specialized
activities areas such as baby pools, water falls, and sprinklers; and
elevated water slides. Properly certified 15-year-olds would be
permitted to be employed as lifeguards at most of these water park
features.
Not included in the definition of a traditional swimming pool or a
water amusement park would be such natural environment swimming
facilities as rivers, streams, lakes, reservoirs, wharfs, piers,
canals, or oceanside beaches.
It is important to note that Sec. 570.33(b) prohibits the
employment of 14- and 15-year-olds in occupations involving the
operation or tending of power-driven machinery, except office machines.
This prohibition has always encompassed the operation or tending of all
power-driven amusement park and recreation establishment rides--
including elevated slides found at water amusement parks. Such slides,
which often reach heights of over 40 feet, rely on power-driven
machinery that pump water to the top of the slides which facilitates
the descents of the riders to the ``splash-down'' areas at the base of
the slides. Minors less than 16 years of age may not be employed as
dispatchers or attendants at the top of elevated water slides--
employees who maintain order, direct patrons as to when to depart the
top of the slide, and ensure that patrons have safely begun their
ride--because such work constitutes ``tending'' as used in Reg. 3. In
addition, when serving as dispatchers or attendants at the top of an
elevated water slide, minors under 16 years of age are not performing,
nor can they reasonably be expected to perform, the core lifeguard duty
of rescuing swimmers because they are so far removed from the splash-
down area of the slide. Accordingly, even if 15-year-old minors have
been certified as lifeguards, the provisions of Sec. 570.34(l) would
not apply to the time spent as dispatchers or attendants at an elevated
water slide. Properly certified 15-year-old lifeguards, however, may be
stationed at the ``splashdown pools'' located at the bottom of the
elevated water slides to perform traditional lifeguard duties.
The Department is aware that permitting 15-year-olds to be employed
as lifeguards at such water amusement park facilities as lazy rivers,
wave pools, and the splashdown pools of elevated slides could be
construed as allowing these youth to tend power-driven machinery. But
the Department believes that the overall predominance of their
responsibility to perform the core life-saving duty of rescuing patrons
who are in the water, which they have been properly trained and
certified to perform, outweighs the minimum, isolated, and sporadic
amount of tending such lifeguards may potentially be called upon to do
when stationed at wave pools, lazy rivers, and splashdown pools.
3. The Employment of Certain Youth by Places of Business Where
Machinery Is Used To Process Wood Products
The provisions of the Department of Labor Appropriations Act, 2004,
amended the FLSA by creating a limited exemption from the youth
employment provisions for certain minors 14 through 17 years of age who
are excused from compulsory school attendance beyond the eighth grade.
The exemption, contained at section 13(c)(7) of the FLSA, allows
eligible youth to work inside and outside of places of businesses that
use machinery to process wood products, subject to specified
limitations. The Department is incorporating the new requirements of
this amendment into its regulations. The Department is proposing to
incorporate the amendment into Reg. 3 at Sec. 570.34(m), and into
Sec. 570.54, Logging occupations and occupations in the operation of
any sawmill, lath mill, shingle mill, or cooperage stock mill (Order
4).
Section 13(c)(7) overrides the heretofore complete prohibition on
the employment of 14- and 15-year-olds in manufacturing occupations
contained in section 3(l) of the FLSA. Accordingly, to meet the
requirements of this legislation, the Department is proposing to revise
Reg. 3 to permit the employment of qualifying 14- and 15-year-olds
inside and outside of places of business where manufacturing (the
processing of wood products by machinery) takes place, subject to
specified conditions and limitations.
The Department proposes to limit the types of employers who may
employ such minors, as well as the worksites at which such minors may
be employed, to those contemplated by the language of the statute and
mentioned by the sponsors of the legislation and the interested parties
that testified at the hearings held by Congress prior to the enactment
of the legislation (see, e.g., Testimony Before Senate Labor, Health
[[Page 19347]]
and Human Services, and Education Subcommittee of the Committee on
Appropriations, The Employment Needs of Amish Youth, 107th Cong. 2
(2001)). The term places of business where machinery is used to process
wood products shall mean such permanent workplaces as sawmills, lath
mills, shingle mills, cooperage stock mills, furniture and cabinet
making shops, gazebo and shed making shops, toy manufacturing shops,
and pallet shops. The term shall not include construction sites,
portable sawmills, areas where logging is being performed, or mining
operations. The term inside or outside places of business refers to the
distinct physical place of the business, i.e., the buildings and the
immediate grounds necessary for the operation of the business. This
exemption would not apply to tasks performed at locations other than
inside or outside the place of business of the employer such as the
delivery of items to customers or the installation of items at
customers' establishments or residences.
Although section 13(c)(7) permits the employment of certain youth
inside and outside of places of business where machinery is used to
process wood products, it does so only if the youth do not operate or
assist in the operation of power-driven woodworking machines. The terms
operate or assist in the operation and power-driven woodworking
machines are well-established in 29 CFR 570.55, and the Department
proposes to revise Reg. 3 to include these definitions along with the
specific prohibition against operating or assisting in the operation of
power-driven woodworking machines. Section 570.55 lists, when
discussing the prohibited occupations involved in the operation of
power-driven woodworking machines, such activities as supervising or
controlling the operation of the machines, feeding materials into such
machines, and helping the operator feed material into such machines.
The list also includes the occupations of setting up, adjusting,
repairing, oiling, or cleaning the machines. That same section defines
power-driven woodworking machines to mean all fixed or portable
machines or tools driven by power and used or designed for cutting,
shaping, forming, surfacing, nailing, stapling, wire stitching,
fastening, or otherwise assembling, pressing, or printing wood or
veneer. The Department is proposing to amend the definition of power-
driven woodworking machines to include those machines that process
trees, logs, and lumber in recognition that section 13(c)(7) now
permits certain youth 14 through 17 years of age to work in sawmills
where trees, logs, and lumber would be processed. This revised
definition of power-driven woodworking machines would be included in
Sec. 570.34(m) of Reg. 3 and both Sec. 570.54 (HO 4) and Sec. 570.55
(HO 5).
The limited exemption contained in section 13(c)(7) applies only to
certain youth--new entrants into the workforce--and only when certain
additional criteria are met. Section 13(c)(7) defines a new entrant
into the workforce as an individual who is under the age of 18 and at
least the age of 14, and, by statute or judicial order, is exempt from
compulsory school attendance beyond the eighth grade.
In addition, in order to be employed inside or outside of places of
business where machinery is used to process wood products, the new
entrant must be supervised by an adult relative or an adult member of
the same religious sect or division as the entrant. The term supervised
refers to the requirement that the youth's on-the-job activities be
directed, monitored, overseen, and controlled by a specified named
adult. Although the statute does not define the terms adult and
relative, the Department proposes that, for purpose of this exemption,
a relative would include a parent (or person standing in place of a
parent), a grandparent, an aunt, an uncle, and a sibling; and an adult
would be someone who has reached his or her eighteenth birthday. The
Department also proposes that the term adult member of the same
religious sect or division as the youth would mean an adult who
professes membership in the same religious sect or division to which
the youth professes membership. The Department believes that in order
to ensure these youth receive the degree of protection from injury
Congress intended, the supervision of the minors must be close, direct,
and uninterrupted. No other provision of the federal nonagricultural
youth employment rules requires such a specific level of supervision.
It is important to note that this requirement of supervision, just like
the requirement that youth not operate or assist in the operation of
power-driven woodworking machinery, applies to the employment of 16-
and 17-year-olds as well as 14- and 15-year-olds.
Furthermore, section 13(c)(7) permits the employment of a new
entrant inside or outside places of business where machinery is used to
process wood products only if the youth is (1) protected from wood
particles or other flying debris within the workplace by a barrier
appropriate to the potential hazard of such wood particles or flying
debris or by maintaining a sufficient distance from machinery in
operation, and (2) required to use personal protecting equipment to
prevent exposure to excessive levels of noise and saw dust. It is the
Department's position that section 13(c)(7)'s prerequisite that the
youth is ``required to use personal protective equipment to prevent
exposure to excess levels of noise and saw dust'' includes the youth's
actual use of such equipment and not just the employer's obligation to
mandate such use.
The Wage and Hour Division has consulted with representatives of
the Department's Occupational Safety and Health Administration (OSHA)
and will defer to that agency's expertise and guidance when determining
whether an employer is in compliance with the safety provisions of this
exemption--i.e., whether a workplace barrier is appropriate to the
potential hazard, whether a sufficient distance has been maintained
from machinery in operation, and whether the youth is exposed to
excessive levels of noise and saw dust. The Department proposes that
compliance with the safety and health provisions discussed in the
previous paragraph will be accomplished when the employer is in
compliance with the requirements of the applicable governing standards
issued by OSHA or, in those areas where OSHA has authorized the state
to operate its own Occupational Safety and Health Plan, the applicable
standards issued by the Office charged with administering the State
Occupational Safety and Health Plan.
C. Periods and Conditions of Employment (29 CFR Sec. 570.35)
FLSA section 3(l) authorizes the Secretary of Labor to provide by
regulation for the employment of young workers 14 and 15 years of age
in suitable nonagricultural occupations and during periods and under
conditions that will not interfere with their schooling or with their
health and well-being. In enacting FLSA section 3(l), Congress intended
to assure the health and educational opportunities of 14- and 15-year-
olds, while allowing them limited employment opportunities.
In 1939, Reg. 3 was promulgated under the direction of the Chief of
the Children's Bureau, in whom Congress vested the original delegation
of authority to issue child labor regulations. The record on which Reg.
3 was based included hearings where child labor advocates expressed
concern over the need for children to avoid fatigue, so as not to
deplete the energy
[[Page 19348]]
required for their school work. Similarly, witnesses stressed that
early morning and late evening work hours, which interfered with sleep
and often fostered exhaustion, were unhealthful for children and also
diminished the time that children should have spent with the family
(see In the Matter of Proposed Regulation Relating to the Employment of
Minors Between 14 and 16 Years of Age Under the Fair Labor Standards
Act, Official Report of the Proceedings Before the Children's Bureau,
February 15, 1939, at 19, 21, 34, 82). Reg. 3 limits the hours that 14-
and 15-year-olds may work to:
(1) Outside school hours;
(2) Not more that 40 hours in any 1 week when school is not in
session;
(3) Not more than 18 hours in any 1 week when school is in session;
(4) Not more than 8 hours in any 1 day when school is not in
session;
(5) Not more than 3 hours in any 1 day when school is in session;
and
(6) Between 7 a.m. and 7 p.m. in any 1 day, except during the
summer (June 1 through Labor Day) when the evening hour will be 9 p.m.
The Department is not proposing to change any of these hours and
time-of-day limitations, but wishes to foster both understanding of,
and compliance with, these provisions by incorporating into the
regulations certain long-standing Departmental enforcement positions
and interpretations. For example, the Department has developed long-
standing enforcement positions regarding the application of certain of
the hours standards limitations to minors, who for differing reasons,
no longer attend or are unable to attend school. Some of these
positions have been in place since the 1970s and all have been detailed
in the Wage and Hour Division's Field Operations Handbook since 1993.
The Department proposes to incorporate them into Reg. 3 to promote both
clarity and compliance. The Department proposes to amend Sec. 570.35
to reflect that school would not be considered to be in session for a
14-or 15-year-old minor who has graduated from high school; or has been
excused from compulsory school attendance by the state or other
jurisdiction once he or she has completed the eighth grade and his or
her employment complies with all the requirements of the state school
attendance law; or has a child to support and appropriate state
officers, pursuant to state law, have waived school attendance
requirements for this minor; or is subject to an order of a state or
federal court prohibiting him or her from attending school; or has been
permanently expelled from the local public school he or she would
normally attend. Such minors would be exempt from the ``when school is
in session'' hours standards limitations contained in Sec. Sec.
570.35(a)(1), (a)(3) and (a)(5). The employment of such minors would
still be governed by the remaining provisions of Reg. 3, including the
daily, weekly, morning, and evening hours standards limitations
contained in Sec. Sec. 570.35(a)(2), (a)(4), and (a)(6).
The Department also proposes to clarify the hours restriction
contained in Sec. 570.35(a)(5), which limits the employment of 14- and
15-year-olds in nonagricultural employment to no more than 3 hours on a
day when school is in session, by adding a statement that this
restriction also applies to Fridays. The Wage and Hour Division
occasionally receives requests for clarification from employers seeking
to lengthen the work shifts of younger employees on nights that do not
precede a school day. As the stated purposes of the hours standards
limitations include the protection of young workers from exhaustion and
the preservation of time for rest and family relations, no more than 3
hours of work is permitted on any day when school was in session.
The Department also proposes to incorporate into Reg. 3 its long
standing position that the term week as used in Reg. 3 means a standard
calendar week of 12:01 a.m. Sunday through midnight Saturday, not an
employer's workweek as defined in 29 CFR Sec. 778.105. The calendar
week would continue to serve as the timeframe for determining whether a
minor worked in excess of 18 hours during any week when school was in
session or in excess of 40 hours in any week when school was not in
session.
Finally, as noted above, Reg. 3 limits the employment of 14- and
15-year-olds to periods that are outside of school hours and to
designated hours depending whether or not school is in session.
Although neither the FLSA nor Reg. 3 defines the terms school hours and
school is in session as they apply to nonagricultural employment, the
Department has developed and applied a long-standing enforcement
position that these terms refer to the normal hours of the public
school system in the child's district of residence. This enforcement
position mirrors the provisions of FLSA section 13(c)(1), which
Congress added in1949, to clarify how these terms applied to the
employment of youth in agricultural employment. FLSA section 13(c)(1)
states, in relevant part: ``The provisions of section 12 relating to
child labor shall not apply to any employee employed in agriculture
outside of school hours for the school district where such employee is
living while he is so employed, if such employee * * * (c) is fourteen
years of age or older.''
The Department, though not proposing specific regulatory language
regarding these terms at this time, is seeking information from the
public regarding whether such regulatory provisions would be
appropriate including whether: (1) The Department should continue to
use the hours of operation of the local public school where a minor
resides to determine when he or she may legally be employed, even when
that minor does not attend that local public school or, for whatever
reason, may actually have attendance requirements that differ from that
of the rest of the students attending that local school; (2) the FLSA's
requirement that such a minor only be employed under conditions and
during periods that will not interfere with his or her schooling or
health and well-being would be equally or better served if it were
based on the minor's own actual academic schedule; (3) using the
academic schedule and attendance requirements of each minor when
determining when school was in session for that minor would provide
working youths greater opportunities and flexibility when seeking safe,
positive and legal employment. Based on comments received, the
Department will consider adding a regulatory provision defining the
terms school hours and school is in session, as they apply to
nonagricultural employment.
D. Work-Study Programs
Effective November 5, 1969, Reg. 3 was amended to provide a
variance from some of the provisions of Sec. 570.35 for the employment
of minors 14 and 15 years of age enrolled in and employed pursuant to a
school-supervised and administered Work Experience and Career
Exploration Program (WECEP). Although originally proposed as an
experimental program, Reg. 3 was amended to make the WECEP a permanent
exception.
WECEP was created to provide a carefully planned work experience
and career exploration program for 14- and 15-year-old youth who can
benefit from a career oriented educational program designed especially
to meet the participants' needs, interests, and abilities. The program
was, and continues to be, specifically geared to helping dropout-prone
youth become reoriented and motivated toward education and to prepare
for the world of work.
Section 570.35a establishes the criteria that must be met in order
for
[[Page 19349]]
states to apply for and receive authorization to operate a WECEP. This
same section details the terms, conditions, and responsibilities
participating states agree to assume upon receiving authorization to
operate a WECEP.
As mentioned, certain provisions of Sec. 570.35 relating to the
Reg. 3 hours standards are varied for youth enrolled in and employed
pursuant to an approved WECEP. Such youth may work up to 23 hours in
any one week when school is in session, any portion of which may be
during school hours. The other provisions of Sec. 570.35 (limiting
employment to no more than 3 hours on any one day school is in session,
no more than 8 hours a day on any one day school is not in session, and
no more than 40 hours in any one week when school is not in session)
remain applicable to the employment of WECEP participants. Section
570.35a also includes provisions that allow the Administrator of the
Wage and Hour Division discretion to grant requests for special
variances from the occupation standards established by Sec. Sec.
570.33 and 570.34.
Several states have advised the Department that WECEP serves its
targeted audience well, helping dropout-prone students, especially
those who are not academically oriented, stay in school and complete
their high school educations. However, WECEP, by design, does little to
help those students who wish to use work experience, and the wages such
experiences generate, as a means to realize their academic potential
and acquire a college education.
In 2003, the Department became aware of a non-profit network of
private schools, hereafter referred to as the Network, that was
operating a corporate work-study program for its students. The Network
is an association of private, not-for-profit college preparatory high
schools that strive to meet the educational needs of people in many
economically challenged areas throughout the country. The work-study
program was implemented to help students offset the costs of a quality
college preparatory education and develop important work experience and
socialization skills that will allow them to assume leadership roles as
adults.
Under the Network's model, five students share a single, full-time
clerical position with a private employer at a work place screened and
selected by the school. Each youth works five full days per four-week
period for the employer at the work place-one eight hour-day once a
week for three weeks, and two eight-hour days every fourth week. The
academic schedules of the students are carefully coordinated so that
students do not miss any classes on the days they work and the school
year has been extended beyond the standard academic schedule of the
local public school to compensate for the time the students spend at
work. These accommodations ensure that students complete a fully
accredited, college preparatory curriculum that exceeds both state and
accrediting agency requirements. Under the Network model, students do
not work more than eight hours a day, before 7 a.m. or after 7 p.m.,
and are transported to and from their jobs by the school. The students
receive at least the applicable federal and state minimum wages, and
applicable taxes are withheld and reported by their respective
employers. The Network envisioned the work-study program as an integral
part of the academic program, yielding benefits on many different
levels. Students, their parents, and the work-study director sign an
agreement defining performance expectations and program support
structures. Participating employers are also required to sign an
agreement defining job duties and expectations. All students are
required to participate in the work-study program, beginning with their
freshman year and ending at graduation.
The Network provided information that its model is achieving its
stated aims. It advised the Department that 100 percent of the students
of the 2003 graduating class of one of its schools were accepted into
college. The school is located in a neighborhood where 20 percent of
those attending the local public school drop out annually and the high
school graduation rate is 55 percent.
Reg. 3, as currently written, does not allow 14- and 15-year-olds
to participate in such work-study programs. Such youth may not work
during the hours school is in session--unless participating in a state
sponsored WECEP--and may not work more than three hours on a day the
local public school is in session.
Because the Department believes that the health, well-being, and
educational opportunities of 14- and 15-year-olds who are academically
oriented are not placed at risk by participation in structured work-
study programs such as the Network's model- and are in fact enhanced by
such participation-it is proposing that Reg. 3 be revised to
accommodate such programs. The Department proposes to allow public and
private school districts or systems to apply to the Administrator of
the Wage and Hour Division for approval to operate a work-study program
that would permit certain 14- and 15-year-olds to work during school
hours and up to eight hours on a school day under specific
circumstances. An individual private school that was not part of a
network, district, or system would also be able to apply to participate
in a work study program.
The youth would have to be enrolled in a college preparatory
curriculum and must receive, every year they participate in the work-
study program, at least the minimum number of hours of class room
instruction required by the applicable state educational agency
responsible for establishing such standards. Participating youth would
also be required to receive annual classroom instruction in work place
safety and youth employment provisions. Home-schooled youth would be
able to participate in work-study programs operated by local public
schools in the same manner many currently participate in team sports
programs, band, and other extracurricular activities.
Each participating school would be required to name a teacher-
coordinator to supervise the work-study program, make regularly
scheduled visits to the students' work sites, and ensure that
participants are employed in compliance with the minimum wage and youth
employment provisions of the FLSA. In addition, the teacher-
coordinator, the employer and the student would be required to sign a
written participation agreement that details the objectives of the
work-study program, describes the specific job duties to be performed
by the student, and the number of hours and times of day that the
student would be employed each week. The agreement, which must also be
signed or otherwise consented to by the student's parent or guardian,
would also affirm that the student will receive the minimum number of
hours of class room instruction as required by the state educational
agency for the completion of a fully-accredited college preparatory
curriculum and that the employment will comply with the applicable
youth employment and minimum wage provisions of the FLSA.
Students participating in a valid work-study program would be
permitted to work up to eighteen hours a week, a portion of which may
be during school hours, in accordance with the following formula that
is based upon a continuous four-week cycle. In three of the four weeks,
the participant would be permitted to work during school hours on only
one day per week, and for no more than for eight hours on that day.
During the remaining week of the four-
[[Page 19350]]
week cycle, such minor would be permitted to work during school hours
on no more than two days, and no more than for eight hours on each of
those two days. The employment of such minors would still be subject to
the time of day and number of hours standards contained in Sec. Sec.
570.35(a)(2), (a)(3), (a)(4), and (a)(6).
E. Logging Occupations and Occupations in the Operation of Any Sawmill,
Lath Mill, Shingle Mill, or Cooperage Stock Mill (Order 4) (29 CFR
570.54)
HO 4 generally prohibits minors 16 and 17 years of age from being
employed in most occupations in logging and in the operation of a
sawmill, lath mill, shingle mill or cooperage stock mill. The HO was
created because of the extremely high numbers of occupational
fatalities and injuries that were experienced by workers of all ages in
these industries.
HO 4 currently provides exemptions that allow 16- and 17-year-olds
to perform some occupations within the logging industries. Such minors
may perform work in offices or repair or maintenance shops. They may
work in the construction, operation, repair, or maintenance of living
and administrative quarters of logging camps. They may work in the
peeling of fence posts, pulpwood, chemical wood, excelsior wood,
cordwood, or similar products when not done in conjunction with and at
the same time and place as other logging occupations declared hazardous
by HO 4. They may work in the feeding and care of animals. Finally,
they may work in timber cruising, surveying, or logging engineering
parties; in the repair or maintenance of roads, railroads, or flumes;
in forest protection, such as clearing fire trails or roads, piling and
burning slash, maintaining fire-fighting equipment, constructing and
maintaining telephone lines, or acting as fire lookouts or fire
patrolman away from the actual logging operations--but only if such
tasks do not involve the felling and bucking of timber, the collecting
or transporting of logs, the operation of power-driven machinery, the
handling or use of explosives, and working on trestles.
HO 4 also provides exemptions at Sec. 570.54(a)(2), permitting 16-
and 17-year-olds to be employed in certain sawmill, lath mill, shingle
mill, or cooperage stock mill occupations. These exemptions, which do
not apply to work performed in a portable sawmill or that entails the
young worker entering the sawmill building, permit 16- and 17-year-olds
employed in sawmills, lath mills, shingle mills, or cooperage stock
mills to work in offices or in repair or maintenance shops; straighten,
mark, or tally lumber on the dry chain or the dry drop sorter; pull
lumber from the dry chain; clean up the lumberyard; pile, handle, or
ship cooperage stock in yards or storage sheds other than operating of
or assisting in the operation of power-driven equipment; clerical work
in the yards or shipping sheds, such as done by ordermen, tally-men,
and shipping clerks; clean-up work outside shake and shingle mills,
except when the mill is in operation; split shakes manually from precut
and split blocks with a fore and mallet, except inside the mill
building or cover; pack shakes into bundles when done in conjunction
with splitting shakes manually with a froe and mallet, except inside
the mill building or cover; and manually load bundles of shingles or
shakes into trucks or railroad cars, provided that the employer has on
file a statement from a licensed doctor of medicine or osteopathy
certifying the minor capable of performing this work without injury to
himself.
The NIOSH Report recommends that the Department not only retain HO
4, but expand its coverage to include work in the operation of timber
tracts (Standard Industrial Classification (SIC) 081) and forestry
services (SIC 085) because of the high number of fatalities occurring
in such operations. The SIC industry group of timber tracts encompasses
establishments primarily engaged in the operation of timber tracts or
tree farms for the purpose of selling standing timber, including those
establishments that grow Christmas trees. The SIC industry group of
forestry services encompasses establishments primarily engaged in
performing, on a contract or fee basis, services related to timber
production, wood technology, forestry economics and marketing, as well
as other forestry services not contained in another SIC such as
cruising timber, forest firefighting, and reforestation. Establishments
that perform timber estimation and valuation and forest fire prevention
and pest control are also included in SIC 085.
The Report states ``The logging industry * * * had the highest
lifetime risk of fatal injury of any industry, at 47 deaths per 1,000
workers based on an analysis of National Traumatic Occupational
Fatality Surveillance System data for 1990 and 1991. Sawmills, planing
mills, and millwork * * * had the 14th highest lifetime risk of 5.8
deaths per 1,000 workers.'' The Report also documents that the forestry
industry has a high fatality rate as well, and workers face injury
risks similar to those of logging workers. Citing data from the Census
of Fatal Occupational Injuries (CFOI), the Report identified 82
fatalities of workers between 1992 and 1997 employed in the forestry
industry as a whole, which includes establishments primarily engaged in
the operation of timber tracts, tree farms, forest nurseries and those
providing related forest service activities such as cruising and
estimating timber, reforestation, fire prevention and fire fighting,
pest control, timber valuation, and the gathering of forest products.
Although the Report notes that there was almost no data specific to
workers 16 and 17 years of age, the CFOI identifies 35 deaths in timber
tract operations for all age groups between 1992 and 1997 and 39 deaths
in forestry service operations for all age groups during the same
period. In addition, NIOSH also was able to identify 16 additional
deaths of workers of all ages that were clearly attributable to forest
firefighting activities. These are indeed occupations that experience
high rates of fatalities.
NIOSH notes that work in SIC 083, forest nurseries and gathering of
forest products, is associated with very small numbers of fatalities
and should not be prohibited by HO 4. SIC 083 encompasses those
establishments primarily engaged in growing trees for purposes of
reforestation or in gathering forest products. The concentration or
distillation of these products, when carried out in the forest, is also
included in this industry. Examples of industries or activities
included in SIC 083 are the gathering of balsam needles, ginseng,
huckleberry greens, maple sap, moss, Spanish moss, sphagnum moss,
teaberries, and tree seeds; the distillation of gum, turpentine, and
rosin if carried on at the gum farm; and the extraction of pine gum. It
should also be noted that section 13(d) of the FLSA already provides an
exemption from the Act's minimum wage, overtime, and youth employment
provisions to any homeworker engaged in the making of wreaths composed
principally of natural holly, pine, cedar, or other evergreens
(including the harvesting of the evergreens or other forest products
used in making such wreaths).
The Report also recommends that that the Department remove the
current exemption that permits 16- and 17-year-olds to work in the
construction of living and administrative quarters of logging camps.
The Report states: ``Construction work has high risks for fatal and
nonfatal injuries and should not be exempted in the construction of
living or administrative quarters at logging sites or mills.'' The
Department is seeking public comments about this
[[Page 19351]]
issue in the ANPRM that is being published concurrently with this NPRM.
As mentioned earlier, the Department of Labor Appropriations Act,
2004 (Pub. L. 108-199), amended the FLSA by creating a limited
exemption from the youth employment provisions for minors 14 to 18
years of age who are excused from compulsory school attendance beyond
the eighth grade. The exemption, contained in section 13(c)(7) of the
FLSA, allows eligible youth, under specific conditions, to be employed
by businesses that use machinery to process wood products, but does not
allow such youth to operate or assist in operating power-driven
woodworking machines. This exemption necessitates that the Department
revise both Reg. 3 and HO 4.
The Department agrees with the Report recommendation that HO 4
should be expanded to cover work in forest firefighting and forest fire
prevention because of the risks inherent in those occupations. The
Department is also inclined to adopt NIOSH's recommendation that the
employment of 16- and 17-year-olds be prohibited in the operation of
timber tracts, tree farms and forestry services, but is concerned that
such youth may be able to be safely employed in certain facets or
occupations within those industries without jeopardizing their health
or well-being. Therefore, the Department is asking, in this NPRM, for
information from the public that will help it identify which
occupations or tasks within the timber tract, tree farm, and forestry
services industries, if any, are not particularly hazardous or
detrimental to the health and well-being of youth.
The Department is proposing to revise HO 4 to add a prohibition on
the employment of youth 16 and 17 years of age in forest firefighting
and forest fire prevention occupations to the current prohibitions on
logging occupations, and occupations in the operation of any sawmill,
lath mill, shingle mill, or cooperage stock mill. The Department
proposes to revise the title of HO 4 to reflect these changes.
Under this proposal, all occupations in forest firefighting and
forest fire prevention shall include the controlling and extinguishing
of fires, the wetting down of areas or extinguishing of spot fires, the
patrolling of burned areas to assure the fire has been extinguished,
and the piling and burning of slash. The term shall also include the
following tasks when performed in conjunction with, or in support of,
efforts to extinguish an actual fire: The clearing of fire trails or
roads; the construction, maintenance, and patrolling of firelines;
acting as a fire lookout or fire patrolman; and tasks associated with
the operation of a temporary firefighting base camp. The prohibition
concerning the employment of youth in forest firefighting and forest
fire prevention would apply to all forest locations and buildings
located within the forest, not just where logging or sawmilling takes
place. We note that, because the FLSA does not cover individuals who
volunteer to perform services for state or local government agencies
when the provisions in section 3(e)(4) are met, this proposal would not
prohibit 16- and 17-year-old volunteers from donating their forest
firefighting services to state and local governments.
The Department is also proposing to incorporate into HO 4 the
provisions of the Department of Labor Appropriations Act, 2004 (Pub. L.
108-199), which amended the FLSA by creating a limited exemption from
the youth employment provisions for certain minors 14 through 17 years
of age who are excused from compulsory school attendance beyond the
eighth grade. The exemption, contained at section 13(c)(7) of the FLSA,
overrides the HO 4 prohibition against 16- and 17-year-olds performing
any work in the sawmill industry that entails entering the sawmill
building by permitting certain youth to be employed inside and outside
of places of business where machinery is used to process wood products.
The Department proposes to revise HO 4 to incorporate the provisions of
section 13(c)(7) in the same manner, and using the same definitions and
interpretations, as it proposed when discussing revisions to Reg. 3,
above.
The term all occupations in the operation of any sawmill, lath
mill, shingle mill, or cooperage stock mill, as defined by HO 4,
specifically excludes work performed in the planing-mill department or
other remanufacturing departments of any sawmill, or in any planing
mill or remanufacturing plant not a part of a sawmill. Although not
defined in the regulations, the Department has, since at least 1942,
considered the term remanufacturing departments to mean those
departments of a sawmill where lumber products such as boxes, lawn
furniture, and the like are remanufactured from previously cut lumber.
The kind of work performed in such departments is similar to that done
in planing mill departments in that rough lumber is surfaced or made
into other finished products. The term is not intended to denote those
operations in sawmills where rough lumber is cut to dimensions. Because
the Department has, over the years, received requests for clarification
as to the meaning of remanufacturing departments, it proposes to add
the above definition to HO 4.
The Department is also proposing to revise HO 4 to include the
above definition of remanufacturing departments, as well as the all
definitions necessitated by the incorporation of the provisions of FLSA
section 13(c)(7) and discussed earlier in this document. The Department
also proposes to restructure all the definitions in HO 4 in an
alphabetical sequence to comport with guidance provided by the Federal
Register.
The Department has decided not to address, in this NPRM, the Report
recommendation to remove the HO 4 exemption that permits 16- and 17-
year-olds to work in the construction of living and administrative
quarters of logging camps. This is because the Report also recommends
the creation of a new HO that would prohibit all work in construction
occupations which, if adopted, would impact the provisions of not only
HO 4 but several other HOs. The Department believes additional
information is needed before it can address such a broad recommendation
that would impact all construction occupations. Accordingly, the
Department is issuing an ANPRM, in conjunction with and on the same day
as this NPRM, that requests public comment on this issue.
F. Occupations Involved in the Operation of Power-Driven Wood Working
Machines (Order 5) (29 CFR 570.55)
HO 5 generally prohibits the employment of 16- and 17-year-olds in
occupations involving the operating, setting up, adjusting, repairing,
oiling, or cleaning of power-driven woodworking machines. It also
prohibits the occupations of off-bearing from circular saws and from
guillotine-action veneer clippers. As previously mentioned, FLSA
section 13(c)(7) now permits certain minors who are at least 14 years
of age and under the age of 18 years to be employed inside and outside
of places of business where machinery is used to process wood products,
but does not allow such youth to operate or assist in operating power-
driven woodworking machines.
The term power-driven woodworking machines has long been defined in
Sec. 570.55(b) to mean all fixed or portable machines or tools driven
by power and used or designed for cutting, shaping, forming, surfacing,
nailing, stapling, wire stitching, fastening, or otherwise assembling,
pressing, or printing wood or veneer. Although FLSA section
[[Page 19352]]
13(c)(7) does not impact the prohibitions of HO 5 because eligible
youth are still prevented from operating power-driven woodworking
machinery, it does expand the types of workplaces where certain youth
may be employed to include sawmills, lath mills, shingle mills, and
cooperage stock mills as well as other workplaces the Department is
proposing to include under Reg. 3 and HO 4. Employees at these newly
permitted work sites routinely use power-driven equipment that process
materials that may not be included in the current definition of power-
driven woodworking machines contained in HO 5, such as trees, logs, and
lumber. Accordingly, the Department is proposing to amend the
definition of power-driven woodworking machines to include those
machines that process trees, logs, and lumber. To ensure consistency,
the Department is proposing that this single definition of power-driven
woodworking machines be included in Sec. 570.34(m) (Reg. 3), Sec.
570.54 (HO 4), and Sec. 570.55 (HO 5).
The Department is also proposing to restructure the two definitions
in this section to reflect an alphabetical sequence in accordance with
guidance provided by the Federal Register.
G. Occupations Involved in the Operation of Power-Driven Hoisting
Apparatus (Order 7) (29 CFR 570.58)
HO 7 generally prohibits 16- and 17-year-olds from employment in
occupations that involve the work of: (1) Operating an elevator, crane,
derrick, hoist, or high-lift truck except such youth may operate
unattended automatic operation passenger elevators and electric or air
operated hoists not exceeding one ton capacity; (2) riding on a manlift
or on a freight elevator, except a freight elevator operated by an
assigned operator; and (3) assisting in the operation of a crane,
derrick or hoist performed by crane hookers, crane chasers, hookers-on,
riggers, rigger helpers, and like occupations.
The Report recommends that the Department expand HO 7 to prohibit
the repairing, servicing, disassembling of the machines and assisting
in tasks being performed by the machines named in the HO. Assisting in
tasks being performed by the machines would be tending the machines.
The Report reflects substantial numbers of deaths and injuries are
associated with operating and assisting in tasks performed by power-
driven hoisting apparatus, including deaths of youth. Additionally, a
considerable number of deaths were associated with activities not
directly related to operation of the hoisting apparatus, notably
servicing, repairing, and disassembling. Currently, the work of
repairing, servicing, disassembling, and tending the machines covered
by HO 7 is prohibited to 14- and 15-year-olds under Reg. 3 at Sec.
570.33(b). Under HO 7, 16- and 17-year-olds may currently perform such
work, except they may not assist in the operation of a crane, derrick,
or hoist as defined by the HO.
The Report also recommends that HO 7 be expanded to prohibit youth
from riding on any part of a forklift as a passenger (including the
forks) and from working from forks, platforms, buckets, or cages
attached to a moving or stationary forklift. The Report notes that
substantial numbers of fatalities occur among workers who are
passengers on forklifts, riding on the forks, or working from the
raised forklift attachments. Currently, 14- and 15-year-olds are
prohibited from riding on forklifts because Reg. 3 prohibits such youth
from operating or tending hoisting apparatus and any power-driven
machines other than office equipment. The Department has long
interpreted tending to include riding upon the power-driven equipment.
HO 7, however, prohibits older youth only from operating high-lift
trucks such as forklifts. Since 1999, the WHD has investigated at least
three incidents where youth under 18 years of age were seriously
injured while riding on forklifts being operated by other employees.
One 16-year-old who was riding on the tines of a forklift suffered
especially serious injuries to his liver and pancreas as a result of
being pinned against a wall when the driver was unable to stop the
forklift.
The Report also recommends that HO 7 be expanded to prohibit work
from truck-mounted bucket or basket hoists commonly termed ``bucket
trucks'' or ``cherry pickers'' because worker fatalities are associated
with work from such equipment. The Report specifically notes the risk
of falls and electrocution being linked with such equipment. The
Report, citing CFOI data, reflects that there were 99 worker deaths
associated with truck mounted bucket or basket hoists between 1992 and
1997.
In addition, the Report recommends that HO 7 be expanded to
prohibit 16- and 17-year-olds from employment involving certain
commonly used manlifts--especially aerial platforms-that do not meet
the current definition of manlift contained in the HO. The Report
contends that such manlifts appear to pose more significant injury risk
than those traditionally prohibited by HO 7. HO 7 defines a manlift as
a device intended for the conveyance of persons that consists of
platforms or brackets mounted on, or attached to, an endless belt,
cable, chain or similar method of suspension; such belt, cable or chain
operating in a substantially vertical direction and being supported by
and driven through pulleys, sheaves or sprockets at the top and bottom.
The Report is correct that this current definition of manlift does not
include, and therefore does not prohibit, 16- and 17-year-olds from
operating or tending aerial platforms and other manlifts such as
scissor lifts, boom-type mobile elevating work platforms, work assist
vehicles, cherry pickers, basket hoists, and bucket trucks.
The Report also recommends that HO 7 be revised to eliminate the
exemption that permits 16- and 17-year-olds to operate an electric or
air-operated hoist not exceeding one-ton capacity. The Report states
that current injury and fatality surveillance systems do not provide
sufficient detail to justify this exemption. ``A hoisted load weighing
less than one ton has the potential to cause injury or death as a
result of falling, or being improperly rigged or handled. Hoist-related
fatalities of young workers have been reported, including a recent case
in which a youth was killed while operating a half-ton capacity
hoist.''
The Department is proposing to implement all five of the Report
recommendations concerning HO 7. Sections 570.58(a)(1) and (a)(2) would
be revised to reflect that in addition to work involved with operating
the named equipment, the work of tending, riding upon, working from,
servicing, repairing or disassembling such equipment would also be
prohibited. Section 570.58(a)(3) would be eliminated because its
provisions would now be contained in the revised Sec. 570.58(a)(1);
the work of assisting in the operation of a crane, derrick, or hoist
would be prohibited because such tasks fall within the scope of tending
of equipment. The exemption contained in Sec. 570.58(a)(1) permitting
youth to operate and ride inside passenger elevators would be retained,
but the exemption that currently allows 16- and 17-year-olds to operate
an electric or air-operated hoist not exceeding one ton capacity would
be eliminated as per the Report recommendation.
The Department also proposes to reformat the definitions section
contained in HO 7 to reflect an alphabetical sequence in accordance
with guidance provided by the Federal Register. In addition, the
Department proposes to revise the definition of manlift so that, as
recommended by the Report, it incorporates those pieces of equipment
that perform the same
[[Page 19353]]
functions as manlifts but that do not currently fall within the
prohibitions of the HO. The proposed definition includes a statement
that the term manlift shall also include truck-or equipment-mounted
aerial platforms commonly referred to as scissor lifts, boom-type
mobile elevating work platforms, work assist vehicles, cherry pickers,
basket hoists, and bucket trucks.
The Department is also proposing to revise the definition of high-
lift truck to incorporate a long-standing enforcement position that
industrial trucks such as skid loaders, skid-steer loaders, and Bobcat
loaders are high-lift trucks as defined by HO 7. Although not
specifically named as high-lift trucks by HO 7, such equipment meets
the definition of high-lift trucks because each is ``a power-driven
industrial type of truck equipped with a power-operated lifting device
* * * capable of tiering loaded pallets or skids one above the other.''
The Department has opined on this matter, in writing, since at least
1993. By adding skid loaders, skid-steer loaders, and Bobcat loaders to
the definition of high-lift trucks, the Department believes it will
clarify the requirements for compliance with HO 7. The Department has
successfully defended this enforcement position, most recently in a
case where minors were employed to operate a skid-steer loader to clean
trailers used to haul livestock. The Department prevailed despite the
fact that the youth did not operate or utilize the loader's hoisting
device but used the skid-steer loader as a ``scraper'' (see Lynnville
Transport, Inc. v. Chao, 316 F. Supp. 2d 790 (S.D. Iowa 2004)).
H. Occupations in the Operation of Power-Driven Meat-Processing
Machines and Occupations Involving Slaughtering, Meat Packing or
Processing, or Rendering (Order 10) (29 CFR 570.61)
HO 10 generally prohibits 16- and 17-year-olds from being employed
in all occupations in or about slaughtering, meat packing or processing
establishments, and rendering plants. The HO also prevents such minors
from performing all occupations involved in the operation or feeding of
several power-driven meat processing machines when performed in
slaughtering and meat packing establishments, as well as in wholesale,
retail, or service establishments. The term slaughtering and meat
packing establishments is defined in HO 10 to mean places in which
cattle, calves, hogs, sheep, lambs, goats, or horses are killed,
butchered, or processed. The term also includes establishments that
manufacture or process meat products or sausage casing from such
animals. The term currently does not include establishments that
process only poultry, rabbits, or small game. The term retail/wholesale
or service establishments, as defined in HO 10, includes establishments
where meat or meat products are processed or handled, such as butcher
shops, grocery stores, restaurants, quick service establishments,
hotels, delicatessens, and meat locker (freezer-locker) companies, and
establishments where any food product is prepared or processed for
serving to customers using machines prohibited by the HO. Included on
the list of prohibited power-driven meat processing machines are meat
patty forming machines, meat and bone cutting saws, meat slicers,
knives (except bacon-slicing machines), headsplitters, and guillotine
cutters; snoutpullers and jawpullers; skinning machines; horizontal
rotary washing machines; casing-cleaning machines such as crushing,
stripping, and finishing machines; grinding, mixing, chopping, and
hashing machines; and presses (except belly-rolling machines). The term
operation includes setting-up, adjusting, repairing, oiling, or
cleaning such machines, regardless of the product being processed by
the machine. For example, HO 10 prohibits a minor from operating a meat
slicer in a restaurant to cut cheese or vegetables. In addition, the
Department has, as early as 1991, interpreted the prohibition on
cleaning such machines as precluding 16- and 17-year-olds from
performing the hand or machine washing of parts of and attachments to
power-driven meat processing machines, even when the machine was
disassembled and reassembled by an adult. This provision is designed to
prevent such youth from being injured by contact with the machines'
sharp blades and cutting surfaces. HO 10 provides a limited exemption
that permits the employment of apprentices and student-learners under
the conditions prescribed in Sec. 570.50(b) and (c).
The Report recommends that HO 10 be expanded to prohibit work in
all meat products manufacturing industries including those engaged in
the processing of sausages and/or other prepared meat products and
those engaged in poultry slaughtering and/or processing. The rationale
for this recommendation is that although injury fatality rates in meat
products manufacturing industries are relatively low, rates of
disorders due to repeated trauma are extremely high. This is also true
for poultry processing which is not encompassed in the existing HO. In
addition, there are a number of diverse and serious health hazards
associated with the slaughtering of animals and manufacturing of meat
products, including exposure to infectious agents and respiratory
hazards. The Report notes that in 1997 there were an estimated 13,646
occupational injuries and illnesses resulting in days away from work
among employees in the meat product manufacturing industry. Although
the greatest number of these injuries and illnesses occurred in meat
packing plants (5,526), establishments that produce sausages and
prepared meats experienced 4,147 injuries and illnesses, and poultry
slaughtering and processing establishments experienced 3,937 that same
year. In 1999, the Department investigated the death of a young poultry
processing worker in Arkansas and the serious injury of a similarly
employed minor in Missouri who injured both of his legs when he slipped
and fell into an auger. The minor also suffered severe nerve damage and
second degree burns.
The Report also recommends that HO 10 be revised to allow 16- and
17-year-olds to operate and feed power-driven meat and food slicers in
retail, wholesale and service industry establishments. This is one of
the few recommendations the Report makes that would relax current
prohibitions, and it is made with the rationale that ``although data
show high numbers of injuries associated with power-driven slicers, the
injuries appear to be relatively minor.'' NIOSH includes the caveat
that if this recommendation is implemented ``it should be accompanied
by a mandatory reporting period in which all serious youth injuries and
deaths resulting from previously prohibited activities are promptly
reported to the U.S. Department of Labor.'' Such a reporting plan would
allow an assessment as to whether the revision should be rescinded or
further refined to best protect working youth.
Finally, the Report recommends that the apprenticeship and student-
learner exemption contained in HO 10 be restricted to apply only to 16-
and 17-year-olds employed in retail, wholesale, and service industries.
The Report recommends that this exemption no longer be applicable to
the employment of such minors in meat products manufacturing
industries.
The Department proposes to implement the Report recommendation to
expand the application of HO 10 to prohibit the employment of 16- and
17-year-olds in all meat products manufacturing industries, including
[[Page 19354]]
those engaged in the processing of sausages and/or other prepared meat
products and those engaged in poultry slaughtering and/or processing.
The Department proposes to revise the term slaughtering and meat
packing establishments contained in Sec. 570.61(b) so that the term
also includes places where poultry are killed, butchered, or processed.
This term would also include establishments that manufacture or process
meat products, including poultry, sausage, or sausage casings. The
Department also proposes to add buffalo and deer to the lists of
animals contained in the definitions of the terms killing floor and
slaughtering and meat packing establishments and note that these lists
are not exhaustive. The Department also proposes to revise the title of
HO 10 to reflect its expansion to the slaughtering of poultry, and the
processing, packing, and rendering of poultry and poultry products. The
current HO 10 exemption permitting the killing and processing of
rabbits or small game in areas physically separated from the killing
floor would not be changed.
The Department also proposes to revise Sec. 570.61(a)(4) to
incorporate its interpretation that the prohibition against 16- and 17-
year-olds cleaning power-driven meat processing machines extends to
washing the machine's parts and attachments, even if the machine is
disassembled and reassembled by an adult. This proposal, however, would
not prevent a 16- or 17-year-old from operating a commercial dishwasher
to run a self-contained rack containing parts of or attachments to a
power-driven meat processing machine through the dishwasher so long as
the youth does not actually handle or touch the machine parts or
attachments.
The Department also proposes to reformat, in an alphabetical
sequence, all the definitions found in Sec. 570.61(b) to comport with
guidance provided by the Federal Register.
The Department has decided not to implement the Report
recommendation that would allow 16- and 17-year-olds to operate and
feed power-driven meat and food slicers in retail, wholesale and
service industry establishments. Both the Report and the Department's
enforcement experience reflect that meat slicers are responsible for
many occupational injuries. The Report notes that the Survey of
Occupational Injuries and Illnesses reports that in 1997, food and
beverage processing machinery were responsible for 11,737 nonfatal
injuries and illness that resulted in days away from work. Over sixty
percent of that number, 7,280 injuries and illnesses, were caused by
food slicers. The median number of days away from work for workers who
suffered food slicer related injuries or illnesses was four days, not
an insignificant number. Since October 1999, the Department has
investigated at least 36 injuries of young workers that were caused by
operating or cleaning power-driven meat slicers. Although none of these
injuries was life threatening, most were considered to be serious and
many caused the partial loss of digits and will leave some permanent
scarring.
The Department has also decided not to implement at this time the
Report recommendation concerning limiting the current apprenticeship
and student-learner exemption contained in HO 10 to retail, wholesale
and service industries. The apprenticeship and student learner
exemptions contained in certain HOs were developed relatively
independently of each other as each HO was adopted. The issue of
allowing certain training exemptions from the HOs first arose in the
early 1940s, after the enactment of the first six HOs. HO 5 was amended
to permit the employment of student learners and apprentices, but HOs 1
through 4 were not. Each committee convened thereafter to study, draft,
and implement a new HO developed its own criteria for determining the
appropriateness of including apprentice and student-learner exemptions
and was not restricted by the determinations made by previous
committees. The Report makes several recommendations concerning the
establishment, revision, and elimination of apprenticeship and student-
learner exemptions, but the rationale for each recommendation either is
vague or is not provided. The Department believes that before any
changes to the existing exemptions are made, it is important to
consider and develop criteria for determining when apprenticeship and
student-learner exemptions are appropriate. Such criteria, which must
be consistent with the established national policy of balancing the
benefits of employment opportunities for youth with the necessary and
most effective safety protections, will also be of value as the
Department considers creating new HOs. Accordingly, the Department is
issuing an ANPRM, in conjunction with and on the same day as this NPRM,
to solicit public comment on this important issue.
I. Occupations Involved in the Operation of Bakery Machines (Order 11)
(29 CFR 570.62)
HO 11 generally prohibits the employment of 16- and 17-year-olds in
occupations involved in the operation of power-driven bakery machines.
Prohibited activities include operating, assisting to operate, setting
up, adjusting, repairing, oiling, or cleaning any horizontal or
vertical dough mixer; batter mixer; bread dividing, rounding, or
molding machine; dough brake; dough sheeter; combination bread slicing
and wrapping machine; or cake cutting band saw. The HO also prevents
the employment of such youth in the occupation of setting up or
adjusting a cooky (sic) or cracker machine. The prohibitions of the HO
do not differentiate between portable and non-portable equipment, and
models designed for use in the home versus those solely designed for
industrial applications. Therefore, the prohibitions of HO 11 include
the employment of 16- and 17-year-olds to operate even the smallest of
counter top vertical mixers.
In response to information presented by several restaurants and
employer associations, the Department adopted an enforcement position
in 1990 that it would not assert a violation of HO 11 when a 16- or 17-
year-old employee operated a pizza-dough roller, a type of dough
sheeter, when the machine: (1) Is constructed with safeguards contained
in the basic design so as to prevent fingers, hands, or clothing from
being caught in the in-running point of the rollers; (2) has gears that
are completely enclosed; and (3) has microswitches that disengage the
machinery if the backs or sides of the rollers are removed. This
enforcement position applies only when all the safeguards detailed
above are present on the machine, are operational, and have not been
overridden. In addition, this enforcement position applies only to the
operation of the machine. HO 11 still prohibits 16- and 17-year-olds
from being employed in occupations involving the setting up, adjusting,
repairing, oiling, or cleaning of such pizza-dough rollers. The
Department has restated this position numerous times in response to
written requests and has included this position in its Field Operations
Handbook since at least 1992.
The Report recommends that HO 11 be relaxed to allow the operation
of counter-top models of power-driven bakery machines, comparable to
those intended for household use. The Report's rationale for this
recommendation is that available data suggest that there were no
fatalities involving such counter-top power-driven machines, and
nonfatal injuries requiring time away from work are of moderate
severity. Although, as noted, the HO prohibits the use of several
different power-driven bakery machines, the thrust of the Report's
[[Page 19355]]
recommendation involves food mixers. The Report notes that there were
712 non-fatal injuries and illnesses in 1997, with a median of 11 days
away from work, associated with work with mixers, blenders, and
whippers.
The Department's enforcement experience includes situations where
employers have questioned why 16- and 17-year-olds were not permitted
to use small mixers to process such things as cheese dip and batter for
seafood when such machines generally appeared to present no risks to
such minors. Recently, the Department adopted an enforcement policy
that it would not assert violations of HO 11 when 16- and 17-year-olds
operate, assist to operate, setup, adjust, repair, oil, or clean
certain small, lightweight, countertop mixers.
The Department proposes to implement this recommendation by
creating a new Sec. 570.62(b)(1) that would include an exemption
allowing the employment of 16- and 17-year-olds to operate--including
setting-up, adjusting, repairing, oiling, and cleaning--lightweight,
small capacity, portable counter-top power-driven food mixers that are,
or are comparable to, those models intended for household use. The
Department, during its meetings with various stakeholders held after
the release of the Report, sought to identify which types of mixers
could be operated safely in the workplace by 16- and 17-year-olds. The
information provided, which also echoed the Department's enforcement
experiences, indicated that such factors as bowl capacity, the
horsepower of the motor, the portability of the machine (light weight
and not permanently wired or ``hardwired'' into the establishment's
electrical power source), and similarity to equipment designed
exclusively for home use were all important criteria. For purposes of
this exemption, the Department proposes that a lightweight, small
capacity mixer is one that is not hardwired into the establishment's
power source, is equipped with a motor that operates at no more than
\1/2\ horsepower, and whose bowl capacity does not exceed five quarts.
Minors 14- and 15-years of age would still be prohibited from operating
or assisting in the operation of such mixers under the provisions of
Reg. 3.
The Department is also proposing to incorporate into part 570 its
long-standing enforcement position regarding the operation of certain
pizza-dough rollers by 16- and 17-year-old workers. The Department's
enforcement experience indicates that when employers properly apply
this limited enforcement position, 16- and 17-year-olds can safely
operate pizza-dough rollers. Accordingly, the Department is proposing
to create a new Sec. 570.62(b)(2) that will permit such youth to
operate--but not set-up, adjust, repair, oil, or clean--those power-
driven pizza-dough rollers that: (1) Are constructed with safeguards
contained in the basic design so as to prevent fingers, hands, or
clothing from being caught in the in-running point of the rollers; (2)
have gears that are completely enclosed; and (3) have microswitches
that disengage the machinery if the backs or sides of the rollers are
removed. The exception in Sec. 570.62(b)(2) would apply only when all
the safeguards detailed above are present on the machines, are
operational, and have not been overridden.
The Department is also proposing to change the word cooky in Sec.
570.62(a)(2) to cookie to reflect the more common spelling of that
word.
J. Occupations Involved in the Operation of Paper-Products Machines,
Scrap Paper Balers, and Paper Box Compactors (Order 12) (29 CFR 570.63)
Hazardous Occupations Order No. 12 generally prohibits minors under
18 years of age from working in occupations involving the operation of
paper-products machines. The HO prohibits, with certain exceptions
discussed below, the loading, operating, and unloading of scrap paper
balers, including paper box balers and compacting machines, and other
power-driven machines used in the remanufacture or conversion of paper
or pulp into a finished product. When HO 12 was promulgated in 1954,
the dangers specifically associated with the operation of scrap paper
balers involved being caught in the plungers during the compression
process and suffering strains and other injuries while moving the
compressed bales.
The Department has consistently interpreted HO 12 to apply to any
establishments that use such paper-products machines, including retail
stores. The Department had long interpreted the regulation as applying
to paper box compactors (which generally perform the same function,
utilize the same processes of compacting, and present the same dangers
as scrap paper balers) although paper box compactors were not
specifically named in the HO until 2005. Prior to 2005, the
prohibitions of HO 12 applied only to equipment used exclusively to
process paper products, even though machines used to process other
materials, in addition to paper products, share the identical machine
designs, operation methods, and potential risks.
As a result of reports received in the 1980s of injuries to minors
employed in retail stores involving paper balers, the Department
conducted a review of HO 12 in 1990-91 as it applied to grocery stores
and other retail operations. Through a Proposed Rule (55 FR 42812),
followed by a Final Rule (56 FR 58626), HO 12 was amended in December
1991. The regulation was clarified as applying where the baled paper
products were recycled, as well as where they were disposed of as
trash. Further, the regulation's prohibition on ``operation'' was
clarified so as not to include (i.e., to permit) the stacking of
materials in areas adjacent to the machine. Finally, the regulation was
revised to state explicitly that HO 12 applied to all covered
establishments that used such machines, consistent with long-
established Departmental interpretation.
The Department published an ANPRM in 1994 (59 FR 25167), seeking
the public's views on possible changes in the child labor regulations,
including the Hazardous Occupations Orders. Although HO 12 was not
specifically mentioned in the ANPRM, the Department received comments
from representatives of the grocery industry asserting that recent
technological changes have rendered certain new balers and compactors
safe for minors to load. The Food and Allied Service Trades Department,
AFL-CIO, opposed any relaxation of the prohibitions contained in HO 12.
The Child Labor Coalition also opposed any relaxation of HO 12 and
suggested that it should be expanded to include all compactors.
The Compactor and Baler Act was enacted on August 6, 1996 (Pub. L.
104-174). This legislation amended the FLSA by adding a new subsection
13(c)(5) which permits 16- and 17-year-olds to load, but not operate or
unload, certain scrap paper balers and paper box compactors only when
certain conditions are met. One such condition is that the equipment
must meet specific standards issued for balers or for compactors by the
American National Standard Institute (ANSI). ANSI is a national
organization that coordinates the development of voluntary, consensus
standards in a wide range of areas, including product and worker
safety.
When enacting the Compactor and Baler Act, Congress explicitly
applied certain industry standards for the determination of which
balers and/or compactors are safe for minors to load: ANSI Standard
ANSI Z245.5-1990 for scrap paper balers or Standard ANSI Z245.2-1992
for paper box compactors. Congress has used ANSI standards in other
contexts as expressions of the best
[[Page 19356]]
available technology in the safety area. For example, the Occupational
Safety and Health Act of 1970 directed the Department of Labor to adopt
the then-existing ANSI standards, rather than delay any activity until
the agency promulgated particular occupational safety and health
standards (see section 6(a) of the Occupational Safety and Health Act,
29 U.S.C. 655(a)). The ANSI standards for scrap paper balers and paper
box compactors govern the manufacture and modification of the
equipment, the operation and maintenance of the equipment, and employee
training. The Compactor and Baler Act also provides that any new
standard(s) adopted by ANSI would also be sufficient for the safety of
the scrap paper balers and paper box compactors, if the Secretary of
Labor certifies the new standard(s) to be at least as protective of the
safety of minors as the two standards specified in the Act. In the
Final Rule issued in 2004, the Department stated that it would publish
a Notice in the Federal Register when the Secretary made any such
certifications.
Because these ANSI standards are copyright-protected, the
Department cannot include them in the regulations or reproduce them for
distribution to the public. Copies of the applicable ANSI standards are
available for inspection at the Office of the Federal Register, 800
North Capitol Street, NW., Suite 700, Washington, DC 20408, at the
Occupational Safety and Health Administration Docket Office at Room N-
2625, U.S. Department of Labor, 200 Constitution Avenue, NW.,
Washington, DC 20210, and at any of the OSHA regional offices. Copies
of these standards are available for purchase at the American National
Standards Institute, 11 West 42nd Street, New York, New York 10036.
The Department issued a Final Rule on December 16, 2004 (69 FR
75382), which revised HO 12 to incorporate the provisions of the
Compactor and Baler Act. The final rule became effective on February
14, 2005. As supported by the provisions of the Compactor and Baler
Act, the Final Rule expanded the coverage of HO 12 to include those
balers and paper box compactors that process other materials in
addition to paper products. The final rule also included the
Secretary's certification, as permitted by the Compactor and Baler Act,
that the new Standard ANSI Z245.5-1997 is as protective of the safety
of minors as Standard ANSI-S245.5-1990 and that the new Standard ANSI
Z245.2-1997 is as protective of the safety of minors as Standard ANSI
Z245.2-1992. Accordingly, these newer standards were incorporated into
HO 12.
The Department, when issuing the 2004 Final Rule (69 FR 75397,
December 16, 2004), noted that there still remained one class of balers
and compactors that falls outside of the scope of HO 12--those machines
that process anything and everything but paper products. The Report, in
recognition of this gap in coverage, recommends that HO 12 be revised
to include such machines because ``balers and compactors used to
process other scrap materials such as plastic and aluminum cans pose
similar risk of injury from crushing or amputation.''
The Report notes that baler and compactor related deaths are not
limited to those in which paper or cardboard is being processed. Many
machines are adaptable for the baling and compacting of a wide variety
of materials, including paper, aluminum cans, plastic milk jugs, and
general refuse. Other machines are intended specifically for processing
a single product, such as metals. These specialized metal balers and
compactors, which process such items as cars, radiators, and siding,
may share similar designs and operating procedures with those
compactors and balers that process only paper products or process other
materials in addition to paper products. However, these specialized
metal balers also include large industrial machines that feature shear
blades that are not normally present on lighter-duty type balers. The
Report notes that while these large specialized balers are generally
found in facilities that specialize in processing scrap and waste
materials, smaller general-purpose portable machines that serve the
same functions are marketed for use in businesses such as grocery
stores, hotels, restaurants, and hospitals. These smaller general-
purpose machines operate in essentially the same manner as the larger
machines and present similar risks of injury.
In addition, the Report recommends that the Department continue to
emphasize enforcement of portions of the Compactor and Baler Act
requiring that balers and compactors conform to construction and
operations standards that greatly reduce exposure to hazardous energy.
The Report notes that investigations of baler-related incidents show
that failure to maintain machinery in safe operating condition
contributes to fatalities and serious injuries and that neither adult
supervisors nor young workers may fully appreciate the risks posed by
uncontrolled hazardous energy. The Report also recommends that the
Department retain the limited exemption contained in Sec. 570.63(c)(2)
that permits apprentices and student-learners to perform, under
specific guidelines, tasks that would otherwise be prohibited by HO 12.
The Department agrees with the NIOSH Report recommendation
regarding the scope of the HO and is proposing to revise HO 12 to
prohibit 16- and 17-year-olds from operating, loading, and unloading,
with limited exceptions, all balers and compactors, regardless of the
materials being processed. Both NIOSH occupational injury data and the
Department's enforcement experience reflect that injuries occur when
youth operate balers and compactors that are designed and used to
process materials other than paper. For example, the Department
investigated the employment of a 17-year-old who had both legs
amputated in a large industrial baler machine at a recycling center.
The machine was the only baler at the center and, therefore, was used
to process a wide variety of items. In a different investigation,
another 17-year-old lost his right index finger while putting
recyclables into an industrial waste compactor by hand.
The limited exemption provided by FLSA section 13(c)(5) and
contained in Sec. 570.63(c)(1), which allows 16- and 17-year-old
workers, under specific conditions, to load but not operate or unload
certain scrap paper balers and paper box compactors, would remain. This
exemption, as detailed in the Compactor and Baler Act, would apply only
to certain scrap paper balers and paper box compactors, as currently
defined in Sec. 570.63(b), and would not apply to those balers and
compactors that are not designed or used to process paper or cardboard.
This proposed revision would be accomplished by adding new
subsections to Sec. 570.63 that would prohibit 16- and 17-year-olds
from performing the occupations of operating or assisting to operate
any baler or compactor that is designed or used to process materials
other than paper. A baler that is designed or used to process materials
other than paper would be defined in Sec. 570.63(b) to mean a powered
machine designed or used to compress materials other than paper or
cardboard boxes, with or without binding, to a density or form that
will support handling and transportation as a material unit without
requiring a disposable or reusable container. A compactor that is
designed or used to process materials other than paper would be defined
in Sec. 570.63(b) to mean a powered machine that remains stationary
during operation, designed or used to compact refuse other than paper
or cardboard boxes, into a detachable or
[[Page 19357]]
integral container or into a transfer vehicle. The occasional
processing of paper or a cardboard box by a machine designed to process
other materials would not bring the loading of such machines within the
limited exemption provided by section 13(c)(5).
The prohibition against such youth setting up, adjusting,
repairing, oiling, or cleaning any of the machines currently listed in
HO 12 would be extended to include compactors and balers that are
designed to process materials other than paper.
As previously noted, the Compactor and Baler Act provides that any
new standard(s) adopted by ANSI would also be sufficient for the
determination of the safety of the scrap paper balers and paper box
compactors, if the Secretary of Labor certifies the new standard(s) to
be at least as protective of the safety of minors as the two standards
specified in the Act. In the 2004 Final Rule, the Secretary certified
that Standard ANSI Z245.5-1997 is as protective of the safety of minors
as Standard ANSI-S245.5-1990 and that Standard ANSI Z245.2-1997 is as
protective of the safety of minors as Standard ANSI Z245.2-1992.
Accordingly, the newer standards were incorporated into HO 12.
The Department has learned that in 2004 ANSI adopted Standard ANSI
Z245.2-2004 (Stationary Compactors--Safety Requirements for
Installation, Maintenance, and Operations) and Standard ANSI Z245.5-
2004 (Baling Equipment--Safety Requirements for Installation,
Maintenance, and Operations). The Department's preliminary review of
these new Standards, which includes input from NIOSH, indicates that
the Standards are as protective as those cited in the Compactor and
Baler Act and should be included in HO 12 along with the older
Standards should a Final Rule be implemented. The public is invited to
provide comment on whether Standard ANSI Z245.5-2004 is as protective
of the safety of minors as Standard ANSI Z245.5-1990 and whether
Standard ANSI Z245.2-2004 is as protective of the safety of minors as
Standard ANSI Z245.2-1992.
The Department appreciates the Report's recommendation to continue
emphasizing enforcement of portions of the Compactor and Baler Act
requiring that balers and compactors conform to construction and
operations standards that greatly reduce exposure to hazardous energy.
The Report notes that investigations of baler-related incidents show
that failure to maintain machinery in safe operating condition
contributes to fatalities and serious injuries and that neither adult
supervisors nor young workers may fully appreciate the risks posed by
uncontrolled hazardous energy. The Department's enforcement experience
supports these findings. Most recently, the Department investigated the
death of a 16-year-old grocery store worker in New York who was crushed
to death by a baler that had been jerry-rigged to operate while the
door to the loading chamber was open. This over-riding of an important
safety device required by each of the ANSI Standards was done to speed
up the loading process. As discussed previously, in order for an
employer to avail itself of the limited exemption contained in Sec.
570.63(c)(1) that permits 16- and 17-year-olds under certain conditions
to load, but not operate or unload, certain scrap paper balers and
paper box compactors, the employer must determine that the equipment
meets an appropriate ANSI Standard listed in HO 12. The employer must
also post a notice on the machine that states, among other things,
which applicable ANSI Standard the machine meets. The appropriate ANSI
Standards govern not only the manufacture and modification of the
equipment, but the operation and maintenance of the equipment, and
employee training as well. During enforcement actions involving
employers who avail themselves of the limited exemption contained in
Sec. 570.63(c)(1), the Department routinely confirms whether the scrap
paper baler or paper box compactor being loaded by 16- or 17-year-olds
meets the requirements of the applicable ANSI Standard as determined
and declared by the employer. If the equipment does not meet the
requirements of an applicable ANSI Standard or if the employer failed
to make such a determination, the provisions of the limited exemption
have not been met and a violation of HO 12 has most likely occurred.
The Department will carry on these efforts and will continue to work
with both NIOSH and OSHA to better educate employers, employees, and
enforcement personnel about the requirements of the ANSI Standards.
Such efforts impact the safety of all workers, not just those under the
age of 18.
Finally, the Department proposes to take no action concerning the
NIOSH Report recommendation concerning the apprenticeship and student-
learner exemption to HO 12 at this time. As previously discussed, the
Department is issuing an ANPRM, in conjunction with and on the same day
as this NPRM, that requests information from the public on this issue.
K. Occupations Involved in the Operation of Circular Saws, Band Saws,
and Guillotine Shears (HO 14) (29 CFR 570.65)
HO 14 generally prohibits the employment of 16- and 17-year-olds in
the occupations of operator or helper on power-driven circular saws,
band saws, and guillotine shears, except those that are properly
guarded and equipped with devices for full automatic feeding and
ejection. The prohibitions of HO 14 are based on the equipment and
apply regardless of the materials being processed. Section 570.65(b)(4)
defines the term circular saw to mean a machine equipped with a thin
steel disc having a continuous serious of notches or teeth on the
periphery, mounted on shafting, and used for sawing materials. The term
band saw is defined in Sec. 570.65(b)(5) to mean a machine equipped
with an endless steel band having a continuous serious of notches or
teeth, running over wheels or pulleys, and used for sawing materials.
Section 570.65(b)(6) defines the term guillotine shear to mean a
machine equipped with a moveable blade operated vertically and used to
shear materials. The term does not include other types of shearing
machines, using a different form of shearing action, such as alligator
shears or circular shears. HO 14 also prohibits such minors from
setting-up, adjusting, repairing, oiling, or cleaning circular saws,
band saws, and guillotine shears.
The original report that led to the issuance of HO 14 in 1960 noted
that these machines had already been found and declared to be
particularly hazardous for 16- and 17-year-old employees when used to
process certain materials. Circular saws and band saws were already
covered under HO 5 when used on wood, HO 10 when used on meat, and HO
12 when used on paper products. Band saws were also covered under HO 11
when used to cut sheet cakes to desired sizes and shapes. Guillotine
shears are covered under HOs 5, 8, 10 and 12 when used on wood, metal,
meat, and paper products, respectively. Reports showing that minors
were being injured when operating these machines on materials not
covered by an existing HO led the Department to issue the all-
encompassing HO 14.
The Report recommends that HO 14 be expanded to cover other
machines, such as chain saws, that perform cutting and sawing functions
through direct contact between the cutting surfaces and the materials.
The Report also recommends, alternatively, that the Department consider
developing a new HO that would prohibit all sawing
[[Page 19358]]
machinery that perform cutting and sawing functions through direct
contact of the cutting surface and the material being processed. The
Report states: ``Stationary saws and hand-held saws, including chain
saws, continue to be the source of substantial numbers of fatalities as
well as nonfatal injuries which may be unusually severe.'' The Report
observes that not all machines that perform cutting and sawing
functions fit into HO 14's definitions of circular saw, band saw, or
guillotine shears. The Report notes that available data demonstrate
that chainsaws specifically contributed to 70 worker deaths between
1992 and 1997 and over 1,600 lost workday injuries. Some of these
fatalities and deaths involved workers under 18 years of age. The
Report also recommends that the Department retain the exemption
contained in HO 14 that permits 16- and 17-year-old apprentices and
student learners to perform work that would be otherwise prohibited by
the HO.
The Department has long taken the position that HO 4 (Logging
occupations and occupations in the operation of any sawmill, lath mill,
shingle mill, or cooperage stock mill) prohibits 16- and 17-year-olds
from operating chain saws in logging operations because the HO
prohibits all work ``in connection with the felling of timber.''
Likewise, the Department has consistently taken the position, starting
as early as 1959, that HO 5 (Occupations involved in the operation of
power-driven woodworking machines) prohibits these same minors from
using chain saws to cut wood and wood products, including trees and
branches. Over the last ten years, the Department has investigated the
serious injuries of several youth that resulted from the use of chain
saws to cut branches and trees, charged violations under HO 5, and
assessed and collected civil money penalties because of those
violations. However, as the Report implies, the use of chain saws by
16- and 17-year-olds would not be prohibited when cutting other
materials such as metal, concrete, stone, and ice.
The Department has also long taken the position that HO 5 prohibits
the employment of 16- and 17-year-olds to operate wood chippers to
grind tree limbs, branches, and trunks into chips, mulch, or debris.
Some questions have recently been raised concerning the appropriateness
of this position, but the Department has been consistent in its
application when the equipment is used to process wood and trees. Young
workers have been killed or seriously injured while operating wood
chippers. In 2000, the Department investigated the death of a 14-year-
old member of a tree-trimming crew who was dismembered when he became
entangled in branches he was feeding into a drum-type wood chipper. In
2001, the Department investigated the serious injury of a 17-year-old
who suffered a fractured skull when the wood chipper he was feeding
``spit out'' a 12-inch long, 4-inch diameter, piece of a tree branch.
Three titanium plates were permanently implanted into the minor's
skull. The Department charged the employer of this youth with a
violation of HO 5, and assessed and collected a civil money penalty
because of the violation.
Just like in 1960 when HO 14 was first issued, the Department is
receiving reports of injuries and deaths, such as the ones described in
the preceding paragraphs, of youth operating power-driven machines that
may be prohibited when used to process certain types of materials and
not prohibited when processing other types of materials. Reciprocating
saws constitute another example of such a machine. HO 5 prohibits the
employment of 16- and 17-year-olds to operate reciprocating saws that
are used or designed for cutting wood, but the same piece of equipment
is permitted when used or designed exclusively to cut materials other
than wood, such as metal. The Department has learned of occupational
injuries to workers operating reciprocating saws to cut materials other
than wood. The Department is aware of the death of an adult plumber in
Minnesota in 2002 who was killed when the blade of the reciprocating
saw he was using to rough-in plumbing entered his head near his eye.
The U.S. Department of Energy has also reported that in 2002 an adult
worker injured his larynx when the reciprocating saw he was operating
kicked back and cut him in his lower throat. The American Journal of
Forensic Medicine and Pathology (Volume 28, No. 4, December 2001)
reports on the death of a 32-year-old male who lost his balance and
fell on the blade of an electric reciprocating saw he was using to trim
branches. The blade perforated his anterior chest wall, right lung,
heart and aorta. The Journal noted that the victim had been drinking
beer while trimming the branches. Finally, in 2004, the Department
investigated the death of a 17-year-old worker who was employed to
operate a reciprocating saw to salvage automobile catalytic converters
for recycling. While operating the saw, the vehicle upon which he was
using the saw fell on him and crushed him to death.
The Department is proposing to revise the prohibitions of HO 14 to
include chain saws, wood chippers, and reciprocating saws. The
prohibition would not depend on the material or materials being
processed and would encompass the occupations of setting-up, adjusting,
repairing, oiling, or cleaning such machines. This revision would be
accomplished by revising Sec. 570.65(a)(2) to prohibit the employment
of minors in the occupations of operator of or helper on power-driven
chain saws, wood chippers, and reciprocating saws, whether the machines
are fixed or portable. Unlike the machines currently listed in Sec.
570.65(a)(1), the prohibition would not be lifted if the chain saws,
wood chippers, or reciprocating saws were equipped with full automatic
feed and ejection-devices that are almost never found on such
equipment. The current Sec. 570.65(a)(2) would be renumbered as Sec.
570.65(a)(3) and revised to reflect that 16- and 17-year-olds could not
be employed in occupations involving the setting-up, adjusting,
repairing, oiling, or cleaning of any of the equipment covered by the
HO. The Department is also proposing to revise the title of HO 14 to
reflect its application to the additional pieces of machinery and to
change the word operations to operation. Finally, the Department
proposes to restructure the definitions section contained at Sec.
570.65(b) in an alphabetical sequence to comport with guidance provided
by the Federal Register and to include definitions of the terms chain
saw, wood chipper, and reciprocating saw. The term chain saw would mean
a machine that has teeth linked together to form an endless chain used
for cutting materials. The term wood chipper would mean a machine
equipped with a feed mechanism, knives mounted on a rotating chipper
disc or drum, and a power plant used to reduce to chips or shred such
materials as tree branches, trunk segments, landscape waste, and other
materials. The term reciprocating saw would mean a machine equipped
with a moving blade that alternately changes direction on a linear
cutting axis used for sawing materials.
The Department is evaluating the alternative recommendation made by
the Report that it consider developing a new HO that combines the
sawing machinery covered under HO 14 with other specialized machinery
that performs cutting and sawing functions through direct contact of
the cutting surface and the material. Similar alternative
recommendations were made regarding HO 5 (Occupations involved in the
operation of power-driven woodworking machines) and HO 8 (Occupations
involved in the operation of power-driven metal forming,
[[Page 19359]]
punching, and shearing machines). The Department will continue to study
these recommendations and, in an ANPRM, issued in conjunction with and
on the same day as this NPRM, is requesting information from the public
on these recommendations.
Finally, the Report also recommended that the Department retain the
limited exemption contained in Sec. 570.65(c) that permits apprentices
and student-learners to perform, under specific guidelines, tasks that
would otherwise be prohibited by HO 14. As discussed previously in the
sections dealing with HOs 10 and 12, the Department proposes to take no
action concerning the apprenticeship and student-learner exemptions to
certain HOs at this time. The Department is issuing an ANPRM, in
conjunction with and on the same day as this NPRM, that requests
information from the public on this issue.
L. Additional Recommendations of the Report
The Report recommends that the Department retain, as currently
issued, HO 3 (Coal mining occupations), HO 13 (Occupations involved in
the manufacture of brick, tile, and kindred products), HO 15
(Occupations involved in wrecking, demolition, and shipbreaking
occupations), and HO 17 (Occupations in excavation operations). The
Department accepts these recommendations and proposes no revisions to
these HOs. The Report also recommends that the Department remove the
limited exemption for apprentices and student-learners contained in HO
16 (Occupations in roofing operations and on or about a roof) and HO
17, and retain the same exemption as it applies to HO 5 (Occupations
involved in the operation of power-driven woodworking machines) and HO
8 (Occupations involved in the operation of power-driven metal forming,
punching, and shearing machines). As discussed previously in the
sections dealing with HOs 10, 12, and 14 of this preamble, the
Department proposes to take no action concerning the apprenticeship and
student-learner exemptions to any of the HOs at this time. The
Department believes that before any changes to the existing exemptions
are made, it is important to first consider and develop criteria for
determining when apprenticeship and student-learners are appropriate.
Accordingly, the Department is issuing an ANPRM, in conjunction with
and on the same day as this NPRM, that seeks information from the
public on this and other issues.
M. Subpart G--General Statements of Interpretation of the Child Labor
Provisions of the Fair Labor Standards Act of 1938, as Amended (29 CFR
570.101-570.129)
Subpart G discusses the meaning and scope of the child labor
provisions of the FLSA. The interpretations of the Secretary of Labor
contained in subpart G indicate the construction of the law that guides
the Secretary in administrating and enforcing of the Act. Since the
last revision of subpart G in 1971, Congress has passed several
amendments to the FLSA and the Department has revised other subparts of
29 CFR part 570 that are not currently reflected in subpart G. The
Department proposes to revise subpart G to accommodate not only the
statutory and regulatory changes that have occurred, but to reflect the
proposed revisions to part 570 made by this NPRM and discussed earlier
in this document. The proposed revisions to subpart G are as follows:
1. Section 570.103(c) states that there are only four specific
child labor exemptions contained in the FLSA, and that only one of them
applies to the minimum wage and overtime requirements of the Act as
well. Congress has created four additional exemptions to the child
labor provisions of the FLSA that are not currently reflected in
subpart G (the making of wreaths composed principally of natural holly,
pine, cedar, or other evergreens by homeworkers; the loading of certain
scrap paper balers and paper box compactors by 16- and 17-year-olds;
the limited driving of certain automobiles and trucks by 17-year-olds;
and the employment of certain youth between the ages of 14 and 18 years
inside and outside of places of business that use power-driven
machinery to process wood products). The exemption concerning the
employment of homeworkers who make wreaths, contained in FLSA section
13(d), is an exemption from the minimum wage and overtime provisions of
the Act as well as its child labor provisions. The Department is
proposing to revise Sec. 570.103(c) to reflect that the FLSA now
contains eight exemptions from the child labor provisions and that two
of these exemptions are also exemptions from the Act's minimum wage and
overtime requirements.
This same subsection cites FLSA section 3(d), which defines the
term employer and then, in footnote 4, discusses that definition. FLSA
section 3(d) was amended in 1966, and the provisions of that amendment
are not reflected in subpart G. The Department proposes to revise
footnote 4 of Sec. 570.101(c) to include the more recent definition of
the term employer and to correct an erroneous reference to FLSA section
13(d).
2. Section 570.118 notes that the FLSA sets a minimum age of 16
years for employment in manufacturing or mining, but does not take into
account the effects of the 2004 enactment of FLSA section 13(c)(7).
Section 13(c)(7) allows the employment of certain 14- and 15-year-olds
inside and outside of places of business that use power-driven
machinery to process wood products as discussed above. The Department
is proposing to revise Sec. 570.118 to incorporate the provisions of
FLSA section 13(c)(7).
3. Section 570.119 discusses those occupations in which 14- and 15-
year-old minors may and may not be employed under Reg. 3. The
Department proposes to revise this section to incorporate the changes
necessitated by the adoption of FLSA section 13(c)(7) and to reflect
the proposed revisions to Sec. Sec. 570.33 and 570.34 as discussed
above. For the sake of both brevity and clarity, the Department
proposes not to repeat in Sec. 570.119 the lists of all the
occupations contained in Sec. Sec. 570.33 and 570.34, but rather to
refer readers to those sections.
The proposed revision to Sec. 570.119 would contain the general
prohibition against the employment of minors under 14 years of age
under any circumstances that is currently included at the end of Sec.
570.119.
4. Section 570.120 describes the authority and process by which HOs
are adopted, and lists those occupations the Secretary has found and
declared to be particularly hazardous or detrimental to the health or
well-being of minors 16 and 17 years of age. Since subpart G was last
revised, not only have several HOs been amended, but the process for
promulgating and revising the HOs has also changed. Before 1995, the
process for promulgating and amending HOs included public hearings and
advice from committees composed of representatives of employers and
employees of the impacted industry and the public, in accordance with
the procedures established by subpart D of this part. The Department
issued a Final Rule on April 17, 1995 (60 FR 19336) that deleted
subpart D and placed the process of promulgating and revising HOs
solely under the provisions of the Administrative Procedure Act (APA),
5 U.S.C. 551 et seq., which control Departmental rulemaking.
The Department proposes to revise Sec. 570.120 to reflect the 1995
change in the process for issuing and revising
[[Page 19360]]
HOs. The Department is also proposing, for the sake of brevity and
clarity, not to repeat the list of individual HOs as they are already
listed in subpart E of 29 CFR part 570.
5. Section 570.122 lists the four exemptions from the FLSA child
labor provisions that existed when subpart G was last revised. As
discussed earlier, Congress has added four more exemptions that are not
included in the current subpart G. Section 13(d) exempts from the FLSA
minimum wage, overtime, and child labor provisions the employment of
homeworkers engaged in the making of wreaths composed principally of
evergreens. Section 13(c)(5) authorizes the employment of 16- and 17-
year-olds to load, but not operate or unload, certain scrap paper
balers and paper box compactors under specific conditions. Section
13(c)(6) permits the employment of 17-year-olds to drive on an
occasional and incidental basis, during daylight hours, certain
automobiles and trucks under specified conditions. Section 13(c)(7)
permits the employment of certain youth between the ages of 14 and 18
years, under certain conditions, inside and outside of places of
business that use power-driven machinery to process wood products.
The Department proposes to revise Sec. 570.122 by creating new
subsections (e), (f), (g), and (h), which will list the exemptions from
the child labor provisions contained in FLSA sections 13(d), 13(c)(5),
13(c)(6), and 13(c)(7), respectively. A more thorough discussion of
each of these exemptions is proposed to be included in Sec. Sec.
570.127-.130.
6. The Department proposes to revise Sec. Sec. 570.127, .128, and
.129, and create a new Sec. 570.130 to present detailed discussions of
the exemptions from the child labor provisions contained in FLSA
sections 13(d), 13(c)(5), 13(c)(6), and 13(c)(7). These proposed
provisions are structured similarly to those already contained in
subpart G that address the earlier FLSA exemptions concerning
employment of youth in agriculture (Sec. 570.123), in the delivery of
newspapers (Sec. 570.124), as actors and performers (Sec. 570.125),
and by one's parents (Sec. 570.126). The Department also proposes to
revise and redesignate the sections of subpart G currently dealing with
general enforcement (Sec. 570.127), good faith defense (Sec.
570.128), and the relation of the child labor provisions to other laws
(Sec. 570.129). These sections would be redesignated as Sec. 570.140,
Sec. 570.141, and Sec. 570.142, respectively. The Department proposes
to reserve Sec. Sec. 570.131 through 570.139 to accommodate any
additional statutory amendments to the FLSA child labor provisions that
may be enacted.
7. Section 570.127 contains a general discussion of the enforcement
of the FLSA child labor provisions. Since that last revision of subpart
G, Congress has amended the FLSA at section 16(e) so that any person
who violates the provisions of section 12 or section 13(c)(5) relating
to child labor, or any regulation issued under section 12 or section
13(c)(5), shall be subject to a civil money penalty, currently not to
exceed $11,000, for each employee who was the subject of such a
violation. The Department, as discussed above, proposes to redesignate
this section as Sec. 570.140 and to revise it to include the
Department's authority to assess civil money penalties against persons
who violate the child labor provisions of the Act.
8. Section 570.128 deals with a provision of FLSA section 12(a)
that relieves from liability a purchaser who ships or delivers for
shipment in commerce goods acquired in good faith in reliance on
written assurance from the producer, manufacturer, or dealer that the
goods were produced in compliance with section 12 and that were
acquired for value without notice of any violation. The Department
proposes to redesignate this section as Sec. 570.141.
9. Section 570.129 discusses the relationship of the child labor
provisions of the FLSA to other laws. The Department proposes to
redesignate this section as Sec. 570.142.
N. Miscellaneous Matters
The Department proposes to change the name of HO 8 from Occupations
involved in the operations of power-driven metal forming, punching, and
shearing machines (Order 8) to Occupations involved in the operation of
power-driven metal forming, punching, and shearing machines (Order 8).
IV. Paperwork Reduction Act
Circumstances Necessitating Collection: DOL proposes to revise its
regulations about youth employment and create a new 29 CFR 570.35b that
would contain the requirements describing the criteria for use,
occupations permitted, and conditions of employment that would allow
the employment of 14- and 15-year-olds--pursuant to a school-supervised
and school-administered Work-Study Program (WSP)--under conditions Reg.
3 otherwise prohibits. The new regulation would require the
implementation of a new paperwork burden with regard to a WSP.
FLSA section 3(l) establishes a minimum age of 16 years for most
nonagricultural employment but allows the employment of 14- and 15-
year-olds in occupations other than manufacturing and mining, if the
Secretary of Labor determines such employment is confined to (1)
periods that will not interfere with the minor's schooling and (2)
conditions that will not interfere with the minor's health and well-
being.
FLSA section 11(c) requires all employers covered by FLSA to make,
keep, and preserve records of their employees' wages, hours, and other
conditions and practices of employment. Section 11(c) also authorizes
the Secretary of Labor to prescribe the recordkeeping and reporting
requirements for these records. Reg. 3 sets forth the employment
standards for 14- and 15-year-olds.
Reporting Requirements: WSP Application: In order to utilize the
proposed Reg. 3 WSP provisions, Sec. 570.35(b) would require a local
public or private school system to file with the Administrator of the
Wage and Hour Division (WHD) of DOL an application for approval of a
WSP as one that does not interfere with the schooling or health and
well-being of the minors involved.
Written Participation Agreement: The proposed regulations would
require preparation of a written participation agreement for each
student participating in a WSP and that the teacher-coordinator,
employer, and student each sign that agreement. See proposed Sec.
570.35b(b)(3)(iv). The proposed regulation would also require that the
student's parent or guardian sign the training agreement, or otherwise
give consent to the agreement, in order for it to be valid.
Recordkeeping Requirements: The proposed regulation would require a
school system operating a WSP to keep a copy of the written
participation agreement for each student enrolled in the WSP. Employers
of WSP participants would also be required to keep a copy of the
written participation agreement for each student employed. These
agreements would be maintained for 3 years from the date of the
student's enrollment in the WSP.
Purpose and Use: WSP Application: Under the proposal, a local
school system would file a letter of application requesting the
Administrator of WHD to approve a WSP that permits the employment of
14- and 15-year-olds under conditions that Reg. 3 would otherwise
prohibit. WHD would evaluate the information to determine if
[[Page 19361]]
the program meets the requirements specified in the proposed
regulation, in order to respond to the request.
Written Participation Agreement: The school system administering
the WSP and each applicable employer would separately maintain a copy
of the written participation agreement for each student. The written
agreement would be signed by the teacher-coordinator, the employer, and
the student. In addition, the student's parent or guardian would either
sign or otherwise provide consent for the participation agreement to be
valid. The proposed written participation agreement is structured to
ensure that the quality of the student's education, as well as his or
her safety and well-being, are not compromised. School systems,
employers, and WHD would use these records to document the validity of
the WSP.
Information Technology: The proposed regulation prescribes no
particular form for the application, provided the applicant submits all
required information. DOL also does not intend to require a particular
format for the written participation agreement. In accordance with the
Government Paperwork Elimination Act, WHD would accept electronic
submission by e-mail or fax. See 44 U.S.C. 3504(a)(1)(B)(vi). DOL
expects to receive only 30 WSP applications per year under the
proposal. The costs to develop and maintain an on-line application
system would not be justified for such a small information collection.
DOL would accept the parties electronically submitting the written
participation agreement between each other, provided the copies contain
the required information and signatures. As the written participation
agreements are third party disclosures requiring multiple signatures,
DOL development of an on-line submission option is not practical.
The proposed regulations prescribe no particular order or form of
records. Under existing regulations, WHD would accept records preserved
in such forms as microfilm or automated word or data processing,
provided the school systems and employers make adequate facilities
available for their inspection and transcription by DOL
representatives. See 29 CFR 516.1.
Minimizing Duplication: Federal rules regulating youth employment
are unique to WHD, and the agency is not aware of any duplicative
effort to collect this information. This information is not already
collected under existing authorities, such as the general FLSA
recordkeeping requirements under 29 CFR part 516 (See OMB controls
1215-0006, 1215-0016, and 1215-0017) or other sections of the youth
employment regulations under 29 CFR part 570 (See OMB controls 1215-
0083 and 1215-0121). The requested information would not be available
from any other source.
Small Entities: This proposed information collection would not have
a significant economic impact on a substantial number of small
entities. The information DOL proposes to require in the application
letter is the minimum necessary to determine if the WSP would meet the
proposed regulatory requirements for approval. The written
participation agreement would be necessary to document the validity of
a WSP. Without this information, small businesses would have no way of
documenting their participation in a WSP.
Agency Need: Without this proposed information collection, WHD
would have no means to determine if a WSP meets the regulatory
requirements of the Reg. 3 modification under consideration. The
proposed regulations would allow the Administrator of WHD to approve a
WSP for a period of up to two years. Less frequent application would
not allow WHD to ensure that approved programs do not interfere with
the schooling of the minors or with their health and well-being. It
would be difficult or impossible for WHD to determine the legal
employment of 14- and 15-year-olds during school hours, were records
relating to the participation of minors in a WSP under the proposed
plan not maintained.
Special Circumstances: There are no special circumstances involved
in this information collection request.
Payments or Gifts: DOL would offer no payments or gifts to
respondents.
Confidentiality: DOL would offer no assurances of confidentiality
in association with this information collection. As a practical matter,
WHD would only disclose information submitted in connection with an
approval request or contained in records an educational agency or
employer must maintain in accordance with the provisions of the Freedom
of Information Act (5 U.S.C 552), the Privacy Act (5 U.S.C. 552a), and
their attendant regulations, 29 CFR parts 70 and 71.
Sensitive Questions: This information collection would contain no
sensitive information.
Hour Burden: Reporting Burdens: WSP Application: DOL estimates it
would take approximately 2 hours for a school system to prepare the
letter applying for WSP approval. DOL estimates that approximately 30
school systems would apply each year, for an annual burden of 60 hours.
Written Participation Agreement: DOL estimates each written
participation agreement between the teacher-coordinator, employer,
student, and parent or guardian of the student would take approximately
one hour to complete. DOL estimates 50 students would participate under
each WSP each year, and three parties (employers, students, and parents
or guardians) would have no reporting burden because they would merely
sign the document. 50 written agreements x one hour = 50 hours per WSP.
50 hours per WSP x 30 WSPs = 1500 hours annual burden. 60 hours for WSP
applications + 1500 hours for written participation agreements = 1560
annual reporting burden hours.
Recordkeeping Burdens: DOL estimates it would take participating
school systems one-half minute to file each WSP application and
participating school systems and employers each would need
approximately one-half minute to file each WSP written participation
agreement, for a total annual burden of 25.25 hours ([30 applications x
(1500 written participation agreements x 2 recordkeepers] x .5 minutes
= 25.25 hours). 30 school systems + 1500 employers = 1530 respondents.
Total Annual Reporting and Recordkeeping Burden--1583.25 Hours.
DOL bases these burden estimates on experience garnered while
administering WECEP.
Absent any specific data on compensation of respondents in these
educational institutions and participating employers, DOL has used the
April 2006 average annual hourly rate for production or nonsupervisory
workers on educational and health services payrolls of $17.22 to
estimate respondent costs. See The Employment Situation, DOL, Bureau of
Labor Statistics, July 2006, Table B-3, http://www.bls.gov/news.release/archives/empsit_08042006.pdf. Accordingly, DOL estimates
annual respondent costs would be $27,263.57 (1583.25 hours x $17.22).
Cost Burden: DOL estimates the annual mailing and postage cost for
30 applications would be $12.60 (30 applications x [$.39 postage + $.03
per envelope]).
Federal Costs: WHD estimates it would receive 30 applications per
year and processing each application would take approximately 2 hours
of analyst time and 1 hour of clerical time. The estimate includes
analysis of each application and preparation of the letter granting or
denying approval.
[[Page 19362]]
Analyzing-Processing: $29.47 (GS 11/5, Washington, DC) x 2 hours x
30 applications = $1768.20.
Clerical: $17.92 (GS 6/5, Washington, DC) x 1 hour x 30
applications = $537.60.
Total Estimated Annual Federal Cost--$2305.80.
Burden Changes: The proposed regulation would result in a program
change with an estimated increased public burden of 1583 hours. This is
a new collection that would be required by a proposed revision of 29
CFR part 570.
Publication: DOL would not publish this information.
Displaying OMB Expiration Date: DOL plans to use no forms on which
to place an expiration date for this proposed information collection.
Certification Requirements: DOL does not seek any exceptions to the
certification requirements.
Request for comments: The public is invited to provide comments on
this information collection requirement so that the Department may:
(1) Evaluate whether the proposed collections of information are
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimates of the burdens
of the collections of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to
be collected; and
(4) Minimize the burden of the collections of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Written comments should be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Attention: Desk
Officer for Employment Standards Administration, U.S. Department of
Labor, Washington, DC 20503.
V. Executive Order 12866; Small Business Regulatory Enforcement
Fairness Act; Regulatory Flexibility
This proposed rule is being treated as a ``significant regulatory
action'' within the meaning of E.O. 12866 because of its importance to
the public and the Department's priorities. Therefore, the Office of
Management and Budget has reviewed this proposed rule. However, because
this proposed rule is not ``economically significant'' as defined in
section 3(f)(1) of E.O. 12866, it does not require a full economic
impact analysis under section 6(a)(3)(C) of the Order. The new
information collection, recordkeeping, and reporting requirements
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.) that would be imposed should the proposed work-study program be
enacted are discussed above.
It is well established that several characteristics of youth place
adolescent workers at increased risk of injury and death. Lack of
experience in the work place and in assessing risks, and developmental
factors--physical, cognitive, and psychological--all contribute to the
higher rates of occupational injuries and deaths experienced by young
workers. CFOI data reflect that during the period of 1994-2004, 15-
year-olds experienced an occupational fatality rate of 4.7 fatalities
per 100,000 workers--a rate that was greater than that experienced by
all workers aged 15 and older. Older working youth share similar risks.
The NIOSH Report noted that the fatality rate for adolescents aged 16
and 17 was 5.1 per 100,000 full-time equivalent workers for the 10-year
period 1980-89 [Castillo et al. 1994], while the rate for adults aged
18 and older was 6.1. As NIOSH stated, ``[t]his relatively small
difference in rates is cause for concern because youth under age 18 are
employed less frequently in especially hazardous jobs.'' NIOSH also
estimates that youth work injuries exceed 200,000 each year, and of
that number, 77,000 are serious enough to warrant treatment in hospital
emergency rooms. The NIOSH statistics show that, despite the fact that
workers aged 15 through 17 are generally restricted from employment in
hazardous occupations such as mining, motor-vehicle driving, logging,
sawmilling, and construction, they have a higher rate of injuries
requiring emergency room treatment than any other age group except 18-
and 19-year-olds (who are not restricted from performing such work).
The economic and social costs associated with the deaths and serious
injuries of young workers are substantial.
The Department considers the issuance of this proposed rule as an
important and necessary step in its ongoing review of the criteria for
permissible child labor employment, a review which strives to balance
the potential benefits of transitional, staged employment opportunities
for youth with the necessary protections for their education, health
and safety. Because youth often overcome the effects of those
characteristics that initially place them at increased risk of injury
and death in the workplace only through the maturation process, it is
believed that requiring older workers to perform those tasks that
present greater risks to younger workers actually eliminates injuries
and deaths--rather than delaying them or transferring them to the older
workers.
Additionally, this document proposes to revise the child labor
regulations in response to a statutory amendment enacted by the
Congress that permits certain youth between the ages of 14 and 18 years
of age who are excused from compulsory school attendance beyond the
eighth grade to be employed under specific conditions inside and
outside places of business that use machinery to process wood products.
Affecting both the Reg. 3 occupations standards and HOs 4 and 5, this
statutory provision would be available to a very small number of minors
and therefore is expected to have little or no economic impact. The
Department believes that only a few minors have obtained employment in
such occupations since the amendment was enacted and doubts that the
number will increase. Moreover, the amendment's strong safety--
affecting requirements that such youth not operate or assist in the
operation of power-driven woodworking machines, use personal protective
equipment to prevent exposure to excessive levels of noise and sawdust,
and be protected from wood particles and other flying debris within the
workplace, should significantly reduce potential costs resulting from
accidents and injuries to minors on the job.
Implementing the Department's proposal to revise subpart G of the
child labor regulations, General Statements of Interpretation of the
Child Labor Provisions of the Fair Labor Standards Act of 1938, as
Amended, to incorporate all the regulatory changes made since this
subpart was last revised in 1971, would simply provide compliance
guidance on the youth employment provisions detailed in earlier
subparts of 570 and therefore imposes no economic costs.
The additional changes being proposed are also expected to have
little or no direct cost impact. The proposed changes affecting the
types of occupations and industries in which 14- and 15-year-olds may
or may not be employed, as well as the periods and conditions of such
employment (Reg. 3 occupations and hours standards), are largely
clarifications of existing provisions or enforcement positions, though
new occupations involving work
[[Page 19363]]
of a mental or creative nature, lifeguarding, and the loading of
personal hand tools onto motor vehicles, would be added to the list of
permitted occupations. The proposals to revise several of the
nonagricultural HOs--to implement specific recommendations made by
NIOSH or that arise from the Department's enforcement experience--
would, in all but one instance involving the use of certain countertop
mixers (HO 11), require employers to assign older workers to perform
tasks that may currently be performed by 16- and 17-year-olds.
Proposals resulting from the NIOSH recommendations include the
expansion of HO 4 to prohibit the employment of minors in forest
firefighting and fire prevention activities; the revision of HO 7 to
prohibit the employment of minors in the tending, servicing, and
repairing of hoisting equipment and the addition of such equipment as
cherry pickers, scissor lifts, bucket trucks, aerial platforms, and
hoists of less than one ton capacity to the list of prohibited
equipment; and the expansion of HO 10 to prohibit the employment of
minors in poultry slaughtering and processing occupations. Revisions to
HO 12 to prohibit the employment of minors in the operation of balers
and compactors not currently covered by the HO, and the expansion of HO
14 to add additional power-driven equipment to the list of equipment
minors may not operate, are also being proposed as a result of the
NIOSH Report recommendations. The Department's enforcement experience
has led it to propose to incorporate certain long-standing enforcement
positions involving the definitions of remanufacturing departments of
sawmills (HO 4), high-lift trucks (HO 7), and the cleaning of power-
driven meat processing equipment (HO 10). The Department is also
proposing, based on its enforcement experience, that HO 11 be amended
to incorporate the Department's long-standing position permitting 16-
and 17-year-olds, under certain conditions, to operate certain pizza-
dough rollers, and that HO 14 be expanded to prohibit the employment of
minors to operate reciprocating saws.
The Department believes that implementation of the proposed rule
would not reduce the overall number of safe, positive, and legal
employment opportunities available to young workers. In fact,
employment opportunities for 14- and 15-year-olds would increase with
implementation of the proposals to (1) create a limited exemption for
certain work-study programs and (2) allow those permitted occupations
listed in Sec. 570.34(a) to be performed in certain industries in
addition to retail, food service, and gasoline service establishments.
Although, as mentioned above, some employers would be required in
most cases to replace younger workers with older workers were the
Department's proposals implemented, the impact would be minimal as
relatively few minors are currently employed to perform these
occupations. But the Department believes that adoption of these
proposals is important as they are essential to fulfilling its charge
of keeping working youth safe by prohibiting occupations that are
particular hazardous or detrimental to their health or well-being. Any
costs that might result from using older employees to perform the
previously permitted tasks would be more than offset by reduced health
and productivity costs resulting from accidents and injuries to minors
on the job. Rules that limit permissible job activities for working
youth to those that are safe do not, by themselves, impose significant
added costs on employers, in our view. In fact, ensuring that
permissible job opportunities for working youth are safe, healthy, and
not detrimental to their education, as required by the statute,
produces many positive benefits in addition to fewer occupational
injuries and deaths, including reduced health and productivity costs
that employers may otherwise incur because of higher accident and
injury rates to young and inexperienced workers. In any event, the
direct, incremental costs that would be imposed by this proposed rule
are expected to be minimal. Collectively, they would not have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy or its individual sectors, productivity, jobs,
the environment, public health or safety, or state, local, or tribal
governments or communities. Therefore, this proposed rule is not
``economically significant'' and no regulatory impact analysis has been
prepared.
The Department has similarly concluded for the same reasons noted
above that this proposed rule is not a ``major rule'' requiring
approval by the Congress under the Small Business Regulatory
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). It would not
likely result in (1) an annual effect on the economy of $100 million or
more; (2) a major increase in costs or prices for consumers, individual
industries, federal, state, or local government agencies, or geographic
regions; or (3) significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of U.S.-based
enterprises to compete with foreign-based enterprises in domestic or
export markets.
This proposed rule is also not expected to have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act for the reasons discussed above. The
Department has certified to this effect to the Chief Counsel for
Advocacy of the U.S. Small Business Administration. Therefore, no
Regulatory Flexibility Analysis is required.
VI. Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, this proposed rule does not include any federal mandate that may
result in excess of $100 million in expenditures by state, local and
tribal governments in the aggregate or by the private sector.
VII. Executive Order 13132 (Federalism)
The proposed rule does not have federalism implications as outlined
in E.O. 13132 regarding federalism. The proposed rule does not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.
VIII. Executive Order 13175, Indian Tribal Governments
This proposed rule was reviewed under the terms of E.O. 13175 and
determined not to have ``tribal implications.'' The proposed rule does
not have ``substantial direct effects on one or more Indian tribes, on
the relationship between the federal government and Indian tribes, or
on the distribution of power and responsibilities between the federal
government and Indian tribes.'' As a result, no tribal summary impact
statement has been prepared.
IX. Effects on Families
The undersigned hereby certify that this proposed rule will not
adversely affect the well-being of families, as discussed under section
654 of the Treasury and General Government Appropriations Act, 1999.
X. Executive Order 13045, Protection of Children
E.O. 13045, dated April 23, 1997 (62 FR 19885), applies to any rule
that (1) is determined to be ``economically significant'' as defined in
E.O. 12866,
[[Page 19364]]
and (2) concerns an environmental health or safety risk that the
promulgating agency has reason to believe may have a disproportionate
effect on children. This proposal is not subject to E.O. 13045 because
it is not economically significant as defined in E.O. 12866. In
addition, although this proposed rule impacts the youth employment
provisions of the FLSA and the employment of adolescents and young
adults, it does not impact the environmental health or safety risks of
children.
XI. Environmental Impact Assessment
A review of this proposal in accordance with the requirements of
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11,
indicates that the proposed rule will not have a significant impact on
the quality of the human environment. There is, thus, no corresponding
environmental assessment or an environmental impact statement.
XII. Executive Order 13211, Energy Supply
This proposed rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution or use of
energy.
XIII. Executive Order 12630, Constitutionally Protected Property Rights
This proposal is not subject to E.O. 12630, because it does not
involve implementation of a policy ``that has takings implications'' or
that could impose limitations on private property use.
XIV. Executive Order 12988, Civil Justice Reform Analysis
This proposed rule was drafted and reviewed in accordance with E.O.
12988 and will not unduly burden the federal court system. The proposed
rule was: (1) Reviewed to eliminate drafting errors and ambiguities;
(2) written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct and to promote burden reduction.
List of Subjects in 29 CFR Part 570
Child labor, Child Labor occupations, Employment, Government,
Incorporation by reference, Intergovernmental relations,
Investigations, Labor, Law enforcement, Minimum age.
Signed at Washington, DC this 10th day of April, 2007.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Paul DeCamp,
Administrator, Wage and Hour Division.
For the reasons set out in the preamble, the DOL proposes to amend
Title 29, part 570, of the Code of Federal Regulations as follows:
PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF
INTERPRETATION
1. The authority citation for part 570 subpart C continues to read
as follows:
Authority: 29 U.S.C. 203(l), 212, 213(c)(7).
2. Sections 570.31 through 570.35 are proposed to be revised to
read as follows:
Sec. 570.31 Secretary's determinations concerning the employment of
minors 14 and 15 years of age.
The employment of minors between 14 and 16 years of age in the
occupations, for the periods, and under the conditions specified in
Sec. 570.34 and Sec. 570.35, does not interfere with their schooling
or with their health and well-being and shall not be deemed to be
oppressive child labor.
Sec. 570.32 Effect of this subpart.
This subpart concerns the employment of youth between 14 and 16
years of age in nonagricultural occupations; standards for the
employment of minors in agricultural occupations are detailed in
subpart E-1. The employment (including suffering or permitting to work)
by an employer of minors 14 and 15 years of age in occupations detailed
in Sec. 570.34, for the periods and under the conditions specified in
Sec. 570.35, shall not be deemed to be oppressive child labor within
the meaning of the Fair Labor Standards Act of 1938. Employment that is
not specifically permitted is prohibited.
Sec. 570.33 Occupations that are prohibited to minors 14 and 15 years
of age.
The following occupations, which is not an exhaustive list,
constitute oppressive child labor within the meaning of the Fair Labor
Standards Act of 1938 when performed by minors who are 14 and 15 years
of age:
(a) Manufacturing, mining, or processing occupations, including
occupations requiring the performance of any duties in work rooms or
work places where goods are manufactured, mined or otherwise processed,
except as permitted in Sec. 570.34 of this subpart.
(b) Occupations that the Secretary of Labor may, pursuant to
section 3(l) of the Fair Labor Standards Act, find and declare to be
hazardous for the employment of minors between 16 and 18 years of age
or detrimental to their health or well-being.
(c) Occupations that involve operating, tending, setting up,
adjusting, cleaning, oiling, or repairing hoisting apparatus.
(d) Work performed in or about boiler or engine rooms or in
connection with the maintenance or repair of the establishment,
machines, or equipment.
(e) Occupations that involve operating, tending, setting up,
adjusting, cleaning, oiling, or repairing any power-driven machinery,
including but not limited to lawn mowers, golf carts, trimmers,
cutters, weed-eaters, edgers, food slicers, food grinders, food
choppers, food processors, food cutters, and food mixers. Youth 14 and
15 years of age may, however, operate office equipment pursuant to
Sec. 570.34(a) and vacuum cleaners and floor waxers pursuant to Sec.
570.34(h).
(f) The operation of motor vehicles; the service as helpers on such
vehicles except those tasks permitted by Sec. 570.34(k); and the
riding on a motor vehicle, inside or outside of an enclosed passenger
compartment, except as permitted by Sec. 570.34(o).
(g) Outside window washing that involves working from window sills,
and all work requiring the use of ladders, scaffolds, or their
substitutes.
(h) All baking and cooking activities except that cooking which is
permitted by Sec. 570.34(c).
(i) Work in freezers and meat coolers and all work in the
preparation of meats for sale except as permitted by Sec. 570.34(j).
This section, however, does not prohibit the employment of 14- and 15-
year-olds whose duties require them to occasionally enter freezers only
momentarily to retrieve items.
(j) Youth peddling, which entails the selling of goods or services
to customers at locations other than the youth-employer's
establishment, such as the customers' residences or places of business,
or public places such as street corners or public transportation
stations. Prohibited activities associated with youth peddling not only
include the attempt to make a sale or the actual consummation of a
sale, but also the preparatory and concluding tasks normally performed
by a youth peddler in conjunction with his or her sales such as the
loading and unloading of vans or other motor vehicles, the stocking and
restocking of sales kits and trays, the exchanging of cash and checks
with the employer, and the
[[Page 19365]]
transportation of minors to and from the various sales areas by the
employer. Youth peddling does not include the activities of persons
who, as volunteers and without compensation, sell goods or services on
behalf of eleemosynary organizations or public agencies.
(k) Loading and unloading of goods or property onto or from motor
vehicles, railroad cars, or conveyors, except the loading and unloading
of personal non-power-driven hand tools, personal protective equipment,
and personal items to and from motor vehicles as permitted by Sec.
570.34(k).
(l) Catching and cooping of poultry for preparation for transport
or for market.
(m) Public messenger service.
(n) Occupations in connection with:
(1) Transportation of persons or property by rail, highway, air,
water, pipeline, or other means;
(2) Warehousing and storage;
(3) Communications and public utilities;
(4) Construction (including demolition and repair); except such
office work (including ticket office) or sales work in connection with
paragraphs (n)(1), (2), (3), and (4) of this section, as does not
involve the performance of any duties on trains, motor vehicles,
aircraft, vessels, or other media of transportation or at the actual
site of construction operations.
Sec. 570.34 Occupations that may be performed by minors 14 and 15
years of age.
This subpart authorizes only the following occupations in which the
employment of minors 14 and 15 years of age is permitted when performed
for periods and under conditions authorized by Sec. 570.35 and not
involving occupations prohibited by Sec. 570.33 or performed in areas
or industries prohibited by Sec. 570.33.
(a) Office and clerical work, including the operation of office
machines.
(b) Work of a mental or artistically creative nature such as, but
not limited to, computer programming, the writing of software, teaching
or performing as a tutor, serving as a peer counselor or teacher's
assistant, singing, the playing of a musical instrument, and drawing,
as long as such employment complies with all the other provisions
contained in Sec. Sec. 570.33, 570.34, and 570.35. Artistically
creative work is limited to work in a recognized field of artistic or
creative endeavor.
(c) Cooking with electric or gas grills which does not involve
cooking over an open flame (Note: This provision does not authorize
cooking with equipment such as rotisseries, broilers, pressurized
equipment including fryolators, and cooking devices that operate at
extremely high temperatures such as ``Neico broilers''). Cooking is
also permitted with deep fryers that are equipped with and utilize a
device which automatically lowers the baskets into the hot oil or
grease and automatically raises the baskets from the hot oil or grease.
(d) Cashiering, selling, modeling, art work, work in advertising
departments, window trimming, and comparative shopping.
(e) Price marking and tagging by hand or machine, assembling
orders, packing, and shelving.
(f) Bagging and carrying out customers' orders.
(g) Errand and delivery work by foot, bicycle, and public
transportation.
(h) Clean up work, including the use of vacuum cleaners and floor
waxers, and the maintenance of grounds, but not including the use of
power-driven mowers, cutters, trimmers, edgers, or similar equipment.
(i) Kitchen work and other work involved in preparing and serving
food and beverages, including operating machines and devices used in
performing such work. Examples of permitted machines and devices
include, but are not limited to, dishwashers, toasters, dumbwaiters,
popcorn poppers, milk shake blenders, coffee grinders, automatic coffee
machines, devices used to maintain the temperature of prepared foods
(such as warmers, steam tables, and heat lamps), and microwave ovens
that are used only to warm prepared food and do not have the capacity
to warm above 140 [deg]F. Minors are permitted to clean kitchen
equipment (not otherwise prohibited), remove oil or grease filters,
pour oil or grease through filters, and move receptacles containing hot
grease or hot oil, but only when the equipment, surfaces, containers
and liquids do not exceed a temperature of 100 [deg]F.
(j) Cleaning vegetables and fruits, and the wrapping, sealing,
labeling, weighing, pricing, and stocking of items, including
vegetables, fruits, and meats, when performed in areas physically
separate from a freezer or meat cooler.
(k) The loading onto motor vehicles and the unloading from motor
vehicles of the light, non-power-driven, hand tools and personal
protective equipment that the minor will use as part of his or her
employment at the work site; and the loading onto motor vehicles and
the unloading from motor vehicles of personal items such as a back
pack, a lunch box, or a coat that the minor is permitted to take to the
work site. Such light tools would include, but not be limited to,
rakes, hand-held clippers, shovels, and brooms. Such light tools would
not include items like trash, sales kits, promotion items or items for
sale, lawn mowers, or other power-driven lawn maintenance equipment.
Such minors would not be permitted to load or unload safety equipment
such as barriers, cones, or signage.
(l)(1) Lifeguard. The employment of 15-year-olds (but not 14-year-
olds) to perform permitted lifeguard duties at traditional swimming
pools and water amusement parks (including such water park facilities
as wave pools, lazy rivers, specialized activity areas that may include
water falls and sprinkler areas, and baby pools; but not including the
elevated areas of power-driven water slides) when such youth have been
trained and certified by the American Red Cross, or a similar
certifying organization, in aquatics and water safety.
(2) Definitions. As used in this section:
Permitted lifeguard duties, as used in this subpart, include the
rescuing of swimmers in danger of drowning, the monitoring of
activities at poolside to prevent accidents, the teaching of water
safety, and providing assistance to patrons. Lifeguards may also help
to maintain order and cleanliness in the pool and pool areas, give
swimming instructions, conduct or officiate at swimming meets, and
administer first aid. Additional lifeguard duties may include checking
in and out items such as towels and personal items such as rings,
watches and apparel. Permitted duties for 15-year-olds include the use
of a ladder to access and descend from the lifeguard chair; the use of
hand tools to clean the pool and pool area; and the testing and
recording of water quality for temperature and/or pH levels, using all
of the tools of the testing process including adding chemicals to the
test water sample. Fifteen-year-olds employed as lifeguards are,
however, prohibited from entering or working in any mechanical room or
chemical storage areas, including any areas where the filtration and
chlorinating systems are housed. The term permitted lifeguard duties
does not include the operation or tending of power-driven equipment
including power-driven elevated water slides often found at water
amusement parks and some swimming pools. Minors under 16 years of age
may not be employed as dispatchers or attendants at the top of elevated
water slides performing such tasks as maintaining order, directing
patrons as to when to depart the top of the slide, and ensuring that
patrons have begun their ``ride'' safely. Properly certified 15-year-
old lifeguards may,
[[Page 19366]]
however, be stationed at the ``splashdown pools'' located at the bottom
of the elevated water slides to perform those permitted duties listed
in this subsection.
Traditional swimming pool, as used in this subpart, means a water
tight structure of concrete, masonry, or other approved materials
located either indoors or outdoors, used for bathing or swimming and
filled with a filtered and disinfected water supply, together with
buildings, appurtenances and equipment used in connection therewith,
excluding elevated ``water slides.'' Not included in the definition of
a traditional swimming pool would be such natural environment swimming
facilities as rivers, streams, lakes, reservoirs, wharfs, piers,
canals, or oceanside beaches.
Water amusement park means an establishment that not only
encompasses the features of a traditional swimming pool, but may also
include such additional attractions as wave pools; lazy rivers;
specialized activities areas such as baby pools, water falls, and
sprinklers; and elevated water slides. Not included in the definition
of a water amusement park would be such natural environment swimming
facilities as rivers, streams, lakes, reservoirs, wharfs, piers,
canals, or oceanside beaches.
(m)(1) Employment inside and outside of places of business where
machinery is used to process wood products. The employment of a 14- or
15-year-old who by statute or judicial order is exempt from compulsory
school attendance beyond the eight grade inside or outside places of
business where machinery is used to process wood products if:
(i) The youth is supervised by an adult relative of the youth or is
supervised by an adult member of the same religious sect or division as
the youth;
(ii) The youth does not operate or assist in the operation of
power-driven woodworking machines;
(iii) The youth is protected from wood particles or other flying
debris within the workplace by a barrier appropriate to the potential
hazard of such wood particles or flying debris or by maintaining a
sufficient distance from machinery in operation; and
(iv) The youth is required to use, and uses, personal protective
equipment to prevent exposure to excessive levels of noise and saw
dust.
(2) Compliance. Compliance with the provisions of paragraphs
(m)(1)(iii) and (m)(1)(iv) of this section will be accomplished when
the employer is in compliance with the requirements of the applicable
governing standards issued by the U.S. Department of Labor's
Occupational Safety and Health Administration (OSHA) or, in those areas
where OSHA has authorized the state to operate its own Occupational
Safety and Health Plan, the applicable standards issued by the Office
charged with administering the State Occupational Safety and Health
Plan.
(3) Definitions. As used in this section:
Inside or outside places of business shall mean the actual physical
location of the establishment employing the youth, including the
buildings and surrounding land necessary to the business operations of
that establishment.
Operate or assist in the operation of power-driven woodworking
machines shall mean the operating of such machines, including
supervising or controlling the operation of such machines, feeding
material into such machines, helping the operator feed material into
such machines, unloading materials from such machines, and helping the
operator unload materials from such machines. The term also includes
the occupations of setting-up, adjusting, repairing, oiling, or
cleaning such machines.
Places of business where machinery is used to process wood products
shall mean such permanent workplaces as sawmills, lath mills, shingle
mills, cooperage stock mills, furniture and cabinet making shops,
gazebo and shed making shops, toy manufacturing shops, and pallet
shops. The term shall not include construction sites, portable
sawmills, areas where logging is being performed, or mining operations.
Power-driven woodworking machines shall mean all fixed or portable
machines or tools driven by power and used or designed for cutting,
shaping, forming, surfacing, nailing, stapling, wire stitching,
fastening or otherwise assembling, pressing, or printing wood, veneer,
trees, logs, or lumber.
Supervised by an adult relative or is supervised by an adult member
of the same religious sect or division as the youth has several
components. Supervised means that the youth's on-the-job activities
must be directed, monitored, overseen, and controlled by certain named
adults. Such supervision must be close, direct, constant, and
uninterrupted. An adult shall mean an individual who is at least
eighteen years of age. A relative shall mean the parent (or someone
standing in the place of a parent), grandparent, sibling, uncle, or
aunt of the young worker. A member of the same religious sect or
division as the youth refers to an individual who professes membership
in the same religious sect or division to which the youth professes
membership.
(n) Work in connection with cars and trucks if confined to the
following: dispensing gasoline and oil; courtesy service; car cleaning,
washing and polishing by hand; and other occupations permitted by this
section, but not including work involving the use of pits, racks, or
lifting apparatus, or involving the inflation of any tire mounted on a
rim equipped with a removable retaining ring.
(o) Work in connection with riding inside passenger compartments of
motor vehicles except as prohibited by Sec. Sec. 570.33(f) or
570.33(j), or when a significant reason for the minor being a passenger
in the vehicle is for the purpose of performing work in connection with
the transporting-or assisting in the transporting of-other persons or
property. The transportation of the persons or property does not have
to be the primary reason for the trip for this exception to apply. Each
minor riding as a passenger in a motor vehicle must have his or her own
seat in the passenger compartment; each seat must be equipped with a
seat belt or similar restraining device; and the employer must instruct
the minors that such belts or other devices must be used.
Sec. 570.35 Hours of work and conditions of employment permitted for
minors 14 and 15 years of age.
(a) Hours standards. Except as provided in paragraph (c) of this
section, employment in any of the permissible occupations to which this
subpart is applicable shall be confined to the following periods:
(1) Outside of school hours;
(2) Not more than 40 hours in any 1 week when school is not in
session;
(3) Not more that 18 hours in any 1 week when school is in session;
(4) Not more than 8 hours in any 1 day when school is not in
session;
(5) Not more than 3 hours in any 1 day when school is in session,
including Fridays;
(6) Between 7 a.m. and 7 p.m. in any 1 day, except during the
summer (June 1 through Labor Day) when the evening hour will be 9 p.m.
(b) Definition. As used in this section:
Week as used in this subpart means a standard calendar week of
12:01 a.m. Sunday through midnight Saturday, not an employee's workweek
as defined in Sec. 778.105 of this title.
Exceptions. (1) School is not considered to be in session, and
exceptions from the hours limitations standards listed in paragraphs
(a)(1), (3), and (5) of this section are provided, for any youth 14 or
15 years of age who:
[[Page 19367]]
(i) Has graduated from high school;
(ii) Has been excused from compulsory school attendance by the
state or other jurisdiction once he or she has completed the eighth
grade and his or her employment complies with all the requirements of
the state school attendance law;
(iii) Has a child to support and appropriate state officers,
pursuant to state law, have waived school attendance requirements for
this minor;
(iv) Is subject to an order of a state or federal court prohibiting
him or her from attending school; or
(v) Has been permanently expelled from the local public school he
or she would normally attend.
(2) In the case of minors 14 and 15 years of age who are employed
to perform sports-attending services at professional sporting events,
i.e., baseball, basketball, football, soccer, tennis, etc., the
requirements of paragraphs (a)(2) through (a)(6) of this section shall
not apply, provided that the duties of the sports-attendant occupation
consist of pre- and post-game or practice setup of balls, items and
equipment; supplying and retrieving balls, items and equipment during a
sporting event; clearing the field or court of debris, moisture, etc.,
during play; providing ice, drinks, towels, etc., to players during
play; running errands for trainers, managers, coaches, and players
before, during, and after a sporting event; and returning and/or
storing balls, items and equipment in club house or locker room after a
sporting event. For purposes of this exception, impermissible duties
include grounds or field maintenance such as grass mowing, spreading or
rolling tarpaulins used to cover playing areas, etc.; cleaning and
repairing equipment; cleaning locker rooms, showers, lavatories, rest
rooms, team vehicles, club houses, dugouts or similar facilities;
loading and unloading balls, items and equipment from team vehicles
before and after a sporting event; doing laundry; and working in
concession stands or other selling and promotional activities.
(3) Exceptions from certain of the hours standards contained in
paragraphs (a)(1) and (a)(3) of this section are provided for the
employment of minors who are enrolled in and employed pursuant to a
school-supervised work-experience and career exploration program as
detailed in Sec. 570.35a.
(4) Exceptions from certain of the hours standards contained in
paragraphs (a)(1) and (a)(5) of this section are provided for the
employment of minors who are participating in a work-study program
designed as described in Sec. 570.35b.
3. In Sec. 570.35a paragraph (c)(3) is proposed to be revised to
read as follows:
Sec. 570.35a Work experience and career exploration programs.
* * * * *
(c) * * *
(3) Occupations other than those permitted under Sec. 570.34,
except upon approval of a variation by the Administrator of the Wage
and Hour Division in acting on the program application of the State
Educational Agency. The Administrator shall have discretion to grant
requests for special variations if the applicant demonstrates that the
activity will be performed under adequate supervision and training
(including safety precautions) and that the terms and conditions of the
proposed employment will not interfere with the health or well-being or
schooling of the minor enrolled in an approved program. The granting of
a special variation is determined on a case-by-case basis.
* * * * *
4. A new Sec. 570.35b is proposed to be added and to read as
follows:
Sec. 570.35b Work-study programs.
(a) This section varies the provisions contained in Sec.
570.35(a)(1) and (a)(5) for the employment of minors 14 and 15 years of
age who are enrolled in and employed pursuant to a school-supervised
and school-administered work-study program that meets the requirements
of paragraph (b) of this section, in the occupations permitted by Sec.
570.34, and for the periods and under the conditions specified in
paragraph (c) of this section. With these safeguards, such employment
is found not to interfere with the schooling of the minors or with
their health and well-being and therefore is not deemed to be
oppressive child labor.
(b)(1) A school-supervised and school-administered work-study
program shall meet the educational standards established and approved
by the State Educational Agency in the respective state.
(2) The superintendent of the public or private school system
supervising and administering the work-study program shall file with
the Administrator of the Wage and Hour Division a letter of application
for approval of the work-study program as one not interfering with
schooling or with the health and well-being of the minors involved and
therefore not constituting oppressive child labor. The application
shall be filed at least sixty days before the start of the school year
and must include information concerning the criteria listed in
paragraph (b)(3) of this section. The Administrator of the Wage and
Hour Division shall approve the application, or give prompt notice of
any denial and the reasons therefor.
(3) The criteria to be used in consideration of applications under
this section are the following:
(i) Eligibility. Any student 14 or 15 years of age, enrolled in a
college preparatory curriculum, whom authoritative personnel from the
school attended by the youth identify as being able to benefit from the
program shall be able to participate.
(ii) Instructional schedule. Every youth shall receive, every
school year he or she participates in the work-study program, at least
the minimum number of hours of classroom instruction, as required by
the State Educational Agency responsible for establishing such
standards, to complete a fully-accredited college preparatory
curriculum. Such classroom instruction shall include, every year the
youth participates in the work-study program, training in workplace
safety and state and federal youth employment provisions and rules.
(iii) Teacher-coordinator. Each school participating in a work-
study program shall designate a teacher-coordinator under whose
supervision the program will operate. The teacher-coordinator shall
generally supervise and coordinate the work and educational aspects of
the program and make regularly scheduled visits to the workplaces of
the participating students. The teacher-coordinator shall ensure that
minors participating in a work-study program are employed in compliance
with all applicable provisions of this part and section 6 of the Fair
Labor Standards Act.
(iv) Written participation agreement. No student shall participate
in the work-study program until there has been made a written agreement
signed by the teacher-coordinator, the employer, and the student. The
agreement shall also be signed or otherwise consented to by the
student's parent or guardian. The agreement shall detail the objectives
of the work-study program; describe the specific job duties to be
performed by the participating minor as well as the number of hours and
times of day that the minor will be employed each week; affirm that the
participant will receive the minimum number of hours of class-room
instruction as required by the State Educational Agency for the
completion of a fully-accredited college preparatory curriculum; and
affirm that
[[Page 19368]]
the employment of the minor will be in compliance with the youth
employment provisions of both this part and the laws of the state where
the work will be performed, and the applicable minimum wage provisions
contained in section 6 of the FLSA.
(v) Other provisions. Any other provisions of the program providing
safeguards ensuring that the employment permitted under this section
will not interfere with the schooling of the minors or with their
health and well-being may also be submitted for use in considering the
application.
(4) Every public or private school district having students in a
work-study program approved pursuant to these requirements, and every
employer employing students in a work-study program approved pursuant
to these requirements, shall comply with the following:
(i) Permissible occupations. No student shall be assigned to work
in any occupation other than one permitted under Sec. 570.34 of this
chapter.
(ii) Records and reports. A copy of the written agreement for each
student participating in the work-study program shall be kept by both
the employer and the school supervising and administering the program
for a period of three years from the date of the student's enrollment
in the program. Such agreements shall be made available upon request to
the representatives of the Administrator of the Wage and Hour Division
for inspection, transcription, and/or photocopying.
(c) Employment of minors enrolled in a program approved pursuant to
the requirements of this section shall be confined to not more that 18
hours in any one week when school is in session, a portion of which may
be during school hours, in accordance with the following formula that
is based upon a continuous four-week cycle. In three of the four weeks,
the participant is permitted to work during school hours on only one
day per week, and for no more than for eight hours on that day. During
the remaining week of the four-week cycle, such minor is permitted to
work during school hours on no more than two days, and for no more than
for eight hours on each of those two days. The employment of such
minors would still be subject to the time of day and number of hours
standards contained in Sec. Sec. 570.35(a)(2), (a)(3), (a)(4), and
(a)(6). To the extent that these provisions are inconsistent with the
provisions of Sec. 570.35, this section shall be controlling.
(d) Programs shall be in force and effect for a period to be
determined by the Administrator of the Wage and Hour Division, but in
no case shall be in effect for longer than two school years from the
date of their approval by the Administrator of the Wage and Hour
Division. A new application for approval must be filed at the end of
that period. Failure to meet the requirements of this section may
result in withdrawal of the approval.
Subpart E--Occupations Particularly Hazardous for the Employment of
Minors Between 16 and 18 Years of Age or Detrimental to Their
Health or Well-Being
5. The authority citation for subpart E continues to read as
follows:
Authority: 29 U.S.C. 203(l), 212, 213(c).
6. In Sec. 570.54, the section heading and paragraphs (a)
introductory text, (a)(1), (a)(2) introductory text, and (b) are
proposed to be revised, and a new paragraph (c) is proposed to be
added, to read as follows:
Sec. 570.54 Forest firefighting and forest fire prevention
occupations, logging occupations, and occupations in the operation of
any sawmill, lath mill, shingle mill, or cooperage stock mill (Order
4).
(a) Finding and declarations of fact. All occupations in forest
firefighting and forest fire prevention, logging, and the operation of
any sawmill, lath mill, shingle mill, or cooperage stock mill are
particularly hazardous for the employment of minors between 16 and 18
years of age, except the following:
(1) Exceptions applying to logging:
(i) Work in offices or in repair or maintenance shops.
(ii) Work in the construction, operation, repair, or maintenance of
living and administrative quarters of logging camps.
(iii) Peeling of fence posts, pulpwood, chemicalwood, excelsior
wood, cordwood, or similar products when not done in conjunction with
and at the same time and place as other logging occupations declared
hazardous by this section.
(iv) Work in the feeding or care of animals.
(2) Exceptions applying to the operation of any permanent sawmill
or the operation of any lath mill, shingle mill, or cooperage stock
mill: Provided, That these exceptions do not apply to a portable
sawmill the lumber yard of which is used only for the temporary storage
of green lumber and in connection with which no office or repair or
maintenance shop is ordinarily maintained: And further provided, That
these exceptions do not apply to work which entails entering the
sawmill building, except for minors who meet the requirements of the
limited exemption discussed in Sec. Sec. 570.34(m) and 570.54(c):
* * * * *
(b) Definitions. As used in this section:
All occupations in forest firefighting and forest fire prevention
shall include the controlling and extinguishing of fires, the wetting
down of areas or extinguishing of spot fires, the patrolling of burned
areas to assure the fire has been extinguished, and the piling and
burning of slash. The term shall also include the following tasks when
performed in conjunction with, or in support of, efforts to extinguish
an actual fire: the clearing of fire trails or roads; the construction,
maintenance, and patrolling of firelines; acting as a fire lookout or
fire patrolman; and tasks associated with the operation of a temporary
firefighting base camp. The prohibition concerning the employment of
youth in forest firefighting and fire prevention would apply to all
forest locations and buildings located within the forest, not just
where logging or sawmilling takes place.
All occupations in logging shall mean all work performed in
connection with the felling of timber; the bucking or converting of
timber into logs, poles, piles, ties, bolts, pulpwood, chemical wood,
excelsior wood, cordwood, fence posts, or similar products; the
collecting, skidding, yarding, loading, transporting and unloading of
such products in connection with logging; the constructing, repairing,
and maintaining of roads, railroads, flumes, or camps used in
connection with logging; the moving, installing, rigging, and
maintenance of machinery or equipment used in logging; and other work
performed in connection with logging.
All occupations in the operation on any sawmill, lath mill, shingle
mill, or cooperage-stock mill shall mean all work performed in or about
any such mill in connection with storing of logs and bolts; converting
logs or bolts into sawn lumber, lathers, shingles, or cooperage stock;
storing drying, and shipping lumber, laths, shingles, cooperage stock,
or other products of such mills; and other work performed in connection
with the operation of any sawmill, lath mill, shingle mill, or
cooperage-stock mill. The term shall not include work performed in the
planing-mill department or other remanufacturing departments of any
sawmill or remanufacturing plant not a part of a sawmill.
[[Page 19369]]
Inside or outside places of business shall mean the actual physical
location of the establishment employing the youth, including the
buildings and surrounding land necessary to the business operations of
that establishment.
Operate or assist in the operation of power-driven woodworking
machines shall mean operating such machines, including supervising or
controlling the operation of such machines, feeding material into such
machines, helping the operator feed material into such machines,
unloading materials from such machines, and helping the operator unload
materials from such machines. The term also includes the occupations of
setting-up, adjusting, repairing, oiling, or cleaning such machines.
Places of business where machinery is used to process wood products
shall mean such permanent workplaces as sawmills, lath mills, shingle
mills, cooperage stock mills, furniture and cabinet making shops,
gazebo and shed making shops, toy manufacturing shops, and pallet
shops. The term shall not include construction sites, portable
sawmills, areas where logging is being performed, or mining operations.
Power-driven woodworking machines shall mean all fixed or portable
machines or tools driven by power and used or designed for cutting,
shaping, forming, surfacing, nailing, stapling, wire stitching,
fastening or otherwise assembling, pressing, or printing wood, veneer,
trees, logs, or lumber.
Remanufacturing department shall mean those departments of a
sawmill where lumber products such as boxes, lawn furniture, and the
like are remanufactured from previously cut lumber. The kind of work
performed in such departments is similar to that done in planning mill
departments in that rough lumber is surfaced or made into other
finished products. The term is not intended to denote those operations
in sawmills where rough lumber is cut to dimensions.
Supervised by an adult relative or is supervised by an adult member
of the same religious sect or division as the youth, as a term, has
several components. Supervised refers to the requirement that the
youth's on-the-job activities be directed, monitored, and controlled by
certain named adults. Such supervision must be close, direct, constant,
and uninterrupted. An adult shall mean an individual who is at least
eighteen years of age. A relative shall mean the parent (or someone
standing in place of a parent), grandparent, sibling, uncle, or aunt of
the young worker. A member of the same religious sect or division as
the youth refers to an individual who professes membership in the same
religious sect or division to which the youth professes membership.
(c) Exemptions. (1) The provisions contained in paragraph (a)(2) of
this section that prohibit youth between 16 and 18 years of age from
performing any work that entails entering the sawmill building do not
apply to the employment of a youth who is at least 14 years of age and
less than 18 years of age and who by statute or judicial order is
exempt from compulsory school attendance beyond the eighth grade, if:
(i) The youth is supervised by an adult relative or by an adult
member of the same religious sect or division as the youth;
(ii) The youth does not operate or assist in the operation of
power-driven woodworking machines;
(iii) The youth is protected from wood particles or other flying
debris within the workplace by a barrier appropriate to the potential
hazard of such wood particles or flying debris or by maintaining a
sufficient distance from machinery in operation; and
(iv) The youth is required to use, and uses, personal protective
equipment to prevent exposure to excessive levels of noise and saw
dust.
(2) Compliance with the provisions of paragraphs (c)(1)(iii) and
(iv) of this section will be accomplished when the employer is in
compliance with the requirements of the applicable governing standards
issued by the U.S. Department of Labor's Occupational Safety and Health
Administration (OSHA) or, in those areas where OSHA has authorized the
state to operate its own Occupational Safety and Health Plan, the
applicable standards issued by the Office charged with administering
the State Occupational Safety and Health Plan.
7. In Sec. 570.55, paragraph (b) is proposed to be revised to read
as follows:
Sec. 570.55 Occupations involved in the operation of power-driven
woodworking machines (Order 5).
* * * * *
(b) Definitions. As used in this section:
Off-bearing shall mean the removal of material or refuse directly
from a saw table or from the point of operation. Operations not
considered as off-bearing within the intent of this section include:
(1) The removal of material or refuse from a circular saw or
guillotine-action veneer clipper where the material or refuse has been
conveyed away from the saw table or point of operation by a gravity
chute or by some mechanical means such as a moving belt or expulsion
roller; and
(2) The following operations when they do not involve the removal
of materials or refuse directly from a saw table or point of operation:
The carrying, moving, or transporting of materials from one machine to
another or from one part of a plant to another; the piling, stacking,
or arranging of materials for feeding into a machine by another person;
and the sorting, tying, bundling, or loading of materials.
Power-driven woodworking machines shall mean all fixed or portable
machines or tools driven by power and used or designed for cutting,
shaping, forming, surfacing, nailing, stapling, wire stitching,
fastening or otherwise assembling, pressing or printing wood, veneer,
trees, logs, or lumber.
* * * * *
8. In Sec. 570.58, paragraphs (a) introductory text, (a)(1),
(a)(2), and (b) are proposed to be revised to read as follows:
Sec. 570.58 Occupations involved in the operation of power-driven
hoisting apparatus (Order 7).
(a) Findings and declaration of fact. The following occupations
involved in the operation of power-driven hoisting apparatus are
particularly hazardous for minors between 16 and 18 years of age:
(1) Work of operating, tending, riding upon, working from,
repairing, servicing, or disassembling an elevator, crane, derrick,
hoist, or high-lift truck, except operating or riding inside an
unattended automatic operation passenger elevator.
(2) Work of operating, tending, riding upon, working from,
repairing, servicing, or disassembling a manlift or freight elevator,
except 16- and 17-year-olds may ride upon a freight elevator operated
by an assigned operator.
* * * * *
(b) Definitions. As used in this section:
Crane shall mean a power-driven machine for lifting and lowering a
load and moving it horizontally, in which the hoisting mechanism is an
integral part of the machine. The term shall include all types of
cranes, such as cantilever gantry, crawler, gantry, hammerhead, ingot
pouring, jib, locomotive, motor-truck, overhead traveling, pillar jib,
pintle, portal, semi-gantry, semi-portal, storage bridge, tower,
walking jib, and wall cranes.
Derrick shall mean a power-driven apparatus consisting of a mast or
equivalent members held at the top by guys or braces, with or without a
boom, for use with a hoisting mechanism or operating ropes. The term
shall include
[[Page 19370]]
all types of derricks, such as A-frame, breast, Chicago boom, gin-pole,
guy, and stiff-leg derrick.
Elevator shall mean any power-driven hoisting or lowering mechanism
equipped with a car or platform which moves in guides in a
substantially vertical direction. The term shall include both passenger
and freight elevators (including portable elevators or tiering
machines), but shall not include dumbwaiters.
High-lift truck shall mean a power-driven industrial type of truck
used for lateral transportation that is equipped with a power-operated
lifting device usually in the form of a fork or platform capable of
tiering loaded pallets or skids one above the other. Instead of a fork
or a platform, the lifting device may consist of a ram, scoop, shovel,
crane, revolving fork, or other attachments for handling specific
loads. The term shall mean and include highlift trucks known under such
names as fork lifts, fork trucks, fork lift trucks, tiering trucks,
skid loaders, skid-steer loaders, Bobcat loaders, or stacking trucks,
but shall not mean low-lift trucks or low-lift platform trucks that are
designed for the transportation of but not the tiering of materials.
Hoist shall mean a power-driven apparatus for raising or lowering a
load by the application of a pulling force that does not include a car
or platform running in guides. The term shall include all types of
hoists, such as base mounted electric, clevis suspension, hook
suspension, monorail, overhead electric, simple drum, and trolley
suspension hoists.
Manlift shall mean a device intended for the conveyance of persons
that consists of platforms or brackets mounted on, or attached to, an
endless belt, cable, chain or similar method of suspension; with such
belt, cable or chain operating in a substantially vertical direction
and being supported by and driven through pulleys, sheaves or sprockets
at the top and bottom. The term shall also include truck- or equipment-
mounted aerial platforms commonly referred to as scissor lifts, boom-
type mobile elevating work platforms, work assist vehicles, cherry
pickers, basket hoists, and bucket trucks.
* * * * *
9. In Sec. 570.59, the section heading is proposed to be revised
to read as follows:
Sec. 570.59 Occupations involved in the operation of power-driven
metal forming, punching, and shearing machines (Order 8).
* * * * *
10. In Sec. 570.61, the section heading and paragraphs (a)(4),
(b), and (c)(1) are proposed to be revised to read as follows:
Sec. 570.61 Occupations in the operation of power-driven meat-
processing machines and occupations involving slaughtering, meat and
poultry packing, processing, or rendering (Order 10).
(a) * * *
(4) All occupations involved in the operation or feeding of the
following power-driven machines, including setting-up, adjusting,
repairing, or oiling such machines or the cleaning of such machines or
the individual parts or attachments of such machines, regardless of the
product being processed by these machines (including, for example, the
slicing in a retail delicatessen of meat, poultry, seafood, bread,
vegetables, or cheese, etc.): meat patty forming machines, meat and
bone cutting saws, meat slicers, knives (except bacon-slicing
machines), headsplitters, and guillotine cutters; snoutpullers and
jawpullers; skinning machines; horizontal rotary washing machines;
casing-cleaning machines such as crushing, stripping, and finishing
machines; grinding, mixing, chopping, and hashing machines; and presses
(except belly-rolling machines).
* * * * *
(b) Definitions. As used in this section:
Boning occupations means the removal of bones from meat cuts. It
does not include work that involves cutting, scraping, or trimming meat
from cuts containing bones.
Curing cellar includes a workroom or workplace which is primarily
devoted to the preservation and flavoring of meat, including poultry,
by curing materials. It does not include a workroom or workplace solely
where meats are smoked.
Hide cellar includes a workroom or workplace where hides are
graded, trimmed, salted, and otherwise cured.
Killing floor includes a workroom, workplace where such animals as
cattle, calves, hogs, poultry, sheep, lambs, goats, buffalo, deer, or
horses are immobilized, shackled, or killed, and the carcasses are
dressed prior to chilling.
Retail/wholesale or service establishments include establishments
where meat or meat products, including poultry, are processed or
handled, such as butcher shops, grocery stores, restaurants and quick
service food establishments, hotels, delicatessens, and meat locker
(freezer-locker) companies, and establishments where any food product
is prepared or processed for serving to customers using machines
prohibited by paragraph (a) of this section.
Rendering plants means establishments engaged in the conversion of
dead animals, animal offal, animal fats, scrap meats, blood, and bones
into stock feeds, tallow, inedible greases, fertilizer ingredients, and
similar products.
Slaughtering and meat packing establishments means places in or
about which such animals as cattle, calves, hogs, poultry, sheep,
lambs, goats, buffalo, deer, or horses are killed, butchered, or
processed. The term also includes establishments which manufacture or
process meat or poultry products, including sausage or sausage casings
from such animals.
(c) * * *
(1) The killing and processing of rabbits or small game in areas
physically separated from the killing floor.
* * * * *
11. In Sec. 570.62, paragraph (a)(2) is proposed to be revised,
and a new paragraph (b) is proposed to be added, to read as follows:
Sec. 570.62 Occupations involved in the operation of bakery machines
(Order 11).
(a) * * *
(2) The occupation of setting up or adjusting a cookie or cracker
machine.
(b) Exceptions. (1) This section shall not apply to the operation,
including the setting up, adjusting, repairing, oiling and cleaning, of
lightweight, small capacity, portable counter-top power-driven food
mixers that are, or are comparable to, models intended for household
use. For purposes of this exemption, a lightweight, small capacity
mixer is one that is not hardwired into the establishment's power
source, is equipped with a motor that operates at no more than \1/2\
horsepower, and is equipped with a bowl with a capacity of no more than
five quarts.
(2) This section shall not apply to the operation of pizza-dough
rollers, a type of dough sheeter, that: have been constructed with
safeguards contained in the basic design so as to prevent fingers,
hands, or clothing from being caught in the in-running point of the
rollers; have gears that are completely enclosed; and have
microswitches that disengage the machinery if the backs or sides of the
rollers are removed. This exception applies only when all the
safeguards detailed in this paragraph are present on the machine, are
operational, and have not been overridden. This exception does not
apply to the setting up, adjusting, repairing, oiling or cleaning of
such pizza-dough rollers.
[[Page 19371]]
12. In Sec. 570.63, the section heading and paragraphs (a)(2) and
(b) are proposed to be revised, and new paragraphs (a)(3) and (a)(4)
are proposed to be added, to read as follows:
Sec. 570.63 Occupations involved in the operation of paper-products
machines, balers, and compactors (HO 12).
(a) * * *
(2) The occupations of operation or assisting to operate any baler
that is designed or used to process materials other than paper.
(3) The occupations of operation or assisting to operate any
compactor that is designed or used to process materials other than
paper.
(4) The occupations of setting up, adjusting, repairing, oiling, or
cleaning any of the machines listed in paragraphs (a)(1), (2), and (3)
of this section.
(b) Definitions. As used in this section:
Applicable ANSI Standard means the American National Standard
Institute's Standard ANSI Z245.5-1990 (``American National Standard for
Refuse Collection, Processing, and Disposal--Baling Equipment--Safety
Requirements'') for scrap paper balers or the American National
Standard Institute's Standard ANSI Z245.2-1992 (``American National
Standard for Refuse Collection, Processing, and Disposal Equipment--
Stationary Compactors--Safety Requirements'') for paper box compactors.
Additional applicable standards are the American National Standard
Institute's Standard ANSI Z245.5-1997 (``American National Standard for
Equipment Technology and Operations for Wastes and Recyclable
Materials--Baling Equipment--Safety Requirements'') for scrap paper
balers or the American National Standard Institute's Standard ANSI
Z245.2-1997 (``American National Standard for Equipment Technology and
Operations for Wastes and Recyclable Materials--Stationary Compactors--
Safety Requirements'') for paper box compactors, which the Secretary
has certified to be at least as protective of the safety of minors as
Standard ANSI Z245.5-1990 for scrap paper balers or ANSI Z245.2-1992
for paper box compactors. The ANSI standards for scrap paper balers and
paper box compactors govern the manufacture and modification of the
equipment, the operation and maintenance of the equipment, and employee
training. These ANSI standards are incorporated by reference in this
paragraph and have the same force and effect as other standards in this
part. Only the mandatory provisions (i.e., provisions containing the
word ``shall'' or other mandatory language) of these standards are
adopted as standards under this part. These standards are incorporated
by reference as they exist on the date of the approval; if any changes
are made in these standards which the Secretary finds to be as
protective of the safety of minors as the current standards, the
Secretary will publish a Notice of the change of standards in the
Federal Register. These incorporations by reference were approved by
the Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies of these standards are available for purchase
from the American National Standards Institute (ANSI), 23 West 43rd
St., Fourth Floor, New York, NY 10036. In addition, these standards are
available for inspection at the National Archives and Records
Administration (NARA) and at the Occupational Safety and Health
Administration's Docket Office, Room N-2625, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, DC 20210, or any of its
regional offices. For information on the availability of this material
at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/ code--of--federal--regulations/ ibr--locations.html.
Baler that is designed or used to process materials other than
paper means a powered machine designed or used to compress materials
other than paper and cardboard boxes, with or without binding, to a
density or form that will support handling and transportation as a
material unit without requiring a disposable or reusable container.
Compactor that is designed or used to process materials other than
paper means a powered machine that remains stationary during operation,
designed or used to compact refuse other than paper or cardboard boxes
into a detachable or integral container or into a transfer vehicle.
Operating or assisting to operate means all work that involves
starting or stopping a machine covered by this section, placing
materials into or removing materials from a machine, including clearing
a machine of jammed materials, paper, or cardboard, or any other work
directly involved in operating the machine. The term does not include
the stacking of materials by an employee in an area nearby or adjacent
to the machine where such employee does not place the materials into
the machine.
Paper box compactor means a powered machine that remains stationary
during operation, used to compact refuse, including paper boxes, into a
detachable or integral container or into a transfer vehicle.
Paper products machine means all power-driven machines used in (1)
remanufacturing or converting paper or pulp into a finished product,
including preparing such materials for recycling; or (2) preparing such
materials for disposal. The term applies to such machines whether they
are used in establishments that manufacture converted paper or pulp
products, or in any other type of manufacturing or nonmanufacturing
establishment. The term also applies to those machines which, in
addition to paper products, process other material for disposal.
Scrap paper baler means a powered machine used to compress paper
and possibly other solid waste, with or without binding, to a density
or form that will support handling and transportation as a material
unit without requiring a disposable or reusable container.
* * * * *
13. In Sec. 570.65, the section heading and paragraphs (a)(2) and
(b) are proposed to be revised, and a new paragraph (a)(3) is proposed
to be added, to read as follows:
Sec. 570.65 Occupations involving the operation of circular saws,
band saws, guillotine shears, chain saws, reciprocating saws, and wood
chippers (Order 14).
(a) * * *
(2) The occupations of operator of or helper on the following
power-driven fixed or portable machines:
(i) Chain saws.
(ii) Wood chippers.
(iii) Reciprocating saws.
(3) The occupations of setting-up, adjusting, repairing, oiling, or
cleaning circular saws, band saws, guillotine shears, chain saws, wood
chippers, and reciprocating saws.
(b) Definitions. As used in this section:
Band saw shall mean a machine equipped with an endless steel band
having a continuous series of notches or teeth, running over wheels or
pulleys, and used for sawing materials.
Chain saw shall mean a machine that has teeth linked together to
form an endless chain used for cutting materials.
Circular saw shall mean a machine equipped with a thin steel disc
having a continuous series of notches or teeth on the periphery,
mounted on shafting, and used for sawing materials.
Guillotine shear shall mean a machine equipped with a moveable
blade operated vertically and used to shear materials. The term shall
not include other types of shearing machines, using
[[Page 19372]]
a different form of shearing action, such as alligator shears or
circular shears.
Helper shall mean a person who assists in the operation of a
machine covered by this section by helping place materials into or
remove them from the machine.
Operator shall mean a person who operates a machine covered by this
section by performing such functions as starting or stopping the
machine, placing materials into or removing them from the machine, or
any other functions directly involved in operation of the machine.
Reciprocating saw shall mean a machine equipped with a moving blade
that alternately changes direction on a linear cutting axis used for
sawing materials.
Wood chipper shall mean a machine equipped with a feed mechanism,
knives mounted on a rotating chipper disc or drum, and a power plant
used to reduce to chips or shred such materials as tree branches, trunk
segments, landscape waste, and other materials.
* * * * *
Subpart G--General Statements of Interpretation of the Child Labor
Provisions of the Fair Labor Standards Act of 1938, as Amended
14. The authority citation for subpart G continues to read as
follows:
Authority: 52 Stat. 1060-1069 as amended; 29 U.S.C. 201-219.
15. In Sec. 570.103, paragraph (c) is proposed to be revised to
read as follows:
Sec. 570.103 Comparison with wage and hour provisions.
* * * * *
(c) Another distinction is that the exemptions provided by the Act
from the minimum wage and/or overtime provisions are more numerous and
differ from the exemptions granted from the child labor provisions.
There are only eight specific child labor exemptions of which only two
apply to the minimum wage and overtime pay requirements as well. These
are the exemptions for employees engaged in the delivery of newspapers
to the consumer and homeworkers engaged in the making of wreaths
composed principally of evergreens.\3\ With these two exceptions, none
of the specific exemptions from the minimum wage and/or overtime pay
requirements applies to the child labor provisions. However, it should
be noted that the exclusion of certain employers by section 3(d)\4\ of
the Act applies to the child labor provisions as well as the wage and
hours provisions.
---------------------------------------------------------------------------
\3\ Both of these exemptions are contained in section 13(d) of
the FLSA.
\4\ Section 3(d) defines `employer' as including ``any person
acting directly or indirectly in the interest of an employer in
relation to an employee and includes a public agency, but does not
include any labor organization (other than when acting as an
employer) or anyone acting in the capacity of officer or agent of
such labor organization.''
---------------------------------------------------------------------------
16. Sections 570.118 through 570.120 are proposed to be revised to
read as follows:
Sec. 570.118 Sixteen-year minimum.
The Act sets a 16-year-age minimum for employment in manufacturing
or mining occupations, though under FLSA section 13(c)(7), certain
youth between the ages of 14 and 18 may, under specific conditions, be
employed inside and outside of places of business that use power-driven
machinery to process wood products. Furthermore, the 16-year-age
minimum for employment is applicable to employment in all other
occupations unless otherwise provided by regulation or order issued by
the Secretary.
Sec. 570.119 Fourteen-year minimum.
With respect to employment in occupations other than manufacturing
and mining and in accordance with the provisions of FLSA section
13(c)(7), the Secretary is authorized to issue regulations or orders
lowering the age minimum to 14 years where he or she finds that such
employment is confined to periods that will not interfere with the
minors' schooling and to conditions that will not interfere with their
health and well-being. Pursuant to this authority, the Secretary has
detailed in Sec. 570.33 the most commonly asked about occupations in
which the employment of 14- and 15-year-olds is not permitted and in
Sec. 570.34 those occupations in which 14- and 15-year-olds may be
employed when the work is performed outside school hours and is
confined to other specified limits. The Secretary has also set forth,
in Sec. 570.35, additional conditions that limit the periods during
which 14- and 15-year-olds may be employed. The employment of minors
under 14 years of age is not permissible under any circumstances if the
employment is covered by the child labor provisions and not
specifically exempt.
Sec. 570.120 Eighteen-year minimum.
To protect young workers from hazardous employment, the FLSA
provides for a minimum age of 18 years in occupations found and
declared by the Secretary to be particularly hazardous or detrimental
to health or well-being for minors 16 and 17 years of age. Hazardous
occupations orders are the means through which occupations are declared
to be particularly hazardous for minors. Since 1995, the promulgation
and amending of the hazardous occupations orders has been placed solely
within the purview of the Administrative Procedure Act (APA), 5 U.S.C.
551 et seq. The effect of these orders is to raise the minimum age for
employment to 18 years in the occupations covered. Seventeen orders,
published in subpart E of this part, have thus far been issued under
the FLSA and are now in effect.
17. In Sec. 570.122, it is proposed to add new paragraphs (e),
(f), (g), and (h) that are proposed to read as follows:
Sec. 570.122 General.
* * * * *
(e) Employment of homeworkers engaged in the making of evergreen
wreaths, including the harvesting of the evergreens or other forest
products used in making such wreaths.
(f) Employment of 16- and 17-year-olds to load, but not operate or
unload, certain scrap paper balers and paper box compactors under
specified conditions.
(g) Employment of 17-year-olds to perform limited driving of cars
and trucks during daylight hours under specified conditions.
(h) Employment of youths between the ages of 14 and 18 years who,
by statute or judicial order, are excused from compulsory school
attendance beyond the eighth grade, under specified conditions, in
places of business that use power-driven machinery to process wood
products.
18. It is proposed to remove the center heading ``Enforcement'' and
revise Sec. 570.127 to read as follows:
Sec. 570.127 Homeworkers engaged in the making of evergreen wreaths.
FLSA section 13(d) provides an exemption from the child labor
provisions, as well as the minimum wage and overtime provisions, for
homeworkers engaged in the making of wreaths composed principally of
natural holly, pine, cedar, or other evergreens (including the
harvesting of the evergreens or other forest products used in making
such wreaths).
Sec. 570.128 [Redesignated as Sec. 570.141]
19. Section 570.128 is proposed to be redesignated as Sec. 570.141
and a new Sec. 570.128 is proposed to be added to read as follows:
Sec. 570.128 Loading of certain scrap paper balers and paper box
compactors.
Section 13(c)(5) of the FLSA provides for an exemption from the
child labor
[[Page 19373]]
provisions for the employment of 16- and 17-year-olds to load, but not
operate or unload, certain power-driven scrap paper balers and paper
box compactors under certain conditions. The provisions of this
exemption, which are contained in HO 12 (Sec. 570.63), include that
the scrap paper baler or compactor meet an applicable standard
established by the ANSI identified in the statute, or a more recent
ANSI standard that the Secretary of Labor has found and declared to be
as protective of the safety of young workers as the ANSI standard named
in the statute. In addition, the scrap paper baler or paper box
compactor must include an on-off switch incorporating a key-lock or
other system and the control of the system must be maintained in the
custody of employees who are at least 18 years of age. The on-off
switch of the scrap paper baler or paper box compactor must be
maintained in an off position when the machine is not in operation.
Furthermore, the employer must also post a notice on the scrap paper
baler or paper box compactor that conveys certain information,
including the identification of the applicable ANSI standard that the
equipment meets, that 16- and 17-year-old employees may only load the
scrap paper baler or paper box compactor, and that no employee under
the age of 18 may operate or unload the scrap paper baler or paper box
compactor.
Sec. 570.129 [Redesignated as Sec. 570.142]
20. Section 570.129 is proposed to be redesignated as Sec. 570.142
and a new Sec. 570.129 is proposed to be added to read as follows:
Sec. 570.129 Limited driving of automobiles and trucks by 17-year-
olds.
Section 13(c)(6) of the FLSA provides an exemption for 17-year-
olds, but not 16-year-olds, who, as part of their employment, perform
the occasional and incidental driving of automobiles and trucks on
public highways under specified conditions. These specific conditions,
which are contained in HO 2 (Sec. 570.52), include that the automobile
or truck may not exceed 6,000 pounds gross vehicle weight, the driving
must be restricted to daylight hours, the vehicle must be equipped with
a seat belt or similar restraining device for the driver and for any
passengers, and the employer must instruct the employee that such belts
or other devices must be used. In addition, the 17-year-old must hold a
State license valid for the type of driving involved in the job, have
successfully completed a State-approved driver education course, and
have no records of any moving violations at the time of his or her
hire. The exemption also prohibits the minor from performing any
driving involving the towing of vehicles; route deliveries or route
sales; the transportation for hire of property, goods, or passengers;
urgent, time-sensitive deliveries; or the transporting of more than
three passengers at any one time. The exemption also places limitations
on the number of trips the 17-year-old may make each day and restricts
the driving to a thirty mile radius of the minor's place of employment.
21. It is proposed that a new Sec. 570.130 be added to read as
follows:
Sec. 570.130 Employment of certain youth inside and outside of places
of business that use power-driven machinery to process wood products.
Section 13(c)(7) of the FLSA provides a limit exemption from the
child labor provisions for certain youths between the ages of 14 and 18
years who, by statute or judicial order, are excused from compulsory
school attendance beyond the eighth grade, that permits their
employment inside and outside of places of business that use power-
driven machinery to process wood products. The provisions of this
exemption are contained in subpart C of this part (Sec. 570.34(m)) and
HO 4 (Sec. 570.54). Although the exemption allows certain youths
between the ages of 14 and 18 years to be employed inside and outside
of places of business that use power-driven machines to process wood
products, it does so only if such youths do not operate or assist in
the operation of power-driven woodworking machines. The exemption also
requires that the youth be supervised by an adult relative or by an
adult member of the same religious sect as the youth. The youth must
also be protected from wood particles or other flying debris within the
workplace by a barrier appropriate to the potential hazard of such wood
particles or flying debris or by maintaining a sufficient distance from
machinery in operation. For the exemption to apply, the youth must also
be required to use personal protective equipment to prevent exposure to
excessive levels of noise and sawdust.
22. It is proposed that new Sec. Sec. 570.131 through 570.139 be
added and reserved.
Sec. Sec. 570.131 through 570.139 (Reserved).
23. It is proposed that a center heading and new Sec. 570.140 be
added to read as follows:
Enforcement
Sec. 570.140 General.
(a) Section 15(a)(4) of the Act makes any violation of the
provisions of sections 12(a) or 12(c) unlawful. Any such unlawful act
or practice may be enjoined by the United States District Courts under
section 17 upon court action, filed by the Secretary pursuant to
section 12(b) and, if willful will subject the offender to the criminal
penalties provided in section 16(a) of the Act. Section 16(a) provides
that any person who willfully violates any of the provisions of section
15 shall upon conviction thereof be subject to a fine of not more than
$10,000, or to imprisonment for not more than six months, or both. No
person shall be imprisoned under this subsection except for an offense
committed after the conviction of such person for a prior offense under
this subsection.
(b) In addition, FLSA section 16(e) states that any person who
violates the provisions of FLSA section 12, relating to child labor, or
any regulations issued under that section, shall be subject to a civil
penalty, currently not to exceed $11,000 for each employee who was the
subject of such a violation. Part 579 of this chapter, Child Labor
Violations--Civil Money Penalties, provides for the issuance of the
notice of civil money penalties for any violation of FLSA section 12
relating to child labor. Part 580 of this chapter, Civil Money
Penalties--Procedures for Assessing and Contesting Penalties, describes
the administrative process for assessment and resolution of the civil
money penalties. When a civil money penalty is assessed against an
employer for a youth employment violation, the employer has the right,
within 15 days after receipt of the notice of such penalty, to file an
exception to the determination that the violation or violations
occurred. When such an exception is filed with the office making the
assessment, the matter is referred to the Chief Administrative Law
Judge, and a formal hearing is scheduled. At such a hearing, the
employer or an attorney retained by the employer may present such
witnesses, introduce such evidence and establish such facts as the
employer believes will support the exception. The determination of the
amount of any civil money penalty becomes final if no exception is
taken to the administrative assessment thereof, or if no exception is
filed to the decision and order of the administrative law judge.
[FR Doc. E7-7053 Filed 4-16-07; 8:45 am]
BILLING CODE 4510-27-P