28404 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

DEPARTMENT OF LABOR 

Wage and Hour Division 

29 CFR Parts 570 and 579 

RIN 1215–AB57 

RIN 1235–AA01 

Child Labor Regulations, Orders and 

Statements of Interpretation 

AGENCY: Wage and Hour Division, 

Labor. 

ACTION: Final Rule. 

SUMMARY: This Final Rule revises the 

child labor regulations to incorporate 

statutory amendments to the Fair Labor 

Standards Act and to update and clarify 

the regulations that establish protections 

for youth employed in nonagricultural 

occupations. These revisions also 

implement specific recommendations 

made by the National Institute for 

Occupational Safety and Health in its 

2002 report to the Department of Labor. 

The Department of Labor is revising the 

regulations to incorporate the 2008 

amendment to section 16(e) of the Fair 

Labor Standards Act that substantially 

increased the maximum permissible 

civil money penalty an employer may 

be assessed for child labor violations 

that cause the death or serious injury of 

a young worker. 

DATES: Effective Dates: This rule is 

effective July 19, 2010. The 

incorporation by reference of American 

National Standards Institute standards 

in the regulations is approved by the 

Director of the Federal Register as of 

July 19, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Arthur M. Kerschner, Jr., Division of 

Enforcement Policy, Branch of Child 

Labor and Special Employment 

Enforcement, Wage and Hour Division, 

U.S. Department of Labor, Room S– 

3510, 200 Constitution Avenue, NW., 

Washington, DC 20210; telephone: (202) 

693–0072 (this is not a toll free number). 

Copies of this Final Rule may be 

obtained in alternative formats (Large 

Print, Braille, Audio Tape, or Disc), 

upon request, by calling (202) 693–0023. 

TTY/TDD callers may dial toll-free (877) 

889–5627 to obtain information or 

request materials in alternative formats. 

Questions of interpretation and/or 

enforcement of regulations issued by 

this agency or referenced in this Final 

Rule may be directed to the nearest 

Wage and Hour Division District Office. 

Locate the nearest office by calling the 

Wage and Hour Division’s toll-free help 

line at (866) 4US–WAGE ((866) 487– 

9243) between 8 a.m. and 5 p.m. in your 

local time zone, or log onto the Wage 

and Hour Division’s Web site for a 

nationwide listing of Wage and Hour 

District and Area Offices at: http:// 

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

SUPPLEMENTARY INFORMATION: The 

revisions in this Final Rule continue the 

Department of Labor’s tradition of 

fostering permissible and appropriate 

job opportunities for working youth that 

are healthy, safe, and not detrimental to 

their education. 

The Regulatory Information Number 

(RIN) identified for this rulemaking 

changed with the publication of the 

2010 Spring Regulatory Agenda due to 

an organizational restructuring. The old 

RIN was assigned to the Employment 

Standards Administration, which no 

longer exists. A new RIN has been 

assigned to the Wage and Hour Division. 

I. Background 

The child labor provisions of the Fair 

Labor Standards Act (FLSA) establish a 

minimum age of 16 years for 

employment in nonagricultural 

occupations, but the Secretary of Labor 

is authorized to provide by regulation 

for 14- and 15-year-olds to work in 

suitable occupations other than 

manufacturing or mining, and during 

periods and under conditions that will 

not interfere with their schooling or 

health and well-being. The child labor 

provisions of the FLSA permit 16- and 

17-year-olds to work in the 

nonagricultural sector without hours or 

time limitations, except in certain 

occupations found and declared by the 

Secretary to be particularly hazardous or 

detrimental to the health or well-being 

of such workers. 

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

Regulation No. 3 (Reg. 3) and are 

contained in subpart C of part 570 (29 

CFR 570.31–.37). Reg. 3 limits the hours 

and times of day that such minors may 

work and identifies occupations that are 

either permitted or prohibited for such 

minors. Under Reg. 3, 14- and 15-yearolds may work in certain occupations in 

retail, food service, and gasoline service 

establishments, but are not permitted to 

work in certain other occupations 

(including all occupations found by the 

Secretary to be particularly hazardous 

for 16- and 17-year-olds). Reg. 3, 

originally promulgated in 1939, was 

revised to reflect the 1961 amendments 

to the FLSA, which extended the Act’s 

coverage to include enterprises engaged 

in commerce or the production of goods 

for commerce and thereby brought more 

working youth employed in retail, food 

service, and gasoline service 

establishments within the protections of 

the Act. 

The regulations concerning 

nonagricultural hazardous occupations 

are contained in subpart E of 29 CFR 

part 570 (29 CFR 570.50–.68). These 

Hazardous Occupations Orders (HOs) 

apply on either an industry basis, 

specifying the occupations in a 

particular industry that are prohibited, 

or an occupational basis, irrespective of 

the industry in which the work is 

performed. The seventeen HOs were 

adopted individually during the period 

of 1939 through 1963. Some of the HOs, 

specifically HOs 5, 8, 10, 12, 14, 16, and 

17, contain limited exemptions that 

permit the employment of 16- and 17- 

year-old apprentices and studentlearners under particular conditions to 

perform work otherwise prohibited to 

that age group. The terms and 

conditions for employing such 

apprentices and student-learners are 

detailed in § 570.50(b) and (c). 

Because of changes in the workplace, 

the introduction of new processes and 

technologies, the emergence of new 

types of businesses where young 

workers may find employment 

opportunities, the existence of differing 

federal and state standards, and 

divergent views on how best to balance 

scholastic requirements and work 

experiences, the Department has long 

been reviewing the criteria for 

permissible child labor employment. A 

detailed discussion of the Department’s 

review was included in the Notice of 

Proposed Rulemaking published in the 

Federal Register on April 17, 2007 (see 

72 FR 19339). 

Congress twice amended the child 

labor provisions of the FLSA in the 

1990s. The Compactors and Balers 

Safety Standards Modernization Act, 

Public Law 104–174 (Compactor and 

Baler Act), was signed into law on 

August 6, 1996. This legislation added 

section 13(c)(5) to the FLSA, permitting 

minors 16 and 17 years of age to load, 

but not operate or unload, certain scrap 

paper balers and paper box compactors 

when certain requirements are met. The 

Drive for Teen Employment Act, Public 

Law 105–334, was signed into law on 

October 31, 1998. This legislation added 

section 13(c)(6) to the FLSA which 

prohibits minors under 17 years of age 

from driving automobiles and trucks on 

public roadways on the job and 

establishes the conditions and criteria 

for 17-year-olds to drive automobiles 

and trucks on public roadways on the 

job. 

The Department published a Notice of 

Proposed Rulemaking (NPRM) in the 

Federal Register on November 30, 1999 

(64 FR 67130), inviting comments on 

revisions of regulations to implement 

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the 1996 and 1998 amendments and to 

update certain regulatory standards. 

In 1998, the Department provided 

funds to the National Institute for 

Occupational Safety and Health 

(NIOSH) to conduct a comprehensive 

review of scientific literature and 

available data in order to assess current 

workplace hazards and the adequacy of 

the current child labor HOs to address 

them. This study was commissioned to 

provide the Secretary with another tool 

to use in her ongoing review of the child 

labor provisions, and of the hazardous 

occupations orders in particular. The 

report, entitled National Institute for 

Occupational Safety and Health 

(NIOSH) Recommendations to the U.S. 

Department of Labor for Changes to 

Hazardous Orders (hereinafter referred 

to as the NIOSH Report or the Report), 

was issued in July of 2002. The Report, 

which makes 35 recommendations 

concerning the existing nonagricultural 

HOs and recommends the creation of 17 

new HOs, also incorporated the 

comments NIOSH submitted in 

response to the 1999 NPRM. The Report 

is available for review on the 

Department’s YouthRules! Web site at 

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

resources.htm. 

The Department recognizes NIOSH’s 

extensive research efforts in compiling 

and reviewing this data. However, it has 

cautioned readers about reaching 

conclusions and expecting revisions to 

the existing HOs based solely on the 

information in the Report. In the Report, 

NIOSH itself recognized the confines of 

its methodology and included 

appropriate caveats about the 

limitations of the available data and 

gaps in research. Of those limitations, 

the following are worth noting. The 

NIOSH Report recommendations are 

driven by information on high-risk 

activities for all workers, not just 

patterns of fatalities and serious injuries 

among young workers. There is little 

occupational injury, illness, and fatality 

data available regarding minors less 

than 16 years of age. In addition, such 

data for youth 16 and 17 years of age 

tend to be mixed with that of older 

workers whose employment is not 

subject to the child labor provisions of 

the FLSA. Also, available occupational 

injury, illness, fatality, and employment 

data on the specific operations in the 

specific industries covered by the 

NIOSH Report recommendations tend to 

be combined with data on other 

operations and/or industries. In some 

cases, this may result in a diminution of 

the risk by including less risky 

operations and industries in the 

employment estimates. In other cases, 

the risk may be exaggerated by 

including more dangerous operations/ 

industries in the injury, illness, or 

fatality estimates. 

In addition, as NIOSH was tasked 

with examining issues within the 

framework of the current HOs only, the 

Report did not consider the extent to 

which fatalities occur despite existing 

HOs, Occupational Safety and Health 

Administration (OSHA) standards, or 

state laws prohibiting the activity. If 

fatalities result from recognized illegal 

activities, such as working with 

fireworks or a power-driven circular 

saw, the best strategy for preventing 

future injuries may not be to revise the 

regulations but to increase compliance 

with existing laws through public 

awareness initiatives, targeted 

compliance assistance efforts, and 

stepped-up enforcement activities. The 

Report also did not consider potential 

approaches for decreasing workplace 

injuries and fatalities that provide an 

alternative to a complete ban on 

employment, such as safety training, 

increased supervision, the use of 

effective personal protective equipment, 

and strict adherence to recognized safe 

working practices. 

Though cognizant of the limitations of 

the Report, the Department places great 

value on the information and analysis 

provided by NIOSH. Since receiving the 

Report, the Department has conducted a 

detailed review and has met with 

various stakeholders to evaluate and 

prioritize each recommendation for 

possible regulatory action consistent 

with the established national policy of 

balancing the benefits of employment 

opportunities for youth with the 

necessary and appropriate safety 

protections. The Department’s 2004 

Final Rule addressed six of the 

recommendations. 

The Consolidated Appropriations Act, 

2004, Public Law 108–199, § 108, which 

was signed into law on January 23, 

2004, amended the FLSA by creating a 

limited exemption from the child labor 

provisions for minors 14 to 18 years of 

age who are excused from compulsory 

school attendance beyond the eighth 

grade. The exemption, contained in 

section 13(c)(7) of the FLSA, allows 

eligible youth, under specific 

conditions, to be employed inside and 

outside of places of business that use 

machinery to process wood products, 

but does not allow such youth to 

operate or assist in operating powerdriven woodworking machines. This 

exemption overrides the FLSA’s 

formerly complete prohibition on the 

employment of 14- and 15-year-olds in 

manufacturing occupations contained in 

section 3(l). 

The Department proposed revisions of 

the child labor regulations to implement 

the 2004 legislation, address 25 of the 

remaining 29 NIOSH Report 

recommendations dealing with existing 

nonagricultural hazardous occupations 

orders, and revise and/or clarify the 

permitted and prohibited occupations 

and industries and conditions and 

periods of employment established for 

14- and 15-year-olds by Reg. 3, in an 

NPRM published in the Federal 

Register on April 17, 2007 (72 FR 

19337). The NPRM also proposed to 

incorporate into the regulations three 

long-standing enforcement positions 

regarding the cleaning of power-driven 

meat processing equipment, the 

operation of certain power-driven pizzadough rollers, and the definition of 

high-lift trucks. In addition, the 

Department proposed to expand the HO 

that prohibits youth from operating 

power-driven circular saws, band saws, 

and guillotine shears to also prohibit the 

operation of power-driven chain saws, 

wood chippers, and reciprocating saws. 

Finally, the Department proposed to 

revise subpart G of the child labor 

regulations, entitled General Statements 

of Interpretation of the Child Labor 

Provisions of the Fair Labor Standards 

Act of 1938, as Amended, to incorporate 

all the changes adopted by the agency 

since this subpart was last revised in 

1971. 

The Genetic Information 

Nondiscrimination Act of 2008 (GINA) 

(Pub. L. 110–233) was enacted into law 

on May 21, 2008, after the publication 

of the 2007 NPRM. GINA, among other 

things, amended FLSA section 16(e) to 

provide that any person who violates 

the provisions of sections 12 or 13(c) of 

the FLSA, relating to child labor, or any 

regulation issued pursuant to such 

sections, shall be subject to a civil 

money penalty not to exceed $11,000 for 

each employee who was the subject of 

such a violation. In addition, GINA also 

permits the assessment of a civil money 

penalty up to $50,000 with regard to 

each violation that caused the death or 

serious injury of any employee under 

the age of 18 years. That penalty may be 

doubled, up to $100,000, when such 

violation is determined by the 

Department to be a repeated or willful 

violation. These changes in the law 

became effective May 21, 2008. 

As mentioned, the NIOSH Report 

made 35 recommendations concerning 

the existing nonagricultural HOs. The 

Department addressed six of those 

recommendations in the 2004 Final 

Rule published December 16, 2004 (see 

69 FR 75382). The Department, in the 

April 17, 2007 NPRM, based on its 

determination that there was sufficient 

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data available, addressed 25 of the 

remaining 29 NIOSH Report 

recommendations dealing with the 

existing nonagricultural hazardous 

occupations orders. In an attempt to 

acquire additional data needed to 

address the remaining nonagricultural 

NIOSH recommendations and to pursue 

certain other issues not explored in the 

NIOSH Report, the Department also 

published an Advance Notice of 

Proposed Rulemaking (ANPRM) 

concurrently with the 2007 NPRM (see 

72 FR 19328). Because very little 

substantive information was received, 

the Department withdrew the ANPRM 

on February 24, 2010. No proposed rule 

will result directly from that 

information collection effort, however, 

the topics discussed in the ANPRM may 

be the subject of a future rulemaking. 

The comments submitted in response to 

the ANPRM may be reviewed at the 

Federal eRulemaking Portal at http:// 

www.regulations.gov, docket 

identification number WHD–2007–0001. 

The NIOSH Report also made 14 

recommendations that impact the 

current agricultural HOs and 

recommended the creation of 17 new 

HOs. The Department, in the ANPRM 

published on April 17, 2007, requested 

public comment on the feasibility of one 

of those recommendations regarding the 

creation of a new HO that would 

prohibit the employment of youth in 

construction occupations. 

The Department is continuing to 

review all of the remaining NIOSH 

Report recommendations, but excluded 

them from immediate consideration in 

order to keep the size and scope of the 

2007 ANPRM and NPRM manageable. 

Their absence from this current round of 

rulemaking is not an indication that the 

Department believes them to be of less 

importance or that they are not being 

given the same level of consideration as 

the recommendations addressing the 

current nonagricultural HOs. In that 

regard, the Department is nearing 

completion of its thorough review of the 

NIOSH recommendations that address 

the agricultural hazardous occupations 

orders. 

II. Summary of Comments 

A total of 28 comments were received 

and are available for review at the 

Federal eRulemaking Portal at http:// 

www.regulations.gov. The Docket ID for 

the NPRM that generated these 

comments is WHD–2007–0002. 

Comments were received from trade and 

professional associations; advocacy and 

occupational health and safety 

organizations; employers; federal, state, 

and local government agencies; 

representatives of schools and 

organizations that provide vocational 

training to youth; and one private 

citizen. The one private citizen 

comment, which concerned the issue of 

door-to-door sales, was incorrectly 

submitted to the ANPRM docket by the 

commenter and was assigned a 

Document ID of WHD–2007–0001–0004. 

One commenter, the International 

Association of Amusement Parks and 

Attractions, included comments from 

three of its member organizations along 

with its submission. Four of the 

comments do not address any of the 

issues raised by the April 17, 2007 

NPRM and focus solely on topics raised 

by the ANPRM that was published by 

the Department on that same day. One 

commenter, the National Children’s 

Center for Rural and Agricultural Health 

and Safety, did not address any specific 

proposal but expressed concerns that 

the Department has not yet 

implemented the NIOSH Report 

recommendations for agricultural HOs. 

In regards to the nonagricultural youth 

provisions, it stated that ‘‘it does not 

appear that protection of youth workers 

is at the heart of some of the proposed 

changes, but rather the needs of 

industry and special interest groups.’’ 

Many of the comments concerned a 

single issue or a cluster of issues 

impacting a single industry, but two 

comments were quite extensive and 

addressed almost every proposal raised 

by the NPRM. These comprehensive 

comments were submitted by the Young 

Workers Health and Safety Network 

(YWN) and the Child Labor Coalition 

(CLC). The Department appreciates the 

time and effort all of these commenters 

devoted to their submissions. 

The YWN is a subcommittee of the 

Occupational Health and Safety Section 

of the American Public Health 

Association. It described itself as an 

informal network of public health 

professionals, advocates, and 

government agency staff that includes 

individuals from academia, public 

health, labor law enforcement, health 

and safety consultation and/or 

enforcement, labor organizations, and 

educators. The YWN reported that, in 

formulating its comments, it tried to use 

the following principles: The 

regulations should protect youth from 

significant hazards; where possible, the 

regulations should be kept clear and 

consistent, limiting the number of 

exceptions or exemptions, thus fostering 

better compliance and more effective 

enforcement; and, the regulations 

should allow youth to do a broad variety 

of different types of potentially 

rewarding work. 

The CLC, which has more than 30 

member organizations, described itself 

as the largest grouping in the United 

States of advocates for the protection of 

the safety, health, and education of 

working children. The CLC reported 

that its comments are also endorsed by 

the following organizations: A Better 

World Foundation, A Minor 

Consideration, American Federation of 

Teachers, American Federation of 

School Administrators, Americans for 

Democratic Action, Association of 

Farmworker Opportunity Programs, 

Farmworker Justice, International 

Initiative to End Child Labor, Migrant 

Legal Action Program, National 

Association of State Directors of Migrant 

Education, National Consumers League, 

Ramsay Merriam Fund, and the United 

Food and Commercial Workers 

International Union. The CLC stated 

that its comments are in line with its 

stated mission and objectives, which 

include creating a network for the 

exchange of information about child 

labor, providing a forum and a unified 

voice on protecting working minors and 

ending child labor exploitation, and 

developing informational and 

educational outreach to the public and 

private sectors to combat child labor 

abuses and to promote progressive 

initiatives and legislation. The 

American Federation of Labor and 

Congress of Industrial Organizations 

(AFL–CIO), while submitting its own 

comments, also endorsed those 

submitted by the CLC. 

III. Regulatory Revisions 

Many of the revisions being made by 

this Final Rule will result in the 

redesignation of several sections and 

subsections of the regulations. In order 

to prevent confusion when providing 

citations in this discussion, the 

Department will provide, when 

appropriate, both the current citation 

(the citation prior to the effective date 

of this Final Rule) and the new citation 

(the citation that will apply on and after 

the effective date of this Final Rule). For 

example, the section of Reg. 3 that 

prohibits 14- and 15-year-olds from 

employment in occupations in 

connection with warehousing and 

storage would be cited as 

§ 570.33(f)(2)(old) or 

§ 570.33(n)(2)(new). 

A. Occupations That Are Prohibited for 

the Employment of Minors Between the 

Ages of 14 and 16 Years of Age (29 CFR 

570.31–.34) 

Section 3(l) of the FLSA defines 

oppressive child labor to expressly 

prohibit children under the age of 16 

from performing any work other than 

that which the Secretary of Labor 

permits, by order or regulation, upon 

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finding that it does not interfere with 

their schooling or health and well-being 

(see 29 U.S.C. 203(l), see also 29 CFR 

570.117–.119). Before 14- and 15-yearolds may legally perform work covered 

by the FLSA, the Act requires that the 

work itself be exempt, or that the 

Secretary determines that the work to be 

performed does not constitute 

oppressive child labor. The Secretary’s 

declarations of what work is not deemed 

oppressive for children between the 

ages of 14 and 16 appear in Reg. 3 (29 

CFR 570.31–.37). 

Reg. 3 identifies a number of 

occupations and activities that are 

specifically prohibited for these minors 

without regard to the industry or the 

type of business in which their 

employer is engaged (e.g., operating or 

tending any power-driven machinery 

other than office machines, see 

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

Reg. 3 also incorporates by reference all 

of the prohibitions contained in the 

Hazardous Occupations Orders (29 CFR 

570.50–.68), which identify occupations 

that are ‘‘particularly hazardous’’ and, 

therefore, prohibited for 16- and 17- 

year-olds (e.g., occupations involved in 

the operation of power-driven metal 

forming, punching, and shearing 

machines, see § 570.33(e) (old) and 

§ 570.33(b) (new)). 

As previously mentioned, Reg. 3 was 

revised to reflect the 1961 amendments 

to the FLSA which extended the Act’s 

coverage to include enterprises engaged 

in commerce or the production of goods 

for commerce and thereby brought more 

working youth employed in retail, food 

service, and gasoline service 

establishments within the protections of 

the Act. The current § 570.34(a) 

expressly authorizes the performance of 

certain activities by 14- and 15-year-olds 

in retail, food service, and gasoline 

service establishments, while 

§ 570.34(b) details those activities that 

14- and 15-year-olds are expressly 

prohibited from performing in such 

establishments. For example, clerical 

work, cashiering, and clean-up work are 

authorized, whereas ‘‘all work requiring 

the use of ladders, scaffolds, or their 

substitutes’’ is prohibited. These special 

rules currently apply only in the 

designated types of business. 

Since 1961, new, positive, and safe 

employment opportunities have opened 

up for youth in industries other than 

retail, food service, and gasoline service 

that the existing Reg. 3 does not 

specifically address. Jobs in such areas 

as state and local governments, banks, 

insurance companies, advertising 

agencies, and information technology 

firms all normally fall outside of the 

permitted establishments declared in 

Reg. 3. Because these jobs are not 

specifically permitted by § 570.33 (old), 

they are prohibited. There has been 

some confusion about this over the 

years. Some employers believe that 14- 

and 15-year-olds are permitted to be 

employed in any industry or 

occupations not expressly prohibited by 

Reg. 3, or that any employer in any 

industry is permitted to employ such 

youth in the occupations permitted by 

§ 570.34(a) (old). However, when those 

jobs are not located in retail, food 

service, or gasoline service 

establishments, the provisions of 

§ 570.34 (old) (both authorizations and 

prohibitions) do not apply to the 

employment of 14- and 15-year-olds. 

The exception to this rule is where there 

is some discrete operation or division 

that could legitimately be characterized 

as such an establishment and therefore 

would be subject to these rules (e.g., 

minors employed in a food service 

operation at a city park or a publicly 

owned sports stadium). The existing 

Reg. 3 prohibits employers such as state 

and local governments, banks, insurance 

companies, advertising agencies, and 

information technology firms from 

employing 14- and 15-year-old workers 

in any jobs other than those that occur 

in those discrete operations or divisions 

that could be characterized as retail, 

food service, or gasoline service 

establishments. 

In 2004, in recognition of the 

importance of youth employment 

programs operated by public sector 

employers that provide safe and 

meaningful developmental 

opportunities for young people, and in 

response to specific requests received 

from two municipalities, the 

Department adopted an enforcement 

position that permits state and local 

governments to employ 14- and 15-yearold minors under certain conditions. 

Consistent with its enforcement 

position, the Department exercised its 

prosecutorial discretion, as authorized 

by 29 U.S.C. 216(e), and declined to cite 

Reg. 3 occupations violations for the 

employment of 14- and 15-year-olds by 

state and local governments as long as 

that employment fell within the 

occupations authorized by Reg. 3 

(§ 570.34(a) (old)) and did not involve 

any of the tasks or occupations 

prohibited by Reg. 3 (§§ 570.33 and 

570.34(b) (old)). The Department 

enforced all the other provisions of Reg. 

3, including the restrictions on hours of 

work, with respect to the employment of 

such minors. 

The Department’s administration of 

this enforcement position permitting the 

employment of 14- and 15-year-olds by 

state and local governments has had 

extremely positive results. There are 

indications, as reported by state and 

local governments and reflected in WHD 

enforcement findings, that when such 

youth are employed under the 

guidelines established by the 

enforcement position, that employment 

does not interfere with their schooling 

or with their health and well-being, and 

thus is in accordance with the directive 

of the FLSA. 

Based upon the success of the above 

enforcement position, the Department, 

in the April 17, 2007 NPRM, proposed 

to revise and reorganize §§ 570.33 and 

570.34 to clarify and to expand the list 

of jobs that are either permitted or 

prohibited for minors who are 14 and 15 

years of age. The Department also 

proposed to remove the language that 

limited the application of § 570.34 to 

only retail, food service, and gasoline 

service establishments. As proposed, the 

revised § 570.33 detailed certain specific 

occupations prohibited for 14- and 15- 

year-olds. This revision also necessitates 

a change to § 570.35a(c)(3) (old) because 

it references §§ 570.33 and 570.34 as 

they pertain to Work Experience and 

Career Exploration Programs (WECEPs). 

The Department proposed to retain all 

the current prohibitions contained in 

§ 570.33 but would modify the 

prohibition regarding the employment 

of 14- and 15-year-olds in 

manufacturing occupations to comport 

with the provisions of the Consolidated 

Appropriations Act, 2004, which 

enacted section 13(c)(7) of the FLSA. 

The NPRM proposed to continue to 

allow the employment of 14- and 15- 

year-olds in all those retail, food service, 

and gasoline service establishment 

occupations in which they are currently 

permitted to be employed. 

The Department also proposed to 

apply to FLSA-covered nonagricultural 

employers of minors, with certain 

modifications, all the permitted 

occupations contained in § 570.34(a) 

(old) and all the prohibited occupations 

contained in § 570.34(b) (old) that 

currently apply only to retail, food 

service, and gasoline service 

establishments. This proposal would be 

accomplished by revising § 570.34 to 

identify permitted occupations. The 

Department also proposed to continue 

to permit youth 14- and 15-years of age 

to perform those occupations involving 

processing, operating of machines, and 

working in rooms where processing and 

manufacturing take place, that are 

currently permitted under § 570.34(a) 

(old), as referenced in § 570.34(b)(1) 

(old). 

As mentioned, certain modifications 

to the existing lists of permissible and 

prohibited occupations were also 

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28408 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

proposed. The traditionally prohibited 

occupations and industries would, after 

adoption of the proposal, be contained 

in a revised § 570.33, and all the 

permitted occupations and industries 

would be contained in a revised 

§ 570.34. The Department is aware that, 

given the FLSA’s mandate that before 

14- or 15-year-olds may legally be 

employed to perform any covered work, 

the Secretary of Labor must first 

determine that the work to be performed 

does not constitute oppressive child 

labor, it could choose to publish only a 

list of permissible occupations and 

industries, and not provide a list of 

certain commonly arising prohibited 

occupations and industries. However, 

the Department believes that by 

continuing the long-standing Reg. 3 

tradition of publishing lists of those 

occupations and industries in which 

such youth may be employed as well as 

detailed examples of those industries 

and occupations in which the 

employment of such youth is 

prohibited, it can greatly enhance the 

public’s understanding of these 

important provisions. The list of 

prohibited industries and occupations 

helps to define and to provide clarity to 

the list of permitted industries and 

occupations. However, the list of 

prohibited occupations is not intended 

to identify every prohibited occupation, 

but rather only to provide examples of 

those prohibited occupations that have 

historically been the most common 

sources of violations or concern. As 

previously explained, any job not 

specifically permitted is prohibited. 

The Department also understands 

that, given the constant development 

and changes occurring in the modern 

workplace, in continuing to provide a 

definitive list of permitted occupations 

and industries, it may unintentionally 

discourage the creation of positive and 

safe employment opportunities for 

young workers. But the Department 

believes that, by continuing its past 

practice of carefully reviewing inquiries 

regarding individual occupations or 

industries not currently addressed by 

Reg. 3 and then exercising its 

prosecutorial discretion and issuing 

enforcement positions that may 

eventually lead to rulemaking—as 

evidenced by certain revisions 

contained in this Final Rule—it has 

developed an efficient and effective 

mechanism which overcomes the 

limitations of a definitive list. The 

Department firmly believes that the 

limited and public exercise of its 

prosecutorial discretion is an efficient 

and legal tool available to the Secretary 

in the administration of the child labor 

provisions of the FLSA. 

The modifications to the list of 

prohibited occupations are as follows: 

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

Section 570.33(b) (old) prohibits 

youth 14 and 15 years of age from 

employment in occupations involving 

the operation or tending of any powerdriven machinery other than office 

equipment. The Department has always 

interpreted the term power-driven 

machinery very broadly to include 

machines driven by electrical, 

mechanical, water, or other power such 

as steam or hydraulic. The term also 

includes battery-operated machines and 

tools, but does not apply to machines or 

tools driven exclusively by human hand 

or foot power. 

Even though this prohibition is clear 

and quite broad, other sections of Reg. 

3 have traditionally named certain 

pieces of power-driven machinery so as 

to eliminate any doubt or confusion as 

to their prohibited status. For example, 

§ 570.34(a)(6) (old) prohibits the 

employment of 14- and 15-year-olds in 

the operation of power-driven mowers 

or cutters and § 570.34(b)(6) (old) 

prohibits the employment of such 

minors in occupations that involve 

operating, setting up, adjusting, 

cleaning, oiling, or repairing powerdriven food slicers, grinders, choppers, 

and cutters, and bakery-type mixers. 

The Department proposed to combine 

§§ 570.33(b), 570.34(a)(6), and 

570.34(b)(6)—all of which address 

power-driven machinery—into a single 

paragraph located at § 570.33(e) and 

expand the list of examples of 

prohibited equipment to include powerdriven trimmers, weed-eaters, edgers, 

golf carts, food processors, and food 

mixers. Even though Reg. 3 for many 

years has prohibited the employment of 

14- and 15-year-olds to operate any 

power-driven equipment other than 

office machines, the Department 

routinely receives inquiries as to the 

status of these individual pieces of 

equipment under Reg. 3. The 

Department believes that by continuing 

to reference certain common prohibited 

machinery by name, both clarity and 

compliance will be increased. 

The Department received six 

comments on this proposal. The YWN, 

CLC, and AFL–CIO supported the 

proposal to consolidate those 

subsections of Reg. 3 dealing with 

power-driven machinery into a single, 

new subsection located at § 570.33(e) 

and to expand the list of prohibited 

machinery, with certain caveats. The 

YWN and the AFL–CIO recommended 

that 14- and 15-year-olds also be 

prohibited from using espresso makers 

because, as the YWN reported, these 

machines involve a potential for serious 

burns. They create steam at a 

temperature that ‘‘clearly exceeds the 

temperature limits established for 

prohibiting use of other equipment such 

as anything related to hot oil that 

exceeds a temperature of 100 degrees F.’’ 

A representative of the Billings, 

Montana Job Service also questioned 

how the Department’s proposal 

addresses the employment of youth who 

operate espresso machines. 

The AFL–CIO and the CLC 

recommended that all-terrain vehicles 

(ATVs) be added to the list of prohibited 

machinery because, as the CLC reported 

‘‘The serious hazards of operating ATVs 

have been extensively documented.’’ 

Neither commenter provided any data 

or insight regarding how extensively 

ATVs are used by youth in 

nonagricultural employment or whether 

the documented hazards resulted in 

occupational injuries. The CLC also 

recommended that the proposed 

§ 570.33 include an introductory 

statement reinforcing the principle 

detailed in § 570.32 (new) that all work 

that is not specifically permitted is 

prohibited. 

The YWN also recommended that the 

Department specifically list ‘‘bladed 

blenders used to chop food items such 

as cookies or candy with ice cream to 

make ice cream desserts’’ as a prohibited 

machine in the revised § 570.33(e) as 

that subsection already prohibits the 

operating or tending of food grinders, 

food choppers, and cutters (see 

§ 570.34(b)(6) (old)). 

The National Council of Chain 

Restaurants (the Council), which 

described itself as a national trade 

industry group representing the 

interests of the nation’s largest multiunit, multi-state chain restaurant 

companies, requested that the proposed 

§ 570.33(e) include additional language 

which would emphasize that 14- and 

15-year-olds would continue to be 

permitted to operate all those pieces of 

kitchen equipment listed in 

§ 570.34(a)(7) (old) once the Final Rule 

becomes effective. 

The Council commented that it 

believes table top food processors and 

food mixers pose little risk of harm to 

the safety and well-being of 14- and 15- 

year-olds and questions why the 

Department continues to prohibit such 

youth from operating them (see 

§ 570.34(b)(6) (old) and § 570.33(e) 

(new)). The Council submitted no data 

to substantiate this comment. 

The Director of the Labor Standards 

and Safety Division of the Alaska State 

Department of Labor and Workforce 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28409 

Development (DOLWD) also supported 

the consolidation and listing of 

prohibited equipment with some 

exceptions. The DOLWD recommended 

that 14- and 15-year-olds should be 

permitted to operate weed eaters that 

use monofilament line (but not weed 

eaters that use metal blades) provided 

adequate eye and hearing protection are 

in place. That same office recommended 

that such youth be permitted to operate 

certain small, residential-sized washing 

machines and dryers when all safety 

equipment is properly installed. 

The Department has carefully 

reviewed the comments and has 

decided to adopt the proposal, as 

presented, with one modification. The 

Department will add ATVs to the list of 

prohibited equipment presented in the 

revised § 570.33(e) (new) as 

recommended by the AFL–CIO and 

CLC. As power-driven equipment, ATVs 

were, and continue to be, included in 

the broad prohibitions of this 

subsection. In addition, because ATVs 

are motor vehicles as defined by 

§ 570.52(c) (old and new), 14- and 15- 

year-olds would be prohibited from 

operating such equipment under 

§ 570.33(c) (old) and § 570.33(f) (new). 

But because greater clarity and 

protections can be realized, the 

Department will add ATVs to the list of 

named equipment. 

With regard to cooking and the use of 

kitchen equipment, the Department 

notes that it implemented new rules 

concerning the types of cooking that 

may be performed by 14- and 15-yearolds in its Final Rule published in the 

Federal Register on December 16, 2004 

(69 FR 75382). That Final Rule limited 

permitted cooking duties to cooking (1) 

with electric or gas grills which does not 

involve an open flame (see 

§ 570.34(b)(5)(i) (old) and § 570.34(c) 

(new)), and (2) cooking with deep fryers 

that are equipped with and utilize a 

device which automatically lowers the 

baskets into the hot oil or grease and 

automatically raises the baskets from the 

hot oil or grease (see § 570.34(b)(5)(ii) 

(old) and § 570.34(c) (new)). The 2004 

Final Rule, however, did not change the 

types of equipment and devices that 14- 

and 15-year-olds were permitted to, and 

continue to be permitted to, operate in 

accordance with § 570.34(a)(7) (old) and 

§ 570.34(i) (new). The list of permitted 

equipment includes, but is not limited 

to, dishwashers, toasters, dumbwaiters, 

popcorn poppers, milk shake blenders, 

coffee grinders, automatic coffee 

machines, devices used to maintain the 

temperature of prepared foods, and 

microwave ovens that do not have the 

capacity to warm above 140 °F. 

Although there may have been some 

confusion among employers, the 

Department has long interpreted the 

term toaster to mean that type of 

equipment that was generally found in 

snack bars and lunch counters when 

Reg. 3 was issued and used to toast such 

items as slices of bread and English 

muffins. This includes such equipment 

as the two- or four-slice ‘‘pop-up’’ 

toasters similar to those manufactured 

for home use and the conveyor-type 

bread toaster now often found at selfservice breakfast buffets. Broilers, 

automatic broiler systems, high speed 

ovens, and rapid toaster machines used 

at both quick service and full-service 

restaurants to toast such items as buns, 

bagels, sandwiches, and muffins—all of 

which operate at high temperatures, 

often in excess of 500 °F—are not 

toasters under § 570.34(a)(7) (old) and 

§ 570.34(i) (new) and minors generally 

must be at least 16 years of age to 

operate them. 

There has also been some confusion 

among employers as to what constitutes 

a milk shake blender under Reg. 3. The 

Department has long interpreted this 

term to mean that type of equipment 

that was generally found in snack bars 

and lunch counters when Reg. 3 was 

issued and used to prepare a ‘‘to-order’’ 

milk shake for an individual customer. 

Such equipment required that the 

worker place the ice cream, milk, and 

flavorings in a stainless steel mixing cup 

that generally has a maximum capacity 

of 20 ounces. The cup was then 

positioned on the machine so that the 

single spindle—with an aeration disk or 

disks mounted at the bottom—could 

blend the milk shake. Some permitted 

milk shake blenders had more than one 

spindle so multiple products could be 

processed simultaneously. Most of these 

blenders were free standing counter-top 

models while others were incorporated 

into other equipment such as milk 

dispensers. These are the types of milk 

shake blenders that 14- and 15-year-olds 

may operate under Reg. 3. 

Except as described below, other 

types of blenders, mixers, and 

‘‘blixers’’—used for a variety of food 

preparation operations including the 

blending of milk shakes—continue to be 

prohibited to that age group. Such 

prohibited equipment often have 

containers or mixing chambers that 

exceed a 20-ounce capacity—some can 

accommodate up to 60 quarts. In 

addition, some of this prohibited 

equipment, when used to process meat 

or mix batter—with or without the use 

of special ‘‘attachments’’—may not be 

operated by employees under the age of 

18 because of the prohibitions of HO 10 

or HO 11, respectively. 

The Department has also included 

certain countertop blenders used to 

make beverages such as milk shakes, 

fresh fruit drinks, and smoothies within 

the term milk shake blender as used in 

Reg. 3. Such machines generally consist 

of a base motor that supports a glass jar. 

The blending blades are attached, often 

permanently, to the bottom of the glass 

jar. Operators place the glass jar on top 

of the base, place the ingredients in the 

jar, affix the lid to the jar, press the 

appropriate button or switch, and blend 

the product. The permitted blenders are 

identical to models used in private 

homes, generally do not operate at more 

than 600 watts, and have jar capacities 

that do not exceed 8 cups (64 ounces). 

As with the blenders discussed above, 

their operation by minors under the age 

of 18 is prohibited under HO 10 when 

used to process meat. 

For these reasons, the Department 

does not agree with the YWN’s 

understanding that the existing 

regulation prohibits 14- and 15-yearolds from operating blenders that create 

ice cream desserts as the Department 

has previously opined that this 

equipment is a type of ‘‘milk shake 

blender’’ which has long been permitted 

by § 570.34(a)(7) (old) and will continue 

to be permitted by § 570.34(i) (new). 

The Department also notes that Reg. 3 

has for many years prohibited young 

workers from operating compact power 

mixers or blenders, also know as 

‘‘immersible wands’’ and ‘‘immersion 

blenders,’’ used for such tasks as 

liquefying soups and sauces and 

pureeing fruits, meats, and vegetables. 

Such equipment is often used in 

kitchens and by dietary aides at 

hospitals and nursing homes. The use of 

such equipment would also be 

prohibited by HO 10 when the mixer or 

wand is equipped with knives, blades, 

or cutting tools designed for use on meat 

and poultry. 

The Department did not propose to 

prohibit, and the Final Rule does not 

prohibit, 14- and 15-year-olds from 

operating espresso machines as 

recommend by the YWN, the AFL–CIO, 

and the representative of the Billings, 

Montana Job Service. Section 

570.34(a)(7) (old) specifically includes 

automatic coffee machines on the list of 

equipment that 14- and 15-year-olds 

may operate (see § 570.34(i) (new)). The 

Department has previously opined that 

espresso makers and cappuccino makers 

are types of automatic coffee machines 

and therefore 14- and 15-year-olds are 

permitted to operate them under the 

provisions of Reg. 3. The Department 

notes that the YWN’s comment that the 

temperature reached by espresso makers 

‘‘exceeds the temperature limits 

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28410 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

established for prohibiting use of other 

equipment such as anything related to 

hot oil that exceeds a temperature of 100 

degrees F’’ does not comport with either 

the previous or revised provisions of 

Reg. 3. The temperature of 100° F, when 

presented in § 570.34(a)(7) (old) and 

§ 570.34(i) (new), does not apply to the 

operation of kitchen equipment or to 

such permitted activities as cooking 

with certain grills or deep fryers. 

Instead, these subsections state that the 

minors are permitted to ‘‘clean kitchen 

equipment (not otherwise prohibited), 

remove oil or grease, pour oil or grease 

through filters, and move receptacles 

containing hot grease or hot oil, but only 

when the equipment surfaces, 

containers, and liquids do not exceed a 

temperature of 100 °F.’’ 

The Department has decided not to 

adopt the Council’s recommendation to 

revise Reg. 3 to permit 14- and 15-yearolds to operate table top food processors 

and food mixers as no such proposal 

was contemplated by the NPRM and no 

data has been received that 

demonstrates that 14- and 15-year-olds 

can safely operate such equipment. The 

Department does, however, address the 

issue of older youth operating certain 

counter-top mixers later in this Final 

Rule with regard to HO 11. 

The Department does not accept the 

DOLWD’s recommendation that Reg. 3 

be revised to permit 14- and 15-yearolds to operate certain weed-eaters 

because of the potential for injury 

associated with the operation of such 

equipment. In fact, as discussed earlier, 

weed-eaters are among the equipment 

the Department is adding as an example 

of power-driven machinery such youth 

are prohibited from operating (see 

§ 570.33(e) (new)). The Department 

continues to be concerned about issues 

involving injuries to workers resulting 

from flying objects, burns, fuel safety, 

and improper ergonomics. In its 

Document #5108, Weed Trimmers Can 

Throw Objects and Injure Eyes, the U.S. 

Consumer Product Safety Commission 

estimated that, in 1989, there were 

approximately 4,600 injuries associated 

with power lawn trimmers or edgers 

that required emergency room 

treatment. It reported that about onethird of those injuries were to the eye. 

Nor does the Department accept 

DOLWD’s recommendation to allow 14- 

and 15-year-olds to operate certain 

residential-style clothes washers and 

dryers. Not only is the operation of such 

power-driven machinery prohibited by 

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

the laundering of clothes and other 

materials generally constitutes a 

‘‘processing occupation’’ which is 

prohibited under § 570.33(a) (old and 

new). 

Finally, the Department has 

determined that the Final Rule provides 

sufficient clarity that it is not necessary 

to adopt the CLC’s recommended 

revision to the opening sentence of 

§ 570.33 to repeat the statement 

contained in § 570.32 (‘‘Employment 

that is not specifically permitted is 

prohibited.’’). For the same reason, the 

Department has decided not to accept 

the Council’s recommendation that 

§ 570.33(e) be revised to emphasize that 

youth will continue to be permitted to 

operate all kitchen equipment they were 

permitted to operate prior to the 

adoption of this Final Rule, as the list 

of permissible kitchen equipment is set 

forth in § 570.34(i)(new). 

2. Loading of Personal Hand Tools Onto 

Motor Vehicles and Riding on Motor 

Vehicles (§§ 570.33(f) and 570.34(b)(8)) 

Section 570.33(c) (old) prohibits the 

employment of 14- and 15-year-olds in 

the operation of motor vehicles or 

service as helpers on such vehicles. The 

term motor vehicle is defined in 

§ 570.52(c)(1). The Department has 

interpreted the Reg. 3 prohibition 

regarding service as helpers on a motor 

vehicle to preclude youth under the age 

of 16 from riding anywhere outside the 

passenger compartment of the motor 

vehicle. Such youth may not ride in the 

bed of a pick-up truck, on the running 

board of a van, or on the bumper of a 

refuse truck. This interpretation dates 

back to at least the 1940 enactment of 

HO 2, which prohibits 16- and 17-yearolds from serving as outside helpers on 

motor vehicles. 

The Department does not interpret the 

helper prohibition as applying to 14- 

and 15-year-olds who simply ride inside 

a motor vehicle as passengers and, thus, 

Reg. 3 permits a 14- or 15-year-old, 

under certain circumstances, to ride 

inside the enclosed passenger 

compartment of a motor vehicle 

operated by a driver whose employment 

complies with the conditions specified 

in HO 2. For example, a minor may ride 

in a motor vehicle to reach another work 

site where he or she will perform work, 

to receive special training or 

instructions while riding, or to meet 

other employees or customers of the 

employer. While a 14- or 15-year old 

may be a passive passenger in a vehicle, 

that same minor is not permitted to ride 

in a motor vehicle when a significant 

reason for the minor being a passenger 

is for the purpose of performing work in 

connection with the transporting—or 

assisting in the transporting—of other 

persons or property. Such work would 

include, for example, delivering items to 

a customer or assisting passengers with 

the loading and unloading of their 

luggage in conjunction with the 

operation of an airport shuttle van. This 

interpretation comports with the 

provision of § 570.33(f)(1) (old), which 

prohibits the employment of 14- and 15- 

year-olds in occupations in connection 

with the transportation of persons or 

property by highway. Performing work 

in connection with the transportation of 

other persons or property does not have 

to be the primary reason for the trip for 

this prohibition to apply. 

The Department proposed to include 

its long-standing interpretation that 

prohibits 14- and 15-year-olds riding 

outside of motor vehicles in Reg. 3 at 

§ 570.33(f) (new). The Department also 

proposed to revise Reg. 3 at § 570.34(o) 

(new) to permit 14- and 15-year-olds to 

ride in the enclosed passenger 

compartments of motor vehicles, except 

when a significant reason for the minors 

being passengers in the vehicle is for the 

purpose of performing work in 

connection with the transporting—or 

assisting in the transporting—of other 

persons or property. The proposal 

required that each minor must have his 

or her own seat in the passenger 

compartment, each seat must be 

equipped with a seat belt or similar 

restraining device, and the employer 

must instruct the minors that such belts 

or other devices must be used. These 

provisions mirror the requirements of 

the Drive for Teen Employment Act as 

contained in HO 2. 

In addition, the Department’s 

interpretation of prohibited helper 

services under § 570.33(c) (old), since at 

least the mid-1950s, has included the 

loading and unloading of materials from 

motor vehicles when the purpose of the 

operation of the vehicle is the 

transportation of such materials. Section 

570.33(f)(1) (old) furthers this 

prohibition by banning the employment 

of minors in occupations in connection 

with the transportation of property by 

highway. Section 570.34(b)(8) (old) 

prohibits the employment of such youth 

by retail, food service, and gasoline 

service establishments to load or unload 

goods to and from trucks, railroad cars, 

or conveyors. These prohibitions are 

designed to protect young workers from 

the hazards associated with loading 

docks, motor vehicles, and receiving 

departments; strains from lifting and 

moving heavy items; and falls and 

falling items. Accordingly, 14- and 15- 

year-olds generally have been 

prohibited from loading and unloading 

any property (not just ‘‘goods’’) onto and 

from motor vehicles, including the light 

personal hand tools they use in 

performing their duties. 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28411 

In 2000, the Department was 

requested by a municipality (the City) to 

review certain aspects of the 

prohibitions against employing 14- and 

15-year-olds to load onto and unload 

items from motor vehicles. The City 

advised the Department that, even with 

the adoption of the enforcement 

position that permits state and local 

governments to employ minors under 

certain conditions, it was being forced 

to abandon a youth-employment 

program that provided 14- and 15-yearolds 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, nonpower-driven tools each youth would 

personally use as part of his or her 

employment. The Department carefully 

considered this request and, again using 

its prosecutorial discretion, decided that 

it would not assert a violation of the 

child labor provisions when 14- and 15- 

year-old employees of state and local 

governments loaded and unloaded the 

light non-power-driven hand tools— 

such as rakes, hand-held clippers, and 

spades—that they personally use as part 

of their employment. The City was 

advised that this enforcement policy did 

not extend to other prohibited 

transportation-related work such as the 

loading or unloading of materials other 

than the light hand tools the minors 

may use on-the-job, such as trash or 

garbage, or power-driven equipment 

such as lawn mowers, edgers, and weed 

trimmers—the use of which by this age 

group is prohibited under Reg. 3. 

The Department proposed to revise 

Reg. 3 at new §§ 570.33(f) and (k) and 

570.34(k) to incorporate the 

enforcement position that allows 14- 

and 15-year-olds to be employed to load 

onto and unload from motor vehicles 

the light non-power-driven personal 

hand tools they use as part of their 

employment and to make it available to 

all covered employers, not just state and 

local governments. Such light nonpower-driven hand tools would include, 

but are not limited to, rakes, hand-held 

clippers, shovels, and brooms, but 

would not include items like lawn 

mowers or other power-driven lawn 

maintenance equipment. In addition, 

such minors would be permitted to load 

onto and unload from motor vehicles 

any personal protective equipment they 

themselves will use at the work site and 

any personal items such as backpacks, 

lunch boxes, and coats their employers 

allow them to take to the work site. 

Such minors would not be permitted to 

load or unload such jobsite-related 

equipment as barriers, cones, or signage. 

The Department received four 

comments addressing the proposal 

regarding riding on motor vehicles. The 

AFL–CIO and the DOLWD supported 

this proposal as written. The YWN 

supported the proposal with additional 

requirements. The YWN recommended 

that the proposed requirements that 

each seat occupied by a minor be 

equipped with a seat belt or similar 

restraining device and that the employer 

instruct the minors that such belts or 

other device must be used so that the 

employer is required to ensure that the 

seat belt or other device is actually used. 

In addition, the YWN would require 

that the driver of the vehicle 

transporting the minors have a valid 

driver’s license. The CLC objected to the 

Department’s proposal, stating that it 

did not have sufficient information on 

the underlying rationale for the 

proposed change to adequately 

comment on it. The CLC did, however, 

recommend that the seat restraining 

devices should ‘‘be required to be 

manufacturer-issued and not 

homemade, and the employer should be 

required to ‘ensure,’ and not just 

‘instruct’ that the restraining devices be 

used by the children.’’ 

The Department received four 

comments concerning the loading of 

personal hand tools onto motor vehicles 

at § 570.34(k) (new). The AFL–CIO 

supported the proposal as written. The 

CLC again stated that it did not have 

enough information to adequately 

comment on the proposal. The YWN 

agreed with this proposal with the 

added requirements that ‘‘[w]ritten 

permission from parent or legal 

guardian is required to permit employer 

to transport 14- and 15-year-olds and a 

copy of written permission must be 

maintained by employer’’ and ‘‘[a] minor 

cannot be abandoned at worksite 

without adult supervision.’’ The 

DOLWD supported the proposal 

provided adequate safety provisions 

were in place. The DOLWD stated that 

‘‘[t]hese provisions would include that 

the vehicle shall not be running and 

must be properly secured with the 

wheels blocked during any loading and 

unloading operations.’’ 

After carefully considering all the 

comments, the Department has decided 

to adopt the proposal as originally 

written, with one modification and 

minor editorial changes. The 

Department noted in its 2007 NPRM 

that it did not interpret the Reg. 3 helper 

prohibitions as applying to 14- and 15- 

year-olds who ride inside the enclosed 

passenger compartment of a motor 

vehicle when driven by a driver whose 

employment complies with HO 2 under 

specified conditions (see 72 FR 19343). 

The Department believes this longstanding important safety-affecting 

interpretation requiring compliance 

with HO 2 should be included in the 

regulatory language. In addition, the 

Department believes that the drivers of 

the vehicles transporting the young 

workers should, as recommended by the 

YWN, hold valid state drivers’ licenses. 

Accordingly, the Department has added 

the following sentence at the end of 

§ 570.34(o): In addition, each driver 

transporting the young workers must 

hold a State driver’s license valid for the 

type of driving involved and, if the 

driver is under the age of 18, his or her 

employment must comply with the 

provisions of § 570.52. 

While the Department appreciates the 

remaining safety-affecting 

recommendations made by the YWN, 

CLC, and DOLWD, it believes the 

provisions of the original proposal, 

when coupled with other existing state 

and federal provisions dealing with the 

safe operation of motor vehicles, will 

provide ample protections to young 

workers. In addition, when drafting the 

proposal regarding youth riding as 

passive passengers in motor vehicles, 

the Department looked for guidance for 

establishing the criteria regarding the 

use of seat belts or other safety 

restraining devices. The most recent 

guidance came from Congress with the 

enactment of The Drive for Teen 

Employment Act, Public Law 105–334, 

in 1998. This legislation added section 

13(c)(6) to the FLSA, which permits 17- 

year-olds to perform certain limited onthe-job driving under very specific 

conditions. One such condition is that 

the vehicle be equipped with a seat belt 

for the driver and any passengers and 

that the young driver’s employer has 

instructed the youth that the seat belts 

must be used when driving the vehicle. 

The Department believes by adopting in 

Reg. 3 the identical language contained 

in HO 2 (see § 570.52(b)), it not only 

provides a high degree of protection to 

young workers but also avoids potential 

confusion. 

3. Work in Meat Coolers and Freezers 

(§ 570.34(b)(7)) 

Section 570.34(b)(7) (old) prohibits 

14- and 15-year-olds from working in 

freezers and meat coolers. Since this 

section’s inception, the Department has 

interpreted it to mean that such youth 

are prohibited from working as dairy 

stock clerks, meat clerks, deli clerks, 

produce clerks, or frozen-food stock 

clerks where their duties would require 

them to enter and remain in the freezer 

or meat cooler for prolonged periods. 

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28412 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

Inventory and cleanup work, involving 

prolonged stays in freezers or meat 

coolers, are also prohibited. On the 

other hand, the Department has adopted 

an enforcement position since at least 

1981 that counter workers in quick 

service establishments or cashiers in 

grocery stores whose duties require 

them to occasionally enter freezers only 

momentarily to retrieve items are not 

considered to be working in the freezers. 

In order to provide clarification, the 

Department proposed to incorporate this 

long-standing interpretation into the 

regulations at § 570.33(i) (new). 

The Department received four 

comments on this proposal. The Council 

supported the proposal as written. The 

YWN not only disagreed with the 

proposal but suggested that the current 

prohibitions detailed at § 570.34(b)(7) 

(old) be expanded to include ‘‘any 

freezer or cooler regardless of product, 

including but not limited to meat, 

seafood, poultry or other produce.’’ The 

AFL–CIO supported the proposal but 

suggested that employers be required to 

keep the door open while the minor was 

inside the freezer, that the freezer door 

be equipped with an emergency release 

mechanism to ensure the youth can 

escape if the door is mistakenly shut, 

and that the employer provide 

unobstructed entry to and egress from 

the freezer. The CLC also made the same 

three recommendations as the AFL–CIO 

and stated that ‘‘[e]ven if DOL’s 

Occupational Safety and Health 

Administration (OSHA) has similar 

rules, these should be incorporated into 

the child labor regulations so that a DOL 

Wage and Hour Division inspector 

could assert a child labor violation 

rather than having the employer face 

two inspections, one by the Wage and 

Hour Division and another by OSHA.’’ 

The Department has carefully 

reviewed the comments and has 

decided to adopt the proposal as 

originally written with a conforming 

clarification in § 570.34(i). Even though, 

under this rule, 14- and 15-year-olds 

may only occasionally enter freezers 

momentarily to retrieve items (see 

§ 570.33(i) (new) and § 570.34(i) (new)), 

requiring that the door be kept open 

while they are inside the freezer could 

be unnecessarily burdensome in that, 

for energy efficiency and food 

sanitation, most freezers are equipped 

with self-closing doors. We note, as 

reported by the CLC, that OSHA, which 

is the recognized expert in occupational 

safety and health issues, already has in 

place important safety standards 

addressing emergency release 

mechanisms, panic bars, and 

unobstructed paths in the workplace— 

and that these standards protect all 

workers, not just those under the age of 

16. The Department believes that all 

these additional safety requirements, 

when coupled with the provisions of the 

revised § 570.33(i), adequately protect 

young workers who momentarily enter 

freezers. WHD and OSHA, as 

recommended by the CLC, will continue 

their partnership to leverage the 

education and outreach efforts and 

enforcement actions of each agency. 

Finally, the YWN’s recommendation 

that the proposal be expanded to 

include specific items being stored in 

the freezer or cooler, such as seafood 

and poultry, is unnecessary because, as 

discussed above, § 570.33 is a nonexhaustive list that only sets forth 

common examples of prohibited 

occupations. 

4. Youth Peddling 

The Department proposed to amend 

Reg. 3 and create § 570.33(j) to ban the 

employment of 14- and 15-year-old 

minors in occupations involving youth 

peddling, also referred to as ‘‘door-todoor 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 hightraffic 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 Doorto-Door Sales. The hearings included a 

staff study that documented many 

abuses that had occurred in this 

industry, including indentured 

servitude, physical and sexual abuse, 

and criminal activity. In 1998, the 

Interstate Labor Standards Association 

created a subcommittee to work towards 

ending door-to-door sales by children 

and recommended that the Department 

of Labor act as a national clearinghouse 

regarding information concerning doorto-door sales operations. In response to 

the 1994 ANPRM issued by the 

Department, calls for banning door-todoor sales by those under 18 years of 

age were received from the National 

Consumers League, the Defense for 

Children International, USA, and the 

Food and Allied Service Trades 

Department, AFL–CIO. At least 17 states 

have rules prohibiting or regulating 

door-to-door sales by minors. 

The Department’s proposal to prohibit 

youth peddling was not limited to just 

the attempt to make a sale or the actual 

consummation of a sale, but includes 

such activities normally associated with 

and conducted as part of the individual 

youth peddler’s sales activities, such as 

the loading and unloading of vans or 

other motor vehicles, the stocking and 

restocking of sales kits and trays, the 

exchanging of cash and checks, and the 

transportation of minors to and from the 

various sales areas by the employer. 

As used here, the terms youth 

peddling, door-to-door-sales, and street 

sales do not include legitimate fundraising activities by eleemosynary 

organizations such as cookie sales 

conducted by the Girl Scouts of America 

or school fund-raising events where the 

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students are truly volunteers and are not 

promised compensation for the sales 

they make. The term compensation 

would not include the small prizes, 

trophies, or other awards of minimal 

value that the eleemosynary 

organization may give a volunteer in 

recognition of his or her fund raising 

efforts. In administering the FLSA, the 

Department does not consider such 

individuals, who volunteer or donate 

their services, usually on a part-time 

basis, for public service, religious, or 

humanitarian objectives, without 

contemplation of pay, to be employees 

of the religious, charitable, or similar 

nonprofit corporations that receive their 

services. In addition, FLSA section 

3(e)(4)(A) excludes from the definition 

of ‘‘employee’’ individuals who 

volunteer to perform services for public 

agencies. These provisions apply 

equally whether the volunteer is an 

adult or a minor. 

The Department received five 

comments on this proposal. One private 

citizen, who submitted his comment to 

the electronic docket for the ANPRM 

published on April 17, 2007, was the 

only commenter to oppose the proposal. 

This commenter stated that through 

door-to-door sales ‘‘many kids learn how 

to be confident and build 

communication skills with adults.’’ 

The DOLWD supported this proposal 

and noted that Alaska State regulations 

restrict any worker under the age of 18 

from working in door-to-door sales. The 

YWN, the AFL–CIO, and the CLC also 

supported this proposal and 

recommended that the prohibitions 

against youth peddling be extended to 

the employment of 16- and 17-year-olds. 

In addition, the YWN recommended 

that the Department amend the first 

sentence of proposed § 570.33(j) to 

prohibit sales by youth ‘‘in front or 

around the outside of retail 

establishments’’ as ‘‘many youth peddle 

wares outside grocery stores, large chain 

or box stores, etc.’’ The YWN also 

recommended that the Department not 

use the term ‘‘eleemosynary’’ in the 

regulations but replace it with ‘‘plain 

English words, such as ‘non-profit, 

religious or charitable organizations’ to 

assure understanding by all parties.’’ 

The YWN assumed that the 

Department’s proposal would also ban 

the employment of 14- and 15-year-olds 

to perform sign waving, ‘‘including 

holding or carrying of any type, posing 

or acting as a sign not directly in front 

of a retail establishment, or where no 

direct supervision exists’’ (emphasis in 

original). The YWN recommended that 

such sign waving activities also be 

prohibited along public roads and 

grassy areas or median areas next to 

public streets or traffic. The CLC stated 

that it is not clear whether such sign 

waving activities would be prohibited 

under the Department’s proposal. 

The CLC recommended that the 

proposal clarify where young employees 

of retail establishments may legally 

make sales. The CLC assumed that the 

youth-employer’s establishment ‘‘means 

inside or directly outside the 

establishment, but not away from the 

establishment, such as on a street corner 

or parking lot. This should be made 

more explicit by barring youth peddling 

‘in front or around the outside of the 

establishment.’’’ Finally, the CLC noted 

the Department’s statement that youth 

peddlers performing outside sales are 

usually exempt from the minimum wage 

and overtime provisions of the FLSA 

and took issue with the Department’s 

failure to ban peddling by 16- and 17- 

year-olds as well. The CLC commented 

that ‘‘DOL’s approach here hardly 

comports with its stated desire to 

balance ‘the benefits of employment 

opportunities with the necessary and 

appropriate safety protections’ (72 FR 

19337). The benefits of an employment 

opportunity in which the children 

experiencing it are ‘usually’ not entitled 

to minimum wage or overtime pay are 

difficult to understand.’’ 

The Department has carefully 

reviewed the comments and has 

decided to adopt the proposal with 

certain clarifying modifications. The 

Department appreciates the concerns 

raised by the YWN, the AFL–CIO, and 

the CLC regarding the scope of the term 

youth-employer’s establishment. Under 

§ 570.33(j) as originally proposed, a 

retail establishment that sets up an 

outside sales center to sell such things 

as garden supplies, plants, outdoor 

furniture, portable grills, Christmas 

trees, etc., that participates in a retailer 

association neighborhood ‘‘sidewalk 

sale’’ event, or that routinely displays its 

wares outside its building may question 

whether it could use its young sales staff 

in such endeavors. In order to eliminate 

confusion and provide clarity, the 

Department has added a statement to 

§ 570.33(j) noting that the ban on youth 

peddling does not prohibit a young 

salesperson from conducting sales for 

his or her employer on property 

controlled by the employer that is out of 

doors but may still properly be 

considered part of the employer’s 

establishment. Fourteen- and 15-yearolds may conduct sales in such 

employer’s exterior facilities, whether 

temporary or permanent, as garden 

centers, sidewalk sales, and parking lot 

sales, when they are employed by that 

establishment. 

The Department agrees with the 

recommendations of both the YWN and 

CLC that the regulatory text be revised 

to specifically state that 14- and 15-yearolds may not be employed as signwavers, promoting particular products, 

services, or events, except when 

performing the sign waving activities 

directly in front of an establishment 

providing the product, service or event. 

Because sign wavers and those hired to 

wave or hold up other products, or wear 

placards, sandwich boards, or costumes 

to attract potential customers are 

exposed to many of the same dangers 

associated with youth peddling, the 

following sentence has been added to 

§ 570.33(j): Prohibited youth peddling 

also includes such promotion activities 

as the holding, wearing, or waving of 

signs, costumes, sandwich boards, or 

placards in order to attract potential 

customers, except when performed 

inside of, or directly in front of, the 

employer’s establishment providing the 

product, service, or event being 

advertised. 

The Department appreciates the 

concerns of those commenters who 

recommended that the ban on youth 

peddling should be extended to all 

youth under the age of 18 years, but 

considers such a change too substantive 

to adopt without additional rulemaking. 

The Department notes that the NIOSH 

Report, after carefully reviewing the 

available data, did not include youth 

peddling as one of the 17 occupations 

warranting the creation of a new 

Hazardous Occupations Order (HO). 

However, the Department appreciates 

the AFL–CIO’s recommendation that 

‘‘DOL begin gathering the necessary data 

to substantiate and justify the need for 

extension of this coverage for future 

proposed regulations as quickly as 

possible.’’ 

Finally, with regard to the CLC’s 

comment regarding wages, the fact that 

youth who conduct door-to-door sales 

usually are exempt from the minimum 

wage and overtime provisions of the 

FLSA in no way detracts from the 

Department’s stated objective to develop 

updated, realistic health and safety 

standards for today’s young workers that 

are consistent with the established 

national policy of balancing the benefits 

of employment opportunities for youth 

with the necessary and appropriate 

safety protections. When Congress 

enacted the FLSA in 1938, it created 

section 13(a)(1), which provides a 

complete exemption from the minimum 

wage and overtime provisions for 

employees employed in the capacity of 

outside salesman. The definition of that 

term, contained in 29 CFR 541.500, 

applies regardless of the age of the 

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28414 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

employee and clearly includes youth 

peddlers as described in § 570.33(j) 

(new). The FLSA, as amended, includes 

other exemptions from the minimum 

wage and overtime provisions that 

impact jobs often performed by young 

workers, such as those contained in 

section 13(a)(3) (involving employees 

employed by an establishment which is 

an amusement or recreational 

establishment, organized camp, or 

religious or non-profit educational 

conference center); section 13(a)(15) 

(involving any employee employed on a 

casual basis in domestic service 

employment to provide babysitting 

services); and section 13(d) (involving 

any employee engaged in the delivery of 

newspapers to the consumer). The 

Department cannot enforce a minimum 

wage requirement for employees whom 

the Congress has statutorily exempted 

from the minimum wage and overtime 

provisions of the FLSA. Nor can it ban 

certain employment for young workers 

solely because the employees engaged 

in such employment are exempt from 

the FLSA’s minimum wage and/or 

overtime requirements. The Department 

notes that the exemption from minimum 

wage and overtime contained in section 

13(a)(1) for outside salespeople does not 

apply to individuals employed solely to 

wave signs or wear placards, sandwich 

boards, or costumes to attract potential 

customers as such promotion work is 

not performed in conjunction with sales 

actually made by those individuals (see 

§ 541.503). 

5. Poultry Catching and Cooping 

The Department has long taken the 

position that 14- and 15-year-olds may 

not be employed to catch and coop 

poultry in preparation for transportation 

or for market because it is a ‘‘processing’’ 

occupation prohibited by § 570.33(a) 

(old and new). Such employees are 

often referred to as ‘‘chicken catchers’’ or 

‘‘poultry catchers.’’ In addition, the 

prohibitions against operating or 

tending power-driven equipment 

contained in § 570.33(b) (old) and 

§ 570.33(e) (new) and the prohibition 

against employment in occupations in 

connection with the transportation of 

property contained in § 570.33(f)(1) 

(old) and § 570.33(n)(1) (new) generally 

preclude the employment of such youth 

as poultry catchers. These activities are 

normally performed in environments 

and under conditions that present risks 

of injury and illness to young workers. 

Working in the dark, with the only 

illumination provided by ‘‘red lights’’ 

which the fowl cannot see, and in 

poorly ventilated rooms, is not 

uncommon. The risks associated with 

poultry catching also occur in the 

catching and cooping of poultry other 

than chickens—for example, processors 

of turkeys and Cornish game hens 

employ similar methods of moving their 

products to slaughter. 

Despite the Department’s consistent 

interpretation that 14- and 15-year-olds 

may not be employed as poultry 

catchers, employers still have questions 

concerning how the regulations address 

such work, and violations still occur. 

For example, the Department 

investigated the death of a 15-year-old 

male in 1999 who was employed as a 

poultry catcher, working in the dark and 

under red lighting, in Arkansas. The 

youth was electrocuted shortly after 

midnight when he bumped into a fan 

while performing his ‘‘catching’’ duties. 

In order to remove any confusion and 

increase employer compliance, the 

Department proposed to amend Reg. 3 

and create § 570.33(l) to specifically 

prohibit the employment of 14- and 15- 

year-old minors in occupations 

involving the catching and cooping of 

poultry for preparation for transport or 

for market. The prohibition would 

include the catching and cooping of all 

poultry, not just chickens. 

It is important to note that in those 

rare instances when the catching 

activities would be agricultural in 

nature, such as where poultry catchers 

are employed solely by a farmer on a 

farm to catch poultry raised by that 

farmer, the catchers would be subject to 

the agricultural child labor provisions 

contained in FLSA sections 13(c)(1) and 

(2). 

The Department received three 

comments on this proposal. The YWN, 

AFL–CIO, and CLC all supported the 

proposal as written. The CLC stated that 

it welcomes the change as this work is 

plainly too hazardous for 14- and 15- 

year-olds to perform. The Department is 

adopting this proposal as written with 

one grammatical change. 

B. Occupations That Are Permitted for 

Minors Between 14 and 16 Years of Age 

(29 CFR 570.33–.34) 

As mentioned, section 3(l) of the 

FLSA expressly prohibits children 

under the age of 16 from performing any 

work other than that which the 

Secretary of Labor permits, by order or 

regulation, upon finding that it does not 

interfere with their schooling or health 

and well-being (see 29 U.S.C. 203(l)). 

Before a 14- or 15-year-old may legally 

perform work covered by the FLSA, the 

Act requires that the work itself be 

exempt, or that the Secretary of Labor 

has determined that the work to be 

performed does not constitute 

oppressive child labor. The Secretary’s 

declarations of what forms of labor are 

not deemed oppressive for children 

between the ages of 14 and 16 appear in 

Reg. 3 (29 CFR 570.31–.37) (old). 

Reg. 3 identifies a number of 

occupations or activities that are 

specifically permitted for the 

employment of youth 14 and 15 years of 

age in retail, food service, and gasoline 

service establishments. As mentioned, 

the Department proposed to revise this 

list of permitted occupations by 

clarifying it, adding to it, and extending 

its application to all employment 

covered by the FLSA, except those 

employers engaged in mining or 

manufacturing, or any industry or 

occupation prohibited by the proposed 

§ 570.33. This revised list will be 

contained in § 570.34 in the Final Rule. 

The Department received six 

comments concerning the revision of 

the list of permitted occupations and/or 

the expansion of the list to include 

establishments other than retail, food 

service, and gasoline service. Two of the 

commenters made recommendations 

that are beyond the purview of the 

Department as they would require 

changes to the statute. The DOLWD 

recommended that the Department 

focus on identifying the specific areas 

and occupations where work is 

prohibited and eliminate the specific 

provisions concerning where work is 

permitted. A representative of an 

educational management company 

called White Hat Management, LLC 

(White Hat) recommended that the 

FLSA’s blanket prohibition against 14- 

and 15-year-old being employed in 

manufacturing occupations should be 

relaxed, stating that ‘‘in today’s day and 

age when so many manufacturing jobs 

are automated and operated by 

computers or buttons, that a blanket 

prohibition for manufacturing 

employment hardly seems appropriate.’’ 

Such recommendations do not comport 

with the FLSA’s statutory directive that 

14- and 15-year-olds may not be 

employed in manufacturing or mining 

occupations and may only hold such 

employment that the Secretary has 

determined, by regulation or order, does 

not constitute oppressive child labor 

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

The AFL–CIO, YWN, and CLC all 

expressed concern about this proposal, 

stating that such sweeping changes 

would allow 14- and 15-year-olds to 

work in many more industries, and they 

recommended that the Department 

conduct further analysis. They 

specifically mentioned and questioned 

the efficacy of permitting youth 

employment in particular industries and 

employment situations. 

The AFL–CIO, YWN, and CLC also 

noted that this proposal would allow 

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youth to perform janitorial and clean-up 

work, work already permitted within 

retail, food service, and gasoline service 

establishments by § 570.34(a)(6) (old), in 

additional types of establishments. They 

stated that such employment includes 

the potential for exposure to hazardous 

and toxic chemicals or to bloodborne 

pathogens, particularly in medical and 

dental offices, hospitals and nursing 

homes, and when youth accept 

employment with professional janitorial 

services. There were also concerns that 

14- and 15-year-olds could now become 

full-time janitors and spend an entire 

shift performing cleaning duties. 

In addition, the CLC interpreted this 

proposal as having a major impact on 

messenger services. It stated that 

because § 570.33(d) (old) and 

§ 570.33(m) (new) prohibit the 

employment of 14- and 15-year-olds by 

a public messenger service, adoption of 

this proposal implies that employment 

of such youth by a private messenger 

service would be permitted. The CLC 

described private messenger services as 

those that ‘‘have standing contracts with 

law firms, accounting firms, and other 

types of businesses’’ to deliver 

documents or packages. The CLC stated 

‘‘[a]ny reasonable person who has seen 

such couriers rushing through city 

streets, dodging cars, pedestrians, and 

other cyclists to deliver important 

documents, would shudder to think that 

14- and 15-year-olds would be able to 

do this work, if DOL’s proposal becomes 

the final regulation.’’ 

The CLC stated that adoption of this 

proposal would allow 14- and 15-yearolds to perform office work for such 

employers as accounting firms, 

advertising agencies, mass mailing 

businesses, insurance companies, and 

many similar businesses. It expressed 

concerns that office equipment, such as 

large paper shredders and data 

processing machines with exposed 

moving parts, may present hazards to 

young workers. In addition, the CLC 

noted that such minors would be 

permitted to work up to eight hours a 

day and up to forty hours a week at 

computers, typing or inputting data, 

during non-school weeks. 

Finally, a representative of the Coosa 

Valley Regional Development Center 

requested that 14- and 15-year-olds be 

permitted to be employed in painting 

activities because the ‘‘paint products in 

use today do not contain lead or other 

hazardous materials.’’ She stated that 

prohibiting this age group from painting 

activities restricts their employment 

activities. She recommended that the 

prohibitions involving the use of 

ladders and scaffolds by this age group 

be retained. 

The Department has carefully 

reviewed all the comments and has 

decided to adopt the proposal as 

written. The concerns of the AFL–CIO, 

YWN, and CLC about increased youth 

employment in several industries, such 

as dry cleaning and laundry services, 

treating and disposing of waste, mass 

mailing enterprises, and the painting of 

houses and automobiles, are unfounded. 

This is because § 570.33(a) (old and 

new) prohibits the employment of 14- 

and 15-year-olds in almost all 

occupations involving processing 

operations—which the Department has 

interpreted to include dry cleaning and 

laundering, the treating and disposing of 

waste, the conducting of mass mailings, 

and the painting of houses and 

automobiles. The Department does not 

believe it is appropriate to overturn the 

long-standing prohibitions against 14- 

and 15-year-olds being employed in 

construction or processing occupations 

by accepting the recommendation of the 

Coosa Valley Regional Development 

Center to allow such youth to perform 

painting activities. 

In addition, § 570.33(a) (old and new) 

provides additional protections as it 

prevents the employment of such youth 

in work places where goods are 

manufactured, mined, or otherwise 

processed. Fourteen- and 15-year-olds 

could not be employed to clean such 

work places, even after hours, because 

of WHD’s long-standing interpretation 

that a work place retains its character— 

and child labor continues to be 

prohibited—even at times when nothing 

is being mined, processed, or 

manufactured. It is also important to 

note that all the prohibited occupations 

detailed in § 570.33 (new) would be 

applicable to the employment of 14- and 

15-year-olds, regardless of the industries 

in which they are employed. 

The Department appreciates and 

understands the commenters’ concerns 

about the potential occupational 

exposure of young workers to hazardous 

and toxic chemicals or to bloodborne 

pathogens. The Department believes 

that the standards established by OSHA 

to address such potential exposures, 

which are continually under agency 

review, provide vigorous protections to 

all workers. The WHD is also reviewing 

prohibitions regarding the potential 

exposure of young workers to ionizing 

radiation, as reflected in the publication 

of the 2007 ANPRM. 

The Department would also note that, 

as mentioned by the CLC, 14- and 15- 

year-olds have been permitted to be 

employed by hospitals and nursing 

homes for many years. This is because 

historically such facilities, when open 

to the general public, have been 

considered to have a retail concept. The 

Department continues to issue full-time 

student subminimum wage certificates 

to such employers under FLSA section 

14(b) because of their retail character. In 

addition, such youth have been 

permitted to be employed, and have 

been safely employed, as janitors at 

many retail and food service 

establishments over the years, including 

department stores, hotels, amusement 

parks, restaurants, and large discount 

stores. 

It is important to note that the CLC is 

incorrect in its assumption that this 

proposal would permit the employment 

of 14- and 15-year-olds by messenger 

service firms that ‘‘have standing 

contracts with law firms, accounting 

firms, and other types of businesses’’ to 

deliver documents or small packages. 

The Department has opined, as early as 

1989, that the term public messenger 

service involves that delivery service 

rendered to a company which takes 

messages, small parcels, etc. from one 

party for delivery to another party. The 

public messenger goes between two 

parties, neither of whom is necessarily 

known to the messenger. The term 

public in this context refers to the 

customers being served and not the 

nature of the ownership of the firm. 

Accordingly, a 16-year minimum age is 

required for employment in such 

messenger services. The CLC is correct 

in its interpretation that 14- and 15- 

year-olds are permitted under 

§ 570.34(a)(4) (old) and § 570.34(g) 

(new) to perform errand and delivery 

work by foot, bicycle, and public 

transportation for their employers when 

their employers are not engaged in the 

business of providing messenger 

services to others. 

The Department agrees with the CLC 

that the adoption of this proposal will 

allow 14- and 15-year-olds to be 

employed to perform office work for 

such employers as accounting firms, 

advertising agencies, and insurance 

companies; and that such youth could, 

under the proper circumstances, work 

as many as eight hours in a day and 

forty hours in a week when school is not 

in session. The Department, however, 

does not agree that such an expansion 

of positive youth opportunities is 

improper or in any way fails to comport 

with the requirements and spirit of 

FLSA section 3(l). Office work 

continues to be one of the safest 

occupations available to young workers. 

Moreover, this rule does not change the 

limitations on the number of hours per 

day or per week that 14- and 15-yearolds may work when school is not in 

session. 

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The Department also proposed to 

revise § 570.34(a)(8) (old) by clarifying 

that 14- and 15-year-olds may perform 

car cleaning, washing, and polishing, 

but only by hand (see § 570.34(n) 

(new)). Such youth are prohibited from 

operating or tending any power-driven 

machinery, other than office equipment, 

and this prohibition has always 

included automatic car washers, powerwashers, and power-driven scrubbers 

and buffers. The Department believes 

this clarification will provide guidance 

to employers. 

The Department received three 

comments on this proposal. The YWN 

supported the proposal as written. The 

CLC supported this proposal but again 

expressed concern based on its 

erroneous assumption that such youth 

could be employed to paint 

automobiles. The National Automobile 

Dealers Association (NADA) took 

‘‘strong exception to this ‘clarification’ ’’ 

(emphasis in original). NADA stated 

that vehicle washing ‘‘anecdotally is 

known as the classic entry-level 

dealership employment activity * * * 

Vehicle cleaning, washing, and 

polishing activities commonly involve 

small portable power-washers and 

hand-tool buffers’’ (emphasis in the 

original). NADA stated that nowhere in 

the regulatory history of § 570.34(a)(8) 

or in the NIOSH Report has any 

suggestion been made that powerequipment-assisted motor vehicle 

cleaning, washing, and polishing 

activities pose ‘‘significant safety or 

health risks to 14- and 15-year-olds.’’ 

NADA also recommended that the word 

car in § 570.34(a)(8) (old) be replaced 

with the words motor vehicles so such 

youth may be permitted to wash 

additional types of motor vehicles such 

as SUVs, station wagons, and vans. 

The Department has considered the 

comments and has decided to adopt the 

proposal as written. The Department 

believes this revision to be nothing more 

than a clarification of its long-standing 

interpretation of the regulations. 

Contrary to NADA’s statement, Reg. 3, 

of which § 570.34(a)(8) is a part, has 

clearly stated in § 570.33(b) for many 

years that 14- and 15-year-olds may not 

be employed in ‘‘occupations which 

involve the operation or tending of 

hoisting apparatus or of any powerdriven machinery other than office 

machines’’ (emphasis added). If 

employers have allowed FLSA covered 

and nonexempt 14- and 15-year-olds to 

wash or polish cars and trucks using 

power-driven washers or hand-tool 

buffers, they have done so in violation 

of the federal child labor provisions. 

The NIOSH Report did not mention the 

provisions of § 570.34(a)(8) because the 

Report dealt exclusively with HOs, 

which address work that is particularly 

hazardous or detrimental to the health 

and well-being of 16- and 17-year-old 

minors. Even if NADA had presented 

data supporting its statement that 

power-equipment-assisted motor 

vehicle washing and polishing poses 

‘‘no significant safety or health risks to 

14- and 15-year-olds,’’ the Department 

notes that such a standard is 

considerably more lax than the FLSA 

section 3(l) standard the Secretary must 

apply when determining permissible 

employment opportunities for such 

youth. Finally, the Department does not 

accept NADA’s recommendation to 

expand § 570.34(a)(8) (old) to include all 

motor vehicles. The Department has 

long interpreted the term cars and 

trucks as used in § 570.34(a)(8) to 

include station wagons, SUVs, and 

passenger vans. The term does not 

include larger vehicles such as buses, 

tractor-trailers, and heavy-construction 

equipment—all of which would 

generally be considered motor vehicles 

under Reg. 3 and HO 2. 

The additional occupations the 

Department proposed to permit 14- and 

15-year-olds to perform are discussed 

below: 

1. Work of a Mental or Artistically 

Creative Nature 

The Department has routinely 

received inquiries asking whether 14- 

and 15-year-old youth may be employed 

to perform certain mental or artistically 

creative activities in industries not 

specifically permitted by Reg. 3. The 

inquiries have concerned such jobs as a 

computer programmer and computer 

applications demonstrator for a college, 

print and runway model, and musical 

director at a church or school. Often, 

these inquiries involved students who 

are especially gifted or career oriented 

in a particular field. A strict adherence 

to Reg. 3 requirements would not permit 

the employment of a 14- or 15-year-old 

in any of these scenarios, even though 

talented and motivated youth could 

safely and successfully perform these 

tasks without interfering with their 

schooling or health and well-being. 

The Department proposed to revise 

Reg. 3 at § 570.34(b) (new) to permit the 

employment of 14- and 15-year-olds to 

perform work of a mental or artistically 

creative nature, such as computer 

programming, the writing of software, 

teaching or performing as a tutor, 

serving as a peer counselor or teacher’s 

assistant, singing, playing a musical 

instrument, and drawing. Permitted 

work of a mental nature would be 

limited to work that is similar to that 

performed in an office setting and not 

involving the use of any power-driven 

equipment other than office machines. 

Artistically creative work would be 

limited to work in a recognized field of 

artistic or creative endeavor. The 

employment would be permitted in any 

industry other than those prohibited by 

Reg. 3 and would also be subject to all 

the applicable hours and times 

standards established in § 570.35 and 

the prohibited occupation standards 

contained in § 570.33. 

The Department received comments 

from the YWN and CLC on this 

proposal. Both commenters supported 

the proposal, but made additional 

recommendations. The YWN suggested 

that the Department replace the word 

mental with intellectual, so that the 

phrase in the subsection would read 

‘‘work of an intellectual or artistically 

creative nature.’’ The YWN 

recommended that, for work of an 

artistic nature, certain locations such as 

tattoo and body piercing establishments 

should be excluded due to the potential 

for exposure to bloodborne pathogens. 

The YWN also stated that the proposal 

should prohibit youth employed in 

artistic endeavors from performing work 

that would expose them to carcinogenic, 

toxic, or hazardous substances, or to 

high heat. ‘‘For example, 14- and 15- 

year-olds would be permitted to work 

on a pottery wheel, but would be 

prohibited from applying certain glazes 

and would be prohibited from any work 

on or around the high heats of a pottery 

kiln. Another example would be that 14- 

and 15-year-olds would be permitted to 

sculpt, but would be prohibited from 

welding and soldering or any functions 

that expose them to heat, or to height or 

other existing restrictions.’’ Finally, the 

YWN believed that some artistically 

creative work may ‘‘push the envelope 

on exploitative labor and/or prove 

detrimental to the morals of youth.’’ 

The CLC also supported this proposal 

with additional comments and 

recommendations. The CLC noted that 

although the proposed § 570.34(b) 

contains the statement that artistically 

creative work is limited to work in a 

recognized field of artistic or creative 

endeavor, it does not define the term 

artistic or creative endeavor. The CLC 

correctly stated that another of the 

Department’s regulations, 29 CFR 

541.302(b), advises this term includes 

such fields as music, writing, acting, 

and the graphic arts. The CLC also 

expressed concerns that singing and the 

playing of musical instruments are often 

in demand ‘‘in bars, lounges, cabarets, 

and other places that 14- and 15-yearolds might best avoid. These and other 

settings could cause untoward effects on 

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such youngsters’ moral health, even if 

not on their physical health and safety.’’ 

The Department has carefully 

considered the comments and has 

decided to adopt the proposal with one 

modification. The Department agrees 

with the YWN that the word intellectual 

better comports with the intent of this 

proposal than the word mental. 

Accordingly, the Department is revising 

the proposed § 570.34(b) to reflect this 

suggested change. 

The Department understands the 

concerns of both commenters as to the 

types of tasks young workers would be 

permitted to perform under the 

umbrella of ‘‘artistic or creative 

endeavors’’ and notes that it will rely on 

29 CFR 541.302(b)—which limits the 

scope of this term to such fields as 

music, writing, acting, and the graphic 

arts—for guidance. The Department 

wishes to address concerns raised by the 

YWN by stating that it does not consider 

tattooing or body piercing performed by 

employees under the age of 16 years to 

be artistically creative endeavors under 

§ 541.302(b). 

The Department also notes that 14- 

and 15-year-olds who are employed in 

artistic or creative endeavors will 

continue to be prohibited from 

performing any of the occupations or 

tasks detailed in the revised § 570.33. 

These prohibitions, which include work 

in manufacturing and processing 

occupations, the operation of most 

power-driven equipment, and any 

duties in work rooms or work places 

where goods are manufactured or 

processed, should alleviate many of the 

concerns raised by the YWN and CLC. 

These prohibitions would prevent a 14- 

or 15-year-old from working in a factory 

or workroom as a ‘‘molder’’ or ‘‘hand 

painter’’ producing mass quantities of 

nearly identical pottery or ceramic 

items, but when coupled with this Final 

Rule, they would permit the youth to 

express his or her artistic talents to 

shape by hand a unique clay pot or 

sculpt a piece of art. Likewise, a 14- or 

15-year-old could be employed, with all 

the safeguards of §§ 570.33–.35, as a 

painter of portraits but not as a painter 

of automobiles or houses. Similarly, a 

youth could be employed to create 

unique photographs that rise to the level 

of art, but would be prohibited from 

developing those photographs and 

working with the chemicals and 

solvents commonly used in such 

processing activities. In addition, the 

hours standards provisions of § 570.35 

restrict the number of hours and times 

of day that 14- and 15-year-olds may be 

employed in any FLSA-covered work, 

including artistic or creative endeavors. 

Finally, the Department appreciates 

the concerns of both the YWN and CLC 

that under the guise of ‘‘artistic or 

creative endeavors’’ some employers 

have attempted to employ youth in 

unsafe or unsavory lines of work that, as 

the commenters note, jeopardize the 

morals of the young workers. For 

example, the Department has 

encountered a situation involving the 

employment of very young females as 

‘‘taxi-dancers’’ who were recruited and 

paid by bars and nightclubs to dance 

with male patrons, often late into the 

evening. The Department was able to 

quickly put an end to this unacceptable 

employment by not only enforcing the 

child labor and minimum wage 

provisions of the FLSA, but by 

partnering with local law enforcement 

authorities to ensure that city and state 

laws addressing community standards 

were enforced. The Department believes 

that the strict enforcement of such 

ordinances by the appropriate 

authorities will continue to be 

important supplements to the 

effectiveness of the federal child labor 

laws. 

2. The Employment of 15-Year-Olds 

(But Not 14-Year-Olds) as Lifeguards 

The Department proposed to revise 

Reg. 3 at § 570.34(l) to permit the 

employment of 15-year-olds as 

lifeguards at swimming pools and water 

amusement parks under certain 

conditions. A local chapter of the 

American Red Cross (Chapter) first 

raised this issue in 2000. The Chapter 

advised the Department that the Red 

Cross had revised its own rules and had 

begun certifying 15-year-olds as 

lifeguards. Prior to 2000, according to 

the Chapter, 16 years was generally the 

minimum age at which the Red Cross 

would provide such certification. The 

Chapter inquired as to whether Reg. 3 

would permit the employment of 15- 

year-olds as lifeguards. Also in 2000, a 

municipality contacted the Department 

inquiring whether it could legally 

employ such youth as lifeguards at its 

city-owned swimming pools. 

The occupation of lifeguard is not 

specifically authorized in Reg. 3 as an 

occupation that 14- and 15-year-olds 

may perform. In response to the 

inquiries, the Department adopted an 

enforcement policy in 2000 that allowed 

15-year-olds (but not 14-year-olds) to be 

employed at swimming pools owned 

and operated by state and local 

governments or private-sector retail 

establishments under certain 

conditions. Those conditions included 

that the youth be trained and certified 

in aquatics and water safety by the Red 

Cross or by some similarly recognized 

certifying organization, and that the 

youth work under conditions acceptable 

to the Red Cross or some similarly 

recognized certifying organization. This 

enforcement position permitted such 

employment at swimming pools 

operated by hotels, amusement parks, 

cities, and state-owned universities, but 

did not permit such employment at 

pools operated by non-public and nonretail establishments such as apartment 

houses, country clubs, private schools, 

home-owner associations, and private 

health clubs. In early 2005, the 

Department, after reviewing additional 

information, extended this enforcement 

position to permit the employment of 

15-year-olds as lifeguards at all 

traditional swimming pools regardless 

of who owns, operates or manages the 

establishments, and at those facilities of 

water amusement parks that constitute 

traditional swimming pools. 

The Department proposed to revise 

Reg. 3 by creating § 570.34(l) to 

incorporate portions of the current 

enforcement position. The revision 

would permit 15-year-olds, but not 14- 

year-olds, to be employed as lifeguards, 

performing lifeguard duties, at 

traditional swimming pools and certain 

areas of amusement water parks 

operated by all types of employers, if 

the minors have been trained and 

certified by the Red Cross or a similarly 

recognized certifying organization. 

The occupation of lifeguard, as used 

in this subpart, entails the duties of 

rescuing swimmers in danger of 

drowning, the monitoring of activities at 

a swimming pool to prevent accidents, 

the teaching of water safety, and 

assisting patrons. Lifeguards may also 

help to maintain order and cleanliness 

in the pool and pool areas, give 

swimming instructions, conduct or 

officiate at swimming meets, and 

administer first aid. Additional ancillary 

lifeguard duties may include checking 

in and out such items as towels, rings, 

watches and apparel. Permitted duties 

for 15-year-olds would include the use 

of a ladder to access and descend from 

the lifeguard chair; the use of hand tools 

to clean the pool and pool area; and the 

testing and recording of water quality 

for temperature and/or pH levels, using 

all of the tools of the testing process 

including adding chemicals to the test 

water sample. Fifteen-year-olds 

employed as lifeguards would, however, 

be prohibited from entering or working 

in any mechanical rooms or chemical 

storage areas, including any areas where 

the filtration and chlorinating systems 

are housed. The other provisions of Reg. 

3, including the restrictions on hours of 

work contained at § 570.35(a), would 

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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 watertight structure of concrete, masonry, or 

other approved materials located either 

indoors or outdoors, used for bathing or 

swimming and filled with a filtered and 

disinfected water supply, together with 

buildings, appurtenances and 

equipment used in connection 

therewith. A water amusement park 

means an establishment that not only 

encompasses the features of a traditional 

swimming pool, but may also include 

such additional attractions as wave 

pools; lazy rivers; specialized activities 

areas such as baby pools, water falls, 

and sprinklers; and elevated water 

slides. Properly certified 15-year-olds 

would be permitted to be employed as 

lifeguards at most of these water park 

features. 

Not included in the definition of a 

traditional swimming pool or a water 

amusement park would be such natural 

environment swimming facilities as 

rivers, streams, lakes, reservoirs, wharfs, 

piers, canals, or oceanside beaches. 

It is important to note that § 570.33(b) 

(old) prohibits the employment of 14- 

and 15-year-olds in occupations 

involving the operation or tending of 

power-driven machinery, except office 

machines. This prohibition has always 

encompassed the operation or tending 

of all power-driven amusement park 

and recreation establishment rides— 

including elevated slides found at water 

amusement parks. Such slides, which 

often reach heights of over 40 feet, rely 

on power-driven machinery that pump 

water to the top of the slides which 

facilitates the descents of the riders to 

the ‘‘splash-down’’ areas at the base of 

the slides. Minors less than 16 years of 

age may not be employed as dispatchers 

or attendants at the top of elevated 

water slides—employees who maintain 

order, direct patrons as to when to 

depart the top of the slide, and ensure 

that patrons have safely begun their 

ride—because such work constitutes 

‘‘tending’’ as used in Reg. 3. In addition, 

when serving as dispatchers or 

attendants at the top of an elevated 

water slide, minors under 16 years of 

age are not performing, nor can they 

reasonably be expected to perform, the 

core lifeguard duty of rescuing 

swimmers because they are so far 

removed from the splash-down area of 

the slide. Accordingly, even if 15-yearold minors have been certified as 

lifeguards, the provisions of § 570.34(l) 

would not apply to the time spent as 

dispatchers or attendants at an elevated 

water slide. Properly certified 15-yearold 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 lifesaving duty of rescuing patrons who are 

in the water, which they have been 

properly trained and certified to 

perform, outweighs the minimum, 

isolated, and sporadic amount of 

tending such lifeguards may potentially 

be called upon to do when stationed at 

wave pools, lazy rivers, and splashdown 

pools. 

The Department received eleven 

comments in response to this proposal. 

This includes three comments that were 

submitted as attachments to the 

comments of the International 

Association of Amusement Parks and 

Attractions (IAAPA). The comments 

centered around the following elements 

of the proposal: (1) Whether 15 should 

be the minimum age for employment as 

a lifeguard at a traditional swimming 

pool or water amusement park; (2) 

whether 16 should be the minimum age 

for employment as a lifeguard at natural 

environments such as lakes, rivers, and 

oceanside beaches; and (3) whether 15- 

year-olds should be prohibited from 

being employed as dispatchers or 

attendants at the top of elevated water 

slides. 

Some of the commenters supported 

the entire proposal as written or 

suggested only minor modifications. 

The IAAPA, which describes itself as 

the largest international trade 

association for permanently-situated 

amusement facilities worldwide, 

supported this proposal. The proposal 

was supported by the General Manager 

of Shipwreck Island Waterpark of 

Panama Beach City, Florida, whose 

comments were submitted by the 

IAAPA. A representative of Six Flags, 

Inc. also supported the proposal and 

stated that ‘‘[w]hile we still believe that 

15-year-olds could safely work as 

dispatchers on elevated water elements, 

we find the proposed changes to be an 

acceptable compromise.’’ 

The National Recreation and Park 

Association (NRPA), which described 

itself as ‘‘a non-profit organization 

seeking to enhance public park facilities 

and expand recreation opportunities,’’ 

supported the adoption of the proposed 

change in regulations that would revise 

Reg. 3 in order to ‘‘conditionally allow’’ 

15-year-olds to be employed at 

traditional swimming pools and water 

parks. The NRPA also supported 

establishing a minimum age of 16 for 

the employment of lifeguards at natural 

environments. In addition, the NRPA 

commented that ‘‘[l]ocal park and 

recreation agencies have a great need to 

find qualified, capable, and certified 

lifeguards to work in their outdoor 

pools, indoor pools, water amusement 

park facilities, and natural bodies of 

water. In proposing these regulations, 

the Department will help agencies meet 

their needs to hire certified lifeguards 

by allowing lifeguards to begin work at 

the age of 15. Expanding the eligible age 

for employment as a lifeguard at 

traditional swimming pools could help 

these communities enhance pool safety 

by providing a wider and larger 

applicant pool from which to select 

qualified candidates, and by increasing 

lifeguard availability, make shorter 

shifts an increasingly real probability.’’ 

The American Red Cross (Red Cross), 

which has been developing and 

implementing lifeguard training and 

certification programs since 1914, stated 

that it is ‘‘comfortable’’ with the 

Department’s proposal with one small 

change. The Red Cross objected to the 

Department including the task of ‘‘giving 

swimming instructions’’ in the list of 

duties that 15-year-olds may perform 

because the Red Cross lifeguard training 

course does not include training on how 

to give swimming instructions. Such 

training is available to 15-year-olds via 

a separate Red Cross Water Safety 

Instructor (WSI) course. The Red Cross 

recommended that the Department 

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alleviate possible public 

misunderstanding by deleting ‘‘giving 

swimming instructions’’ from the list of 

permitted lifeguard duties. 

The United States Lifesaving 

Association (USLA), which described 

itself as America’s nonprofit, 

professional association of beach 

lifeguards and open water rescuers, 

reported that it ‘‘works to reduce the 

incidence of death and injury in the 

aquatic environment through public 

education, promulgation of national 

lifeguard standards, training programs, 

promotion of high levels of lifeguard 

readiness, and other means.’’ The USLA 

commented that, since 1980, it has 

maintained the position that lifeguards 

serving at natural environments, 

whether surf or non-surf beaches, 

should be at least 16 years of age. The 

USLA further commented that this 

position was also reached by 

participants at a national conference 

held in 1980 which issued a report 

entitled ‘‘Guidelines for Establishing 

Open-Water Recreational Beach 

Standards.’’ Participants included 

representatives of the American 

Camping Association, Red Cross, 

National Safety Council, YMCA of the 

USA, Council for National Cooperation 

in Aquatics, Centers for Disease Control 

and Prevention, U.S. Coast Guard, Boy 

Scouts of America, the National Park 

Service, several major municipal 

lifeguard agencies from throughout the 

USA, and several medical experts. The 

USLA noted that the participants at this 

conference, which used a consensusbased process to issue its 

recommendations, considered such 

factors as the physical and cultural 

parameters of the natural environments 

to be guarded; the psychological and 

physiological stresses of public safety 

employment; the lack of physical 

stamina, maturity, and experience of 

those under 16 years of age; and the 

varying levels of supervision provided 

young lifeguards. The USLA 

summarized its comments by stating 

‘‘people under the age of 16 should not 

be permitted to work as lifeguards at 

natural environments.’’ It also 

commented that it found it difficult to 

construct reasons that differentiate the 

natural environment from the pool 

environment, given that many of the 

reasons for establishing a minimum age 

of 16 years for employment as a 

lifeguard at a natural environment 

facility are equally applicable at 

traditional pools. 

The YWN and the CLC opposed this 

proposal and both, apparently, support 

the comments submitted by the USLA, 

although this is not clear. The YWN 

referred to comments of the US 

Lifeguarding Association and the CLC 

referred to comments of the Lifeguard 

Standards Association. The Department 

has not been contacted by any 

organizations using those names in 

regards to this proposal. 

The YWN also stated that work as a 

lifeguard may entail exposure to 

combative individuals, bloodborne 

pathogens, and chemicals. It added that, 

for these reasons, other organizations 

like the YMCA do not certify lifeguards 

until age 16 and thus ‘‘DOL’s argument 

that this proposal ties DOL enforcement 

practice to ‘standards’ in the industry is 

not accurate.’’ The YWN also questioned 

the justification for adding a new and 

unique age cut-off for this one particular 

job, when all other regulations group 15- 

year-olds with 14-year-olds. 

The CLC stated that ‘‘most distressing 

is the fact that DOL gives no indication 

of what the Red Cross training requires.’’ 

It also commented that the fact that DOL 

would require the lifeguards to be 

certified by the Red Cross (or a similar 

certifying organization) in aquatics and 

water safety ‘‘in no way assures that the 

DOL proposal is prudent.’’ 

The World Waterpark Association 

(WWA) supported the proposal to 

permit the employment of 15-year-olds 

as lifeguards at traditional swimming 

pools and water amusement parks, but 

opposed that portion of the proposal 

that would prohibit such youth from 

working as dispatchers or attendants at 

the top of elevated water slides. The 

WWA opined that ‘‘[it] is a universally 

accepted position of the aquatic 

community that a lifeguard’s first 

responsibility is to prevent accidents 

and injuries by enforcing rules and 

educating patrons * * *. Therefore, 15- 

year-olds working at the tops of 

waterslides are fulfilling one of the core 

duties of properly trained lifeguards, in 

a manner which places them at the least 

possible risk.’’ The WWA also disagreed 

with the Department’s position that 

working as a dispatcher or attendant at 

the top of an elevated water slide 

constitutes tending of power-driven 

machinery under the provisions of Reg. 

3 where there are no mechanized 

conveyance systems or emergency ride 

controls at the top. 

A representative of Morey’s Pier of 

Wildwood, New Jersey, whose 

comments were submitted by the 

IAAPA, supported the proposal to allow 

the employment of 15-year-olds as 

lifeguards at traditional swimming pools 

and water amusement parks. She also 

addressed the position of water slide 

dispatcher, stating ‘‘we see no reason or 

evidence that this is a dangerous job 

that should be restricted.’’ She also 

opined that such dispatchers are not in 

contact with any power-driven 

machinery. 

A representative of the Pleasant Hill 

Recreation and Park District (Pleasant 

Hill) of Pleasant Hill, California, 

expressed concern about how this 

proposal would affect youth who 

volunteer in her District’s ‘‘junior 

lifeguard program.’’ After reviewing the 

list of permitted lifeguard duties 

presented in § 570.34(l)(2), she noted 

that her facility has ‘‘swim instructors 

who are certified by the American Red 

Cross as Water Safety Instructors, but 

are not lifeguard certified.’’ Her facility 

has ‘‘cashiers who are not lifeguard 

certified, but who help maintain order/ 

cleanliness in the pool area (deck, 

locker rooms, crowd control during 

emergency, etc.). She questioned 

whether such employees, who are not 

employed as lifeguards, must be at least 

16 years of age or be 15 years of age with 

proper lifeguard certification. 

The representative of Pleasant Hill 

also noted that youth aged 11 to 14 

years of age participate in her facility’s 

junior lifeguard program. The 

participants attend 8 hours of training, 

which follows the Red Cross’s Guard 

Start Program, and then volunteer at the 

pool as aides during swim lessons. 

Participating youths are assigned to 

assist an instructor, are never left alone 

to teach a class, and also help during 

recreational swims ‘‘by checking in/out 

patrons bags/apparel/belongings.’’ She 

noted that the junior lifeguard program 

is an important tool for recruiting and 

developing future lifeguards. 

The Department has carefully 

considered all the comments and has 

decided to adopt the proposal as 

written, with two modifications. The 

Department appreciates the concerns 

raised by the Red Cross that certified 

lifeguards may not have received the 

proper training, and therefore the proper 

certification, to give swimming 

instruction. This same issue was 

mentioned by Pleasant Hill, which 

noted that it had swimming instructors 

who were properly certified by the Red 

Cross but were not certified as 

lifeguards. In order to address the 

concerns of the Red Cross, ensure the 

maximum possible safety for young 

workers and their charges who are 

learning to swim, and eliminate 

confusion, the Department is modifying 

the language in the proposed 

§ 570.34(l)(2) to reflect that 15-year-olds 

may be employed as swimming 

instructors only when they have been 

certified to perform both lifeguard and 

swimming instruction by the Red Cross 

or some other recognized certifying 

organization. This requirement for dual 

certification, like the other lifeguard 

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28420 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

requirements contained in Reg. 3, will 

end when the minor reaches his or her 

16th birthday. 

The Department received an inquiry 

after the publication of the NPRM 

asking why ponds and quarries, places 

where swimming often occurs, were not 

specifically listed as natural 

environment swimming facilities in 

§ 570.34(l)(2) where the term traditional 

swimming pool is defined. In order to 

clarify the Final Rule, the Department 

has decided to add ponds and quarries 

to the non-exhaustive list of examples of 

natural environment swimming 

facilities that currently includes rivers, 

streams, lakes, reservoirs, wharfs, piers, 

canals, and oceanside beaches. 

The Department appreciates the 

concerns of the YWN, CLC, and USLA 

about lowering the employment age for 

lifeguards at traditional swimming pools 

and certain water amusement park 

facilities to 15, but believes that such 

safeguards as proper certification in 

aquatics and water safety by a 

recognized certification organization, 

the prohibition against tending powerdriven machinery which prevents 15- 

year-olds from working as dispatchers 

or attendants at the top of elevated 

water slides, the OSHA standards 

addressing potential exposures to 

bloodborne pathogens and chemicals, 

and the hours and times of day 

standards established by § 570.35 

combine to provide adequate 

protections to these young workers. The 

Department does not share the YWN’s 

concerns about adding ‘‘a new and 

unique age cut-off for this one particular 

job, when all other regulations group 15- 

year-olds with 14-year-olds.’’ The 

Department notes that when rules are 

clearly written and adequately 

explained, public understanding and 

compliance follow. This was evidenced 

by the revisions to HO 2 published on 

December 16, 2004 (see 69 FR 75382, 

see also § 570.52(b)) necessitated by the 

enactment of FLSA section 13(c)(6), 

which permits limited on-the-job 

driving by 17-year-olds under certain 

conditions, but not by 16-year-olds. 

The Department does not agree with 

the CLC’s comment that the DOL gives 

no indication of what Red Cross training 

requires and the YWN’s comment that 

this proposal is not ‘‘tied to standards in 

the industry.’’ The Red Cross, just like 

other nationally recognized certifying 

organizations, spends a great deal of 

time and effort formulating, refining, 

disseminating, and publicizing the 

elements and standards of its lifeguard 

certification program. It is difficult to 

argue that the Red Cross is not the 

‘‘industry standard’’ when it estimates 

that about 90% of all lifeguards in the 

USA have received training through its 

lifeguard training program. 

The Department appreciates the 

concerns of certain commenters that 15- 

year-olds should be permitted to be 

employed as dispatchers or attendants 

at the top of elevated water slides, but 

believes that continuation of its longheld position that such employment 

constitutes the prohibited tending of 

power-driven equipment—just as it is 

for attendants on roller coasters, merrygo-rounds, and ski-lifts—is both prudent 

and proper. 

Finally, the Department acknowledges 

the concerns of Pleasant Hill which 

raised the issue of ‘‘junior lifeguard 

programs’’ and the ‘‘volunteer’’ 

participation of youths between the ages 

of 11 and 14 in such endeavors. The 

Department notes that when such 

programs do not involve an employeremployee relationship, they fall outside 

the provisions of the FLSA. But when it 

is determined that an employeremployee relationship does exist, and 

the employee is engaged in work that is 

subject to the FLSA, the minimum age 

for such employment at a traditional 

swimming pool would be 14. Such 14- 

year-old employees could not be 

employed as lifeguards or swim 

instructors, but could perform such 

tasks as maintaining the cleanliness of 

the pool area and locker rooms, signing 

in and signing out patrons, and 

checking in and out such items as 

towels, watches, and apparel. Such 

youth would not be permitted to 

perform any of the core functions of a 

lifeguard nor be employed in a situation 

where their employers could reasonably 

expect them to rescue swimmers in 

danger of drowning. Under this Final 

Rule, properly certified 15-year-olds 

could be employed at such pools as 

lifeguards. 

3. The Employment of Certain Youth by 

Places of Business Where Machinery Is 

Used To Process Wood Products 

The provisions of the Consolidated 

Appropriations Act, 2004, amended the 

FLSA by creating a limited exemption 

from the child labor provisions for 

certain minors 14 through 17 years of 

age who are excused from compulsory 

school attendance beyond the eighth 

grade. The exemption, contained at 

section 13(c)(7) of the FLSA, allows 

eligible youth to work inside and 

outside of places of businesses that use 

machinery to process wood products, 

subject to specified limitations. The 

Department is incorporating the new 

requirements of this amendment into its 

regulations. The Department proposed 

to incorporate the amendment into Reg. 

3 at § 570.34(m), and into § 570.54, 

Logging occupations and occupations in 

the operation of any sawmill, lath mill, 

shingle mill, or cooperage stock mill 

(Order 4). 

Section 13(c)(7) overrides the 

heretofore complete prohibition on the 

employment of 14- and 15-year-olds in 

manufacturing occupations contained in 

section 3(l) of the FLSA. Accordingly, to 

meet the requirements of this 

legislation, the Department proposed to 

revise Reg. 3 to permit the employment 

of qualifying 14- and 15-year-olds inside 

and outside of places of business where 

manufacturing (the processing of wood 

products by machinery) takes place, 

subject to specified conditions and 

limitations. 

The Department proposed to limit the 

types of employers that may employ 

such minors, as well as the worksites at 

which such minors may be employed, to 

those contemplated by the language of 

the statute and mentioned by the 

sponsors of the legislation and the 

interested parties that testified at the 

hearings held by Congress prior to the 

enactment of the legislation (see, e.g., 

Testimony Before Senate Labor, Health 

and Human Services, and Education 

Subcommittee of the Committee on 

Appropriations, The Employment Needs 

of Amish Youth, 107th Cong. 2 (2001)). 

The term places of business where 

machinery is used to process wood 

products shall mean such permanent 

workplaces as sawmills, lath mills, 

shingle mills, cooperage stock mills, 

furniture and cabinet making shops, 

gazebo and shed making shops, toy 

manufacturing shops, and pallet shops. 

The term shall not include construction 

sites, portable sawmills, areas where 

logging is being performed, or mining 

operations. The term inside or outside 

places of business refers to the distinct 

physical place of the business, i.e., the 

buildings and the immediate grounds 

necessary for the operation of the 

business. This exemption would not 

apply to tasks performed at locations 

other than inside or outside the place of 

business of the employer such as the 

delivery of items to customers or the 

installation of items at customers’ 

establishments or residences. 

Although section 13(c)(7) permits the 

employment of certain youth inside and 

outside of places of business where 

machinery is used to process wood 

products, it does so only if the youth do 

not operate or assist in the operation of 

power-driven woodworking machines. 

The occupations of operating or 

assisting in the operation of and the 

term power-driven woodworking 

machines are well-established in the 

regulations, including in § 570.55. The 

Department proposed to revise Reg. 3 to 

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include definitions of these terms along 

with the specific prohibition against 

operating or assisting in the operation of 

power-driven woodworking machines. 

Section 570.55 lists, when discussing 

the prohibited occupations involved in 

the operation of power-driven 

woodworking machines, such activities 

as supervising or controlling the 

operation of the machines, feeding 

materials into such machines, and 

helping the operator feed material into 

such machines. The list also includes 

the occupations of setting up, adjusting, 

repairing, oiling, or cleaning the 

machines. That same section defines 

power-driven woodworking machines to 

mean all fixed or portable machines or 

tools driven by power and used or 

designed for cutting, shaping, forming, 

surfacing, nailing, stapling, wire 

stitching, fastening, or otherwise 

assembling, pressing, or printing wood 

or veneer. The Department proposed to 

amend the definition of power-driven 

woodworking machines to include those 

machines that process trees, logs, and 

lumber in recognition that section 

13(c)(7) now permits certain youth 14 

through 17 years of age to work in such 

places of business as sawmills, lath 

mills, and shingle mills where trees, 

logs, and lumber would be processed. 

Expanding this definition thus clarifies 

that youth are prohibited from operating 

or assisting in the operation of woodprocessing machinery typically found in 

the workplaces covered by the 2004 

amendment. This revised definition of 

power-driven woodworking machines 

would be included in § 570.34(m) of 

Reg. 3 and both § 570.54 (HO 4) and 

§ 570.55 (HO 5). 

The limited exemption contained in 

section 13(c)(7) applies only to certain 

youth—new entrants into the 

workforce—and only when certain 

additional criteria are met. Section 

13(c)(7) defines a new entrant into the 

workforce as an individual who is under 

the age of 18 and at least the age of 14, 

and, by statute or judicial order, is 

exempt from compulsory school 

attendance beyond the eighth grade. 

In addition, in order to be employed 

inside or outside of places of business 

where machinery is used to process 

wood products, the new entrant must be 

supervised by an adult relative or an 

adult member of the same religious sect 

or division as the entrant. The term 

supervised refers to the requirement that 

the youth’s on-the-job activities be 

directed, monitored, overseen, and 

controlled by a specified named adult. 

Although the statute does not define the 

terms adult and relative, the Department 

proposed that, for purpose of this 

exemption, a relative would include a 

parent (or person standing in place of a 

parent), a grandparent, an aunt, an 

uncle, and a sibling; and an adult would 

be someone who has reached his or her 

eighteenth birthday. The Department 

also proposed that the term adult 

member of the same religious sect or 

division as the youth would mean an 

adult who professes membership in the 

same religious sect or division to which 

the youth professes membership. The 

Department believes that in order to 

ensure these youth receive the degree of 

protection from injury Congress 

intended, the supervision of the minors 

must be close, direct, and 

uninterrupted. It is important to note 

that this requirement of close, direct, 

and uninterrupted supervision, just like 

the requirement that youth not operate 

or assist in the operation of powerdriven woodworking machinery, applies 

to the employment of 16- and 17-yearolds as well as 14- and 15-year-olds. 

Furthermore, section 13(c)(7) permits 

the employment of a new entrant inside 

or outside places of business where 

machinery is used to process wood 

products only if the youth is protected 

from wood particles or other flying 

debris within the workplace by a barrier 

appropriate to the potential hazard of 

such wood particles or flying debris or 

by maintaining a sufficient distance 

from machinery in operation, and is 

required to use personal protective 

equipment to prevent exposure to 

excessive levels of noise and saw dust. 

It is the Department’s position that 

section 13(c)(7)’s prerequisite that the 

youth is ‘‘required to use personal 

protective equipment to prevent 

exposure to excessive levels of noise 

and saw dust’’ includes the youth’s 

actual use of such equipment and not 

just the employer’s obligation to 

mandate such use. 

The Wage and Hour Division has 

consulted with representatives of the 

Department’s Occupational Safety and 

Health Administration (OSHA) and will 

defer to that agency’s expertise and 

guidance when determining whether an 

employer is in compliance with the 

safety provisions of this exemption— 

i.e., whether a workplace barrier is 

appropriate to the potential hazard, 

whether a sufficient distance has been 

maintained from machinery in 

operation, and whether the youth is 

exposed to excessive levels of noise and 

saw dust. The Department proposed that 

compliance with the safety and health 

provisions discussed in the previous 

paragraph will be accomplished when 

the employer is in compliance with the 

requirements of the applicable 

governing standards issued by OSHA or, 

in those areas where OSHA has 

authorized the state to operate its own 

Occupational Safety and Health Plan, 

the applicable standards issued by the 

Office charged with administering the 

State Occupational Safety and Health 

Plan. 

The Department received three 

comments on this proposal. Although 

both the YWN and CLC stated that they 

did not support enactment of FLSA 

section 13(c)(7), they strongly supported 

the Department’s efforts to ensure that 

the regulations provide adequate 

protections for youths who are now 

permitted to be employed inside and 

outside places of business where 

machinery is used to process wood 

products. Both of these commenters, 

along with the AFL–CIO, made 

additional recommendations to the 

proposal. 

Both the YWN and the AFL–CIO 

recommended that the Department add 

a requirement to the revised 

§ 570.34(m)(1) that all youth who come 

within the exemption provided by FLSA 

section 13(c)(7) must receive safety 

training or certification for the specific 

activities allowed under the proposal. 

The CLC labeled as a ‘‘wise approach’’ 

the Department’s proposal to rely on the 

expertise of OSHA, or the Office 

charged with administering an OSHAauthorized state plan where appropriate, 

to determine if employers are complying 

with certain of the safety standards 

established by FLSA section 13(c)(7). As 

an outgrowth of this proposal, it stated 

that ‘‘it would make sense either for the 

Wage and Hour Division to enforce 

OSHA in this context by issuing OSHA 

citations that assert OSHA violations, or 

for the Wage and Hour Division 

investigator to notify OSHA of an OSHA 

violation and direct OSHA to investigate 

the matter as well for OSHA violations. 

The reason for this recommendation 

that the CLC makes here is that if there 

are OSHA violations that give rise to 

child labor violations, then the adults 

who work with the woodworking 

machinery are subject to the same 

workplace hazards as the children.’’ 

The CLC commented that the 

Department’s proposal that the 

supervision received by young workers 

employed under the provisions of FLSA 

section 13(c)(7) be close, direct, 

constant, and uninterrupted is essential 

in view of the serious hazards that such 

youth will face. The CLC recommended 

that the proposal should also require 

that the supervision be ‘‘one-on-one’’ 

and that the supervisors of the young 

workers should be required to have 

experience within the wood processing 

industry or that workplace. 

The CLC also expressed concern that 

neither the statute nor the proposal 

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28422 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

addresses the potential exposure of 

young workers to ‘‘the toxic chemicals 

present in adhesives and coating agents 

that are used in woodworking 

operations.’’ The CLC noted that many 

of these chemicals pose risks of both 

short-term and long-term effects on the 

human body and also are extremely 

flammable, and hence pose significant 

fire and explosion hazards. CLC stated 

‘‘DOL’s OSHA experts are familiar with 

these hazards.’’ 

Finally, the CLC noted that the statute 

did not require woodworking 

establishments that employ youth under 

the provisions of FLSA section 13(c)(7) 

to report all work-related accidents and 

deaths of such workers to the 

Department. The CLC stated that even in 

the absence of such a reporting 

requirement, the Department can play 

an important role by publicizing not 

only the hazards of working in such 

places of business, but also the results 

of any child labor investigations 

involving woodworking machines. The 

CLC believed that such publicizing will 

remind all American youth, their 

parents, and their employers ‘‘of the 

grave dangers that these machines 

represent to working children.’’ 

The Department has carefully 

reviewed the comments of the YWN, 

AFL–CIO, and CLC. It has decided to 

adopt the proposal as written, with one 

clarifying modification. 

Since the enactment of FLSA section 

13(c)(7) on January 23, 2004, the 

Department’s enforcement position has 

been that the employment of 14- and 15- 

year-olds employed under the 

provisions of that section must still be 

in compliance with all other provisions 

of Reg. 3, including the hours and time 

of day standards of § 570.35. Although 

this is evidenced by the Department’s 

compliance and enforcement guidance 

and the structure of the NPRM, it was 

not explicitly stated in the proposed 

rule. The Department received an 

inquiry on this issue after the 

publication of the proposal. In order to 

prevent any possible confusion and to 

provide maximum clarity, the 

Department has revised the Final Rule 

by adding the following sentence to the 

end of § 570.34(m)(2): The employment 

of youth under this section must comply 

with the other sections of this subpart, 

including the hours and time of day 

standards established by § 570.35. 

The Department appreciates the 

support and concerns of the 

commenters. The Department believes 

that the youths who will be employed 

under the provisions of FLSA section 

13(c)(7) will receive significant 

workplace protections from the statute 

and these resulting regulations. 

Requiring pre-employment certification 

or training of youth was not envisioned 

by Congress, especially for a population 

of young workers whose formal 

education ends at such an early age. The 

Department also believes that the CLC 

recommendations that the ratio of 

supervisors to young workers should be 

one-to-one and that all adults 

supervising have experience in the 

workplace or the industry were not 

contemplated by Congress and would be 

viewed as excessive. Similarly, the 

Department believes that the CLC 

recommendation regarding the 

mandatory reporting of work-related 

injuries and deaths that might occur to 

youth employed under the provisions of 

FLSA section 13(c)(7) would be 

duplicative of the reporting 

requirements already established by 

OSHA. 

The Department has long recognized 

the importance of, and the benefits 

resulting from, OSHA and WHD 

working together to share enforcement 

expertise and information, and to 

leverage compliance assistance 

initiatives. As recognized by the CLC, 

these two agencies have a long and 

productive history of partnering for the 

benefit of American workers and those 

who employ them. It is the 

Department’s intention that this 

relationship will continue to grow and 

accommodate additional partnering 

opportunities as they arise. As stated in 

the Final Rule, WHD will continue to 

rely on OSHA’s expertise for guidance 

when applying the specific occupational 

health and safety-affecting requirements 

of FLSA section 13(c)(7) (see 

§ 570.34(m)(1)(iii) and (iv)) as well as 

when assessing the risks from potential 

exposures to toxic chemicals; but WHD 

will not itself issue citations for 

violations of OSHA standards. As the 

CLC stated, ‘‘DOL’s OSHA experts are 

familiar with these hazards.’’ 

Finally, the Department is well aware 

of the importance of keeping all 

stakeholders informed of its compliance 

assistance initiatives and enforcement 

findings, and of serious occupational 

injuries involving youth. WHD, OSHA, 

and NIOSH have, for many years, shared 

information among themselves 

concerning occupational injuries that 

have contributed to the deaths of young 

workers as soon as one of the parties 

learned of the death. WHD, OSHA, and 

NIOSH then work together to ensure 

that the appropriate rules are followed 

and enforced and to learn from each 

event in the hopes that future tragedies 

can be prevented. This cooperation will 

continue after the adoption of the Final 

Rule. 

C. Periods and Conditions of 

Employment (29 CFR 570.35) 

FLSA section 3(l) authorizes the 

Secretary of Labor to provide by 

regulation for the employment of young 

workers 14 and 15 years of age in 

suitable nonagricultural occupations 

and during periods and under 

conditions that will not interfere with 

their schooling or with their health and 

well-being. In enacting FLSA section 

3(l), Congress intended to assure the 

health and educational opportunities of 

14- and 15-year-olds, while allowing 

them limited employment 

opportunities. 

Reg. 3 was promulgated in 1939 under 

the direction of the Chief of the 

Children’s Bureau, in whom Congress 

vested the original delegation of 

authority to issue child labor 

regulations. The record on which Reg. 3 

was based included hearings where 

advocates of children expressed concern 

over the need for children to avoid 

fatigue, so as not to deplete the energy 

required for their school work. 

Similarly, witnesses stressed that early 

morning and late evening work hours, 

which interfered with sleep and often 

fostered exhaustion, were unhealthful 

for children and also diminished the 

time that children should have spent 

with the family (see In the Matter of 

Proposed Regulation Relating to the 

Employment of Minors Between 14 and 

16 Years of Age Under the Fair Labor 

Standards Act, Official Report of the 

Proceedings Before the Children’s 

Bureau, February 15, 1939, at 19, 21, 34, 

82). Reg. 3 limits the hours that 14- and 

15-year-olds may work to: 

(1) Outside school hours; 

(2) Not more than 40 hours in any 1 

week when school is not in session; 

(3) Not more than 18 hours in any 1 

week when school is in session; 

(4) Not more than 8 hours in any 1 

day when school is not in session; 

(5) Not more than 3 hours in any 1 

day when school is in session; and 

(6) Between 7 a.m. and 7 p.m. in any 

1 day, except during the summer (June 

1 through Labor Day) when the evening 

hour will be 9 p.m. 

The Department did not propose to 

change any of these hours and time-ofday limitations, but wished to foster 

both understanding of, and compliance 

with, these provisions by incorporating 

into the regulations certain longstanding 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 

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longer attend or are unable to attend 

school. Some of these positions have 

been in place since the 1970s and all 

have been detailed in the Wage and 

Hour Division’s Field Operations 

Handbook since 1993. The Department 

proposed to incorporate them into Reg. 

3 to promote both clarity and 

compliance. The Department proposed 

to amend § 570.35 to reflect that school 

would not be considered to be in 

session for a 14- or 15-year-old minor 

who has graduated from high school; or 

has been excused from compulsory 

school attendance by the state or other 

jurisdiction once he or she has 

completed the eighth grade and his or 

her employment complies with all the 

requirements of the state school 

attendance law; or has a child to 

support and appropriate state officers, 

pursuant to state law, have waived 

school attendance requirements for this 

minor; or is subject to an order of a state 

or federal court prohibiting him or her 

from attending school; or has been 

permanently expelled from the local 

public school he or she would normally 

attend. Such minors would be exempt 

from the ‘‘when school is in session’’ 

hours standards limitations contained in 

§§ 570.35(a)(1), (a)(3) and (a)(5). The 

employment of such minors would still 

be governed by the remaining 

provisions of Reg. 3, including the daily, 

weekly, morning, and evening hours 

standards limitations contained in 

§§ 570.35(a)(2), (a)(4), and (a)(6). 

The Department also proposed to 

clarify the hours restriction contained in 

§ 570.35(a)(5), which limits the 

employment of 14- and 15-year-olds in 

nonagricultural employment to no more 

than 3 hours on a day when school is 

in session, by adding a statement that 

this restriction also applies to Fridays. 

The WHD occasionally receives requests 

for clarification from employers seeking 

to lengthen the work shifts of younger 

employees on nights that do not precede 

a school day. As the stated purposes of 

the hours standards limitations include 

the protection of young workers from 

exhaustion and the preservation of time 

for rest and family relations, no more 

than 3 hours of work is permitted on 

any day when school is in session. 

The Department also proposed to 

incorporate into Reg. 3 its long-standing 

position that the term week as used in 

Reg. 3 means a standard calendar week 

of 12:01 a.m. Sunday through midnight 

Saturday, not an employer’s workweek 

as defined in 29 CFR 778.105. The 

calendar week would continue to serve 

as the timeframe for determining 

whether a minor worked in excess of 18 

hours during any week when school 

was in session or in excess of 40 hours 

in any week when school was not in 

session. 

Finally, as noted above, Reg. 3 limits 

the employment of 14- and 15-year-olds 

to periods that are outside of school 

hours and to designated hours 

depending upon whether or not school 

is in session. Although neither the FLSA 

nor Reg. 3 defines the terms school 

hours and school is in session as they 

apply to nonagricultural employment, 

the Department has developed and 

applied a long-standing enforcement 

position that these terms refer to the 

normal hours of the public school 

system in the child’s district of 

residence. This enforcement position 

mirrors the provisions of FLSA section 

13(c)(1), which Congress added in 1949, 

to clarify how these terms apply to the 

employment of youth in agricultural 

employment. FLSA section 13(c)(1) 

states, in relevant part: ‘‘The provisions 

of section 212 of this title relating to 

child labor shall not apply to any 

employee employed in agriculture 

outside of school hours for the school 

district where such employee is living 

while he is so employed, if such 

employee * * *. (C) is fourteen years of 

age or older.’’ 

Though the Department did not 

propose specific regulatory language 

regarding these terms when it published 

the NPRM, it did seek information from 

the public regarding whether such 

regulatory provisions would be 

appropriate, including whether: (1) The 

Department should continue to use the 

hours of operation of the local public 

school where a minor resides to 

determine when he or she may legally 

be employed, even when that minor 

does not attend that local public school 

or, for whatever reason, may actually 

have attendance requirements that differ 

from those of the rest of the students 

attending that local school; (2) the 

FLSA’s requirement that such a minor 

only be employed under conditions and 

during periods that will not interfere 

with his or her schooling or health and 

well-being would be equally or better 

served if it were based on the minor’s 

own actual academic schedule; and (3) 

using the academic schedule and 

attendance requirements of each minor 

when determining when school was in 

session for that minor would provide 

working youths greater opportunities 

and flexibility when seeking safe, 

positive and legal employment. The 

Department stated that, based on the 

comments it received, it would consider 

adding regulatory provisions to the 

Final Rule defining the terms school 

hours and school is in session as they 

apply to nonagricultural employment. 

The Department received nine 

comments on this proposal. Two 

commenters, the YWN and the CLC, 

addressed the proposal to incorporate 

into § 570.35 certain long-standing 

departmental enforcement positions 

regarding the application of the hours 

standards. Both supported the 

Department’s enforcement positions that 

school should not be considered in 

session for a 14- or 15-year-old youth 

who has graduated from high school; 

has been excused from compulsory 

school attendance by the state or other 

jurisdiction once he or she has 

completed the eighth grade and his or 

her employment complies with all the 

provisions of the state school attendance 

law; or is subject to an order prohibiting 

him or her from attending school. 

Although the YWN supported the 

proposals that school should also not be 

considered in session for a youth who 

(1) has a child to support and 

appropriate state officers, pursuant to 

state law, have waived school 

attendance requirements for that minor, 

or (2) has been permanently expelled 

from the local public school he or she 

would normally attend, the CLC did not. 

The CLC stated that it believes it is ‘‘illadvised to excuse 14- and 15-year-olds 

from compulsory school attendance on 

the basis of parental status. It serves the 

best interests of the 14- and 15-year-old 

parent, as well as the young parent’s 

child, for the parent to complete his or 

her education, thus realizing a long-term 

benefit of increased and better 

employment in the future.’’ The CLC 

stated that a child permanently expelled 

from public school might still be 

required, under state or local law or 

perhaps court order, to attend some 

other school. The CLC recommended 

that the Department amend its proposed 

revision to read ‘‘Has been permanently 

expelled from the local public school he 

or she would normally attend, unless 

the child is required, by state or local 

law or ordinance, or by court order, to 

attend another school.’’ 

Only the YWN and CLC commented 

on the Department’s proposal to clarify 

the Reg. 3 limitation that 14- and 15- 

year-olds may not be employed to work 

more than three hours on any one day 

when school is in session by adding the 

phrase ‘‘including Fridays.’’ Both the 

YWN and the CLC supported this 

proposal. The representative of White 

Hat recommended that participants in 

programs similar to those of the charter 

schools he advises should be permitted 

to work up to five hours on a school 

day. 

The Department received six 

comments that addressed its proposal to 

incorporate into Reg. 3 its long-standing 

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28424 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

position that the term ‘‘week’’ as used in 

Reg. 3 means a standard calendar week 

of 12:01 a.m. Sunday through midnight 

Saturday, not an employer’s workweek 

as defined in 29 CFR 778.105. The 

proposal stated that the calendar week 

would continue to serve as the 

timeframe for determining whether a 

minor worked in excess of 18 hours 

during any week when school was in 

session or in excess of 40 hours in any 

week when school was not in session. 

Both the YWN and CLC supported 

this proposal. Four commenters, the 

Food Marketing Institute (FMI), Six 

Flags, the WWA, and the representative 

of Morey’s Pier, opposed the proposal. 

The FMI described itself as a conductor 

of ‘‘programs in research, education, 

industry relations and public affairs on 

behalf of its 1,500 member companies— 

food retailers and wholesalers—in the 

United States and around the world.’’ 

The FMI reported that its retail 

membership is composed of large multistore chains, regional firms and 

independent supermarkets. The FMI 

stated ‘‘[w]e strongly object to this 

change, which would create an 

administrative nightmare, and see no 

reason for it.’’ The FMI commented that 

most of its members already have 

systems in place based on their own 

workweeks that automatically check 

hours worked to make sure minors do 

not exceed their allowable hours. ‘‘By 

requiring the use of a Sunday to 

Saturday midnight week, employers 

would be forced to check hours worked 

manually, making it more likely that 

mistakes would be made.’’ 

The WWA echoed the concerns of the 

FMI and asked that the proposed rule be 

amended to allow employers to 

calculate hours worked so that Saturday 

and Sunday hours may be included 

within the same workweek. Six Flags 

expressed the same concern regarding 

its ability to use its payroll tracking 

system as a compliance tool and 

recommended that the Department 

allow employers to use any reasonable 

system such as labor tracking and 

payroll monitoring tools that 

complement their record keeping 

systems. The representative of Morey’s 

Pier recommended that the term 

workweek should be defined, but not 

necessarily by the calendar. 

The Department received six 

comments on its enforcement position 

that defines the term school in session 

as applying to the normal hours of the 

public school system in the minor 

employee’s district of residence. The 

YWN and the CLC supported using the 

hours of the local public school district 

the minor would attend if he or she 

attended public school when defining 

the term school in session. The YWN 

praised the enforcement benefits that 

would arise from having only one 

standard in each school district, thereby 

avoiding multiple schedules that would 

create unworkable and needlessly 

complex enforcement standards. The 

YWN also suggested that the 

Department should clearly state in the 

Final Rule that school is considered to 

be in session during any week in which 

school attendance is required for one or 

more days. The CLC commented that 

‘‘[if] the school day schedules 

established by private schools and by 

parents of home-schooled children 

could determine when children being 

educated in those settings governed 

here, there would be nothing in the DOL 

child labor regulations that would 

prevent such a school or parent from 

setting a schedule that would permit 

children to work during the hours that 

the public school system is in session. 

Indeed, non-public schools could be 

established by organizations whose 

prime goal is to provide 14- and 15-yearold working children to employers 

during normal business hours in the 

middle of the day, rather than to make 

sure that the children are in school 

during the hours when they are most 

alert and receptive to classroom 

instruction. We do not say that there 

would be many such schools or homeschooling parents, but the mere fact that 

such outcomes could occur should be 

reason enough to cause DOL to reject 

this approach.’’ The CLC, when 

commenting on the Department’s 

inquiry regarding whether employers of 

working youth should be given greater 

flexibility, stated ‘‘[t]here is no need for 

DOL to bend over backwards to try to 

assure that children have the absolute 

maximum opportunity to squeeze every 

possible minute of the day into the three 

hours that they can work during a 

school day. This approach seems to us 

to give far more emphasis to work 

experiences for 14- and 15-year-olds 

than to their education.’’ 

The National Council of Chain 

Restaurants (Council), the representative 

of Morey’s Pier, and the FMI supported 

defining the term school in session by 

following the academic schedule and 

attendance requirements of each minor, 

rather than that of the local public 

school. The Council noted that 

frequently ‘‘the academic schedule and 

attendance requirements followed by 

public schools do differ, sometimes 

significantly, from the schedule 

followed by private schools. By 

applying each minor’s actual school 

schedule, rather than arbitrarily 

applying the local public school 

schedule, job opportunities would be 

expanded for minors subject to Child 

Labor Reg. 3 without adversely 

impacting the school work of such 

minors.’’ The FMI stated that adopting 

the hours of the local public school 

when defining the term school is in 

session would ‘‘make no sense’’ for the 

many young people who do not go to 

public schools. The FMI found it ‘‘hard 

to understand why their work hours 

should be governed by a school system 

they have nothing to do with.’’ The 

representative of Morey’s Pier believed 

that each minor should be treated 

individually and that his or her own 

academic schedule and attendance 

requirements should be used when 

determining when school was in session 

for the minor. Barring adoption of her 

recommendation, she believed the 

Department’s enforcement position to be 

the ‘‘second best option.’’ 

The DOLWD did not oppose this 

enforcement position but suggested that 

an ‘‘exception’’ from the definition of 

school is in session should be created 

for youth enrolled in home school or 

other alternative school programs based 

on considerations of ‘‘whether the work 

interferes with the individual’s 

schooling, health or well being rather 

than the hours of operation for public 

schools.’’ The DOLWD also suggested 

that the federal regulations on the 

number of hours that 14- and 15-yearolds may work should be amended to be 

consistent with the more permissive 

standards established in Alaska. The 

Council also recommended that the 

Department expand the number of hours 

that such youth may be employed to 

four hours on any school day; to as late 

as 8 p.m. on any evening between Labor 

Day and May 31st; and as late as 10 p.m. 

on any evening between June 1st and 

Labor Day. The YWN recommended that 

the Department eliminate the reference 

to between June 1st and Labor Day and 

replace it with the actual calendar of 

each public school, noting that an 

increasing number of school districts 

have year-round schedules. 

After carefully reviewing the 

comments, the Department has decided 

to continue its long-standing 

enforcement position that school hours 

are defined by the hours that the local 

public school district where the minor 

resides when employed is in session, 

and to add this definition to § 570.35(b) 

to avoid confusion and to simplify both 

compliance and enforcement of the 

hours standards of Reg. 3. The 

Department has also included in this 

definition the YWN’s recommended 

clarifying statement that school should 

be considered to be in session during 

any week when school attendance is 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28425 

required for any portion of a day. The 

Department is also adding to that 

section its long-standing position that 

outside school hours means such 

periods as before and after school hours, 

holidays, summer vacations, weekends, 

and any other day or part of a day when 

the local public school district where 

the minor resides while employed is not 

in session. This section will also note 

that summer school sessions, held in 

addition to the regularly scheduled 

school year, are considered to be outside 

of school hours. 

The Department appreciates the 

concerns of the one employer and two 

employer associations that 

recommended that an employee’s own 

academic schedule and individual 

attendance requirements should be used 

to determine when school is in session 

for that minor and recognizes how such 

a position could be seen as a means of 

providing minors with more work 

experiences while addressing employer 

staffing problems. But the Department is 

concerned that such a system may not 

give the proper emphasis to obtaining 

an education and would make employer 

compliance and WHD enforcement 

more difficult and more complicated 

than necessary, given the broad variety 

of daily school schedules that each 

young employee could have. 

The Department believes that the 

continuation and incorporation of this 

enforcement position brings clarity in 

that employers need only look to the 

hours of operation of the local public 

school where the minor resides to attain 

compliance. It also ensures that the 

consistent application of these terms for 

both agricultural and nonagricultural 

employment will continue, thereby 

avoiding confusion among those 

employers who offer both agricultural 

and nonagricultural employment to 

young workers. Finally, continuation of 

this enforcement position facilitates the 

enforcement of the Reg. 3 hours 

standards by establishing a single, easily 

determinable standard. 

The Department also believes that 

continuation of this enforcement 

position is appropriate as it does not 

provide any minor or class of minors 

with an incentive to leave public school 

or with an unfair and improper 

advantage over public school youth 

when competing for employment. The 

Department notes the CLC’s concerns 

that determining when school is in 

session by using each student’s 

individual academic schedule could 

foster the development of nonpublic 

schools or home-schooling programs 

created primarily to provide 14- and 15- 

year-old working children to employers 

during the hours they would normally 

have attended public school. While the 

Department agrees with the CLC that it 

is unlikely that many such schools or 

home-schooling programs would 

materialize, it does note that the 

emergence of schools that were 

designed to allow migrant children to 

work on farms during the daylight hours 

when the local public school was in 

session, was an impetus for the 1949 

amendment to the FLSA that codified 

this very same enforcement position as 

it relates to agricultural employment. 

The Department has decided not to 

incorporate into Reg. 3 its long-standing 

enforcement position that a calendar 

week—12:01 a.m. Sunday through 

midnight Saturday—shall be the 

framework for determining if a 14- or 

15-year-old has been employed more 

than 18 hours in any week when school 

is in session or more than 40 hours in 

any week when school is not is session. 

The Department agrees with several 

commenters who noted that applying 

the same definition of the term week for 

determining compliance with the 

minimum wage, overtime, and child 

labor provisions of the FLSA would 

make it much easier for employers to 

use their payroll systems as tools and 

tracking systems for implementing and 

maintaining compliance with the child 

labor requirements. Accordingly, as 

suggested by those commenters, the 

Department will define the term week as 

used in Reg. 3 to be the same workweek 

the employer establishes for the youth 

to determine overtime compensation 

under 29 CFR 778.105—a fixed and 

regularly recurring period of 168 

hours—seven consecutive 24-hour 

periods. 

Finally, the Department acknowledges 

the recommendations of the DOLWD, 

the Council, and the representative of 

White Hat regarding the relaxation of 

certain of the hours and time of day 

restrictions of Reg. 3 to permit 14- and 

15-year-olds to work more hours on a 

school day or in a school week, or later 

into the evening. As noted in the NPRM, 

the Department did not propose any 

revisions to those standards. Any such 

changes, therefore, would be outside the 

scope of this rulemaking. 

D. Work-Study Programs 

Effective November 5, 1969, Reg. 3 

was amended to provide a variance from 

some of the provisions of § 570.35 for 

the employment of minors 14 and 15 

years of age enrolled in and employed 

pursuant to a school-supervised and 

administered Work Experience and 

Career Exploration Program (WECEP). 

Although originally proposed as an 

experimental program, Reg. 3 was 

amended to make the WECEP a 

permanent exception. 

WECEP was created to provide a 

carefully planned work experience and 

career exploration program for 14- and 

15-year-old youth who can benefit from 

a career-oriented educational program 

designed especially to meet the 

participants’ needs, interests, and 

abilities. The program was, and 

continues to be, specifically geared to 

helping dropout-prone youth become 

reoriented and motivated toward 

education and to prepare for the world 

of work. WECEPs may, however, be 

tailored to meet the needs of other 

students as well. 

Section 570.35a establishes the 

criteria that must be met in order for 

states to apply for and receive 

authorization to operate a WECEP. This 

same section details the terms, 

conditions, and responsibilities 

participating states agree to assume 

upon receiving authorization to operate 

a WECEP. 

As mentioned, certain provisions of 

§ 570.35 relating to the Reg. 3 hours 

standards are varied for youth enrolled 

in and employed pursuant to an 

approved WECEP. Such youth may 

work up to 23 hours in any one week 

when school is in session and not more 

than 3 hours in any day when school is 

in session, any portion of which may be 

during school hours. The other 

provisions of § 570.35 (limiting 

employment to no more than 8 hours a 

day on any one day school is not in 

session, and no more than 40 hours in 

any one week when school is not in 

session) remain applicable to the 

employment of WECEP participants. 

Section 570.35a also includes 

provisions that allow the Administrator 

of the Wage and Hour Division 

discretion to grant requests for special 

variances from the occupation standards 

established by §§ 570.33 and 570.34. 

Several states have advised the 

Department that WECEP serves its 

targeted audience well, helping those 

who are not academically oriented stay 

in school and complete their high 

school educations. However, WECEP, by 

design, does little to help those students 

who wish to use work experience, and 

the wages such experiences generate, as 

a means to realize their academic 

potential and acquire a college 

education. 

In 2003, the Department became 

aware of a non-profit network of private 

schools, hereafter referred to as the 

Network, that was operating a corporate 

work-study program for its students. 

The Network is an association of 

private, not-for-profit college 

preparatory high schools that strive to 

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28426 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

meet the educational needs of people in 

many economically challenged areas 

throughout the country. The work-study 

program was implemented to help 

students offset the costs of a quality 

college preparatory education and 

develop important work experience and 

socialization skills that will allow them 

to assume leadership roles as adults. 

Under the Network’s model, four 

students share a single, full-time clerical 

position with a private employer at a 

work place screened and selected by the 

school. Each youth works five full days 

per four-week period for the employer at 

the work place—one eight-hour day 

once a week for three weeks, and two 

eight-hour days every fourth week. The 

academic schedules of the students are 

carefully coordinated so that students 

do not miss any classes on the days they 

work and the school year has been 

extended beyond the standard academic 

schedule of the local public school to 

compensate for the time the students 

spend at work. These accommodations 

ensure that students complete a fully 

accredited, college preparatory 

curriculum that exceeds both state and 

accrediting agency requirements. Under 

the Network model, students do not 

work more than eight hours a day, 

before 7 a.m. or after 7 p.m., and are 

transported to and from their jobs by the 

school. The students receive at least the 

applicable federal and state minimum 

wages, and applicable taxes are 

withheld and reported by their 

respective employers. The Network 

envisioned the work-study program as 

an integral part of the academic 

program, yielding benefits on many 

different levels. Students, their parents, 

and the work-study director sign an 

agreement defining performance 

expectations and program support 

structures. Participating employers are 

also required to sign an agreement 

defining job duties and expectations. All 

students are required to participate in 

the work-study program, beginning with 

their freshman year and ending at 

graduation. 

The Network provided information 

that its model is achieving its stated 

aims. It advised the Department that 100 

percent of the students of the 2003 

graduating class of one of its schools 

were accepted into college. The school 

is located in a neighborhood where 20 

percent of those attending the local 

public school drop out annually and the 

high school graduation rate of the local 

public school is 55 percent. 

Reg. 3, as currently written, does not 

allow 14- and 15-year-olds to participate 

in the Network’s work-study programs. 

Such youth may not work during the 

hours school is in session—unless 

participating in a state sponsored 

WECEP—and may not work more than 

three hours on a day the local public 

school is in session. 

Because the Department believes that 

the health, well-being, and educational 

opportunities of 14- and 15-year-olds 

who are academically oriented are not 

placed at risk by participation in 

structured work-study programs such as 

the Network’s model—and are in fact 

enhanced by such participation—it 

proposed that Reg. 3 be revised to 

accommodate such programs. The 

Department proposed to allow public 

and private school districts or systems 

to apply to the Administrator of the 

Wage and Hour Division for approval to 

operate a work-study program that 

would permit certain 14- and 15-yearolds to work during school hours and 

up to eight hours on a school day under 

specific circumstances. An individual 

private school that was not part of a 

network, district, or system would also 

be able to apply to participate in a work 

study program. 

The youth would have to be enrolled 

in a college preparatory curriculum and 

must receive, every year they participate 

in the work-study program, at least the 

minimum number of hours of class 

room instruction required by the 

applicable state educational agency 

responsible for establishing such 

standards. Participating youth would 

also be required to receive annual 

classroom instruction in workplace 

safety and child labor provisions. Homeschooled youth would be able to 

participate in work-study programs 

operated by local public schools in the 

same manner many currently participate 

in team sports programs, band, and 

other extracurricular activities. 

Each participating school would be 

required to name a teacher-coordinator 

to supervise the work-study program, 

make regularly scheduled visits to the 

students’ work sites, and ensure that 

participants are employed in 

compliance with the minimum wage 

and child labor provisions of the FLSA. 

In addition, the teacher-coordinator, the 

employer and the student would be 

required to sign a written participation 

agreement that details the objectives of 

the work-study program, describes the 

specific job duties to be performed by 

the student, and the number of hours 

and times of day that the student would 

be employed each week. The agreement, 

which must also be signed or otherwise 

consented to by the student’s parent or 

guardian, would also affirm that the 

student will receive the minimum 

number of hours of class room 

instruction as required by the state 

educational agency for the completion 

of a fully-accredited college preparatory 

curriculum and that the employment 

will comply with the applicable child 

labor and minimum wage provisions of 

the FLSA. 

Students participating in a valid 

work-study program would be permitted 

to work up to eighteen hours a week, a 

portion of which may be during school 

hours, in accordance with the following 

formula that is based upon a continuous 

four-week cycle. In three of the four 

weeks, the participant would be 

permitted to work during school hours 

on only one day per week, and for no 

more than eight hours on that day. 

During the remaining week of the fourweek cycle, such minor would be 

permitted to work during school hours 

on no more than two days, and for no 

more than eight hours on each of those 

two days. The employment of such 

minors would still be subject to the time 

of day and number of hours standards 

contained in § 570.35(a)(2), (a)(3), (a)(4), 

and (a)(6). 

The Department received eight 

comments on this proposal. The Cristo 

Rey Network, which described itself as 

‘‘a non-profit corporation that coordinates twelve college prep high 

schools across the country,’’ selfidentified itself as the Network that the 

Department describes in the NPRM. The 

Cristo Rey Network was most 

supportive of the proposal and noted 

that its work-study program meets the 

statutory objective of permitting youth 

employment only ‘‘during periods and 

under conditions that will not interfere 

with their schooling or health and well 

being’’ as required by FLSA section 3(l). 

Cristo Rey stated ‘‘[m]eeting those 

objectives can be quantified in Cristo 

Rey’s 97+% attendance rate and/or in its 

graduates’ own achievements: i.e., of 

219 graduates in 2006, 212 were 

accepted into colleges including schools 

such as the University of California at 

Berkley, the University of Illinois, the 

University of Notre Dame, the 

University of Chicago, and Wellesley 

College; and the success continues: of 

318 graduates in 2007, 313 will attend 

college this Fall.’’ Cristo Rey noted that 

the schools in the Network provide an 

option for private education to children 

who are ‘‘predominantly Latino (63%) or 

African-American (25%) and who are 

all from economically-disadvantaged 

families; the average family income of 

these students is approximately 

$33,000—far too little to make private 

education an option absent the workstudy program that the schools in the 

Network have pioneered.’’ 

The YWN disagreed with the 

proposal, stating that § 570.35a already 

includes provisions that allow the WHD 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28427 

to grant requests for special variances 

from the occupation standards regarding 

prohibited work, and that this should be 

expanded to grant variances from the 

Reg. 3 hours standards as well. The 

YWN stated that this proposal benefits 

one single program and makes the 

regulations unnecessarily complex. It 

also raises concerns that the ‘‘host 

employer’’ might not be subject to the 

same restrictions and requirements as 

any other employer who hires youth 

and that students may be replacing a 

‘‘regular paid employee.’’ 

The CLC noted that it had several 

serious concerns about this proposal. It 

felt that the proposal was so narrowly 

tailored to one specific program that it 

could easily bar other school systems 

‘‘that have similar, but not identical, 

approaches’’ from taking advantage of 

the program. The CLC stated that 

‘‘[w]hat is particularly troubling—and 

what DOL does not indicate in its 

preamble to the proposed regulation—is 

that the only school system that appears 

to qualify for the proposed program is 

a private Roman Catholic system.’’ The 

CLC stated that ‘‘[t]he DOL proposal 

raises serious questions under the First 

Amendment to the United States 

Constitution, which forbids the 

government favoring one religious sect 

over another.’’ 

The CLC also raised concerns as to 

whether DOL would ‘‘be able to assure 

that no violations occur under this 

system’’ and of ‘‘the secrecy of the 

approval process that DOL would 

adopt.’’ The CLC believed that the 

proposed approval process is not 

sufficiently transparent and 

recommended that DOL be required to 

publish a notice in the Federal Register 

detailing every work-study program 

application and invite public comment 

during a specified period of 30 or 60 

days. 

The CLC also noted that the proposal 

would not prohibit an employer from 

replacing a permanent worker at an 

establishment participating in the workstudy program with student-workers, as 

prohibited under the WECEP provisions 

contained in § 570.35a(e). The CLC also 

expressed concerns that the Cristo Rey 

Network has been operating a workstudy program for almost a decade and 

questioned how much of each youth’s 

pay check goes to Cristo Rey and how 

much, if any, goes to the youth. Finally, 

the CLC also questioned, as did the 

YWN, if the ‘‘host employers’’ or the 

Cristo Rey High School would be 

considered the actual employers of the 

youth under the FLSA. 

The Department received several 

comments supporting the creation of a 

work-study program that would allow 

youth to work during the hours school 

was in session, but opposing that such 

a program be limited, as the Department 

proposed, to students enrolled in a 

college preparatory curriculum. The 

DOLWD recommended that the program 

should be expanded to include preapprenticeship work training programs, 

and a representative of the New Jersey 

Department of Education (NJDOE) 

recommended that ‘‘determining the 

educational and eligibility requirements 

for such programs be left to state 

education agencies.’’ The NJDOE also 

stated that the Department’s proposal to 

limit participation in the work-study 

program ‘‘conflicts with the federal No 

Child Left Behind Act, the federal Carl 

D. Perkins Career and Technical 

Education Act, the federal Individuals 

with Disabilities Education Act, and 

state laws and regulations, which 

require state education agencies and 

public schools to serve all students and 

provide all students with 

comprehensive career education, 

including opportunities to further 

explore careers in work-based learning 

activities.’’ 

The representative of White Hat 

supported the creation of a work-study 

program but suggested that charter 

schools of the type he represents should 

not be subjected to the ‘‘bureaucratic 

requirements’’ imposed by the workstudy application process proposed by 

the Department, ‘‘which can be 

prohibitive for some smaller schools 

and which serve to take needed 

resources away from educational 

instruction and helping more students.’’ 

He also stated that limiting participation 

in the proposed work-study program to 

students enrolled in a college 

preparatory curriculum ‘‘can also have 

the unintended consequence of denying 

extended work hours and compensation 

from those who need it the most, the 

undereducated.’’ 

A representative of the National 

Association of State Directors of Career 

Technical Education Consortium (State 

Directors) apparently believed that the 

adoption of the proposal contained in 

§ 570.35b would preclude anyone but a 

student enrolled in a college preparatory 

curriculum from participating in any 

work-study program in the future. He 

stated ‘‘such a rule would cripple career 

technical education (CTE) programs that 

have work-based learning opportunities 

embedded within the curriculum.’’ The 

same assumption was made by a teacher 

at the Sunrise Mountain High School in 

Peoria, Arizona who commented 

‘‘[t]hese internships provide our 

students valuable hands-on experiences 

to help connect school and careers in a 

meaningful way. The RIN 1215–AB44 

proposal would remove this valuable 

learning experience from our students.’’ 

The Department has carefully 

reviewed the comments and has 

decided to implement the proposal as 

written with two minor modifications. 

The first modification involves a 

redesignation of the sections dealing 

with both WECEP and the Work Study 

Program as requested by the Federal 

Register. The current § 570.35a will be 

redesignated as § 570.36 and the 

proposed § 570.35b will be issued as 

§ 570.37. The second modification 

clarifies the role of the teachercoordinator. 

The Department wishes to emphasize 

that this proposal creates a new, limited, 

work-study program designed to 

accommodate the needs of a narrowly 

defined population—14- and 15-yearold students enrolled in a college 

preparatory curriculum at a public or 

private school that has been granted 

authority to operate such a program by 

the Department. This new program does 

not in any way negate or preclude 

schools or employers from participating 

in other preexisting or future workstudy programs, work experience and/or 

career exploration programs, 

internships, or apprenticeships that also 

comport with the provisions of the 

FLSA (whether with the hours 

standards and time of day restrictions in 

§ 570.35 or the special WECEP rules in 

§ 570.35a (old) and § 570.36 (new)). This 

proposal was developed and offered 

solely with the intent, as stated earlier 

in this section, of providing reasonable 

and structured accommodations within 

Reg. 3 so that academically oriented 14- 

and 15-year-olds could begin their 

pursuit of college educations through 

work-study programs. Participation in 

the proposed work-study program is 

voluntary and it in no way conflicts 

with other federal, state, or local 

programs addressing the educational 

needs of young workers. The concerns 

of the State Directors and the NJDOE are 

unfounded. 

The Department appreciates the 

recommendations of several 

commenters that the work-study 

program should be extended to youth 

enrolled in programs other than college 

preparatory, such as vocational 

programs, internships, and 

apprenticeships. The Department notes 

that the already existing WECEP (see 

§ 570.36 (new)) would provide those 

programs with limited exemptions from 

the hours standards contained in 

§ 570.35(a) that are similar to the 

exemptions provided by the proposed 

work-study program. 

The Department also disagrees with 

the YWN and CLC comments that the 

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28428 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

1 January 21, 2009 Memorandum for the Heads of 

Executive Departments and Agencies, available at: 

http://edocket.access.gpo.gov/2009/pdf/E9- 

1777.pdf. 

proposed work-study program was 

designed to accommodate a single 

program—the Cristo Rey Network. 

Although the Cristo Rey Network workstudy model was reviewed by the 

Department, the proposed work-study 

program differs considerably from that 

model. The Department’s proposed 

WSP, unlike the Cristo Rey model, 

requires annual classroom instruction in 

workplace safety and state and federal 

child labor provisions and rules (see 

§ 570.37(b)(3)(ii)), the oversight of a 

designated teacher-coordinator required 

to make visits to the students’ 

workplaces (see § 570.37(b)(3)(iii)), the 

completion of a detailed written 

participation agreement (see 

§ 570.37(b)(3)(iv)), and a rigorous 

certification process. The Department 

believes that these additional 

requirements, many of which 

correspond to the criteria established for 

operating a WECEP under § 570.36 

(new), will provide adequate protections 

to all students who participate in an 

approved work-study program under the 

provisions of § 570.37 (new). The 

Department also believes that the 

certification process as proposed by the 

Department, which again is similar to 

that required of WECEP applicants, 

provides sufficient transparency 

without requiring publication in the 

Federal Register or public comment. In 

addition, pursuant to the President’s 

commitment to openness and 

transparency,1 the Department intends 

to publish the list of schools authorized 

to operate a work-study program on the 

WHD Web site. 

The Department also notes that the 

proposed work-study program provides 

considerable flexibility to those schools 

that choose to participate. The 

limitations on the number of hours that 

participating students may be employed 

(see § 570.37(c) (new)), though in line 

with those established by the Cristo Rey 

Network, constitute the absolute 

maximum number of hours that 

participants may be employed. 

Participating schools and employers 

may choose to adopt some other 

schedule of work hours that comport 

with the established maxima—such as 

one four-hour day or one six-hour day 

each workweek; or two eight-hour days 

each weekend; or three hours a day at 

the end of each of three school days, as 

long as those hours comply with end-ofday hours standards established by 

§ 570.35(a)(6). In addition, a school 

could apply and receive authorization 

under § 570.37 (new) to operate a workstudy program for just one student, one 

group of students, or, as in the case of 

the Cristo Rey Network, the entire 

student body. 

The Department wishes to emphasize 

that the development of this studentwork program was never intended to 

advantage any single, private school 

system, but was proposed for the benefit 

of all academically motivated students 

enrolled in college preparatory curricula 

that can avail themselves of such a 

program of employment that clearly 

facilitates, rather than interferes with, 

their schooling. The Department, for 

this very reason, did not specifically 

identify the Cristo Rey Network in the 

NPRM. It did not want the public 

mistakenly to believe that participation 

in the proposed work-study program 

would be limited to private schools, 

public schools, or any particular 

religious or nonreligious sect. For 

similar reasons, the Department did not 

identify the municipalities that inquired 

about the employment of youth by state 

and local governments and as 

lifeguards, which led to the 

Department’s enforcement positions on 

those topics. Since publication of the 

NPRM, the Department has received 

inquiries from public schools and 

private schools (not part of the Cristo 

Rey Network) about establishing workstudy programs under § 570.37 (new). 

The Department also wishes to assure 

both the YWN and CLC that employers 

participating in the work-study program 

authorized by § 570.37 (new) would 

indeed be the employer of the youth 

under the FLSA and held to all the Act’s 

minimum wage, overtime, record 

keeping, and child labor provisions— 

unless subject to a specific exemption or 

exception—as would any other 

employer. In fact, depending upon the 

facts of each situation and the degree of 

control the school exercises over the 

employment of the participating 

student, it is possible that the student 

would be considered to be jointly 

employed by the host-employer and the 

youth’s school under the FLSA (see 29 

CFR part 791). The FLSA would require 

that students participating in the workstudy program, if covered by the Act 

and not exempt from the minimum 

wage requirements of section 6, receive 

the applicable minimum wage for all 

hours worked. Such students may, in 

accordance with 29 CFR 531.40, make a 

voluntary assignment of their wages to 

a third party. The employment of 

students participating in the work-study 

program would also most likely be 

subject to state wage requirements and 

child labor provisions. When state and 

federal requirements differ, the FLSA 

does not supersede any more protective 

state child labor requirement and 

employers must normally comply with 

the more stringent standard. 

Under § 570.37 (new), the 

participating school district and 

employers share the burden of ensuring 

that the employment of work-study 

program participants is in compliance 

with the FLSA. When the Department 

conducts an investigation of a workstudy program participating employer, it 

will follow its normal investigation 

procedures to determine if the employer 

complied with child labor requirements. 

The employer will be held responsible 

for any violations of the FLSA or the 

child labor regulations. But the 

Department considers it appropriate that 

the school district sponsoring the workstudy assist the employer in the both 

achieving and monitoring the 

compliance of the work-study program. 

Therefore, the Department has revised 

the proposed regulatory language at 

§ 570.37(b)(3)(iii) to emphasize the role 

of the teacher-coordinator in confirming 

that the employment of the work-study 

program participant complies with the 

child labor and minimum wage 

requirements of the FLSA. In addition, 

when a school system files a letter of 

application to renew an existing workstudy program, it will be required to 

note that the teacher-coordinator has 

confirmed that the employment of 

students in the work-study program has 

been in compliance with the child labor 

and minimum wage provisions of the 

FLSA. 

The Department believes that the 

teacher-coordinator occupies an ideal 

position to both help the employer 

attain and maintain compliance with 

the all the requirements of work-study 

program and assist the Department’s 

enforcement efforts by confirming that 

compliance. In addition to the regularly 

scheduled visits to the workplaces the 

teacher-coordinator is required to make, 

the Department suggests that such 

things as frequent interactions with the 

work-study program students, program 

assessments and evaluations completed 

by the students and the employers, and 

surprise or unscheduled visits to the 

workplaces can all contribute to the 

operation of a safe, compliant, and 

positive work-study program. The 

suggested methods of confirmation are 

purely discretionary; no work-study 

participating school district will be 

penalized for not adopting them. The 

Department notes that it is not imposing 

any recordkeeping burdens on the 

employers or the school districts beyond 

those proposed in the 2007 NPRM, 

therefore no additional estimates of 

costs or burdens will be incurred that 

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must be accounted for pursuant to the 

Paperwork Reduction Act and 

Regulatory Flexibility Act. 

The Department appreciates the 

concerns of both the YWN and the CLC 

that the proposed work-study program, 

unlike the WECEP, does not prohibit 

participating employers from displacing 

a worker already employed in the 

employer’s establishment with a student 

(see § 570.36(e) (new)). The 

Department’s experience with the pilot 

work-study program indicates that most 

of the jobs occupied by the students 

were entry-level positions created 

especially for the work-study program. 

In addition, the pilot program reduced 

the number of jobs being occupied by 

student participants by requiring that 

four students share a single full-time 

position. The Department expects that 

its experiences under the new workstudy program will be similar. It 

believes that encouraging employers to 

create such multiple employment 

opportunities for youth who qualify for 

participation in the work-study program 

warrants this flexibility. 

E. Logging Occupations and 

Occupations in the Operation of Any 

Sawmill, Lath Mill, Shingle Mill, or 

Cooperage Stock Mill (Order 4) (29 CFR 

570.54) 

HO 4 generally prohibits minors 16 

and 17 years of age from being 

employed in most occupations in 

logging and in the operation of a 

sawmill, lath mill, shingle mill or 

cooperage stock mill. The HO was 

created because of the extremely high 

numbers of occupational fatalities and 

injuries that were experienced by 

workers of all ages in these industries. 

HO 4 currently provides exemptions 

that allow 16- and 17-year-olds to 

perform some occupations within the 

logging industries. Such minors may 

perform work in offices or repair or 

maintenance shops. They may work in 

the construction, operation, repair, or 

maintenance of living and 

administrative quarters of logging 

camps. They may work in the peeling of 

fence posts, pulpwood, chemical wood, 

excelsior wood, cordwood, or similar 

products when not done in conjunction 

with and at the same time and place as 

other logging occupations declared 

hazardous by HO 4. They may work in 

the feeding and care of animals. Finally, 

they may work in timber cruising, 

surveying, or logging engineering 

parties; in the repair or maintenance of 

roads, railroads, or flumes; and in forest 

protection, such as clearing fire trails or 

roads, piling and burning slash, 

maintaining fire-fighting equipment, 

constructing and maintaining telephone 

lines, or acting as fire lookouts or fire 

patrolman away from the actual logging 

operations—but only if such tasks do 

not involve the felling or bucking of 

timber, the collecting or transporting of 

logs, the operation of power-driven 

machinery, the handling or use of 

explosives, and working on trestles. 

HO 4 also provides exemptions at 

§ 570.54(a) (old and new), permitting 

16- and 17-year-olds to be employed in 

certain sawmill, lath mill, shingle mill, 

or cooperage stock mill occupations. 

These exemptions, which do not apply 

to work performed in a portable sawmill 

or that entails the young worker 

entering the sawmill building, permit 

16- and 17-year-olds employed in 

occupations in the operation of 

sawmills, lath mills, shingle mills, or 

cooperage stock mills to work in offices 

or in repair or maintenance shops; to 

straighten, mark, or tally lumber on the 

dry chain or the dry drop sorter; pull 

lumber from the dry chain; to clean up 

the lumberyard; to pile, handle, or ship 

cooperage stock in yards or storage 

sheds other than operating of or 

assisting in the operation of powerdriven equipment; to perform clerical 

work in the yards or shipping sheds, 

such as done by ordermen, tally-men, 

and shipping clerks; to perform cleanup work outside shake and shingle 

mills, except when the mill is in 

operation; to split shakes manually from 

precut and split blocks with a froe and 

mallet, except inside the mill building 

or cover; to pack shakes into bundles 

when done in conjunction with splitting 

shakes manually with a froe and mallet, 

except inside the mill building or cover; 

and to manually load bundles of 

shingles or shakes into trucks or railroad 

cars, provided that the employer has on 

file a statement from a licensed doctor 

of medicine or osteopathy certifying the 

minor capable of performing this work 

without injury to himself. 

The NIOSH Report recommends that 

the Department not only retain HO 4, 

but expand its coverage to include work 

in the operation of timber tracts 

(Standard Industrial Classification (SIC) 

081) and forestry services (SIC 085) 

because of the high number of fatalities 

occurring in such operations (see 

NIOSH Report, page 27). The SIC 

industry group of timber tracts 

encompasses establishments primarily 

engaged in the operation of timber tracts 

or tree farms for the purpose of selling 

standing timber, including those 

establishments that grow Christmas 

trees. The SIC industry group of forestry 

services encompasses establishments 

primarily engaged in performing, on a 

contract or fee basis, services related to 

timber production, wood technology, 

forestry economics and marketing, as 

well as other forestry services not 

contained in another SIC such as timber 

cruising, forest fire fighting, and 

reforestation. Establishments that 

perform timber estimation and valuation 

and forest fire prevention and pest 

control are also included in SIC 085. 

The Report states: ‘‘The logging 

industry * * * had the highest lifetime 

risk of fatal injury of any industry, at 47 

deaths per 1,000 workers based on an 

analysis of National Traumatic 

Occupational Fatality Surveillance 

System data for 1990 and 1991. 

Sawmills, planing mills, and millwork 

* * * had the 14th highest lifetime risk 

of 5.8 deaths per 1,000 workers’’ (see 

NIOSH Report, page 28). The Report 

also documents that the forestry 

industry has a high fatality rate as well, 

and workers face injury risks similar to 

those of logging workers. Citing data 

from the Census of Fatal Occupational 

Injuries (CFOI), the Report identified 82 

fatalities of workers between 1992 and 

1997 employed in the forestry industry 

as a whole, which includes 

establishments primarily engaged in the 

operation of timber tracts, tree farms, 

forest nurseries and those providing 

related forest service activities such as 

cruising and estimating timber, 

reforestation, fire prevention and fire 

fighting, pest control, timber valuation, 

and the gathering of forest products. 

Transportation incidents were the most 

common fatal event among forestry 

workers, accounting for 43 of the 82 

deaths (see NIOSH Report, page 30). 

Although the Report notes that there 

was almost no data specific to workers 

16 and 17 years of age, the CFOI 

identifies 35 deaths in timber tract 

operations for all age groups between 

1992 and 1997 and 39 deaths in forestry 

service operations for all age groups 

during the same period. Forestry 

workers also experienced fatal injuries 

such as those typically associated with 

the logging industry; in 26 of the 82 

fatalities the worker was struck by a 

falling object (a tree in all but one 

instance). In addition, NIOSH also was 

able to identify 16 additional deaths of 

workers of all ages that were attributable 

to forest fire fighting activities (see 

NIOSH Report, page 30). 

NIOSH notes that work in SIC 083, 

forest nurseries and gathering of forest 

products, is associated with very small 

numbers of fatalities and should not be 

prohibited by HO 4. SIC 083 

encompasses those establishments 

primarily engaged in growing trees for 

purposes of reforestation or in gathering 

forest products. The concentration or 

distillation of these products, when 

carried out in the forest, is also included 

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in this industry. Examples of industries 

or activities included in SIC 083 are the 

gathering of balsam needles, ginseng, 

huckleberry greens, maple sap, moss, 

Spanish moss, sphagnum moss, 

teaberries, and tree seeds; the 

distillation of gum, turpentine, and 

rosin if carried on at the gum farm; and 

the extraction of pine gum. It should 

also be noted that section 13(d) of the 

FLSA already provides an exemption 

from the Act’s minimum wage, 

overtime, and child labor provisions to 

any homeworker engaged in the making 

of wreaths composed principally of 

natural holly, pine, cedar, or other 

evergreens (including the harvesting of 

the evergreens or other forest products 

used in making such wreaths). 

The Report also recommends that the 

Department remove the current 

exemption that permits 16- and 17-yearolds to work in the construction of 

living and administrative quarters of 

logging camps. The Report states: 

‘‘Construction work has high risks for 

fatal and nonfatal injuries and should 

not be exempted in the construction of 

living or administrative quarters at 

logging sites or mills’’ (see NIOSH 

Report, page 27). The Department 

sought public comments about this 

issue in the ANPRM that was published 

concurrently with the NPRM on April 

17, 2007 (72 FR 19328). 

As mentioned earlier, the 

Consolidated Appropriations Act, 2004 

(Pub. L. 108–199), amended the FLSA 

by creating a limited exemption from 

the child labor provisions for minors 14 

to 18 years of age who are excused from 

compulsory school attendance beyond 

the eighth grade. The exemption, 

contained in section 13(c)(7) of the 

FLSA, allows eligible youth, under 

specific conditions, to be employed by 

businesses that use machinery to 

process wood products, but does not 

allow such youth to operate or assist in 

operating power-driven woodworking 

machines. This exemption necessitates 

that the Department revise both Reg. 3 

and HO 4. 

The Department agreed with the 

NIOSH Report recommendation that HO 

4 should be expanded to cover work in 

forest fire fighting and forest fire 

prevention because of the risks inherent 

in those occupations. The Department 

also considered adopting NIOSH’s 

recommendation that the employment 

of 16- and 17-year-olds be prohibited in 

the operation of timber tracts, tree 

farms, and forestry services, but was 

concerned that such youth may be able 

to be safely employed in certain facets 

or occupations within those industries. 

Therefore, the Department requested in 

the NPRM that the public provide 

information that would help it identify 

which occupations or tasks within the 

timber tract, tree farm, and forestry 

services industries are not particularly 

hazardous to youth. 

The Department proposed to revise 

HO 4 to add a prohibition on the 

employment of youth 16 and 17 years of 

age in forest fire fighting and forest fire 

prevention occupations to the current 

prohibitions on logging occupations, 

and occupations in the operation of any 

sawmill, lath mill, shingle mill, or 

cooperage stock mill. The Department 

proposed to revise the title of HO 4 to 

reflect these changes. 

Under the proposal, all occupations in 

forest fire fighting and forest fire 

prevention would include the 

controlling and extinguishing of fires, 

the wetting down of areas or 

extinguishing of spot fires, and the 

patrolling of burned areas to ensure the 

fire has been extinguished. The term 

would also include the following tasks 

when performed in conjunction with, or 

in support of, efforts to extinguish a fire: 

The piling and burning of slash; the 

clearing of fire trails or roads; the 

construction, maintenance, and 

patrolling of fire lines; acting as a fire 

lookout or fire patrolman; and tasks 

associated with the operation of a 

temporary fire fighting base camp. The 

proposed prohibition concerning the 

employment of youth in forest fire 

fighting and forest fire prevention 

would apply to all forest locations and 

buildings located within the forest, not 

just where logging or sawmilling takes 

place. The Department notes that, 

because the FLSA does not cover 

individuals who volunteer to perform 

services for state or local government 

agencies when the provisions in section 

3(e)(4) are met, this proposal would not 

prohibit 16- and 17-year-old volunteers 

from donating their forest fire fighting 

services to state and local governments. 

The Department also proposed to 

incorporate into HO 4 the provisions of 

the Consolidated Appropriations Act, 

2004 (Pub. L. 108–199), which amended 

the FLSA by creating a limited 

exemption from the child labor 

provisions for certain minors 14 through 

17 years of age who are excused from 

compulsory school attendance beyond 

the eighth grade. The exemption, 

contained at section 13(c)(7) of the 

FLSA, overrides the HO 4 prohibition 

against 16- and 17-year-olds performing 

any work in the sawmill industry that 

entails entering the sawmill building by 

permitting certain youth to be employed 

inside and outside of places of business 

where machinery is used to process 

wood products. The Department 

proposed to revise HO 4 to incorporate 

the provisions of section 13(c)(7) in the 

same manner, and using the same 

definitions and interpretations, as it 

proposed when discussing revisions to 

Reg. 3, above. 

The term all occupations in the 

operation of any sawmill, lath mill, 

shingle mill, or cooperage stock mill, as 

defined by HO 4, specifically excludes 

work performed in the planing-mill 

department or other remanufacturing 

departments of any sawmill, or in any 

planing mill or remanufacturing plant 

not a part of a sawmill. Although not 

defined in the regulations, the 

Department has, since at least 1942, 

considered the term remanufacturing 

departments to mean those departments 

of a sawmill where lumber products 

such as boxes, lawn furniture, and the 

like are remanufactured from previously 

cut lumber. The kind of work performed 

in such departments is similar to that 

done in planing mill departments in 

that rough lumber is surfaced or made 

into other finished products. The term 

is not intended to denote those 

operations in sawmills where rough 

lumber is cut to dimensions. Because 

the Department has, over the years, 

received requests for clarification as to 

the meaning of remanufacturing 

departments, it proposed to add the 

above definition to HO 4. 

The Department also proposed to 

revise HO 4 to include all the 

definitions necessitated by the 

incorporation of the provisions of FLSA 

section 13(c)(7) as discussed earlier in 

this document. In addition, the 

Department proposed to restructure all 

the definitions in HO 4 in an 

alphabetical sequence to comport with 

guidance provided by the Federal 

Register. 

The Department decided not to 

address, in the NPRM, the NIOSH 

Report recommendation to remove the 

HO 4 exemption that permits 16- and 

17-year-olds to work in the construction 

of living and administrative quarters of 

logging camps. This is because the 

Report also recommended the creation 

of a new HO that would prohibit all 

work in construction occupations 

which, if adopted, would impact the 

provisions of not only HO 4 but several 

other HOs. The Department believes 

additional information is needed before 

it can address such a broad 

recommendation that would impact all 

construction occupations. In an attempt 

to obtain such additional information, 

the Department requested public 

comment on this subject in the 2007 

ANPRM. 

The Department received five 

comments addressing this proposal. The 

DOLWD stated it was in agreement with 

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the NIOSH recommendations, except 

that it believed that 16- and 17-yearolds, after completion of the ten-hour 

construction safety and health course 

certified by OSHA, could safely be 

employed to work in the construction of 

living and administrative quarters of 

logging camps. The DOLWD also 

recommended that an exception be 

granted allowing such youth ‘‘to be 

employed in logging camp support 

positions such as cook, janitor, etc.’’ 

The Director of Human Capital 

Management of the U.S. Department of 

Agriculture’s Forest Service stated that 

the Forest Service applauded the 

Department of Labor’s proposal that 

would prohibit 16- and 17-year-olds 

from performing fire fighting duties. The 

Forest Service did, however, 

recommend that the proposal be revised 

to permit such youth to work in forest 

protection-type activities, which it sees 

as non-hazardous, such as clearing fire 

trails or roads, maintaining fire fighting 

equipment, and acting as a fire lookout 

or fire patrolman. The Forest Service 

also noted that it ‘‘currently uses 16- and 

17-year-old Job Corps employees and 

private contractors in our fire camps to 

perform such tasks as building 

platforms for tents, stocking commissary 

items, performing timekeeping activities 

and providing food services.’’ 

The AFL–CIO, YWN, and CLC all 

supported the proposed changes to 

prohibit the employment of young 

workers in forest fire fighting and forest 

fire prevention occupations. All three 

also expressed their disappointment 

that although the Department 

considered adopting NIOSH’s 

recommendation that the employment 

of 16- and 17-year-olds be prohibited in 

the operation of timber tracts, tree 

farms, and forestry services, it did not 

do so. All three commenters provided 

rationales for adopting this NIOSH 

recommendation, which included 

examples of tasks and exposures 

commonly associated with such 

industries that they consider to be 

hazardous. For example, the AFL–CIO 

noted that ‘‘[w]orking in the forest 

industry can involve working at heights 

* * * These workers also cut the trees 

with a chainsaw and drag them from the 

cutting area to a truck and then load 

them on to a truck. The AFL–CIO 

strongly urges DOL not to permit 

children under 18 to do any of this 

work. Other forestry workers gather 

products which requires them to climb 

trees * * * children under 18 should 

not be able to work at heights in timber 

tracts or tree farms.’’ The CLC 

commented that ‘‘[w]orking in the 

forestry industry can involve working at 

heights * * * using machetes and 

pruning shears * * * These workers 

also cut the trees with a chainsaw and 

drag them from the cutting area and 

then load them on to a truck. The CLC 

strongly urges DOL not to permit 

children under 18 to do any of this 

work, much of which is already 

prohibited.’’ 

Finally, the YWN, AFL–CIO, and the 

CLC all encouraged the Department to 

revise its proposal and accept the 

NIOSH recommendation to prohibit the 

employment of 16- and 17-year-olds in 

the constructing and repairing of living 

or administrative quarters of logging 

camps. The CLC also argued that 

language in the proposed HO 4 is 

changed from the current rule and 

contradicts itself in that § 570.54(a) 

declares all occupations in logging to be 

particularly hazardous; that the 

definition of all occupations in logging 

contained in § 570.54(b) includes the 

constructing, repairing, and maintaining 

of camps used in connection with 

logging; and § 570.54(a)(1)(ii) permits 

youth to perform such work. 

The Department has carefully 

reviewed all the comments and has 

decided to adopt the proposal with 

certain modifications that will clarify 

the Final Rule. First, the Department has 

been persuaded by the comments of the 

Forest Service and the DOLWD that 16- 

and 17-year-olds can safely be employed 

in certain capacities in forest protection 

and in the operation of fire fighting base 

camps. The Department now concurs 

that employment at such camps, which 

are purposely located considerable 

distances from forest fires, when in 

compliance with all other Hazardous 

Occupations Orders, is not particularly 

hazardous or detrimental to the health 

or well-being of 16- and 17-year-olds. 

Such employment is very similar to that 

involved with the operation of logging 

camps, occupations that 16- and 17- 

year-olds have been permitted to 

perform for many years. Accordingly, 

the Department has revised the 

regulatory language in § 570.54(a)(2). 

The Final Rule also provides that 16- 

and 17-year-olds may perform such fire 

prevention tasks as the clearing of fire 

trails or roads; the construction, 

maintenance, and patrolling of fire 

lines; the maintaining of fire fighting 

equipment; acting as a fire lookout or 

fire patrolman; and the piling and 

burning of slash. However, such tasks 

are permitted only when not performed 

in conjunction with extinguishing a 

forest fire. The Department believes the 

hazards associated with the activities of 

extinguishing a forest fire warrant this 

prohibition and has clarified the 

definition of all occupations in forest 

fire fighting and forest fire prevention to 

note that such work is prohibited not 

only in all forest and timber tract 

locations, but also in logging operations, 

and sawmill operations, including all 

buildings located within such areas. 

The revisions the Department 

proposed to § 570.54(a)(1) (old) that 

removed paragraph (iii) of that 

subsection evidenced the Department’s 

intention to prohibit 16- and 17-yearolds from employment in most timber 

tract and forestry service occupations. 

The previous § 570.54(a)(1)(iii) 

specifically excluded from the list of 

logging tasks deemed to be particularly 

hazardous to young workers who work 

in timber cruising, surveying or loggingengineering parties; work in the repair 

or maintenance of roads, railroads, or 

flumes; and work in forest protection, 

such as clearing fire trails or roads, 

piling and burning slash, maintaining 

fire-fighting equipment, constructing 

and maintaining telephone lines, or 

acting as fire look-out or fire patrolman 

away from the actual logging operation. 

By removing this subsection, the 

Department removes the exception for 

timber tract and forestry service 

occupations. 

The Department, in its 2007 NPRM, 

specifically requested public comments 

as to which occupations or tasks within 

the timber tract, tree farm, and forestry 

service industries, if any, are not 

particularly hazardous or detrimental to 

the health and well-being of youth (see 

72 FR 19351). It was the Department’s 

intention to qualify in the Final Rule 

which occupations, if any, would be 

permitted for 16- and 17-year-olds after 

the comments were reviewed. No 

comments were received that identified 

any tasks in these industries as being 

safe for minors to perform. 

The Department believes that despite 

the lack of comments, 16- and 17-yearolds can safely perform certain tasks 

within the timber tract, tree farm, and 

forestry service industries. Such youth 

should be permitted to perform many of 

the tasks that HO 4 has long permitted 

youth employed in logging to perform: 

Working in offices and in repair or 

maintenance shops; work in the 

construction, operation, repair, or 

maintenance of living and 

administrative quarters, constructing 

and maintaining telephone lines; and 

work in the feeding or care of animals. 

In addition, youth employed in timber 

tract, tree farm, and forestry service 

industries should be permitted to 

perform tasks related to forest marketing 

and forest economics that are not 

performed in a forest. Finally, as 

mentioned above, such youth should 

also be permitted to perform certain 

tasks related to forest fire fighting and 

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28432 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

forest fire prevention, when not 

performed in conjunction with the 

extinguishing of a fire, such as the 

clearing of trails or roads; the 

construction, maintenance, and 

patrolling of fire lines; acting as a fire 

lookout or fire patrolman; and tasks 

associated with the operation of a fire 

fighting base camp. 

The Department has revised the 

regulatory language proposed in the 

NPRM for HO 4 at § 570.54(a) to make 

it clear that the employment of 16- and 

17-year-olds to perform most jobs in 

timber tract, forestry service, and tree 

farm operations are prohibited. The 

revisions also simplify the section by 

combining, clarifying, and condensing 

previous subsections. The Department 

notes that the use of Standard Industrial 

Codes by the NIOSH Report was helpful 

in identifying the different occupations 

and industries that could be impacted 

by the Department’s HO. But because 

many of the occupations and tasks 

addressed by the Final Rule either 

appear in more than one code or are not 

included in the codes listed in the 

Report, the Department did not use 

those codes in formulating the 

definitions used in the Final Rule. The 

Department has added language to 

§ 570.54(a) to make it clear that the 

limited exceptions to HO 4 listed in that 

paragraph do not include any work that 

would be prohibited by any other HO 

contained in subpart E. The Department 

also added clarifying statements to 

§ 570.54(a)(8) regarding the types of 

work that 14-year-olds employed under 

the provisions of FLSA section 13(c)(7) 

may perform inside a sawmill. As 

discussed earlier, similar clarifying 

language was added to § 570.34(m)(2). 

The Department has also moved the 

definition of portable sawmill contained 

within § 570.54(a)(2) (old) to the 

Definitions section (§ 570.54(b) (new)). 

In addition to changing the title of HO 

4 to accommodate this revision, the 

Department has also added definitions 

of the terms all occupations in forestry 

services and all occupations in timber 

tracts to § 570.54(b). The Department 

has also replaced the words firefighting 

and firelines in the Final Rule with the 

words fire fighting and fire lines. 

All occupations in forestry services 

shall mean all work involved in the 

support of timber production, wood 

technology, forestry economics and 

marketing, and forest protection. The 

term includes such services as timber 

cruising, surveying, or loggingengineering parties; estimating timber; 

timber valuation; forest pest control; 

forest fire fighting and forest fire 

prevention as defined in this section; 

and reforestation. The term shall not 

include work in forest nurseries, 

establishments primarily engaged in 

growing trees for purposes of 

reforestation. The term shall not include 

the gathering of forest products such as 

balsam needles, ginseng, huckleberry 

greens, maple sap, moss, Spanish moss, 

sphagnum moss, teaberries, and tree 

seeds; the distillation of gum, 

turpentine, and rosin if carried on at the 

gum farm; and the extraction of pine 

gum. 

All occupations in timber tracts 

means all work performed in or about 

establishments that cultivate, manage or 

sell standing timber. The term includes 

work performed in timber culture, 

timber tracts, timber-stand 

improvement, and forest fire fighting 

and fire prevention. It would also 

include work on tree farms, except those 

tree farm establishments that meet the 

definition of agriculture contained in 29 

U.S.C. 203(f). 

F. Occupations Involved in the 

Operation of Power-Driven Wood 

Working Machines (Order 5) (29 CFR 

570.55) 

HO 5 generally prohibits the 

employment of 16- and 17-year-olds in 

occupations involving the operating, 

setting up, adjusting, repairing, oiling, 

or cleaning of power-driven 

woodworking machines. It also 

prohibits the occupations of off-bearing 

from circular saws and from guillotineaction 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 

§ 570.55(b) to mean all fixed or portable 

machines or tools driven by power and 

used or designed for cutting, shaping, 

forming, surfacing, nailing, stapling, 

wire stitching, fastening, or otherwise 

assembling, pressing, or printing wood 

or veneer. Although FLSA section 

13(c)(7) does not impact the 

prohibitions of HO 5 because eligible 

youth are still prevented from operating 

power-driven woodworking machinery, 

it does expand the types of workplaces 

where certain youth may be employed 

to include sawmills, lath mills, shingle 

mills, and cooperage stock mills as well 

as other workplaces the Department’s 

Final Rule includes under Reg. 3 and 

HO 4. Employees at these newly 

permitted work sites routinely use 

power-driven equipment that process 

materials that may not be included in 

the current definition of power-driven 

woodworking machines contained in 

HO 5, such as trees, logs, and lumber. 

Accordingly, the Department proposed 

to amend the definition of power-driven 

woodworking machines to include those 

machines that process trees, logs, and 

lumber. To ensure consistency, the 

Department proposed that this single 

definition of power-driven 

woodworking machines be included in 

§ 570.34(m) (Reg. 3), § 570.54 (HO 4), 

and § 570.55 (HO 5). 

The Department also proposed to 

restructure the two definitions in this 

section to reflect an alphabetical 

sequence in accordance with guidance 

provided by the Federal Register. 

The Department received three 

comments on this proposal. The 

AFL–CIO and YWN agreed with the 

Department’s proposal to amend the 

definition of power-driven 

woodworking machines to include those 

machines that process trees, logs, and 

lumber. The YWN also recommended 

that the proposed definition of powerdriven woodworking machines be 

revised to permit 16- and 17-year-olds to 

use small hand-held battery-operated 

drills that accommodate bits no larger 

than 3⁄8′′ and hand-held oscillating- or 

vibrating-type sanders. 

The CLC, YWN, and AFL–CIO 

expressed disappointment that the 

Department did not adopt NIOSH’s 

alternative recommendation that the 

Department rewrite HOs 5, 8, and 12, 

which respectively address machines 

that work with wood, metal, and paper, 

by merging them into a single or 

multiple HOs which address the 

function of the machines rather than the 

material processed (see NIOSH Report, 

page 31). 

After carefully reviewing the 

comments, the Department has decided 

to adopt the proposal as written. The 

Department did not request, nor does it 

possess, data regarding whether 16- and 

17-year-olds can safely operate portable 

drills or sanders, or what requirements 

should be imposed to ensure their safe 

operation by young workers. 

Accordingly, it cannot adopt the 

recommendation of the YWN at this 

time. The Department notes that it is 

exploring the feasibility of adopting 

NIOSH’s alternative recommendation 

that certain power-driven equipment be 

prohibited based on function rather than 

on the material being processed. 

Because of the complexity of the issue 

and in the hopes of obtaining additional 

information, the Department requested 

public comment on this 

recommendation in the ANPRM that 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28433 

was published in conjunction with, and 

on the same day as, the NPRM. 

G. Occupations Involved in the 

Operation of Power-Driven Hoisting 

Apparatus (Order 7) (29 CFR 570.58) 

HO 7 generally prohibits 16- and 17- 

year-olds from employment in 

occupations that involve the work of: (1) 

Operating an elevator, crane, derrick, 

hoist, or high-lift truck except such 

youth may operate unattended 

automatic operation passenger elevators 

and electric or air operated hoists not 

exceeding one ton capacity; (2) riding 

on a manlift or on a freight elevator, 

except a freight elevator operated by an 

assigned operator; and (3) assisting in 

the operation of a crane, derrick or hoist 

performed by crane hookers, crane 

chasers, hookers-on, riggers, rigger 

helpers, and like occupations. 

The NIOSH Report recommended that 

the Department expand HO 7 to prohibit 

the repairing, servicing, and 

disassembling of the machines and 

assisting in tasks being performed by the 

machines named in the HO. Assisting in 

tasks being performed by the machines 

would be tending the machines. The 

Report shows that a substantial number 

of deaths and injuries are associated 

with operating and assisting in tasks 

performed by power-driven hoisting 

apparatus, including deaths of youth 

(see NIOSH Report, page 36). 

Additionally, a considerable number of 

deaths were associated with activities 

not directly related to operation of the 

hoisting apparatus, notably servicing, 

repairing, and disassembling. Currently, 

the work of repairing, servicing, 

disassembling, and tending the 

machines covered by HO 7 is prohibited 

to 14- and 15-year-olds under Reg. 3 at 

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

Under HO 7, 16- and 17-year-olds may 

currently perform such work, except 

they may not assist in the operation of 

a crane, derrick, or hoist as defined by 

the HO. 

The Report also recommends that HO 

7 be expanded to prohibit youth from 

riding on any part of a forklift as a 

passenger (including the forks) and from 

working from forks, platforms, buckets, 

or cages attached to a moving or 

stationary forklift. The Report notes that 

substantial numbers of fatalities occur 

among workers who are passengers on 

forklifts, riding on the forks, or working 

from the raised forklift attachments (see 

NIOSH Report, page 36). Currently, 14- 

and 15-year-olds are prohibited from 

riding on forklifts because Reg. 3 

prohibits such youth from operating or 

tending hoisting apparatus and any 

power-driven machines other than 

office equipment. The Department has 

long interpreted tending to include 

riding upon the power-driven 

equipment. HO 7, however, prohibits 

older youth only from operating highlift trucks such as forklifts. Since 1999, 

the WHD has investigated at least three 

incidents where youth under 18 years of 

age were seriously injured while riding 

on forklifts being operated by other 

employees. One 16-year-old who was 

riding on the tines of a forklift suffered 

especially serious injuries to his liver 

and pancreas as a result of being pinned 

against a wall when the driver was 

unable to stop the forklift. 

The Report also recommends that HO 

7 be expanded to prohibit work from 

truck-mounted bucket or basket hoists 

commonly termed ‘‘bucket trucks’’ or 

‘‘cherry pickers’’ because worker 

fatalities are associated with work from 

such equipment (see NIOSH Report, 

page 36). The Report specifically notes 

the risk of falls and electrocution being 

linked with such equipment. The 

Report, citing CFOI data, reflects that 

there were 99 worker deaths associated 

with truck mounted bucket or basket 

hoists between 1992 and 1997 (see 

NIOSH Report, page 37). 

In addition, the Report recommends 

that HO 7 be expanded to prohibit 16- 

and 17-year-olds from employment 

involving certain commonly used 

manlifts—especially aerial platforms— 

that do not meet the current definition 

of manlift contained in the HO. The 

Report contends that such manlifts 

appear to pose more significant injury 

risk than those traditionally prohibited 

by HO 7 (see NIOSH Report, page 36). 

HO 7 defines a manlift as a device 

intended for the conveyance of persons 

that consists of platforms or brackets 

mounted on, or attached to, an endless 

belt, cable, chain or similar method of 

suspension; such belt, cable or chain 

operating in a substantially vertical 

direction and being supported by and 

driven through pulleys, sheaves or 

sprockets at the top and bottom. The 

Report is correct that this current 

definition of manlift does not include, 

and therefore does not prohibit, 16- and 

17-year-olds from operating or tending 

aerial platforms and other manlifts such 

as scissor lifts, boom-type mobile 

elevating work platforms, work assist 

vehicles, cherry pickers, basket hoists, 

and bucket trucks. 

The Report also recommends that HO 

7 be revised to eliminate the exemption 

that permits 16- and 17-year-olds to 

operate an electric or air-operated hoist 

not exceeding one-ton capacity. The 

Report states that current injury and 

fatality surveillance systems do not 

provide sufficient detail to justify this 

exemption. ‘‘A hoisted load weighing 

less than one ton has the potential to 

cause injury or death as a result of 

falling, or being improperly rigged or 

handled. Hoist-related fatalities of 

young workers have been reported, 

including a recent case in which a youth 

was killed while operating a half-ton 

capacity hoist’’ (see NIOSH Report, page 

36). 

The Department proposed to 

implement all five of the Report 

recommendations concerning HO 7. 

Sections 570.58(a)(1) and (a)(2) would 

be revised to reflect that in addition to 

work involved with operating the 

named equipment, the work of tending, 

riding upon, working from, servicing, 

repairing or disassembling such 

equipment would also be prohibited. 

Section 570.58(a)(3) would be 

eliminated because its provisions would 

now be contained in the revised 

§ 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 

§ 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 airoperated hoist not exceeding one ton 

capacity would be eliminated as per the 

Report recommendation. 

The Department also proposed to 

reformat the definitions section 

contained in HO 7 to reflect an 

alphabetical sequence in accordance 

with guidance provided by the Federal 

Register. In addition, the Department 

proposed to revise the definition of 

manlift so that, as recommended by the 

Report, it incorporates those pieces of 

equipment that perform the same 

functions as manlifts but that do not 

currently fall within the prohibitions of 

the HO. The proposed definition 

included a statement that the term 

manlift shall also include truck- or 

equipment-mounted aerial platforms 

commonly referred to as scissor lifts, 

boom-type mobile elevating work 

platforms, work assist vehicles, cherry 

pickers, basket hoists, and bucket 

trucks. 

The Department also proposed to 

revise the definition of high-lift truck to 

incorporate a long-standing enforcement 

position that industrial trucks such as 

skid loaders, skid-steer loaders, and 

Bobcat loaders are high-lift trucks as 

defined by HO 7. Although not 

specifically named as high-lift trucks in 

the current HO 7, such equipment meets 

the definition of high-lift trucks because 

each is ‘‘a power-driven industrial type 

of truck * * * equipped with a poweroperated lifting device * * * capable of 

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28434 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

tiering loaded pallets or skids one above 

the other.’’ The Department has opined 

on this matter, in writing, since at least 

1993. By adding skid loaders, skid-steer 

loaders, and Bobcat loaders to the 

definition of high-lift trucks, the 

Department believes it will clarify the 

requirements for compliance with HO 7. 

The Department has successfully 

defended this enforcement position, 

most recently in a case where minors 

were employed to operate a skid-steer 

loader to clean trailers used to haul 

livestock. In addition to affirming the 

Department’s position that a skid loader 

was a ‘‘high-lift truck’’ within the 

meaning of HO 7, the court also found 

that the youths’ operation of the 

equipment violated the HO even though 

the youth did not operate or utilize the 

loader’s hoisting device but used the 

skid-steer loader as a ‘‘scraper’’ (see 

Lynnville Transport, Inc. v. Chao, 316 F. 

Supp. 2d 790 (S.D. Iowa 2004)). 

The Department received three 

comments on this proposal. The YWN, 

AFL–CIO, and CLC supported all 

elements of the proposal, with 

additional recommendations. The YWN 

and AFL–CIO suggested that HO 7 be 

expanded to prohibit 16- and 17-yearolds from working with hydraulic grease 

racks, though the YWN recommended 

that an exception be made to permit 

automotive repair students in 

cooperative education programs who 

have been properly trained and receive 

appropriate supervision to ‘‘work 

around these racks’’ but not to operate 

them. The YWN also noted that ‘‘back 

hoes’’ and ‘‘front-end-loaders’’ would fall 

within the definition of high-lift trucks 

and recommended, for the sake of 

clarity, that the Department specifically 

name them in the revised § 570.58(b). 

The CLC noted that the NIOSH Report 

recommended that HO 7 prohibit 16- 

and 17-year-olds from employment that, 

among other things, included ‘‘assisting 

in tasks being performed’’ by the powerdriven hoisting equipment. The CLC 

took issue with the Department’s 

statement that assisting in tasks being 

performed by the machines would 

constitute tending—an activity 

prohibited by the proposal. The CLC 

recommended that the Department 

clarify the proposal by specifically 

adding ‘‘assisting in tasks being 

performed by the equipment’’ to the 

language of the Final Rule. The 

importance of this recommendation was 

poignantly demonstrated by the August 

2008 death of a 17-year-old in Georgia 

who was crushed to death when a oneton electrical inverter box fell from a 

fork lift. The minor was not operating 

the forklift at the time of his death but 

was serving as a ‘‘spotter’’ and assisting 

the operator of the forklift. 

The Department appreciates the 

comments of the YWN, AFL–CIO, and 

CLC and has decided to adopt the 

proposal with slight modifications 

designed for clarification. The 

Department will add backhoes and 

front-end loaders to the examples of 

high-lift trucks contained in § 570.58(b) 

as recommended by the YWN. The 

Department will also clarify in 

§ 570.58(a)(1) and (2) that the term 

tending includes assisting in the 

hoisting tasks being performed by the 

equipment, to add clarity as 

recommended by the CLC. 

The Department believes additional 

information is needed before it can 

determine whether 16- and 17-year-olds 

who operate hydraulic grease racks are 

at risk and notes it requested public 

comment on this issue in 2007. 

Accordingly, adoption of the 

recommendations of the YWN and 

AFL–CIO that HO 7 also prohibit the 

operation of such equipment would be 

premature. 

H. Occupations in the Operation of 

Power-Driven Meat-Processing Machines 

and Occupations Involving 

Slaughtering, Meat Packing or 

Processing, or Rendering (Order 10) (29 

CFR 570.61) 

HO 10 generally prohibits 16- and 17- 

year-olds from being employed in all 

occupations in or about slaughtering, 

meat packing or processing 

establishments, and rendering plants. 

The HO also prevents such minors from 

performing all occupations involved in 

the operation or feeding of several 

power-driven meat processing machines 

when performed in slaughtering and 

meat packing establishments, as well as 

in wholesale, retail, or service 

establishments. The term slaughtering 

and meat packing establishments is 

defined in HO 10 to mean places in 

which cattle, calves, hogs, sheep, lambs, 

goats, or horses are killed, butchered, or 

processed. The term also includes 

establishments that manufacture or 

process meat products or sausage casing 

from such animals. Under the existing 

regulation, the term does not include 

establishments that process only 

poultry, rabbits, or small game. The 

term retail/wholesale or service 

establishments, as defined in HO 10, 

includes establishments where meat or 

meat products are processed or handled, 

such as butcher shops, grocery stores, 

restaurants, quick service 

establishments, hotels, delicatessens, 

and meat locker (freezer-locker) 

companies, and establishments where 

any food product is prepared or 

processed for serving to customers using 

machines prohibited by the HO. 

Included on the list of prohibited 

power-driven meat processing machines 

are meat patty forming machines, meat 

and bone cutting saws, meat slicers, 

knives (except bacon-slicing machines), 

headsplitters, and guillotine cutters; 

snoutpullers and jawpullers; skinning 

machines; horizontal rotary washing 

machines; casing-cleaning machines 

such as crushing, stripping, and 

finishing machines; grinding, mixing, 

chopping, and hashing machines; and 

presses (except belly-rolling machines). 

The term operation includes setting-up, 

adjusting, repairing, oiling, or cleaning 

such machines, regardless of the 

product being processed by the 

machine. For example, HO 10 prohibits 

a minor from operating a meat slicer in 

a restaurant to cut cheese or vegetables. 

In addition, the Department has, as early 

as 1991, interpreted the prohibition on 

cleaning such machines as precluding 

16- and 17-year-olds from performing 

the hand or machine washing of parts of 

and attachments to power-driven meat 

processing machines, even when the 

machine was disassembled and 

reassembled by an adult. This provision 

is designed to prevent such youth from 

being injured by contact with the 

machines’ sharp blades and cutting 

surfaces. HO 10 provides a limited 

exemption that permits the employment 

of apprentices and student-learners 

under the conditions prescribed in 

§ 570.50(b) and (c). 

The NIOSH Report recommends that 

HO 10 be expanded to prohibit work in 

all meat products manufacturing 

industries including those engaged in 

the processing of sausages and/or other 

prepared meat products and those 

engaged in poultry slaughtering and/or 

processing (see NIOSH Report, page 41). 

The rationale for this recommendation 

is that although injury fatality rates in 

meat products manufacturing industries 

are relatively low, rates of disorders due 

to repeated trauma are extremely high. 

This is also true for poultry processing 

which is not encompassed in the 

existing HO. In addition, there are a 

number of diverse and serious health 

hazards associated with the slaughtering 

of animals and manufacturing of meat 

products, including exposure to 

infectious agents and respiratory 

hazards. The Report notes that in 1997 

there were an estimated 13,646 

occupational injuries and illnesses 

resulting in days away from work 

among employees in the meat products 

manufacturing industry. Although the 

greatest number of these injuries and 

illnesses occurred in meat packing 

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plants (5,526), establishments that 

produce sausages and prepared meats 

experienced 4,147 injuries and illnesses, 

and poultry slaughtering and processing 

establishments experienced 3,937 that 

same year (see NIOSH Report, page 43). 

In 1999, the Department investigated the 

death of a young poultry processing 

worker in Arkansas and the serious 

injury of a similarly employed minor in 

Missouri who injured both of his legs 

when he slipped and fell into an auger. 

The minor also suffered severe nerve 

damage and second degree burns. 

The Report also recommends that HO 

10 be revised to allow 16- and 17-yearolds to operate and feed power-driven 

meat and food slicers in retail, 

wholesale and service industry 

establishments. This is one of the few 

recommendations the Report makes that 

would relax current prohibitions, and it 

is made with the rationale that 

‘‘although data show high numbers of 

injuries associated with power-driven 

slicers, the injuries appear to be 

relatively minor.’’ NIOSH includes the 

caveat that if this recommendation is 

implemented ‘‘it should be accompanied 

by a mandatory reporting period in 

which all serious youth injuries and 

deaths resulting from previously 

prohibited activities are promptly 

reported to the U.S. Department of 

Labor.’’ Such a reporting plan would 

allow an assessment as to whether the 

revision should be rescinded or further 

refined to best protect working youth 

(see NIOSH Report, page 48). 

Finally, the Report recommends that 

the apprenticeship and student-learner 

exemption contained in HO 10 be 

restricted to apply only to 16- and 17- 

year-olds employed in retail, wholesale, 

and service industries. The Report 

recommends that this exemption no 

longer be applicable to the employment 

of such minors in meat products 

manufacturing industries. 

The Department proposed to 

implement the Report recommendation 

to expand the application of HO 10 to 

prohibit the employment of 16- and 17- 

year-olds in all meat products 

manufacturing industries, including 

those engaged in the processing of 

sausages and/or other prepared meat 

products and those engaged in poultry 

slaughtering and/or processing. The 

Department proposed to revise the term 

slaughtering and meat packing 

establishments contained in § 570.61(b) 

so that the term also includes places 

where poultry are killed, butchered, or 

processed. This term would also include 

establishments that manufacture or 

process meat products, including 

poultry, sausage, or sausage casings. The 

Department also proposed to add 

buffalo and deer to the lists of animals 

contained in the definitions of the terms 

killing floor and slaughtering and meat 

packing establishments and to note that 

these lists are not exhaustive. The 

Department also proposed to revise the 

title of HO 10 to reflect its expansion to 

the slaughtering of poultry, and the 

processing, packing, and rendering of 

poultry and poultry products. The 

current HO 10 exemption permitting the 

killing and processing of rabbits or 

small game in areas physically 

separated from the killing floor would 

not be changed. 

The Department also proposed to 

revise § 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 powerdriven meat processing machine 

through the dishwasher so long as the 

youth does not actually handle or touch 

the machine parts or attachments. 

The Department also proposed to 

reformat, in an alphabetical sequence, 

all the definitions found in § 570.61(b) 

to comport with guidance provided by 

the Federal Register. 

The Department decided not to 

propose implementation of the Report 

recommendation that would allow 16- 

and 17-year-olds to operate and feed 

power-driven meat and food slicers in 

retail, wholesale and service industry 

establishments. Both the Report and the 

Department’s enforcement experience 

reflect that meat slicers are responsible 

for many occupational injuries. The 

Report notes that the Survey of 

Occupational Injuries and Illnesses 

reports that in 1997, food and beverage 

processing machinery were responsible 

for 11,737 nonfatal injuries and illness 

that resulted in days away from work. 

Over sixty percent of that number, 7,280 

injuries and illnesses, were caused by 

food slicers. The median number of 

days away from work for workers who 

suffered food slicer related injuries or 

illnesses was four days, not an 

insignificant number (see NIOSH 

Report, page 47). Since October 1999, 

the Department has investigated at least 

36 injuries of young workers that were 

caused by operating or cleaning powerdriven meat slicers. Although none of 

these injuries were life threatening, 

most were considered to be serious and 

many caused the partial loss of digits 

and will leave some permanent scarring. 

The Department also decided not to 

propose implementation at this time of 

the Report recommendation concerning 

limiting the current apprenticeship and 

student-learner exemption contained in 

HO 10 to retail, wholesale and service 

industries. The apprenticeship and 

student learner exemptions contained in 

certain HOs were developed relatively 

independently of each other as each HO 

was adopted. The issue of allowing 

certain training exemptions from the 

HOs first arose in the early 1940s, after 

the enactment of the first six HOs. HO 

5 was amended to permit the 

employment of student learners and 

apprentices, but HOs 1 through 4 were 

not. Each committee convened 

thereafter to study, draft, and implement 

a new HO developed its own criteria for 

determining the appropriateness of 

including apprentice and studentlearner exemptions and was not 

restricted by the determinations made 

by previous committees. The Report 

makes several recommendations 

concerning the establishment, revision, 

and elimination of apprenticeship and 

student-learner exemptions, but the 

rationale for each recommendation 

either is vague or is not provided. The 

Department believes that before any 

changes to the existing exemptions are 

made, it is important to consider and 

develop criteria for determining when 

apprenticeship and student-learner 

exemptions are appropriate. Such 

criteria, which must be consistent with 

the established national policy of 

balancing the benefits of employment 

opportunities for youth with the 

necessary and most effective safety 

protections, will also be of value as the 

Department considers creating new 

HOs. Accordingly, the Department 

issued an ANPRM, in conjunction with 

and on the same day as the NPRM, to 

solicit public comment on this 

important issue. 

The Department received six 

comments in response to this proposal. 

The AFL–CIO, YWN, and CLC 

supported the proposal to expand the 

scope of HO 10 to prohibit the 

employment of 16- and 17-year-olds in 

or about places where such animals as 

cattle, calves, hogs, poultry, sheep, 

lambs, goats, buffalo, deer, or horses are 

killed, butchered, or processed and 

where sausage and sausage casings are 

manufactured or processed. The 

Department received no comments 

opposing adoption of this portion of the 

proposal. The YWN also recommended 

that HO 10 be expanded to cover 

seafood processing occupations. 

The AFL–CIO, YWN, CLC and Six 

Flags all supported the Department’s 

decision not to accept the NIOSH 

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28436 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

Report’s recommendation to allow 16- 

and 17-year-olds to operate and feed 

power-driven meat and food slicers in 

retail, wholesale and service industry 

establishments. These four commenters 

also supported the Department’s 

proposal regarding the cleaning of such 

equipment. The FMI and the Council 

both recommended that the Department 

reconsider and adopt the NIOSH 

recommendation that would allow 16- 

and 17-year-olds to operate and feed 

power-driven meat and food slicers. The 

Council stated ‘‘[t]he NIOSH 

recommendation appears wellsupported’’ while the FMI believed the 

Department’s position to be ‘‘surprising 

as the NIOSH recommendations are 

based on the hard data and analysis that 

DOL asked NIOSH to provide.’’ Neither 

the Council nor the FMI commented on 

the Department’s proposal regarding the 

cleaning of power-driven meat 

processing equipment. 

Both the YWN and the CLC disagreed 

with the Department’s decision not to 

implement at this time the NIOSH 

Report recommendation to limit the 

student-learner and apprentice 

exemption contained in HO 10 to retail, 

wholesale, and service industries. 

After carefully reviewing the 

comments, the Department has decided 

to implement the proposal as written 

with the following modifications. The 

Department is adding poultry scissors 

and shears to the list of prohibited 

power-driven meat processing machines 

listed in § 570.61(a)(4) in recognition 

that the HO now covers poultry 

processing. The Department is also 

revising § 570.61(a)(7), which for many 

years has prohibited 16- and 17-yearolds from handlifting or handcarrying 

any carcass or half carcass of beef, pork 

or horse, to include carcasses or half 

carcasses of buffalo and deer. This 

revision would also expand the current 

prohibitions involving quarter carcasses 

of beef and horse to include buffalo. 

These revisions are necessitated by the 

expansion of the prohibitions of HO 10 

to include the processing of such 

animals. Finally, the Department is 

adding a statement to § 570.61(a)(4) to 

clarify that the limited exemption to HO 

11 which permits 16- and 17-year-olds 

to operate certain lightweight, small 

capacity, portable counter-top powerdriven food mixers (see § 570.62(b)(1)) 

would not apply when the equipment is 

adapted—through the use of various 

attachments—to perform functions other 

than mixing, or to process meat or 

poultry products because of the 

prohibitions of HO 10. This 

modification is discussed in more detail 

further in the section of this preamble 

that addresses HO 11. 

The Department appreciates the 

concerns of the FMI and the Council, 

but must reiterate that the number and 

severity of occupational injuries 

suffered by youth who operate or clean 

power-driven meat slicers do not justify 

allowing youth to operate or clean such 

equipment. The Department notes that, 

since publishing the NPRM, it has 

investigated the serious injuries of at 

least ten more young workers who 

operated or cleaned such equipment. 

The Department also recognizes the 

concerns of the YWN and CLC over the 

Department’s decision not to limit the 

student-learner and apprentice 

exemption contained in HO 10 at this 

time. As noted in the NPRM, the 

Department believes that before any 

changes to the existing student-learner 

and apprentice exemptions are made, it 

is important to consider and develop 

criteria for determining when studentlearner and apprentice exemptions are 

appropriate. As mentioned, the 

Department issued an ANPRM, in 

conjunction with and on the same day 

as the NPRM, to solicit public comment 

on this important issue. 

The Department appreciates the 

YWN’s recommendation that HO 10 

should be expanded to cover seafood 

processing occupations, but notes that 

no data was submitted regarding the 

level of youth employment in that 

industry or the injury rates experienced 

by that industry. 

I. Occupations Involved in the 

Operation of Bakery Machines (Order 

11) (29 CFR 570.62) 

HO 11 generally prohibits the 

employment of 16- and 17-year-olds in 

occupations involved in the operation of 

power-driven bakery machines. 

Prohibited activities include operating, 

assisting to operate, setting up, 

adjusting, repairing, oiling, or cleaning 

any horizontal or vertical dough mixer; 

batter mixer; bread dividing, rounding, 

or molding machine; dough brake; 

dough sheeter; combination bread 

slicing and wrapping machine; or cake 

cutting band saw. The HO also prohibits 

the employment of such youth in the 

occupation of setting up or adjusting a 

‘‘cooky’’ or cracker machine. The 

prohibitions of the HO do not 

differentiate between portable and nonportable 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 powerdriven machines, and nonfatal injuries 

requiring time away from work are of 

moderate severity (see NIOSH Report, 

page 48). Although, as noted, the HO 

prohibits the use of several different 

power-driven bakery machines, the 

thrust of the Report’s recommendation 

involves food mixers. The Report notes 

that there were 712 non-fatal injuries 

and illnesses in 1997, with a median of 

11 days away from work, associated 

with work with mixers, blenders, and 

whippers (see NIOSH Report, page 49). 

The Department’s enforcement 

experience includes situations where 

employers have questioned why 16- and 

17-year-olds were not permitted to use 

small mixers to process such things as 

cheese dip and batter for seafood when 

such machines generally appeared to 

present no risks to such minors. 

Recently, the Department adopted an 

enforcement policy that it would not 

assert violations of HO 11 when 16- and 

17-year-olds operate, assist to operate, 

setup, adjust, repair, oil, or clean certain 

small, lightweight, counter-top mixers. 

The Department proposed to 

implement the Report’s 

recommendation by creating a new 

§ 570.62(b)(1) that would include an 

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exemption allowing the employment of 

16- and 17-year-olds to operate— 

including setting-up, adjusting, 

repairing, oiling, and cleaning— 

lightweight, small capacity, portable 

counter-top power-driven food mixers 

that are, or are comparable to, those 

models intended for household use. 

The Department, during its meetings 

held after the release of the Report with 

various stakeholders, including 

representatives of the full-service and 

quick-service restaurant industries, 

sought to identify which types of mixers 

could be operated safely in the 

workplace by 16- and 17-year-olds. The 

information provided, which also 

echoed the Department’s enforcement 

experiences, indicated that such factors 

as bowl capacity, the horsepower of the 

motor, the portability of the machine 

(light weight and not permanently wired 

or ‘‘hardwired’’ into the establishment’s 

electrical power source), and similarity 

to equipment designed exclusively for 

home use were all important criteria. 

For purposes of this exemption, the 

Department proposed that a lightweight, 

small capacity mixer is one that is not 

hardwired into the establishment’s 

power source, is equipped with a motor 

that operates at no more than 1⁄2

horsepower, and whose bowl capacity 

does not exceed five quarts. Minors 14- 

and 15-years of age would still be 

prohibited from operating or assisting in 

the operation of such mixers under the 

provisions of Reg. 3 (see § 570.33(e) 

(new)). 

The Department also proposed to 

incorporate into § 570.62 its longstanding 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-yearolds can safely operate pizza-dough 

rollers. Accordingly, the Department 

proposed to create a new § 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 inrunning 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 § 570.62(b)(2) would apply only 

when all the safeguards detailed above 

are present on the machines, are 

operational, and have not been 

overridden. 

The Department also proposed to 

change the word cooky in § 570.62(a)(2) 

to cookie to reflect the more common 

spelling of that word. 

The Department received five 

comments regarding this proposal. The 

FMI, Council, AFL–CIO, and YWN all 

supported adoption of the Department’s 

enforcement position allowing 16- and 

17-year-olds to operate—including 

setting-up, adjusting, repairing, oiling, 

and cleaning—lightweight, small 

capacity, portable counter-top powerdriven food mixers that are, or are 

comparable to, those models intended 

for household use. No comments were 

received opposing this proposal. 

The FMI, Council, and AFL–CIO also 

supported the proposal to adopt the 

Department’s long-standing enforcement 

position permitting 16- and 17-year-olds 

to operate—but not set-up, adjust, 

repair, oil, or clean—certain powerdriven pizza dough rollers. The YWN 

opposed this proposal, stating ‘‘[a]bsent 

any concrete information on injury data, 

and on the specific size, make, or 

models under consideration as possible 

examples, we disagree with this 

proposal at this time.’’ The YWN also 

endorsed the NIOSH Report 

recommendation that more intensive 

surveillance of pertinent injuries and 

deaths resulting from the operation of 

power-driven bakery machines be 

conducted should the Department adopt 

these proposals. 

The CLC opposed this proposal and 

reiterated its concerns about the 

Department’s use of its prosecutorial 

discretion to establish enforcement 

positions in the administration and 

enforcement of the child labor 

provisions of the FLSA. 

The Department carefully considered 

all the comments and has decided to 

adopt the proposal with one clarifying 

modification. The Department wishes to 

make it clear that the exemption 

contained in § 570.62(b)(1) (new) that 

permits 16- and 17-year-olds to operate 

certain lightweight, small capacity, 

portable counter-top power-driven food 

mixers would not apply when the 

equipment is adapted—through the use 

of various attachments—to perform 

functions other than mixing, or to 

process meat or poultry products 

because of the prohibitions of HO 10 

(Occupations in the operation of powerdriven meat-processing machines and 

occupations involving slaughtering, 

meat and poultry packing, processing, 

or rendering) (see § 570.61, old and 

new). It is important to note that the 

functions of such mixers, as well as how 

they are addressed by HO 10 and HO 11, 

change when different ‘‘attachments’’ are 

used. For example, a ‘‘mixer’’ as 

discussed in § 570.62(b)(1) would 

become a ‘‘grinder’’ prohibited by HO 10 

(see § 570.61(a)(4)) when the grinding 

attachment is in use. As per the 

provisions of § 570.61(a)(4), it would not 

matter if products other than meat— 

such as vegetables or cheese—were 

being processed. The Department is 

including this information in both 

§ 570.62(b)(1) and § 570.61(a)(4)) to 

avoid confusion and facilitate 

compliance. 

The Department appreciates the 

concerns of the YWN and CLC regarding 

the use of certain power-driven pizza 

dough rollers, but again notes that its 

enforcement experience indicates that 

when employers properly apply all the 

provisions of the enforcement 

position—which have been included in 

the proposed limited exemption—16- 

and 17-year-olds can safely operate such 

equipment. The Department also notes, 

as it has stated previously in this Final 

Rule, that its limited and public exercise 

of its prosecutorial discretion is an 

efficient and permissible tool available 

to the Secretary in the administration of 

the child labor provisions of the FLSA. 

J. Occupations Involved in the 

Operation of Paper-Products Machines, 

Scrap Paper Balers, and Paper Box 

Compactors (Order 12) (29 CFR 570.63) 

Hazardous Occupations Order No. 12 

generally prohibits minors under 18 

years of age from working in 

occupations involving the operation of 

paper-products machines. The HO 

prohibits, with certain exceptions 

discussed below, the loading, operating, 

and unloading of scrap paper balers, 

including paper box balers and 

compacting machines, and other powerdriven machines used in the 

remanufacture or conversion of paper or 

pulp into a finished product. When HO 

12 was promulgated in 1954, the 

dangers specifically associated with the 

operation of scrap paper balers involved 

being caught in the plungers during the 

compression process and suffering 

strains and other injuries while moving 

the compressed bales. 

The Compactor and Baler Act was 

enacted on August 6, 1996 (Pub. L. 104– 

174). This legislation amended the 

FLSA by adding subsection 13(c)(5), 

which permits 16- and 17-year-olds to 

load, but not operate or unload, certain 

scrap paper balers and paper box 

compactors only when certain 

conditions are met. One such condition 

is that the equipment must meet specific 

standards issued for balers or for 

compactors by the American National 

Standard Institute (ANSI). ANSI is a 

national organization that coordinates 

the development of voluntary, 

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consensus standards in a wide range of 

areas, including product and worker 

safety. 

When enacting the Compactor and 

Baler Act, Congress explicitly applied 

certain industry standards for the 

determination of which balers and/or 

compactors are safe for minors to load: 

ANSI Standard ANSI Z245.5–1990 for 

scrap paper balers or Standard ANSI 

Z245.2–1992 for paper box compactors. 

Congress has used ANSI standards in 

other contexts as expressions of the best 

available technology in the safety area. 

For example, the Occupational Safety 

and Health Act of 1970 directed the 

Department of Labor to adopt the thenexisting ANSI standards, rather than 

delay any activity until the agency 

promulgated particular occupational 

safety and health standards (see section 

6(a) of the Occupational Safety and 

Health Act, 29 U.S.C. 655(a)). The ANSI 

standards for scrap paper balers and 

paper box compactors govern the 

manufacture and modification of the 

equipment, the operation and 

maintenance of the equipment, and 

employee training. The Compactor and 

Baler Act also provides that any new 

standard(s) adopted by ANSI would also 

be sufficient for the safety of the scrap 

paper balers and paper box compactors, 

if the Secretary of Labor certifies the 

new standard(s) to be at least as 

protective of the safety of minors as the 

two standards specified in the Act. In 

the Final Rule issued in 2004, the 

Department stated that it would publish 

a Notice in the Federal Register when 

the Secretary made any such 

certifications. 

Because these ANSI standards are 

copyright-protected, the Department 

cannot include them in the regulations 

or reproduce them for distribution to the 

public. Copies of these standards are 

available for purchase from the 

American National Standards Institute 

(ANSI), 25 West 43rd St., Fourth Floor, 

New York, NY 10036. The telephone 

number for ANSI is (212) 642–4900 and 

its Web site is located at http:// 

www.ansi.org. In addition, these 

standards are available for inspection at 

the National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call (202) 741–6030, 

or go to: http://www.archives.gov/

federal_register/code_of_federal_

regulations/ibr_locations.html. These 

standards are also available for 

inspection at the Occupational Safety 

and Health Administration’s Docket 

Office, Room N–2625, U.S. Department 

of Labor, 200 Constitution Avenue, 

NW., Washington, DC 20210, or any of 

its regional offices. The telephone 

number for the Occupational Safety and 

Health Administration’s Docket Office is 

(202) 693–2350 and its Web site is 

located at http://dockets.osha.gov. 

The Department issued a Final Rule 

on December 16, 2004 (69 FR 75382), 

which revised HO 12 to incorporate the 

provisions of the Compactor and Baler 

Act. The Final Rule became effective on 

February 14, 2005. As supported by the 

provisions of the Compactor and Baler 

Act, the Final Rule expanded the 

coverage of HO 12 to include those 

balers and paper box compactors that 

process other materials in addition to 

paper products. Prohibited machines 

include those indoor-types of powerdriven trash compactors equipped with 

built-in carts that detach from the 

compactor to facilitate disposal of the 

compacted waste. With this type of 

machine, an attendant wheels the cart to 

the dumpster, empties the cart into the 

dumpster, and then wheels the cart back 

to the compactor where it is reattached. 

Also included would be ‘‘public use’’ 

waste receptacles—often found at 

airports and other large complexes—that 

include compaction equipment that 

allow the public to dispose of refuse and 

then automatically processed the waste 

at predetermined intervals. 

The Final Rule also included the 

Secretary’s certification, as permitted by 

the Compactor and Baler Act, that the 

new Standard ANSI Z245.5–1997 is as 

protective of the safety of minors as 

Standard ANSI–S245.5–1990, and that 

the new Standard ANSI Z245.2–1997 is 

as protective of the safety of minors as 

Standard ANSI Z245.2–1992. 

Accordingly, these newer standards 

were incorporated into HO 12. 

The Department, when issuing the 

2004 Final Rule, noted that there still 

remained one class of balers and 

compactors that falls outside of the 

scope of HO 12—those machines that 

are designed or used exclusively to 

process materials other than paper. The 

Report, in recognition of this gap in 

coverage, recommends that HO 12 be 

revised to include such machines 

because ‘‘balers and compactors used to 

process other scrap materials such as 

plastic and aluminum cans pose similar 

risk of injury from crushing or 

amputation’’ (see NIOSH Report, page 

50). 

The Report notes that baler and 

compactor related deaths are not limited 

to those in which paper or cardboard is 

being processed. Many machines are 

adaptable for the baling and compacting 

of a wide variety of materials, including 

paper, aluminum cans, plastic milk jugs, 

and general refuse. Other machines are 

intended specifically for processing a 

single product, such as metals. These 

specialized metal balers and 

compactors, which process such items 

as cars, radiators, and siding, may share 

similar designs and operating 

procedures with those compactors and 

balers that process only paper products 

or process other materials in addition to 

paper products. However, these 

specialized metal balers also include 

large industrial machines that feature 

shear blades that are not normally 

present on lighter-duty type balers. The 

Report notes that while these large 

specialized balers are generally found in 

facilities that specialize in processing 

scrap and waste materials, smaller 

general-purpose portable machines that 

serve the same functions are marketed 

for use in businesses such as grocery 

stores, hotels, restaurants, and hospitals. 

These smaller general-purpose 

machines operate in essentially the 

same manner as the larger machines and 

present similar risks of injury. 

In addition, the Report recommends 

that the Department continue to 

emphasize enforcement of portions of 

the Compactor and Baler Act requiring 

that balers and compactors conform to 

construction and operations standards 

that greatly reduce exposure to 

hazardous energy. The Report notes that 

investigations of baler-related incidents 

show that failure to maintain machinery 

in safe operating condition contributes 

to fatalities and serious injuries and that 

neither adult supervisors nor young 

workers may fully appreciate the risks 

posed by uncontrolled hazardous 

energy. The Report also recommends 

that the Department retain the limited 

exemption contained in § 570.63(c)(2) 

that permits apprentices and studentlearners to perform, under specific 

guidelines, tasks that would otherwise 

be prohibited by HO 12. 

The Department agreed with the 

NIOSH Report recommendation 

regarding the scope of the HO and 

proposed to revise HO 12 to prohibit 16- 

and 17-year-olds from operating, 

loading, and unloading, with limited 

exceptions, all balers and compactors, 

regardless of the materials being 

processed. Both NIOSH occupational 

injury data and the Department’s 

enforcement experience reflect that 

injuries occur when youth operate 

balers and compactors that are designed 

and used to process materials other than 

paper. For example, the Department 

investigated the employment of a 17- 

year-old who had both legs amputated 

in a large industrial baler machine at a 

recycling center. The machine was the 

only baler at the center and, therefore, 

was used to process a wide variety of 

items. In a different investigation, 

another 17-year-old lost his right index 

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finger while putting recyclables into an 

industrial waste compactor by hand. 

The limited exemption provided by 

FLSA section 13(c)(5) and contained in 

§ 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 § 570.63(b). The exemption 

would not apply to balers and 

compactors that are not designed or 

used to process paper or cardboard as 

such equipment may not be considered 

scrap paper balers or paper box 

compactors as required by the 

Compactor and Baler Act. 

The proposed revision would be 

accomplished by adding new 

subsections to § 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 § 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 § 570.63(b) to mean 

a powered machine that remains 

stationary during operation, designed or 

used to compact refuse other than paper 

or cardboard boxes, into a detachable or 

integral container or into a transfer 

vehicle. The occasional processing of 

paper or a cardboard box by a machine 

designed to process other materials 

would not bring the loading of such 

machines within the limited exemption 

provided by section 13(c)(5). 

The prohibition against such youth 

setting up, adjusting, repairing, oiling, 

or cleaning any of the machines 

currently listed in HO 12 would be 

extended to include compactors and 

balers that are designed to process 

materials other than paper. 

As previously noted, the Compactor 

and Baler Act provides that any new 

standard(s) adopted by ANSI would also 

be sufficient for the determination of the 

safety of the scrap paper balers and 

paper box compactors, if the Secretary 

of Labor certifies the new standard(s) to 

be at least as protective of the safety of 

minors as the two standards specified in 

the Act. In the 2004 Final Rule, the 

Secretary certified that Standard ANSI 

Z245.5–1997 is as protective of the 

safety of minors as Standard ANSI– 

S245.5–1990 and that Standard ANSI 

Z245.2–1997 is as protective of the 

safety of minors as Standard ANSI 

Z245.2–1992. Accordingly, the newer 

standards were incorporated into HO 

12. 

In 2004 ANSI adopted Standard ANSI 

Z245.2–2004 (Stationary Compactors— 

Safety Requirements for Installation, 

Maintenance, and Operations) and 

Standard ANSI Z245.5–2004 (Baling 

Equipment—Safety Requirements for 

Installation, Maintenance, and 

Operations). The Department’s 

preliminary review of these new 

Standards, which included input from 

NIOSH, indicated that the Standards are 

as protective as those cited in the 

Compactor and Baler Act and should be 

included in HO 12 along with the older 

Standards. 

The Department appreciates the 

Report’s recommendation to continue 

emphasizing enforcement of portions of 

the Compactor and Baler Act requiring 

that balers and compactors conform to 

construction and operations standards 

that greatly reduce exposure to 

hazardous energy. The Report notes that 

investigations of baler-related incidents 

show that failure to maintain machinery 

in safe operating condition contributes 

to fatalities and serious injuries and that 

neither adult supervisors nor young 

workers may fully appreciate the risks 

posed by uncontrolled hazardous energy 

(see NIOSH Report, page 50). The 

Department’s enforcement experience 

supports these findings. Most recently, 

the Department investigated the death of 

a 16-year-old grocery store worker in 

New York who was crushed to death by 

a baler that had been jerry-rigged to 

operate while the door to the loading 

chamber was open. This over-riding of 

an important safety device required by 

each of the ANSI Standards was done to 

speed up the loading process. As 

discussed previously, in order for an 

employer to avail itself of the limited 

exemption contained in § 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 § 570.63(c)(1), the 

Department routinely confirms whether 

the scrap paper baler or paper box 

compactor being loaded by 16- or 17- 

year-olds meets the requirements of the 

applicable ANSI Standard, as 

determined and declared by the 

employer. If the equipment does not 

meet the requirements of an applicable 

ANSI Standard, or if the employer failed 

to make such a determination, or if any 

other requirement of the limited 

exemption contained in FLSA section 

13(c)(5) was not met, a violation of HO 

12 has most likely occurred. The 

Department will carry on these efforts 

and will continue to work with both 

NIOSH and OSHA to better educate 

employers, employees, and enforcement 

personnel about the requirements of the 

ANSI Standards. Such efforts impact the 

safety of all workers, not just those 

under the age of 18. 

Finally, the Department proposed to 

take no action concerning the NIOSH 

Report recommendation concerning the 

apprenticeship and student-learner 

exemption to HO 12 at this time. As 

previously discussed, the Department 

issued an ANPRM, in conjunction with 

and on the same day as the NPRM, that 

requested information from the public 

on this issue. 

The Department received three 

comments on this proposal. The brief 

comments of the AFL–CIO stated that it 

‘‘strongly supports the DOL’s proposal to 

extend prohibitions to include 

operating, loading and unloading balers 

and compactors designed or used to 

process materials other than paper.’’ The 

YWN was equally brief, stating ‘‘[t]he 

Network strongly agrees with this 

proposed change.’’ 

The CLC ‘‘welcomed’’ the expansion 

of the prohibitions of HO 12 to include 

balers and compactors designed or used 

to process materials other than paper. It 

states that the Department did not 

address the NIOSH Report’s third 

recommendation dealing with HO 12 

regarding the importance of enforcing 

the requirements of FLSA section 

13(c)(5) that balers and compactors 

being loaded by 16- and 17-year-olds 

meet the designated ANSI standards. 

The CLC also cited additional ANSI 

standards that touch upon equipment 

used in the waste disposal and recycling 

industries and questioned why these are 

not incorporated into HO 12. The CLC 

also was concerned that the ANSI 

standards are copyright-protected and 

that employers must either purchase 

them from the American National 

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Standards Institute or visit a designated 

OSHA office to view them. It also 

expressed concerns that employers may 

have difficulty interpreting the ANSI 

standards. Finally, the CLC disapproved 

of the Department’s decision to not 

revisit the limited exemption currently 

contained in HO 12 for student-learners 

and apprentices. 

No comments were received regarding 

whether Standard ANSI Z245.5–2004 is 

as protective of the safety of minors as 

Standard ANSI Z245.5–1990 and 

whether Standard ANSI Z245.2–2004 is 

as protective of the safety of minors as 

Standard ANSI Z245.2–1992. 

The Department has carefully 

reviewed the comments and has 

decided to adopt the proposal, but with 

one modification concerning recently 

issued ANSI Standards and a revision to 

the section heading. The Department 

disagrees with the CLC’s comment that 

it failed to address NIOSH’s third 

recommendation and notes that the 

recommendation clearly reads that the 

Department should ‘‘continue to 

emphasize enforcement positions of the 

Compactor and Baler Act requiring 

balers to conform to construction and 

operational standards that greatly 

reduce exposure to hazardous energy.’’ 

As noted in the NPRM and again in this 

Final Rule, the Department considers 

this statement to be an endorsement of 

its administration and enforcement of 

HO 12 and agreed to continue this 

important activity. 

The Department notes that when the 

Compactor and Baler Act was enacted, 

Congress took considerable pains to 

ensure that the legislation contained 

appropriate safeguards that would 

provide young workers with necessary 

protections while ensuring that the 

employers of such youth could achieve 

and maintain compliance. During this 

process, Congress solicited input from 

the Department, NIOSH, employers, 

employer associations, and employee 

associations. The result was, as 

discussed earlier, that the Compactor 

and Baler Act required that before 16- 

and 17-year-olds could load such 

equipment, the scrap paper baler had to 

meet Standard ANSI Z245.5–1990 and 

the paper box compactor had to meet 

Standard ANSI Z245.2–1992. Congress 

could have chosen to include other 

standards—earlier versions of those 

ANSI standards the CLC now suggests 

the Department should include in HO 

12—but it did not. 

The Department believes Congress 

was aware that such standards are 

copyright protected and available to the 

public only at a cost or for reviewing at 

an appropriate library. The 

Department’s enforcement experience 

confirms that employers have many 

ways of ensuring that, should they wish 

to take advantage of the limited 

exception contained in FLSA section 

13(c)(5), their balers and compactors 

comply with the appropriate ANSI 

standard. Such employers can consult 

with the manufacturer of the equipment, 

the supplier of the equipment, the 

owner of the equipment if the 

equipment is leased, industry and/or 

employer associations, OSHA, and 

safety engineering consultants. No 

employer or employer association, when 

commenting on the 1999 or the 2007 

NPRM, reported that it was difficult or 

expensive to determine that their balers 

and/or compactors met or failed to meet 

the appropriate ANSI standards. 

Congress also provided the Secretary 

of Labor with flexibility when 

administering FLSA section 13(c)(5) by 

allowing balers and compactors to meet 

any additional standards adopted by 

ANSI if certified by the Secretary to be 

at least as protective of the safety of 

minors as the standards contained in the 

Compactor and Baler Act. The 

Department interprets this provision as 

permitting it to incorporate only more 

recent versions of Standard ANSI 

Z245.5–1990 and Standard ANSI 

Z245.2–1992—the two standards 

contained in the original legislation. 

The Department followed this 

interpretation when it amended HO 12 

and added Standards ANSI Z245.5– 

1997 and ANSI Z245.2–1997 in 2004 

(see 69 FR 75396) and again when 

promulgating this Final Rule. 

The Department’s review of Standard 

ANSI Z245.2–2004 has found it to be as 

protective of the safety of minors as 

Standard ANSI Z245.2–1992, and the 

Department’s review of Standard ANSI 

Z245.5–2004 has found it be as 

protective of the safety of minors as 

Standard ANSI Z245.5–1990. 

The NPRM notified the public that the 

Department intended to update HO 12 

to include the 2004 ANSI standards for 

compactors and balers, and no 

comments were received as to whether 

the standards identified in the NPRM 

were as protective of minors as the 

standards listed in the Compactor and 

Baler Act. After the 2007 NPRM was 

published, ANSI adopted two new 

standards related to balers and 

compactors: Standard ANSI Z245.2– 

2008 (Stationary Compactors—Safety 

Requirements for Installation, 

Maintenance, and Operations) and 

Standard ANSI Z245.5–2008 (Baling 

Equipment—Safety Requirements for 

Installation, Maintenance, and 

Operations). The Department’s review of 

these new Standards, which included 

input from NIOSH, concluded that the 

2008 ANSI Standards are also as 

protective as those cited in the 

Compactor and Baler Act. Therefore, the 

Department has decided to also 

incorporate the 2008 ANSI standards 

into this Final Rule. The Secretary, in 

promulgating this Final Rule, hereby 

certifies that Standard ANSI Z245.2– 

2004 and Standard ANSI Z245.2–2008 

are as protective of the safety of minors 

as Standard ANSI Z245.2–1992 and that 

Standard ANSI Z245.5–2004 and 

Standard ANSI Z245.5–2008 are as 

protective of the safety of minors as 

Standard ANSI Z245.5–1990. 

Accordingly, these four newer standards 

are included in the Final Rule. The 

Department has also decided to provide 

a table listing all the applicable ANSI 

Standards in § 570.63(c)(1)(iv)(A). 

The Department has decided to revise 

the title of HO 12 to reflect that, under 

the Final Rule, it will prohibit 

occupations involved in the operation of 

all balers and compactors, including 

those that do not process any paper 

products. Accordingly, the title has been 

revised as follows: Occupations 

involved in the operation of balers, 

compactors, and paper-products 

machines (Order 12). 

As noted earlier, FLSA section 

13(c)(5) and § 570.63(c)(1)(iv) require 

that before a 16- or 17-year-old 

employee may load a baler or compactor 

subject to HO 12, his or her employer 

must first post a notice on the 

equipment stating that: (1) The baler or 

compactor meets the named applicable 

ANSI standard; (2) sixteen- and 17-yearold employees may only load the baler 

or compactor; and (3) any employee 

under the age of 18 may not operate or 

unload the baler or compactor. The 

Department recognizes the importance 

of these posting requirements in the 

administration of section 13(c)(5) and 

addressed this issue in detail in the 

preamble to the Final Rule published in 

the Federal Register on December 16, 

2004 (69 FR 75382). 

Since publication of the 2007 NPRM, 

the Department has received several 

inquiries regarding how these posting 

requirements impact employers of youth 

who do not own or control the baler or 

compactor that is available for use by 

their employees. In certain situations, 

such as at shopping malls, industrial 

parks, office buildings, or military bases, 

multiple employers may have access to 

and use ‘‘community’’ balers and 

compactors that the facilities manager or 

owner has made available to the tenants 

or contractors. In these situations, the 

Department has determined that it is not 

necessary for every employer (tenant) 

that wishes to take advantage of the 

loading exemption to post a notice on 

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the communal equipment as required by 

FLSA section 13(c)(5). The facilities 

manager or owner, or the owner of the 

equipment, may make the necessary 

postings and satisfy each employer’s 

(tenant’s) posting obligations under the 

exemption. But the employer (tenant) 

must exercise due vigilance, for should 

the notice be inaccurate or incomplete— 

i.e., the baler or compactor fails to meet 

the appropriate ANSI standard, or the 

notice fails to fully identify the 

appropriate ANSI standard—the burden 

of compliance remains with the 

employer (tenant) of any youth who 

loaded the equipment. An incomplete or 

inaccurate posting by the facilities 

manager or owner will not relieve an 

employer from being charged with a 

violation of HO 12 or assessed a child 

labor civil money penalty. Employers 

that avail themselves of the provisions 

of the loading exemption contained in 

FLSA section 13(c)(5) and rely on the 

accuracy of notices posted by others 

cannot delegate their compliance 

obligations imposed by that exemption. 

Finally, the Department notes that the 

CLC takes exception to the Department 

not taking any action on the NIOSH 

Report recommendation regarding the 

limited exemption contained in HO 12 

for student-learners and apprentices. As 

the Report recommends that the limited 

exception contained in HO 12 for 

apprentices and student-learners be 

retained, the Department’s decision not 

to address that issue is in full agreement 

with that recommendation. 

K. Occupations Involved in the 

Operation of Circular Saws, Band Saws, 

and Guillotine Shears (Order 14) (29 

CFR 570.65) 

HO 14 generally prohibits the 

employment of 16- and 17-year-olds in 

the occupations of operator or helper on 

power-driven circular saws, band saws, 

and guillotine shears, except those that 

are properly guarded and equipped with 

devices for full automatic feeding and 

ejection. The prohibitions of HO 14 are 

based on the equipment and apply 

regardless of the materials being 

processed. Section 570.65(b)(4) defines 

the term circular saw to mean a machine 

equipped with a thin steel disc having 

a continuous series of notches or teeth 

on the periphery, mounted on shafting, 

and used for sawing materials. The term 

band saw is defined in § 570.65(b)(5) to 

mean a machine equipped with an 

endless steel band having a continuous 

series of notches or teeth, running over 

wheels or pulleys, and used for sawing 

materials. Section 570.65(b)(6) defines 

the term guillotine shear to mean a 

machine equipped with a moveable 

blade operated vertically and used to 

shear materials. The term does not 

include other types of shearing 

machines, using a different form of 

shearing action, such as alligator shears 

or circular shears. HO 14 also prohibits 

such minors from setting-up, adjusting, 

repairing, oiling, or cleaning circular 

saws, band saws, and guillotine shears. 

The original report that led to the 

issuance of HO 14 in 1960 noted that 

these machines had already been found 

and declared to be particularly 

hazardous for 16- and 17-year-old 

employees when used to process certain 

materials. Circular saws and band saws 

were already covered under HO 5 when 

used on wood, HO 10 when used on 

meat, and HO 12 when used on paper 

products. Band saws were also covered 

under HO 11 when used to cut sheet 

cakes to desired sizes and shapes. 

Guillotine shears are covered under HOs 

5, 8, 10 and 12 when used on wood, 

metal, meat, and paper products, 

respectively. Reports showing that 

minors were being injured when 

operating these machines on materials 

not covered by an existing HO led the 

Department to issue the allencompassing HO 14. 

The NIOSH Report recommends that 

HO 14 be expanded to cover other 

machines, such as chain saws, that 

perform cutting and sawing functions 

through direct contact between the 

cutting surfaces and the materials. The 

Report also recommends, alternatively, 

that the Department consider 

developing a new HO that would 

prohibit all sawing machinery that 

performs cutting and sawing functions 

through direct contact of the cutting 

surface and the material being 

processed. The Report states: 

‘‘Stationary saws and hand-held saws, 

including chain saws, continue to be the 

source of substantial numbers of 

fatalities as well as nonfatal injuries 

which may be unusually severe’’ (see 

NIOSH Report, page 56). The Report 

observes that not all machines that 

perform cutting and sawing functions fit 

into HO 14’s definitions of circular saw, 

band saw, or guillotine shears; for 

example, abrasive cutting disks do not 

have visible notches or teeth, but they 

perform the same function. The Report 

notes that available data demonstrate 

that chainsaws specifically contributed 

to 70 worker deaths between 1992 and 

1997 and over 1,600 lost workday 

injuries. Some of these fatalities 

involved workers under 18 years of age 

(see NIOSH Report, page 57). The 

Report also recommends that the 

Department retain the exemption 

contained in HO 14 that permits 16- and 

17-year-old apprentices and student 

learners to perform work that would be 

otherwise prohibited by the HO. 

The Department has long taken the 

position that HO 4 (Logging occupations 

and occupations in the operation of any 

sawmill, lath mill, shingle mill, or 

cooperage stock mill) prohibits 16- and 

17-year-olds from operating chain saws 

in logging operations because the HO 

prohibits all work ‘‘in connection with 

the felling of timber.’’ Likewise, the 

Department has consistently taken the 

position, starting as early as 1959, that 

HO 5 (Occupations involved in the 

operation of power-driven woodworking 

machines) prohibits these same minors 

from using chain saws to cut wood and 

wood products, including trees and 

branches. Over the last ten years, the 

Department has investigated the serious 

injuries of several youth that resulted 

from the use of chain saws to cut 

branches and trees, charged violations 

under HO 5, and assessed and collected 

civil money penalties because of those 

violations. However, as the Report 

implies, the use of chain saws by 16- 

and 17-year-olds would not be 

prohibited when cutting other materials 

such as metal, concrete, stone, and ice. 

The Department has also long taken 

the position that HO 5 prohibits the 

employment of 16- and 17-year-olds to 

operate wood chippers to grind tree 

limbs, branches, and trunks into chips, 

mulch, or debris. Some questions have 

recently been raised concerning the 

appropriateness of this position, but the 

Department has been consistent in its 

application when the equipment is used 

to process wood and trees. Young 

workers have been killed or seriously 

injured while operating wood chippers. 

In 2000, the Department investigated the 

death of a 14-year-old member of a treetrimming 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 powerdriven machines that may be prohibited 

when used to process certain types of 

materials and not prohibited when 

processing other types of materials. 

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Reciprocating saws constitute another 

example of such a machine. HO 5 

prohibits the employment of 16- and 17- 

year-olds to operate reciprocating saws 

that are used or designed for cutting 

wood, but the same piece of equipment 

is permitted when used or designed 

exclusively to cut materials other than 

wood, such as metal. The Department 

has learned of occupational injuries to 

workers operating reciprocating saws to 

cut materials other than wood. The 

Department is aware of the death of an 

adult plumber in Minnesota in 2002 

who was killed when the blade of the 

reciprocating saw he was using to 

rough-in plumbing entered his head 

near his eye. The U.S. Department of 

Energy has also reported that in 2002 an 

adult worker injured his larynx when 

the reciprocating saw he was operating 

kicked back and cut him in his lower 

throat. The American Journal of 

Forensic Medicine and Pathology 

(Volume 28, No. 4, December 2001) 

reports on the death of a 32-year-old 

male who lost his balance and fell on 

the blade of an electric reciprocating 

saw he was using to trim branches. The 

blade perforated his anterior chest wall, 

right lung, heart, and aorta. The Journal 

noted that the victim had been drinking 

beer while trimming the branches. 

Finally, in 2004, the Department 

investigated the death of a 17-year-old 

worker who was employed to operate a 

reciprocating saw to salvage automobile 

catalytic converters for recycling. While 

operating the saw, the vehicle upon 

which he was using the saw fell on him 

and crushed him to death. 

The Department proposed to revise 

the prohibitions of HO 14 to include 

chain saws, wood chippers, and 

reciprocating saws. The prohibition 

would not depend on the material or 

materials being processed and would 

encompass the occupations of settingup, adjusting, repairing, oiling, or 

cleaning such machines. This revision 

would be accomplished by revising 

§ 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 § 570.65(a)(1), the prohibition 

would not be lifted if the chain saws, 

wood chippers, or reciprocating saws 

were equipped with full automatic feed 

and ejection-devices—devices that are 

almost never found on such equipment. 

The current § 570.65(a)(2) would be 

redesignated as § 570.65(a)(3) and 

revised to reflect that 16- and 17-yearolds could not be employed in 

occupations involving the setting-up, 

adjusting, repairing, oiling, or cleaning 

of any of the equipment covered by the 

HO. The Department also proposed to 

revise the title of HO 14 to reflect its 

application to the additional pieces of 

machinery and to change the word 

operations to operation. Finally, the 

Department proposed to restructure the 

definitions section contained at 

§ 570.65(b) in an alphabetical sequence 

to comport with guidance provided by 

the Federal Register and to include 

definitions of the terms chain saw, 

wood chipper, and reciprocating saw. 

The term chain saw would mean a 

machine that has teeth linked together 

to form an endless chain used for 

cutting materials. The term wood 

chipper would mean a machine 

equipped with a feed mechanism, 

knives mounted on a rotating chipper 

disc or drum, and a power plant used 

to reduce to chips or shred such 

materials as tree branches, trunk 

segments, landscape waste, and other 

materials. The term reciprocating saw 

would mean a machine equipped with 

a moving blade that alternately changes 

direction on a linear cutting axis used 

for sawing materials. 

The Department is evaluating the 

alternative recommendation made by 

the Report that it consider developing a 

new HO that combines the sawing 

machinery covered under HO 14 with 

other specialized machinery that 

performs cutting and sawing functions 

through direct contact of the cutting 

surface and the material. Similar 

alternative recommendations were made 

regarding HO 5 (Occupations involved 

in the operation of power-driven 

woodworking machines) and HO 8 

(Occupations involved in the operation 

of power-driven metal forming, 

punching, and shearing machines). The 

Department will continue to study these 

recommendations. 

Finally, the Report also recommended 

that the Department retain the limited 

exemption contained in § 570.65(c) that 

permits apprentices and studentlearners to perform, under specific 

guidelines, tasks that would otherwise 

be prohibited by HO 14. As discussed 

previously in the sections dealing with 

HOs 10 and 12, the Department 

proposed to take no action concerning 

the apprenticeship and student-learner 

exemptions to certain HOs at this time. 

The Department received three 

comments on this proposal. The YWN 

stated that it ‘‘strongly agrees with this 

change.’’ The AFL–CIO supported the 

proposal and suggested that ‘‘abrasive 

cutting discs’’ be added to the list of 

prohibited equipment. Such discs were 

mentioned in the NIOSH Report as 

cutting equipment that falls outside the 

prohibitions of HO 14. The CLC stated 

that it ‘‘welcomes’’ the proposed 

inclusion of chain saws, wood chippers, 

and reciprocating saws but also ‘‘sees no 

reason for DOL’s failure to include 

abrasive cutting discs as well.’’ The CLC 

also disagreed with the Department’s 

decision not to address the issue of 

student-learners and apprentices in this 

Final Rule. 

The Department has carefully 

reviewed the comments and has 

decided to adopt the proposal with one 

modification. The Department 

appreciates the comments of the AFL– 

CIO and the CLC concerning the 

omission of abrasive cutting discs from 

the list of prohibited equipment 

contained in HO 14. The Department 

notes that although NIOSH did not 

include injury data specific to the 

operation of abrasive cutting discs, 

NIOSH did report that the potential 

contact with the moving disk of an 

abrasive cutting tool does put operators 

at risk. The Department has decided to 

add abrasive cutting discs to the list of 

machines prohibited by HO 14 because 

it would be in keeping with the NIOSH 

recommendation and will provide 

important protections to working youth. 

The Department has defined abrasive 

cutting disc to mean a machine 

equipped with a disc embedded with 

abrasive materials used for cutting 

materials. 

The Department once again notes that 

it has requested public comment on the 

issue of exemptions for student-learners 

and apprentices in the ANPRM that was 

published in conjunction with, and on 

the same day as, the NPRM. 

L. Additional Recommendations of the 

Report 

The NIOSH Report recommends that 

the Department retain, as currently 

issued, HO 3 (Coal mining occupations), 

HO 13 (Occupations involved in the 

manufacture of brick, tile, and kindred 

products), HO 15 (Occupations involved 

in wrecking, demolition, and 

shipbreaking occupations), and HO 17 

(Occupations in excavation operations). 

The Department accepted those 

recommendations and proposed no 

revisions to these HOs. The Report also 

recommends that the Department 

remove the limited exemption for 

apprentices and student-learners 

contained in HO 16 (Occupations in 

roofing operations and on or about a 

roof) and HO 17, and retain the same 

exemption as it applies to HO 5 

(Occupations involved in the operation 

of power-driven woodworking 

machines) and HO 8 (Occupations 

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driven metal forming, punching, and 

shearing machines). As discussed 

previously in the sections dealing with 

HOs 10, 12, and 14 of this preamble, the 

Department proposed to take no action 

concerning the apprenticeship and 

student-learner exemptions to any of the 

HOs at this time. The Department 

believes that before any changes to the 

existing exemptions are made, it is 

important to first consider and develop 

criteria for determining when 

apprenticeship and student-learners 

exemptions are appropriate. 

Accordingly, the Department issued an 

ANPRM, in conjunction with and on the 

same day as the NPRM, that sought 

information from the public on this and 

other issues. 

Only the CLC commented on this 

proposal, expressing its disappointment 

that the Department has decided not to 

address recommendations regarding the 

limited exemptions provided for 

student-learner and apprentices at this 

time. 

M. Subpart G—General Statements of 

Interpretation of the Child Labor 

Provisions of the Fair Labor Standards 

Act of 1938, as Amended (29 CFR 

570.101–570.129) 

Subpart G discusses the meaning and 

scope of the child labor provisions of 

the FLSA. The interpretations of the 

Secretary of Labor contained in subpart 

G indicate the construction of the law 

that guides the Secretary in 

administrating and enforcing the Act. 

Since the last revision of subpart G in 

1971, Congress has passed several 

amendments to the FLSA and the 

Department has revised other subparts 

of 29 CFR part 570 that are not currently 

reflected in subpart G. The Department 

proposed to revise subpart G to 

accommodate not only the statutory and 

regulatory changes that have occurred, 

but to reflect the proposed revisions to 

part 570 made by the NPRM and 

discussed earlier in this document. The 

proposed revisions to subpart G were as 

follows: 

1. Section 570.103(c) states that there 

are only four specific child labor 

exemptions contained in the FLSA, and 

only one of them, concerning the 

delivery of newspapers to the consumer, 

applies to the minimum wage and 

overtime requirements of the Act as 

well. Congress has created four 

additional exemptions to the 

nonagricultural child labor provisions of 

the FLSA that are not currently reflected 

in subpart G (the making of wreaths 

composed principally of natural holly, 

pine, cedar, or other evergreens by 

homeworkers; the loading of certain 

scrap paper balers and paper box 

compactors by 16- and 17-year-olds; the 

limited driving of certain automobiles 

and trucks by 17-year-olds; and the 

employment of certain youth between 

the ages of 14 and 18 years inside and 

outside of places of business that use 

power-driven machinery to process 

wood products). The exemption 

concerning the employment of 

homeworkers who make wreaths, 

contained in FLSA section 13(d), is an 

exemption from the minimum wage and 

overtime provisions of the Act as well 

as its child labor provisions. The 

Department proposed to revise 

§ 570.103(c) to reflect that the FLSA 

now contains eight exemptions from the 

child labor provisions and that two of 

these exemptions are also exemptions 

from the Act’s minimum wage and 

overtime requirements. 

This same subsection cites FLSA 

section 3(d), which defines the term 

employer and then, in footnote 4, 

discusses that definition. FLSA section 

3(d) was amended in 1966, and the 

provisions of that amendment are not 

reflected in subpart G. The Department 

proposed to revise footnote 4 of 

§ 570.101(c) to include the more recent 

definition of the term employer and to 

correct an erroneous reference to FLSA 

section 13(d). 

2. Section 570.118 notes that the 

FLSA sets a minimum age of 16 years 

for employment in manufacturing or 

mining, but does not take into account 

the effects of the 2004 enactment of 

FLSA section 13(c)(7). Section 13(c)(7) 

allows the employment of certain 14- 

and 15-year-olds inside and outside of 

places of business that use power-driven 

machinery to process wood products as 

discussed above. The Department 

proposed to revise § 570.118 to 

incorporate the provisions of FLSA 

section 13(c)(7). 

3. Section 570.119 discusses those 

occupations in which 14- and 15-yearold minors may and may not be 

employed under Reg. 3. The Department 

proposed to revise this section to 

incorporate the changes necessitated by 

the adoption of FLSA section 13(c)(7) 

and to reflect the proposed revisions to 

§§ 570.33 and 570.34 as discussed 

above. For the sake of both brevity and 

clarity, the Department proposed not to 

repeat in § 570.119 the lists of all the 

occupations contained in §§ 570.33 and 

570.34, but rather to refer readers to 

those sections. 

The proposed revision to § 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 

§ 570.119. 

4. Section 570.120 describes the 

authority and process by which HOs are 

adopted, and lists those occupations the 

Secretary has found and declared to be 

particularly hazardous or detrimental to 

the health or well-being of minors 16 

and 17 years of age. Since subpart G was 

last revised, not only have several HOs 

been amended, but the process for 

promulgating and revising the HOs has 

also changed. Before 1995, the process 

for promulgating and amending HOs 

included public hearings and advice 

from committees composed of 

representatives of employers and 

employees of the impacted industry and 

the public, in accordance with the 

procedures established by subpart D of 

this part. The Department issued a Final 

Rule on April 17, 1995 (60 FR 19336) 

that deleted subpart D and placed the 

process of promulgating and revising 

HOs solely under the provisions of the 

Administrative Procedure Act (APA), 5 

U.S.C. 551 et seq., which governs 

Departmental rulemaking. 

The Department proposed to revise 

§ 570.120 to reflect the 1995 change in 

the process for issuing and revising 

HOs. The Department also proposed, for 

the sake of brevity and clarity, not to 

repeat the list of individual HOs as they 

are already listed in subpart E of 29 CFR 

part 570. 

5. Section 570.122 lists the four 

exemptions from the FLSA child labor 

provisions that existed when subpart G 

was last revised. As discussed earlier, 

Congress has added four more 

exemptions that are not included in the 

current subpart G. 

The Department proposed to revise 

§ 570.122 by creating new subsections 

(e), (f), (g), and (h), which will list the 

exemptions from the child labor 

provisions contained in FLSA sections 

13(d), 13(c)(5), 13(c)(6), and 13(c)(7), 

respectively. A more thorough 

discussion of each of these exemptions 

was proposed to be included in 

§§ 570.127-.130. 

6. The Department proposed to revise 

§§ 570.127, .128, and .129, and create a 

new § 570.130 to present detailed 

discussions of the exemptions from the 

child labor provisions contained in 

FLSA sections 13(d), 13(c)(5), 13(c)(6), 

and 13(c)(7). These proposed provisions 

were structured similarly to those 

already contained in subpart G that 

address the earlier FLSA exemptions 

concerning employment of youth in 

agriculture (§ 570.123), in the delivery 

of newspapers (§ 570.124), as actors and 

performers (§ 570.125), and by one’s 

parents (§ 570.126). The Department 

also proposed to revise and redesignate 

the sections of subpart G currently 

dealing with general enforcement 

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(§ 570.127), good faith defense 

(§ 570.128), and the relation of the child 

labor provisions to other laws 

(§ 570.129). These sections would be 

redesignated as § 570.140, § 570.141, 

and § 570.142, respectively. The 

Department proposed to reserve 

§§ 570.131 through 570.139 to 

accommodate any additional statutory 

amendments to the FLSA child labor 

provisions that may be enacted. 

7. Section 570.127 contains a general 

discussion of the enforcement of the 

FLSA child labor provisions. Since that 

last revision of subpart G, Congress in 

1996 amended the FLSA at section 16(e) 

so that any person who violates the 

provisions of section 12 or section 

13(c)(5) relating to child labor, or any 

regulation issued under section 12 or 

section 13(c)(5), shall be subject to a 

civil money penalty, currently not to 

exceed $11,000, for each employee who 

was the subject of such a violation. The 

Department, as discussed above, 

proposed to redesignate this section as 

§ 570.140 and to revise it to include the 

Department’s authority to assess civil 

money penalties against persons who 

violate the child labor provisions of the 

Act. 

8. Section 570.128 deals with a 

provision of FLSA section 12(a) that 

relieves from liability a purchaser who 

ships or delivers for shipment in 

commerce goods acquired in good faith 

in reliance on written assurance from 

the producer, manufacturer, or dealer 

that the goods were produced in 

compliance with section 12 and that 

were acquired for value without notice 

of any violation. The Department 

proposed to redesignate this section as 

§ 570.141. 

9. Section 570.129 discusses the 

relationship of the child labor 

provisions of the FLSA to other laws. 

The Department proposed to redesignate 

this section as § 570.142. 

No comments were received on these 

proposals to amend Subpart G. The 

Department has decided to adopt the 

above proposals as written, with three 

exceptions. The Department is slightly 

modifying the proposed revisions to 

§ 570.122 so as to incorporate guidance 

provided by the Federal Register. This 

modification does not change the 

content of the Department’s original 

proposal. In addition, the Department 

will not implement its proposal to 

reserve §§ 570.131 through 570.139, 

again at the direction of the Federal 

Register. 

Finally, on May 21, 2008, after 

publication of the NPRM, the Genetic 

Information Nondiscrimination Act of 

2008 (GINA), Public Law 110–233, was 

signed into law. This Act, among other 

things, amends section 16(e) of the Fair 

Labor Standards Act by increasing the 

maximum permissible civil money 

penalty an employer may be assessed 

for child labor violations that cause the 

death or serious injury of a young 

worker. FLSA Section 16(e) now states 

that any person who violates the 

provisions of FLSA sections 12 or 13(c), 

relating to child labor, or any regulation 

issued pursuant to such sections, shall 

be subject to a civil penalty not to 

exceed $11,000 for each employee who 

was the subject of such a violation. This 

same section also permits the 

assessment of a penalty not to exceed 

$50,000 with regard to each violation 

that causes the death or serious injury 

of any employee under 18 years of age. 

That penalty may be doubled up to 

$100,000 if the violation is determined 

to be a repeated or willful violation. 

Accordingly, the Department is revising 

the proposed § 570.140 (as redesignated 

as discussed in paragraph 7 above) to 

incorporate the provisions of GINA. The 

provisions of GINA and the impact they 

have on this rulemaking are more fully 

discussed later in Section O of this 

preamble. 

N. Miscellaneous Matters, 29 CFR Part 

570 

The Department proposed to change 

the name of HO 8 from Occupations 

involved in the operations of powerdriven metal forming, punching, and 

shearing machines (Order 8) to 

Occupations involved in the operation 

of power-driven metal forming, 

punching, and shearing machines 

(Order 8). 

The Department has decided to adopt 

this proposal as written. Only the CLC 

commented on this proposal, incorrectly 

referring to it as ‘‘correcting a 

typographical error.’’ The word 

‘‘operations’’ was the word used by the 

Department when HO 8 was first 

enacted in 1950 and its use was 

appropriate for the time. The 

Department’s replacing of that word 

with ‘‘operation’’ reflects the current 

usage of the word. 

The Department has made minor, 

nonsubstantive changes to the proposed 

§ 570.119 to better explain the purpose 

of § 570.33. In addition, the Department 

has updated references made in 

§ 570.102 and in Footnote 21, which is 

cited in § 570.111. These changes were 

necessitated by the other revisions made 

in subpart G. Typographical and 

grammatical errors in the proposed 

regulatory text were also corrected. 

Finally, pursuant to guidance 

provided by the Federal Register, the 

Department is issuing the proposed 

§§ 570.35a and 570.35b as §§ 570.36 and 

570.37 and redesignating existing 

§§ 570.36 and 570.37 as §§ 570.38 and 

570.39, respectively. 

O. Civil Money Penalties; 29 CFR Part 

579 

Section 16(e) of the FLSA subjects any 

person who violates the child labor 

provisions of the Act to civil money 

penalties. On May 21, 2008, the Genetic 

Information Nondiscrimination Act of 

2008 (GINA) (Pub. L. 110–233) was 

enacted into law. GINA, among other 

things, amended FLSA section 16(e) so 

that any person who violates the 

provisions of sections 12 or 13(c) of the 

FLSA, relating to child labor, or any 

regulation issued pursuant to such 

sections, shall be subject to a civil 

money penalty not to exceed $11,000 for 

each employee who was the subject of 

such a violation. In addition, GINA also 

permits the assessment of a civil money 

penalty not to exceed $50,000 with 

regard to each violation that caused the 

death or serious injury of any employee 

under the age of 18 years. That penalty 

may be doubled, up to $100,000, when 

such violation is determined by the 

Department to be a repeated or willful 

violation. These changes in the law 

became effective May 21, 2008. 

As mentioned above, the NPRM 

proposed to revise § 570.127 and 

redesignate it as § 570.140. In addition 

to taking these steps, the Final Rule will 

incorporate the provisions of GINA into 

(new) § 570.140. The Final Rule will 

also revise those provisions of 29 CFR 

part 579 relevant to civil monetary 

penalties in order to incorporate the 

provisions of this recent statutory 

amendment into the regulations. 

The Department is incorporating the 

child labor civil money penalty 

provisions of the GINA amendments 

into this Final Rule without prior notice 

and opportunity for public comment 

because it has for good cause found, 

pursuant to the Administrative 

Procedure Act, 5 U.S.C. 553(b)(B), that 

these procedural requirements are 

unnecessary with respect to these 

particular regulatory changes. The 

regulatory changes in (new) § 570.140 

and Part 579 implement the recent 

legislation that revised the civil 

monetary penalties that may be assessed 

under section 16(e) of the FLSA. In 

bringing the regulations into conformity 

with the statutory amendments, the 

Department is not exercising any 

interpretative authority. Accordingly, 

the Department is incorporating the 

provisions of the statutory amendments 

into the Final Rule without notice and 

comment. 

Specifically, the Department is 

revising § 579.1(a) to incorporate the 

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provisions of section 16(e) of the FLSA 

as revised by GINA. The Department is 

also revising the definitions section in 

§ 579.2 to include the terms serious 

injury, repeated violations, and willful 

violations. 

GINA amended FLSA section 16(e) to 

define serious injury as (1) permanent 

loss or substantial impairment of one of 

the senses (sight, hearing, taste, smell, 

tactile sensation); (2) permanent loss or 

substantial impairment of the function 

of a bodily member, organ, or mental 

faculty, including the loss of all or part 

of an arm, leg, foot, hand or other body 

part; or (3) permanent paralysis or 

substantial impairment that causes loss 

of movement or mobility of an arm, leg, 

foot, hand or other body part. 

Although GINA does not define the 

terms repeated violations and willful 

violations, those terms already have 

been defined by the Wage and Hour 

Division (see 29 CFR 578.3(b) and (c)), 

and are currently applied, pursuant to 

section 16(e) of the Act, in the 

assessment of civil money penalties for 

repeated and willful violations of 

sections 6 and 7 of the FLSA. Applying 

those definitions to civil money 

penalties under 29 CFR part 579, an 

employer’s violation of section 12 or 

section 13(c) of the Act relating to child 

labor or any regulation issued pursuant 

to such sections shall be deemed to be 

repeated: (1) Where the employer has 

previously violated section 12 or section 

13(c) of the Act relating to child labor 

or any regulation issued pursuant to 

such sections, provided the employer 

has previously received notice, through 

a responsible official of the Wage and 

Hour Division or otherwise 

authoritatively, that the employer 

allegedly was in violation of the 

provisions of the Act; or (2) where a 

court or other tribunal has made a 

finding that an employer has previously 

violated section 12 or section 13(c) of 

the Act relating to child labor or any 

regulation issued pursuant to such 

sections, unless an appeal therefrom 

which has been timely filed is pending 

before a court or other tribunal with 

jurisdiction to hear the appeal, or unless 

the finding has been set aside or 

reversed by such appellate tribunal. 

For purposes of the assessment of 

civil money penalties under 29 CFR part 

579, an employer’s violation of section 

12 or section 13(c) of the Act relating to 

child labor or any regulation issued 

pursuant to such sections shall be 

deemed to be willful where the 

employer knew that its conduct was 

prohibited by the Act or showed 

reckless disregard for the requirements 

of the Act. All of the facts and 

circumstances surrounding the violation 

shall be taken into account in 

determining whether a violation was 

willful. In addition, for purposes of this 

section, an employer’s conduct shall be 

deemed knowing, among other 

situations, if the employer received 

advice from a responsible official of the 

Wage and Hour Division to the effect 

that the conduct in question is not 

lawful. For purposes of this section, an 

employer’s conduct shall be deemed to 

be in reckless disregard of the 

requirements of the Act, among other 

situations, if the employer should have 

inquired further into whether its 

conduct was in compliance with the 

Act, and failed to make adequate further 

inquiry. 

Finally, the Department is also 

revising § 579.5, sections (a) and (e), to 

note that FLSA section 16(e) references 

both sections 12 and 13(c) when 

discussing the types of child labor 

violations that are subject to the 

assessment of civil money penalties. 

IV. Paperwork Reduction Act 

In accordance with requirements of 

the Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq., and its attendant 

regulations, 5 CFR part 1320, the 

Department seeks to minimize the 

paperwork burden for individuals, small 

businesses, educational and nonprofit 

institutions, Federal contractors, State, 

local and tribal governments, and other 

persons resulting from the collection of 

information by or for the agency. The 

PRA typically requires an agency to 

provide notice and seek public 

comments on any proposed collection of 

information contained in a proposed 

rule (see 44 U.S.C. 3506(c)(2)(B); 5 CFR 

1320.8). The NPRM published in the 

Federal Register on April 17, 2007 (72 

FR 19337) invited comments on the 

information collection burdens imposed 

by these regulations. No comments were 

received regarding the information 

paperwork burden estimates. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number (see 5 CFR 1320.6). The 

Department submitted the information 

collections contained in § 570.37 

(previously proposed as § 570.35b) of 

this rule to the OMB for approval, and 

OMB approved them under OMB 

Control Number 1215–0208. The 

approval expires on May 31, 2013, 

unless extended by OMB. A copy of the 

information collection request can be 

obtained at http://www.RegInfo.gov or 

by contacting the Wage and Hour 

Division as shown in the FOR FURTHER

INFORMATION CONTACT section of this 

preamble. 

Circumstances Necessitating 

Collection: The Department has created 

a new 29 CFR 570.37 that describes the 

conditions that allow the employment 

of 14- and 15-year-olds—pursuant to a 

school-supervised and schooladministered Work-Study Program 

(WSP)—under conditions Reg. 3 

otherwise prohibits. The new regulation 

requires the implementation of a new 

paperwork burden with regard to a 

WSP. 

FLSA section 3(l) establishes a 

minimum age of 16 years for most 

nonagricultural employment but allows 

the employment of 14- and 15-year-olds 

in occupations other than 

manufacturing and mining, if the 

Secretary of Labor determines such 

employment is confined to periods that 

will not interfere with the minor’s 

schooling and conditions that will not 

interfere with the minor’s health and 

well-being. 

FLSA section 11(c) requires all 

employers covered by the FLSA to 

make, keep, and preserve records of 

their employees’ wages, hours, and 

other conditions and practices of 

employment. Section 11(c) also 

authorizes the Secretary of Labor to 

prescribe the recordkeeping and 

reporting requirements for these 

records. Reg. 3 sets forth the 

employment standards for 14- and 15- 

year-olds. 

Reporting Requirements: WSP 

Application: In order to utilize the Reg. 

3 WSP provisions, § 570.37(b)(2) 

requires a local public or private school 

system to file with the Administrator of 

the Wage and Hour Division an 

application for approval of a WSP as 

one that does not interfere with the 

schooling or health and well-being of 

the minors involved. 

Written Participation Agreement: The 

regulations require preparation of a 

written participation agreement for each 

student participating in a WSP and that 

the teacher-coordinator, employer, and 

student each sign that agreement (see 

§ 570.37(b)(3)(iv)). The regulation also 

requires that the student’s parent or 

guardian sign the training agreement, or 

otherwise give consent to the agreement, 

in order for it to be valid. 

Recordkeeping Requirements: The 

regulation requires a school system 

operating a WSP to keep a copy of the 

written participation agreement for each 

student enrolled in the WSP at the 

student’s school. Employers of WSP 

participants are also required to keep a 

copy of the written participation 

agreement for each student employed. 

These agreements shall be maintained 

for 3 years from the date of the student’s 

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28446 Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 

enrollment in the WSP (see 

§ 570.37(b)(4)(ii)). 

Purpose and Use: WSP Application: 

Under the regulations, a local school 

system shall file a letter of application 

requesting the Administrator of the 

Wage and Hour Division to approve a 

WSP that permits the employment of 

14- and 15-year-olds under conditions 

that Reg. 3 would otherwise prohibit. 

The Department will evaluate the 

information to determine if the program 

meets the requirements specified in the 

regulation, in order to respond to the 

request. 

Written Participation Agreement: The 

school system administering the WSP 

and each applicable employer shall 

separately maintain a copy of the 

written participation agreement for each 

student. The written agreement shall be 

signed by the teacher-coordinator, the 

employer, and the student. In addition, 

the student’s parent or guardian shall 

either sign or otherwise provide consent 

for the participation agreement to be 

valid. The written participation 

agreement shall be structured to ensure 

that the quality of the student’s 

education, as well as his or her safety 

and well-being, are not compromised. 

School systems, employers, and the 

Department will use these records to 

document the validity of the WSP and 

that the 14- and 15-year-old students 

were employed in accordance with the 

special WSP rules. 

Information Collection Burdens 

Total Number of Respondents: 1530 

(30 school districts and 1500 

employers). 

Total Number of Responses: 3030 (30 

WSP applications, 1500 school district 

written participation agreements, 1500 

employer written participation 

agreements). 

Total Reporting and Recordkeeping 

Burden Hours: 1586. 

Total Dollar Cost Burden: $14. 

The DOL has slightly increased the 

total burden hour estimate from 1585 

hours to 1586 to align the data with 

what appears in the General Services 

Administration, Regulatory Information 

Service Center and the OMB, Office of 

Information and Regulatory Affairs 

Combined Information System (ROCIS) 

used to track the burdens imposed by 

Federal government information 

collections. This difference is due to 

differences in how initial Departmental 

efforts and ROCIS dealt with rounding 

issues. The Department has also 

increased the dollar cost from $13 to 

$14 to account for increased postage 

costs since publication of the NPRM. 

V. Executive Order 12866; Regulatory 

Flexibility 

This Final Rule is being treated as a 

‘‘significant regulatory action’’ within 

the meaning of E.O. 12866 because of its 

importance to the public and the 

Department’s priorities. Therefore, the 

Office of Management and Budget has 

reviewed this rule. However, because 

this rule is not ‘‘economically 

significant’’ as defined in section 3(f)(1) 

of E.O. 12866, it does not require a full 

economic impact analysis under section 

6(a)(3)(C) of the Order. The new 

information collection, recordkeeping, 

and reporting requirements subject to 

the PRA being imposed with the 

enactment of the new work-study 

program are discussed above. 

It is well established that several 

characteristics of youth place adolescent 

workers at increased risk of injury and 

death. Lack of experience in the work 

place and in assessing risks, and 

developmental factors—physical, 

cognitive, and psychological—all 

contribute to the higher rates of 

occupational injuries and deaths 

experienced by young workers. CFOI 

data reflect that during the period of 

1994–2004, 15-year-olds experienced an 

occupational fatality rate of 4.7 fatalities 

per 100,000 workers—a rate that was 

greater than that experienced by all 

workers aged 15 and older. Older 

working youth share similar risks. The 

NIOSH Report notes that the fatality rate 

for adolescents aged 16 and 17 was 5.1 

per 100,000 full-time equivalent 

workers for the 10-year period 1980–89 

[Castillo et al. 1994], while the rate for 

adults aged 18 and older was 6.1. As 

NIOSH stated, ‘‘[t]his relatively small 

difference in rates is cause for concern 

because youth under age 18 are 

employed less frequently in especially 

hazardous jobs.’’ NIOSH reports on its 

Web site (see http://www.cdc.gov/niosh/ 

topics/youth) that in 2007, an estimated 

48,600 work-related injuries and 

illnesses among youth 15 to 17 years of 

age were treated in hospital emergency 

departments. As an estimated one-third 

of work-related injuries are seen in 

emergency departments, it is likely that 

approximately 146,000 youth sustain 

work-related injuries and illnesses each 

year. The NIOSH statistics show that, 

despite the fact that workers aged 15 

through 17 are generally restricted from 

employment in hazardous occupations 

such as mining, motor-vehicle driving, 

logging, sawmilling, and construction, 

they have a higher rate of injuries 

requiring emergency room treatment 

than any other age group except 18- and 

19-year-olds (who are not restricted 

from performing such work). The 

economic and social costs associated 

with the deaths and serious injuries of 

young workers are substantial. 

The Department considers the 

issuance of this rule to be an important 

and necessary step in its ongoing review 

of the criteria for permissible child labor 

employment, a review which strives to 

balance the potential benefits of 

transitional, staged employment 

opportunities for youth with the 

necessary protections for their 

education, health and safety. Because 

youth often overcome the effects of 

those characteristics that initially place 

them at increased risk of injury and 

death in the workplace only through the 

maturation process, it is believed that 

requiring older workers to perform those 

tasks that present greater risks to 

younger workers actually eliminates 

injuries and deaths—rather than 

delaying them or transferring them to 

the older workers. 

Additionally, this document revises 

the child labor regulations in response 

to a statutory amendment enacted by the 

Congress that permits certain youth 

between 14 and 18 years of age who are 

excused from compulsory school 

attendance beyond the eighth grade to 

be employed under specific conditions 

inside and outside places of business 

that use machinery to process wood 

products. Affecting the Reg. 3 

occupations standards and both HOs 4 

and 5, this statutory provision would be 

available to a very small number of 

minors and therefore is expected to have 

little or no economic impact. The 

Department believes that only a few 

minors have obtained employment in 

such occupations since the amendment 

was enacted and doubts that the number 

will increase. Moreover, the 

amendment’s strong safety-affecting 

requirements that such youth not 

operate or assist in the operation of 

power-driven woodworking machines, 

use personal protective equipment to 

prevent exposure to excessive levels of 

noise and sawdust, and be protected 

from wood particles and other flying 

debris within the workplace, should 

significantly reduce potential costs 

resulting from accidents and injuries to 

minors on the job. 

The implementation of revised 

subpart G of the child labor regulations, 

General Statements of Interpretation of 

the Child Labor Provisions of the Fair 

Labor Standards Act of 1938, as 

Amended, to incorporate all the changes 

made by the agency since this subpart 

was last revised in 1971, will simply 

provide compliance guidance on the 

child labor provisions detailed in earlier 

subparts of 570 and therefore imposes 

no economic costs. 

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The additional changes being 

implemented are also expected to have 

little or no direct cost impact. The 

changes affecting the types of 

occupations and industries in which 14- 

and 15-year-olds may or may not be 

employed, as well as the periods and 

conditions of such employment (Reg. 3 

occupations and hours standards), are 

largely clarifications of existing 

provisions or enforcement positions, 

though new occupations involving work 

of an intellectual or creative nature, 

lifeguarding, and the loading of personal 

hand tools onto motor vehicles, are 

being added to the list of permitted 

occupations. The revision of several of 

the nonagricultural HOs—implementing 

specific recommendations made by 

NIOSH or that arise from the 

Department’s enforcement experience— 

will, in all but one instance involving 

the use of certain counter-top mixers 

(HO 11), require employers to assign 

older workers to perform tasks that 

previously may have been performed by 

16- and 17-year-olds. 

Revisions resulting from the NIOSH 

recommendations include the 

expansion of HO 4 to prohibit the 

employment of minors in forest fire 

fighting and fire prevention activities 

and in timber tract and forestry service 

occupations; the revision of HO 7 to 

prohibit the employment of minors in 

the tending, servicing, and repairing of 

hoisting equipment and the addition of 

such equipment as cherry pickers, 

scissor lifts, bucket trucks, aerial 

platforms, and hoists of less than one 

ton capacity to the list of prohibited 

equipment; and the expansion of HO 10 

to prohibit the employment of minors in 

poultry slaughtering and processing 

occupations. Revisions to HO 12 to 

prohibit the employment of minors in 

the operation of balers and compactors 

not currently covered by the HO, and 

the expansion of HO 14 to add 

additional power-driven equipment to 

the list of equipment minors may not 

operate, are also the result of NIOSH 

Report recommendations. The 

Department’s enforcement experience 

led it to incorporate into the regulations 

certain long-standing enforcement 

positions involving the definitions of 

remanufacturing departments of 

sawmills (HO 4), high-lift trucks (HO 7), 

and the cleaning of power-driven meat 

processing equipment (HO 10). The 

Department is also, based on its 

enforcement experience, amending HO 

11 to incorporate the Department’s longstanding position permitting 16- and 17- 

year-olds, under certain conditions, to 

operate certain pizza-dough rollers, and 

expanding HO 14 to prohibit the 

employment of minors to operate wood 

chippers and reciprocating saws. 

The Department has incorporated 

certain provisions of the Genetic 

Information Nondiscrimination Act of 

2008 (GINA) into 29 CFR parts 570 and 

579 to implement the legislation, which 

revised the civil monetary penalties that 

may be assessed under section 16(e) of 

the FLSA. The regulatory changes that 

implement these statutory changes do 

no more than conform the previouslyexisting regulations to the recent 

statutory amendments and do not 

impose any economic costs on 

employers that are required to comply 

with the provisions of sections 12 and 

13(c) of the FLSA. GINA, effective May 

21, 2008, increased the maximum civil 

money penalty that may be assessed for 

violations that cause the death or 

serious injury of a minor from $11,000 

to $50,000. GINA also permits a 

doubling of the civil money penalty up 

to $100,000 when such violations are 

determined to be willful or repeated. 

The Department believes that 

implementation of the Final Rule would 

not reduce the overall number of safe, 

positive, and legal employment 

opportunities available to young 

workers. In fact, employment 

opportunities for 14- and 15-year-olds 

would increase with creation, for 

example, of a limited exemption for 

certain work-study programs, allowing 

youth to be employed in work of an 

intellectual or creative nature, and 

allowing youth to be employed in those 

permitted occupations listed in 

§ 570.34(a) to be performed in 

additional industries, rather than just in 

retail, food service, and gasoline service 

establishments. 

Although, as mentioned above, some 

employers would need to replace 

younger workers with older workers, the 

impact would be minimal as relatively 

few minors are currently employed to 

perform these occupations. But the 

Department believes that these changes 

are important as they are essential to 

fulfilling its charge of keeping working 

youth safe by prohibiting occupations 

that are particularly hazardous or 

detrimental to their health or wellbeing. Any costs that might result from 

using older employees to perform the 

previously permitted tasks would be 

more than offset by reduced health and 

productivity costs resulting from 

accidents and injuries to minors on the 

job. Rules that limit permissible job 

activities for working youth to those that 

are safe do not, by themselves, impose 

significant added costs on employers, in 

our view. In fact, ensuring that 

permissible job opportunities for 

working youth are safe, healthy, and not 

detrimental to their education, as 

required by the statute, produces many 

positive benefits in addition to fewer 

occupational injuries and deaths, 

including reduced health and 

productivity costs that employers may 

otherwise incur because of higher 

accident and injury rates to young and 

inexperienced workers. In any event, 

the direct, incremental costs that would 

be imposed by this rule are expected to 

be minimal. Collectively, they would 

not have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy or its individual sectors, 

productivity, jobs, the environment, 

public health or safety, or state, local, or 

tribal governments or communities. 

Therefore, this rule is not ‘‘economically 

significant’’ and no regulatory impact 

analysis has been prepared. 

The Department has similarly 

concluded for the same reasons noted 

above that this rule is not a ‘‘major rule’’ 

under the Small Business Regulatory 

Enforcement Fairness Act of 1996 (5 

U.S.C. 801 et seq.). It would not likely 

result in: (1) An annual effect on the 

economy of $100 million or more; (2) a 

major increase in costs or prices for 

consumers, individual industries, 

federal, state, or local government 

agencies, or geographic regions; or (3) 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of U.S.-based enterprises to 

compete with foreign-based enterprises 

in domestic or export markets. 

While the impact that these regulatory 

changes will have on most affected 

entities has already been discussed, 

even those entities that are most heavily 

impacted should each spend an average 

of less than $1500 to comply with the 

new requirements of this rule. 

Specifically, the Department believes 

school districts sponsoring a WSP will 

incur the greatest additional costs. An 

analysis of the time it will take to 

prepare the application and written 

training agreements for a WSP and the 

associated recordkeeping suggests these 

educational institutions will each spend 

an average of about 52.5 hours more to 

comply with this Final Rule than might 

otherwise be spent to establish a similar 

work-study program. The Department 

associates no additional costs for the 

workplace observation requirement to 

ensure compliance with the FLSA child 

labor provisions, because such 

monitoring will normally be conducted 

when school staff visit the workplace to 

see whether educational objectives are 

being met. Absent any specific data on 

compensation of the persons who will 

actually perform the work to ensure 

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compliance, the DOL has estimated 

hourly costs this rule will impose on 

WSP sponsor schools by increasing the 

October 2009 average annual hourly rate 

for production or nonsupervisory 

workers on educational and health 

services payrolls of $19.59 by 40 percent 

to account for the value of fringe 

benefits (see The Employment Situation: 

December 2009, DOL, Bureau of Labor 

Statistics, January 2010, Table B–3, 

http://www.bls.gov/news.release/ 

archives/empsit_01082010.pdf). The 

Department then multiplied this rate, 

which includes fringe benefits, by 52.5 

hours. Accordingly, the DOL estimates 

WSP sponsor school districts will incur 

an average of $1440 (rounded) in 

additional compliance costs. (52.5 hours 

x $19.59 hourly rate x 1.4 fringe benefits 

factor.) As previously noted, the 

Department expects 30 school districts 

will have a WSP. 

The costs imposed by this rule should 

not be significant for any single entity, 

and they do not affect a substantial 

number of small entities in a way that 

would require an analysis under the 

Regulatory Flexibility Act. At the time 

the NPRM was published, the 

Department certified to this effect to the 

Chief Counsel for Advocacy of the U.S. 

Small Business Administration (SBA). 

Therefore, no Initial Regulatory 

Flexibility Analysis was required. The 

Department received no comments 

raising concerns about the initial 

certification. For the reasons discussed 

in this preamble, the Department has 

similarly concluded and certified to the 

SBA Office of Advocacy Chief Counsel 

that this Final Rule is not expected to 

have a significant economic impact on 

a substantial number of small entities in 

a manner that would require a Final 

Regulatory Flexibility Analysis. 

VI. Unfunded Mandates Reform Act 

For purposes of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1532, this rule does not include any 

federal mandate that may result in 

excess of $100 million in expenditures 

by state, local and tribal governments in 

the aggregate or by the private sector. 

VII. Executive Order 13132; Federalism 

This rule does not have federalism 

implications as outlined in E.O. 13132 

regarding federalism. The rule does not 

have substantial direct effects on the 

states, on the relationship between the 

national government and the states, or 

on the distribution of power and 

responsibilities among the various 

levels of government. 

VIII. Executive Order 13175, Indian 

Tribal Governments 

This rule was reviewed under the 

terms of E.O. 13175 and determined not 

to have ‘‘tribal implications.’’ The rule 

does not have ‘‘substantial direct effects 

on one or more Indian tribes, on the 

relationship between the federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the federal 

government and Indian tribes.’’ As a 

result, no tribal summary impact 

statement has been prepared. 

IX. Effects on Families 

The undersigned hereby certifies that 

this rule will not adversely affect the 

well-being of families, as discussed 

under section 654 of the Treasury and 

General Government Appropriations 

Act, 1999. 

X. Executive Order 13045, Protection of 

Children 

E.O. 13045, dated April 23, 1997 (62 

FR 19885), applies to any rule that (1) 

is determined to be ‘‘economically 

significant’’ as defined in E.O. 12866, 

and (2) concerns an environmental 

health or safety risk that the 

promulgating agency has reason to 

believe may have a disproportionate 

effect on children. This rule is not 

subject to E.O. 13045 because it is not 

economically significant as defined in 

E.O. 12866. In addition, although this 

rule impacts the child labor provisions 

of the FLSA and the employment of 

adolescents and young adults, it does 

not impact the environmental health or 

safety risks of children. 

XI. Environmental Impact Assessment 

A review of this rule in accordance 

with the requirements of the National 

Environmental Policy Act of 1969 

(NEPA), 42 U.S.C. 4321 et seq.; the 

regulations of the Council on 

Environmental Quality, 40 CFR 1500 et 

seq.; and the Departmental NEPA 

procedures, 29 CFR part 11, indicates 

that the rule will not have a significant 

impact on the quality of the human 

environment. There is, thus, no 

corresponding environmental 

assessment or an environmental impact 

statement. 

XII. Executive Order 13211, Energy 

Supply 

This rule is not subject to E.O. 13211. 

It will not have a significant adverse 

effect on the supply, distribution or use 

of energy. 

XIII. Executive Order 12630, 

Constitutionally Protected Property 

Rights 

This rule is not subject to E.O. 12630, 

because it does not involve 

implementation of a policy ‘‘that has 

takings implications’’ or that could 

impose limitations on private property 

use. 

XIV. Executive Order 12988, Civil 

Justice Reform Analysis 

This rule was drafted and reviewed in 

accordance with E.O. 12988 and will 

not unduly burden the federal court 

system. The rule was: (1) Reviewed to 

eliminate drafting errors and 

ambiguities; (2) written to minimize 

litigation; and (3) written to provide a 

clear legal standard for affected conduct 

and to promote burden reduction. 

List of Subjects in 29 CFR Part 570 

Child labor, Child Labor occupations, 

Employment, Government, 

Incorporation by reference, 

Intergovernmental relations, 

Investigations, Labor, Law enforcement, 

Minimum age. 

List of Subjects in 29 CFR Part 579 

Child labor, Law enforcement, 

Penalties. 

Signed at Washington, DC, this 10th day of 

May, 2010. 

Nancy J. Leppink, 

Deputy Administrator, Wage and Hour 

Division. 

■ For the reasons set out in the 

preamble, the Department amends Title 

29, parts 570 and 579, of the Code of 

Federal Regulations as follows: 

PART 570—CHILD LABOR 

REGULATIONS, ORDERS AND 

STATEMENTS OF INTERPRETATION 

■ 1. The authority citation for part 570 

subpart C is revised to read as follows: 

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

■ 2. Sections 570.31 through 570.35 are 

revised to read as follows: 

Subpart C—Employment of Minors 

Between 14 and 16 Years of Age (Child 

Labor Reg. 3) 

Sec. 

§ 570.31 Secretary’s determinations 

concerning the employment of minors 14 

and 15 years of age. 

§ 570.32 Effect of this subpart. 

§ 570.33 Occupations that are prohibited to 

minors 14 and 15 years of age. 

§ 570.34 Occupations that may be 

performed by minors 14 and 15 years of 

age. 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28449 

§ 570.35 Hours of work and conditions of 

employment permitted for minors 14 and 

15 years of age. 

* * * * * 

§ 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 § 570.34 and 

§ 570.35, does not interfere with their 

schooling or with their health and wellbeing and shall not be deemed to be 

oppressive child labor. 

§ 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 § 570.34, for the 

periods and under the conditions 

specified in § 570.35, shall not be 

deemed to be oppressive child labor 

within the meaning of the Fair Labor 

Standards Act of 1938, as amended. 

Employment that is not specifically 

permitted is prohibited. 

§ 570.33 Occupations that are prohibited 

to minors 14 and 15 years of age. 

The following occupations, which is 

not an exhaustive list, constitute 

oppressive child labor within the 

meaning of the Fair Labor Standards Act 

when performed by minors who are 14 

and 15 years of age: 

(a) Manufacturing, mining, or 

processing occupations, including 

occupations requiring the performance 

of any duties in work rooms or work 

places where goods are manufactured, 

mined or otherwise processed, except as 

permitted in § 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 powerdriven machinery, including but not 

limited to lawn mowers, golf carts, allterrain vehicles, trimmers, cutters, 

weed-eaters, edgers, food slicers, food 

grinders, food choppers, food 

processors, food cutters, and food 

mixers. Youth 14 and 15 years of age 

may, however, operate office equipment 

pursuant to § 570.34(a) and vacuum 

cleaners and floor waxers pursuant to 

§ 570.34(h). 

(f) The operation of motor vehicles; 

the service as helpers on such vehicles 

except those tasks permitted by 

§ 570.34(k); and the riding on a motor 

vehicle, inside or outside of an enclosed 

passenger compartment, except as 

permitted by § 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 § 570.34(c). 

(i) Work in freezers and meat coolers 

and all work in the preparation of meats 

for sale except as permitted by 

§ 570.34(j). This section, however, does 

not prohibit the employment of 14- and 

15-year-olds whose duties require them 

to occasionally enter freezers only 

momentarily to retrieve items as 

permitted by § 570.34(i). 

(j) Youth peddling, which entails the 

selling of goods or services to customers 

at locations other than the youthemployer’s establishment, such as the 

customers’ residences or places of 

business, or public places such as street 

corners and public transportation 

stations. Prohibited activities associated 

with youth peddling not only include 

the attempt to make a sale or the actual 

consummation of a sale, but also the 

preparatory and concluding tasks 

normally performed by a youth peddler 

in conjunction with his or her sales 

such as the loading and unloading of 

vans or other motor vehicles, the 

stocking and restocking of sales kits and 

trays, the exchanging of cash and checks 

with the employer, and the 

transportation of minors to and from the 

various sales areas by the employer. 

Prohibited youth peddling also includes 

such promotion activities as the 

holding, wearing, or waving of signs, 

merchandise, costumes, sandwich 

boards, or placards in order to attract 

potential customers, except when 

performed inside of, or directly in front 

of, the employer’s establishment 

providing the product, service, or event 

being advertised. This provision does 

not prohibit a young salesperson from 

conducting sales for his or her employer 

on property controlled by the employer 

that is out of doors but may properly be 

considered part of the employer’s 

establishment. Youth may conduct sales 

in such employer exterior facilities, 

whether temporary or permanent, as 

garden centers, sidewalk sales, and 

parking lot sales, when employed by 

that establishment. Youth peddling does 

not include the activities of persons 

who, as volunteers and without 

compensation, sell goods or services on 

behalf of eleemosynary organizations or 

public agencies. 

(k) Loading and unloading of goods or 

property onto or from motor vehicles, 

railroad cars, or conveyors, except the 

loading and unloading of personal nonpower-driven hand tools, personal 

protective equipment, and personal 

items to and from motor vehicles as 

permitted by § 570.34(k). 

(l) Catching and cooping of poultry in 

preparation for transport or for market. 

(m) Public messenger service. 

(n) Occupations in connection with: 

(1) Transportation of persons or 

property by rail, highway, air, water, 

pipeline, or other means; 

(2) Warehousing and storage; 

(3) Communications and public 

utilities; 

(4) Construction (including 

demolition and repair); except such 

office work (including ticket office) or 

sales work in connection with 

paragraphs (n)(1), (2), (3), and (4) of this 

section, as does not involve the 

performance of any duties on trains, 

motor vehicles, aircraft, vessels, or other 

media of transportation or at the actual 

site of construction operations. 

§ 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 § 570.35 and not 

involving occupations prohibited by 

§ 570.33 or performed in areas or 

industries prohibited by § 570.33. 

(a) Office and clerical work, including 

the operation of office machines. 

(b) Work of an intellectual or 

artistically creative nature such as, but 

not limited to, computer programming, 

the writing of software, teaching or 

performing as a tutor, serving as a peer 

counselor or teacher’s assistant, singing, 

the playing of a musical instrument, and 

drawing, as long as such employment 

complies with all the other provisions 

contained in §§ 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 

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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 °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 °F. Minors 

are also permitted to occasionally enter 

freezers momentarily to retrieve items in 

conjunction with restocking or food 

preparation. 

(j) Cleaning vegetables and fruits, and 

the wrapping, sealing, labeling, 

weighing, pricing, and stocking of items, 

including vegetables, fruits, and meats, 

when performed in areas physically 

separate from a freezer or meat cooler. 

(k) The loading onto motor vehicles 

and the unloading from motor vehicles 

of the light, non-power-driven, hand 

tools and personal protective equipment 

that the minor will use as part of his or 

her employment at the work site; and 

the loading onto motor vehicles and the 

unloading from motor vehicles of 

personal items such as a back pack, a 

lunch box, or a coat that the minor is 

permitted to take to the work site. Such 

light tools would include, but are not 

limited to, rakes, hand-held clippers, 

shovels, and brooms. Such light tools 

would not include items like trash, sales 

kits, promotion items or items for sale, 

lawn mowers, or other power-driven 

lawn maintenance equipment. Such 

minors would not be permitted to load 

or unload safety equipment such as 

barriers, cones, or signage. 

(l)(1) Lifeguard. The employment of 

15-year-olds (but not 14-year-olds) to 

perform permitted lifeguard duties at 

traditional swimming pools and water 

amusement parks (including such water 

park facilities as wave pools, lazy rivers, 

specialized activity areas that may 

include water falls and sprinkler areas, 

and baby pools; but not including the 

elevated areas of power-driven water 

slides) when such youth have been 

trained and certified by the American 

Red Cross, or a similar certifying 

organization, in aquatics and water 

safety. 

(2) Definitions. As used in this 

paragraph (l): 

Permitted lifeguard duties include the 

rescuing of swimmers in danger of 

drowning, the monitoring of activities at 

poolside to prevent accidents, the 

teaching of water safety, and providing 

assistance to patrons. Lifeguards may 

also help to maintain order and 

cleanliness in the pool and pool areas, 

give swimming instructions (if, in 

addition to being certified as a lifeguard, 

the 15-year-old is also properly certified 

as a swimming instructor by the 

American Red Cross or some other 

recognized certifying organization), 

conduct or officiate at swimming meets, 

and administer first aid. Additional 

lifeguard duties may include checking 

in and out items such as towels and 

personal items such as rings, watches 

and apparel. Permitted duties for 15- 

year-olds include the use of a ladder to 

access and descend from the lifeguard 

chair; the use of hand tools to clean the 

pool and pool area; and the testing and 

recording of water quality for 

temperature and/or pH levels, using all 

of the tools of the testing process 

including adding chemicals to the test 

water sample. Fifteen-year-olds 

employed as lifeguards are, however, 

prohibited from entering or working in 

any mechanical room or chemical 

storage areas, including any areas where 

the filtration and chlorinating systems 

are housed. The term permitted 

lifeguard duties does not include the 

operation or tending of power-driven 

equipment including power-driven 

elevated water slides often found at 

water amusement parks and some 

swimming pools. Minors under 16 years 

of age may not be employed as 

dispatchers or attendants at the top of 

elevated water slides performing such 

tasks as maintaining order, directing 

patrons as to when to depart the top of 

the slide, and ensuring that patrons 

have begun their ‘‘ride’’ safely. Properly 

certified 15-year-old lifeguards may, 

however, be stationed at the 

‘‘splashdown pools’’ located at the 

bottom of the elevated water slides to 

perform those permitted duties listed in 

this subsection. 

Traditional swimming pool means a 

water tight structure of concrete, 

masonry, or other approved materials 

located either indoors or outdoors, used 

for bathing or swimming and filled with 

a filtered and disinfected water supply, 

together with buildings, appurtenances 

and equipment used in connection 

therewith, excluding elevated ‘‘water 

slides.’’ Not included in the definition of 

a traditional swimming pool would be 

such natural environment swimming 

facilities as rivers, streams, lakes, ponds, 

quarries, reservoirs, wharfs, piers, 

canals, or oceanside beaches. 

Water amusement park means an 

establishment that not only 

encompasses the features of a traditional 

swimming pool, but may also include 

such additional attractions as wave 

pools; lazy rivers; specialized activities 

areas such as baby pools, water falls, 

and sprinklers; and elevated water 

slides. Not included in the definition of 

a water amusement park would be such 

natural environment swimming 

facilities as rivers, streams, lakes, 

reservoirs, wharfs, piers, canals, or 

oceanside beaches. 

(m)(1) Employment inside and outside 

of places of business where machinery 

is used to process wood products. The 

employment of a 14- or 15-year-old who 

by statute or judicial order is exempt 

from compulsory school attendance 

beyond the eighth grade inside or 

outside places of business where 

machinery is used to process wood 

products if: 

(i) The youth is supervised by an 

adult relative of the youth or is 

supervised by an adult member of the 

same religious sect or division as the 

youth; 

(ii) The youth does not operate or 

assist in the operation of power-driven 

woodworking machines; 

(iii) The youth is protected from wood 

particles or other flying debris within 

the workplace by a barrier appropriate 

to the potential hazard of such wood 

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particles or flying debris or by 

maintaining a sufficient distance from 

machinery in operation; and 

(iv) The youth is required to use, and 

uses, personal protective equipment to 

prevent exposure to excessive levels of 

noise and saw dust. 

(2) Compliance. Compliance with the 

provisions of paragraphs (m)(1)(iii) and 

(m)(1)(iv) of this section will be 

accomplished when the employer is in 

compliance with the requirements of the 

applicable governing standards issued 

by the U.S. Department of Labor’s 

Occupational Safety and Health 

Administration (OSHA) or, in those 

areas where OSHA has authorized the 

state to operate its own Occupational 

Safety and Health Plan, the applicable 

standards issued by the Office charged 

with administering the State 

Occupational Safety and Health Plan. 

The employment of youth under this 

section must comply with the other 

sections of this subpart, including the 

hours and time of day standards 

established by § 570.35. 

(3) Definitions. As used in this 

paragraph (m): 

Inside or outside places of business 

shall mean the actual physical location 

of the establishment employing the 

youth, including the buildings and 

surrounding land necessary to the 

business operations of that 

establishment. 

Operate or assist in the operation of 

power-driven woodworking machines 

shall mean the operating of such 

machines, including supervising or 

controlling the operation of such 

machines, feeding material into such 

machines, helping the operator feed 

material into such machines, unloading 

materials from such machines, and 

helping the operator unload materials 

from such machines. The term also 

includes the occupations of setting-up, 

adjusting, repairing, oiling, or cleaning 

such machines. 

Places of business where machinery is 

used to process wood products shall 

mean such permanent workplaces as 

sawmills, lath mills, shingle mills, 

cooperage stock mills, furniture and 

cabinet making shops, gazebo and shed 

making shops, toy manufacturing shops, 

and pallet shops. The term shall not 

include construction sites, portable 

sawmills, areas where logging is being 

performed, or mining operations. 

Power-driven woodworking machines 

shall mean all fixed or portable 

machines or tools driven by power and 

used or designed for cutting, shaping, 

forming, surfacing, nailing, stapling, 

wire stitching, fastening or otherwise 

assembling, pressing, or printing wood, 

veneer, trees, logs, or lumber. 

Supervised by an adult relative or is 

supervised by an adult member of the 

same religious sect or division as the 

youth has several components. 

Supervised means that the youth’s onthe-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 

§ 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. In 

addition, each driver transporting the 

young workers must hold a State 

driver’s license valid for the type of 

driving involved and, if the driver is 

under the age of 18, his or her 

employment must comply with the 

provisions of § 570.52. 

§ 570.35 Hours of work and conditions of 

employment permitted for minors 14 and 15 

years of age. 

(a) Hours standards. Except as 

provided in paragraph (c) of this 

section, employment in any of the 

permissible occupations to which this 

subpart is applicable shall be confined 

to the following periods: 

(1) Outside of school hours; 

(2) Not more than 40 hours in any 1 

week when school is not in session; 

(3) Not more than 18 hours in any 1 

week when school is in session; 

(4) Not more than 8 hours in any 1 

day when school is not in session; 

(5) Not more than 3 hours in any 1 

day when school is in session, including 

Fridays; 

(6) Between 7 a.m. and 7 p.m. in any 

1 day, except during the summer (June 

1 through Labor Day) when the evening 

hour will be 9 p.m. 

(b) Definitions. As used in this 

section: 

Outside school hours means such 

periods as before and after school hours, 

holidays, summer vacations, weekends, 

and any other day or part of a day when 

school is not in session as determined 

by the local public school district in 

which the minor resides when 

employed. Summer school sessions, 

held in addition to the regularly 

scheduled school year, are considered to 

be outside of school hours. 

School hours refers to the hours that 

the local public school district where 

the minor resides while employed is in 

session during the regularly scheduled 

school year. 

Week means a fixed and regularly 

recurring period of 168 hours—seven 

consecutive 24-hour periods—that is 

identical to the workweek the employer 

establishes for the employee under 

§ 778.105 of this title. 

Week when school is in session refers 

to any week the local public school 

district where the minor resides while 

employed is in session and students are 

required to attend for at least one day 

or partial day. 

(c) Exceptions. (1) School is not 

considered to be in session, and 

exceptions from the hours limitations 

standards listed in paragraphs (a)(1), (3), 

and (5) of this section are provided, for 

any youth 14 or 15 years of age who: 

(i) Has graduated from high school; 

(ii) Has been excused from 

compulsory school attendance by the 

state or other jurisdiction once he or she 

has completed the eighth grade and his 

or her employment complies with all 

the requirements of the state school 

attendance law; 

(iii) Has a child to support and 

appropriate state officers, pursuant to 

state law, have waived school 

attendance requirements for this minor; 

(iv) Is subject to an order of a state or 

federal court prohibiting him or her 

from attending school; or 

(v) Has been permanently expelled 

from the local public school he or she 

would normally attend, unless the 

youth is required, by state or local law 

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or ordinance, or by court order, to 

attend another school. 

(2) In the case of minors 14 and 15 

years of age who are employed to 

perform sports-attending services at 

professional sporting events, i.e., 

baseball, basketball, football, soccer, 

tennis, etc., the requirements of 

paragraphs (a)(2) through (a)(6) of this 

section shall not apply, provided that 

the duties of the sports-attendant 

occupation consist of pre- and postgame 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 schoolsupervised work-experience and career 

exploration program as detailed in 

§ 570.36. 

(4) Exceptions from certain of the 

hours standards contained in 

paragraphs (a)(1) and (a)(5) of this 

section are provided for the 

employment of minors who are 

participating in a work-study program 

designed as described in § 570.37. 

§§ 570.36 and 570.37 [Redesignated as 

§§ 570.38 and 570.39] 

■ 3. Redesignate §§ 570.36 and 570.37 

as §§ 570.38 and 570.39, respectively. 

§ 570.35a [Redesignated as § 570.36] 

■ 4. Redesignate § 570.35a as § 570.36. 

■ 5. Revise paragraph (c)(3) introductory 

text of newly redesignated § 570.36 to 

read as follows: 

§ 570.36 Work experience and career 

exploration program. 

* * * * * 

(c) * * * 

(3) Occupations other than those 

permitted under § 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. 

* * * * * 

■ 6. Add a new § 570.37 to read as 

follows: 

§ 570.37 Work-study program. 

(a) This section varies the provisions 

contained in § 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 schoolsupervised and school-administered 

work-study program that meets the 

requirements of paragraph (b) of this 

section, in the occupations permitted by 

§ 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 wellbeing 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 fullyaccredited college preparatory 

curriculum. Such classroom instruction 

shall include, every year the youth 

participates in the work-study program, 

training in workplace safety and state 

and federal child labor provisions and 

rules. 

(iii) Teacher-coordinator. Each school 

participating in a work-study program 

shall designate a teacher-coordinator 

under whose supervision the program 

will operate. The teacher-coordinator 

shall generally supervise and coordinate 

the work and educational aspects of the 

program and make regularly scheduled 

visits to the workplaces of the 

participating students to confirm that 

minors participating in the work-study 

program are employed in compliance 

with all applicable provisions of this 

part and section 6 of the Fair Labor 

Standards Act. Such confirmation shall 

be noted in any letters of application 

filed by the superintendent of the public 

or private school system in accordance 

with paragraph (b)(2) of this section 

when seeking continuance of its workstudy program. 

(iv) Written participation agreement. 

No student shall participate in the workstudy 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 classroom instruction as required by the 

State Educational Agency for the 

completion of a fully-accredited college 

preparatory curriculum; and affirm that 

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the employment of the minor will be in 

compliance with the child labor 

provisions of both this part and the laws 

of the state where the work will be 

performed, and the applicable minimum 

wage provisions contained in section 6 

of the FLSA. 

(v) Other provisions. Any other 

provisions of the program providing 

safeguards ensuring that the 

employment permitted under this 

section will not interfere with the 

schooling of the minors or with their 

health and well-being may also be 

submitted for use in considering the 

application. 

(4) Every public or private school 

district having students in a work-study 

program approved pursuant to these 

requirements, and every employer 

employing students in a work-study 

program approved pursuant to these 

requirements, shall comply with the 

following: 

(i) Permissible occupations. No 

student shall be assigned to work in any 

occupation other than one permitted 

under § 570.34. 

(ii) Records and reports. A copy of the 

written agreement for each student 

participating in the work-study program 

shall be kept by both the employer and 

the school supervising and 

administering the program for a period 

of three years from the date of the 

student’s enrollment in the program. 

Such agreements shall be made 

available upon request to the 

representatives of the Administrator of 

the Wage and Hour Division for 

inspection, transcription, and/or 

photocopying. 

(c) Employment of minors enrolled in 

a program approved pursuant to the 

requirements of this section shall be 

confined to not more than 18 hours in 

any one week when school is in session, 

a portion of which may be during school 

hours, in accordance with the following 

formula that is based upon a continuous 

four-week cycle. In three of the four 

weeks, the participant is permitted to 

work during school hours on only one 

day per week, and for no more than for 

eight hours on that day. During the 

remaining week of the four-week cycle, 

such minor is permitted to work during 

school hours on no more than two days, 

and for no more than for eight hours on 

each of those two days. The 

employment of such minors would still 

be subject to the time of day and 

number of hours standards contained in 

§§ 570.35(a)(2), (a)(3), (a)(4), and (a)(6). 

To the extent that these provisions are 

inconsistent with the provisions of 

§ 570.35, this section shall be 

controlling. 

(d) Programs shall be in force and 

effect for a period to be determined by 

the Administrator of the Wage and Hour 

Division, but in no case shall be in effect 

for longer than two school years from 

the date of their approval by the 

Administrator of the Wage and Hour 

Division. A new application for 

approval must be filed at the end of that 

period. Failure to meet the requirements 

of this section may result in withdrawal 

of the approval. 

(The information collection 

requirements contained in § 570.37 were 

approved by the OMB under Control 

No. 1215–0208.) 

Subpart E—Occupations Particularly 

Hazardous for the Employment of 

Minors Between 16 and 18 Years of 

Age or Detrimental to Their Health or 

Well-Being 

■ 7. The authority citation for subpart E 

continues to read as follows: 

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

■ 8. Section 570.54 is revised to read as 

follows: 

§ 570.54 Forest fire fighting and forest fire 

prevention occupations, timber tract 

occupations, forestry service occupations, 

logging occupations, and occupations in 

the operation of any sawmill, lath mill, 

shingle mill, or cooperage stock mill (Order 

4). 

(a) Finding and declarations of fact. 

All occupations in forest fire fighting 

and forest fire prevention, in timber 

tracts, in forestry services, logging, and 

the operation of any sawmill, lath mill, 

shingle mill, or cooperage stock mill are 

particularly hazardous for the 

employment of minors between 16 and 

18 years of age, except the following 

when not prohibited by any other 

section of this subpart: 

(1) Work in offices or in repair or 

maintenance shops. 

(2) Work in the construction, 

operation, repair, or maintenance of 

living and administrative quarters, 

including logging camps and fire 

fighting base camps. 

(3) Work in the repair or maintenance 

of roads, railroads or flumes and work 

in construction and maintenance of 

telephone lines, but only if the minors 

are not engaged in the operation of 

power-driven machinery, the handling 

or use of explosives, the felling or 

bucking of timber, the collecting or 

transporting of logs, or work on trestles. 

(4) The following tasks in forest fire 

prevention provided none of these tasks 

may be performed in conjunction with 

or in support of efforts to extinguish a 

forest fire: the clearing of fire trails or 

roads; the construction, maintenance, 

and patrolling of fire lines; the piling 

and burning of slash; the maintaining of 

fire fighting equipment; and acting as a 

fire lookout or fire patrolman. 

(5) Work related to forest marketing 

and forest economics when performed 

away from the forest. 

(6) Work in the feeding or care of 

animals. 

(7) Peeling of fence posts, pulpwood, 

chemical wood, excelsior wood, 

cordwood, or similar products, when 

not done in conjunction with and at the 

same time and place as other logging 

occupations declared hazardous by this 

section. 

(8) The following additional 

exceptions apply to the operation of a 

permanent sawmill or the operation of 

any lath mill, shingle mill, or cooperage 

stock mill, but not to a portable sawmill. 

In addition, the following exceptions do 

not apply to work which entails 

entering the sawmill building, except 

for those minors whose employment 

meets the requirements of the limited 

exemptions discussed in §§ 570.34(m) 

and 570.54(c): 

(i) Straightening, marking, or tallying 

lumber on the dry chain or the dry drop 

sorter. 

(ii) Pulling lumber from the dry chain, 

except minors under 16 years of age 

may not pull lumber from the dry chain 

as such youth are prohibited from 

operating or tending power-driven 

machinery by § 570.33(e) of this part. 

(iii) Clean-up in the lumberyard. 

(iv) Piling, handling, or shipping of 

cooperage stock in yards or storage 

sheds other than operating or assisting 

in the operation of power-driven 

equipment; except minors under 16 

years of age may not perform shipping 

duties as they are prohibited from 

employment in occupations in 

connection with the transportation of 

property by rail, highway, air, water, 

pipeline, or other means by 

§ 570.33(n)(1) of this part. 

(v) Clerical work in yards or shipping 

sheds, such as done by ordermen, tallymen, and shipping clerks. 

(vi) Clean-up work outside shake and 

shingle mills, except when the mill is in 

operation. 

(vii) Splitting shakes manually from 

precut and split blocks with a froe and 

mallet, except inside the mill building 

or cover. 

(viii) Packing shakes into bundles 

when done in conjunction with splitting 

shakes manually with a froe and mallet, 

except inside the mill building or cover. 

(ix) Manual loading of bundles of 

shingles or shakes into trucks or railroad 

cars, provided that the employer has on 

file a statement from a licensed doctor 

of medicine or osteopathy certifying the 

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minor capable of performing this work 

without injury to himself, except minors 

under 16 years of age may not load 

bundles of shingles or shakes into trucks 

or railroad cars as they are prohibited 

from loading and unloading goods or 

property onto or from motor vehicles, 

railroad cars, or conveyors by 

§ 570.33(k) of this part. 

(b) Definitions. As used in this 

section: 

All occupations in forest fire fighting 

and forest fire prevention shall include 

the controlling and extinguishing of 

fires, the wetting down of areas or 

extinguishing of spot fires, and the 

patrolling of burned areas to assure the 

fire has been extinguished. The term 

shall also include the following tasks 

when performed in conjunction with, or 

in support of, efforts to extinguish a 

forest fire: the piling and burning of 

slash; the clearing of fire trails or roads; 

the construction, maintenance, and 

patrolling of fire lines; acting as a fire 

lookout or fire patrolman; and the 

maintaining of fire fighting equipment. 

The prohibition concerning the 

employment of youth in forest fire 

fighting and fire prevention applies to 

all forest and timber tract locations, 

logging operations, and sawmill 

operations, including all buildings 

located within such areas. 

All occupations in forestry services 

shall mean all work involved in the 

support of timber production, wood 

technology, forestry economics and 

marketing, and forest protection. The 

term includes such services as timber 

cruising, surveying, or loggingengineering parties; estimating timber; 

timber valuation; forest pest control; 

forest fire fighting and forest fire 

prevention as defined in this section; 

and reforestation. The term shall not 

include work in forest nurseries, 

establishments primarily engaged in 

growing trees for purposes of 

reforestation. The term shall not include 

the gathering of forest products such as 

balsam needles, ginseng, huckleberry 

greens, maple sap, moss, Spanish moss, 

sphagnum moss, teaberries, and tree 

seeds; the distillation of gum, 

turpentine, and rosin if carried on at the 

gum farm; and the extraction of pine 

gum. 

All occupations in logging shall mean 

all work performed in connection with 

the felling of timber; the bucking or 

converting of timber into logs, poles, 

piles, ties, bolts, pulpwood, chemical 

wood, excelsior wood, cordwood, fence 

posts, or similar products; the 

collecting, skidding, yarding, loading, 

transporting and unloading of such 

products in connection with logging; the 

constructing, repairing and maintaining 

of roads, railroads, flumes, or camps 

used in connection with logging; the 

moving, installing, rigging, and 

maintenance of machinery or equipment 

used in logging; and other work 

performed in connection with logging. 

All occupations in the operation of 

any sawmill, lath mill, shingle mill, or 

cooperage-stock mill shall mean all 

work performed in or about any such 

mill in connection with storing of logs 

and bolts; converting logs or bolts into 

sawn lumber, lathers, shingles, or 

cooperage stock; storing drying, and 

shipping lumber, laths, shingles, 

cooperage stock, or other products of 

such mills; and other work performed in 

connection with the operation of any 

sawmill, lath mill, shingle mill, or 

cooperage-stock mill. The term shall not 

include work performed in the planingmill department or other 

remanufacturing departments of any 

sawmill or remanufacturing plant not a 

part of a sawmill. 

All occupations in timber tracts 

means all work performed in or about 

establishments that cultivate, manage or 

sell standing timber. The term includes 

work performed in timber culture, 

timber tracts, timber-stand 

improvement, and forest fire fighting 

and fire prevention. It includes work on 

tree farms, except those tree farm 

establishments that meet the definition 

of agriculture contained in 29 U.S.C. 

203(f). 

Inside or outside places of business 

shall mean the actual physical location 

of the establishment employing the 

youth, including the buildings and 

surrounding land necessary to the 

business operations of that 

establishment. 

Operate or assist in the operation of 

power-driven woodworking machines 

includes operating such machines, 

including supervising or controlling the 

operation of such machines, feeding 

material into such machines, helping 

the operator feed material into such 

machines, unloading materials from 

such machines, and helping the 

operator unload materials from such 

machines. The term also includes the 

occupations of setting-up, adjusting, 

repairing, oiling, or cleaning such 

machines. 

Places of business where machinery is 

used to process wood products shall 

mean such permanent workplaces as 

sawmills, lath mills, shingle mills, 

cooperage stock mills, furniture and 

cabinet making shops, gazebo and shed 

making shops, toy manufacturing shops, 

and pallet shops. The term shall not 

include construction sites, portable 

sawmills, areas where logging is being 

performed, or mining operations. 

Portable sawmill shall mean a 

sawmilling operation where no office or 

repair or maintenance shop is ordinarily 

maintained, and any lumberyard 

operated in conjunction with the 

sawmill is used only for the temporary 

storage of green lumber. 

Power-driven woodworking machines 

shall mean all fixed or portable 

machines or tools driven by power and 

used or designed for cutting, shaping, 

forming, surfacing, nailing, stapling, 

wire stitching, fastening or otherwise 

assembling, pressing or printing wood, 

veneer, trees, logs, or lumber. 

Remanufacturing department shall 

mean those departments of a sawmill 

where lumber products such as boxes, 

lawn furniture, and the like are 

remanufactured from previously cut 

lumber. The kind of work performed in 

such departments is similar to that done 

in planing mill departments in that 

rough lumber is surfaced or made into 

other finished products. The term is not 

intended to denote those operations in 

sawmills where rough lumber is cut to 

dimensions. 

Supervised by an adult relative or is 

supervised by an adult member of the 

same religious sect or division as the 

youth, as a term, has several 

components. Supervised refers to the 

requirement that the youth’s on-the-job 

activities be directed, monitored, and 

controlled by certain named adults. 

Such supervision must be close, direct, 

constant and uninterrupted. An adult 

shall mean an individual who is at least 

eighteen years of age. A relative shall 

mean the parent (or someone standing 

in place of a parent), grandparent, 

sibling, uncle, or aunt of the young 

worker. A member of the same religious 

sect or division as the youth refers to an 

individual who professes membership 

in the same religious sect or division to 

which the youth professes membership. 

(c) Exemptions. (1) The provisions 

contained in paragraph (a)(8) of this 

section that prohibit youth between 16 

and 18 years of age from performing any 

work that entails entering the sawmill 

building do not apply to the 

employment of a youth who is at least 

14 years of age and less than 18 years 

of age and who by statute or judicial 

order is exempt from compulsory school 

attendance beyond the eighth grade, if: 

(i) The youth is supervised by an 

adult relative or by an adult member of 

the same religious sect or division as the 

youth; 

(ii) The youth does not operate or 

assist in the operation of power-driven 

woodworking machines; 

(iii) The youth is protected from wood 

particles or other flying debris within 

the workplace by a barrier appropriate 

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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. 

■ 9. In § 570.55, paragraph (b) is revised 

to read as follows: 

§ 570.55 Occupations involved in the 

operation of power-driven woodworking 

machines (Order 5). 

* * * * * 

(b) Definitions. As used in this 

section: 

Off-bearing shall mean the removal of 

material or refuse directly from a saw 

table or from the point of operation. 

Operations not considered as off-bearing 

within the intent of this section include: 

(i) The removal of material or refuse 

from a circular saw or guillotine-action 

veneer clipper where the material or 

refuse has been conveyed away from the 

saw table or point of operation by a 

gravity chute or by some mechanical 

means such as a moving belt or 

expulsion roller; and 

(ii) The following operations when 

they do not involve the removal of 

materials or refuse directly from a saw 

table or point of operation: The carrying, 

moving, or transporting of materials 

from one machine to another or from 

one part of a plant to another; the piling, 

stacking, or arranging of materials for 

feeding into a machine by another 

person; and the sorting, tying, bundling, 

or loading of materials. 

Power-driven woodworking machines 

shall mean all fixed or portable 

machines or tools driven by power and 

used or designed for cutting, shaping, 

forming, surfacing, nailing, stapling, 

wire stitching, fastening or otherwise 

assembling, pressing or printing wood, 

veneer, trees, logs, or lumber. 

* * * * * 

■ 10. In § 570.58, paragraphs (a) and (b) 

are revised to read as follows: 

§ 570.58 Occupations involved in the 

operation of power-driven hoisting 

apparatus (Order 7). 

(a) Findings and declaration of fact. 

The following occupations involved in 

the operation of power-driven hoisting 

apparatus are particularly hazardous for 

minors between 16 and 18 years of age: 

(1) Work of operating, tending, riding 

upon, working from, repairing, 

servicing, or disassembling an elevator, 

crane, derrick, hoist, or high-lift truck, 

except operating or riding inside an 

unattended automatic operation 

passenger elevator. Tending such 

equipment includes assisting in the 

hoisting tasks being performed by the 

equipment. 

(2) Work of operating, tending, riding 

upon, working from, repairing, 

servicing, or disassembling a manlift or 

freight elevator, except 16- and 17-yearolds may ride upon a freight elevator 

operated by an assigned operator. 

Tending such equipment includes 

assisting in the hoisting tasks being 

performed by the equipment. 

(b) Definitions. As used in this 

section: 

Crane shall mean a power-driven 

machine for lifting and lowering a load 

and moving it horizontally, in which the 

hoisting mechanism is an integral part 

of the machine. The term shall include 

all types of cranes, such as cantilever 

gantry, crawler, gantry, hammerhead, 

ingot pouring, jib, locomotive, motortruck, overhead traveling, pillar jib, 

pintle, portal, semi-gantry, semi-portal, 

storage bridge, tower, walking jib, and 

wall cranes. 

Derrick shall mean a power-driven 

apparatus consisting of a mast or 

equivalent members held at the top by 

guys or braces, with or without a boom, 

for use with a hoisting mechanism or 

operating ropes. The term shall include 

all types of derricks, such as A-frame, 

breast, Chicago boom, gin-pole, guy, and 

stiff-leg derrick. 

Elevator shall mean any power-driven 

hoisting or lowering mechanism 

equipped with a car or platform which 

moves in guides in a substantially 

vertical direction. The term shall 

include both passenger and freight 

elevators (including portable elevators 

or tiering machines), but shall not 

include dumbwaiters. 

High-lift truck shall mean a powerdriven industrial type of truck used for 

lateral transportation that is equipped 

with a power-operated lifting device 

usually in the form of a fork or platform 

capable of tiering loaded pallets or skids 

one above the other. Instead of a fork or 

a platform, the lifting device may 

consist of a ram, scoop, shovel, crane, 

revolving fork, or other attachments for 

handling specific loads. The term shall 

mean and include highlift trucks known 

under such names as fork lifts, fork 

trucks, fork lift trucks, tiering trucks, 

backhoes, front-end loaders, skid 

loaders, skid-steer loaders, Bobcat 

loaders, or stacking trucks, but shall not 

mean low-lift trucks or low-lift platform 

trucks that are designed for the 

transportation of but not the tiering of 

materials. 

Hoist shall mean a power-driven 

apparatus for raising or lowering a load 

by the application of a pulling force that 

does not include a car or platform 

running in guides. The term shall 

include all types of hoists, such as base 

mounted electric, clevis suspension, 

hook suspension, monorail, overhead 

electric, simple drum, and trolley 

suspension hoists. 

Manlift shall mean a device intended 

for the conveyance of persons that 

consists of platforms or brackets 

mounted on, or attached to, an endless 

belt, cable, chain or similar method of 

suspension; with such belt, cable or 

chain operating in a substantially 

vertical direction and being supported 

by and driven through pulleys, sheaves 

or sprockets at the top and bottom. The 

term shall also include truck- or 

equipment-mounted aerial platforms 

commonly referred to as scissor lifts, 

boom-type mobile elevating work 

platforms, work assist vehicles, cherry 

pickers, basket hoists, and bucket 

trucks. 

* * * * * 

■ 11. In § 570.59, the section heading is 

revised to read as follows: 

§ 570.59 Occupations involved in the 

operation of power-driven metal forming, 

punching, and shearing machines (Order 8). 

* * * * * 

■ 12. In § 570.61, the section heading 

and paragraphs (a)(4), (a)(7), (b), and 

(c)(1) are revised to read as follows: 

§ 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 

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cutting saws, poultry scissors or shears; 

meat slicers, knives (except baconslicing machines), headsplitters, and 

guillotine cutters; snoutpullers and 

jawpullers; skinning machines; 

horizontal rotary washing machines; 

casing-cleaning machines such as 

crushing, stripping, and finishing 

machines; grinding, mixing, chopping, 

and hashing machines; and presses 

(except belly-rolling machines). Except, 

the provisions of this subsection shall 

not apply to the operation of those 

lightweight, small capacity, portable, 

countertop mixers discussed in 

§ 570.62(b)(1) of this chapter when used 

as a mixer to process materials other 

than meat or poultry. 

* * * * * 

(7) All occupations involving the 

handlifting or handcarrying any carcass 

or half carcass of beef, pork, horse, deer, 

or buffalo, or any quarter carcass of beef, 

horse, or buffalo. 

(b) Definitions. As used in this 

section: 

Boning occupations means the 

removal of bones from meat cuts. It does 

not include work that involves cutting, 

scraping, or trimming meat from cuts 

containing bones. 

Curing cellar includes a workroom or 

workplace which is primarily devoted 

to the preservation and flavoring of 

meat, including poultry, by curing 

materials. It does not include a 

workroom or workplace solely where 

meats are smoked. 

Hide cellar includes a workroom or 

workplace where hides are graded, 

trimmed, salted, and otherwise cured. 

Killing floor includes a workroom, 

workplace where such animals as cattle, 

calves, hogs, poultry, sheep, lambs, 

goats, buffalo, deer, or horses are 

immobilized, shackled, or killed, and 

the carcasses are dressed prior to 

chilling. 

Retail/wholesale or service 

establishments include establishments 

where meat or meat products, including 

poultry, are processed or handled, such 

as butcher shops, grocery stores, 

restaurants and quick service food 

establishments, hotels, delicatessens, 

and meat locker (freezer-locker) 

companies, and establishments where 

any food product is prepared or 

processed for serving to customers using 

machines prohibited by paragraph (a) of 

this section. 

Rendering plants means 

establishments engaged in the 

conversion of dead animals, animal 

offal, animal fats, scrap meats, blood, 

and bones into stock feeds, tallow, 

inedible greases, fertilizer ingredients, 

and similar products. 

Slaughtering and meat packing 

establishments means places in or about 

which such animals as cattle, calves, 

hogs, poultry, sheep, lambs, goats, 

buffalo, deer, or horses are killed, 

butchered, or processed. The term also 

includes establishments which 

manufacture or process meat or poultry 

products, including sausage or sausage 

casings from such animals. 

(c) * * * 

(1) The killing and processing of 

rabbits or small game in areas physically 

separated from the killing floor. 

* * * * * 

■ 13. In § 570.62, paragraph (a)(2) is 

revised, and a new paragraph (b) is 

added, to read as follows: 

§ 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 powerdriven food mixers that are, or are 

comparable to, models intended for 

household use. For purposes of this 

exemption, a lightweight, small capacity 

mixer is one that is not hardwired into 

the establishment’s power source, is 

equipped with a motor that operates at 

no more than 1⁄2 horsepower, and is 

equipped with a bowl with a capacity of 

no more than five quarts. Except, this 

exception shall not apply when the 

mixer is used, with or without 

attachments, to process meat or poultry 

products as prohibited by § 570.61(a)(4). 

(2) This section shall not apply to the 

operation of pizza-dough rollers, a type 

of dough sheeter, that: have been 

constructed with safeguards contained 

in the basic design so as to prevent 

fingers, hands, or clothing from being 

caught in the in-running point of the 

rollers; have gears that are completely 

enclosed; and have microswitches that 

disengage the machinery if the backs or 

sides of the rollers are removed. This 

exception applies only when all the 

safeguards detailed in this paragraph are 

present on the machine, are operational, 

and have not been overridden. This 

exception does not apply to the setting 

up, adjusting, repairing, oiling or 

cleaning of such pizza-dough rollers. 

■ 14. In § 570.63, the section heading 

and paragraphs (a)(2), (b) are revised, 

paragraphs (a)(3) and (4) are added, and 

paragraph (c)(1)(iv)(A) is revised to read 

as follows: 

§ 570.63 Occupations involved in the 

operation of balers, compactors, and paperproducts machines (Order 12). 

(a) * * * 

(2) The occupations of operation or 

assisting to operate any baler that is 

designed or used to process materials 

other than paper. 

(3) The occupations of operation or 

assisting to operate any compactor that 

is designed or used to process materials 

other than paper. 

(4) The occupations of setting up, 

adjusting, repairing, oiling, or cleaning 

any of the machines listed in paragraphs 

(a)(1), (2), and (3) of this section. 

(b) Definitions. As used in this 

section: 

Applicable ANSI Standard means the 

American National Standard Institute’s 

Standard ANSI Z245.5–1990 American 

National Standard for Refuse Collection, 

Processing, and Disposal—Baling 

Equipment—Safety Requirements (ANSI 

S245.5–1990) for scrap paper balers or 

the American National Standard 

Institute’s Standard ANSI Z245.2–1992 

American National Standard for Refuse 

Collection, Processing, and Disposal 

Equipment—Stationary Compactors— 

Safety Requirements (ANSI Z245.2– 

1992) for paper box compactors. 

Additional applicable standards are the 

American National Standard Institute’s 

Standard ANSI Z245.5–1997 American 

National Standard for Equipment 

Technology and Operations for Wastes 

and Recyclable Materials—Baling 

Equipment—Safety Requirements (ANSI 

Z245.5–1997), the American National 

Standard Institute’s Standard ANSI 

Z245.5–2004 American National 

Standard for Equipment Technology 

and Operations for Wastes and 

Recyclable Materials—Baling 

Equipment—Safety Requirements for 

Installation, Maintenance and 

Operation (ANSI Z245.5–2004), and the 

American National Standard Institute’s 

Standard ANSI Z245.5–2008 American 

National Standard for Equipment 

Technology and Operations for Wastes 

and Recyclable Materials—Baling 

Equipment—Safety Requirements (ANSI 

Z245.5–2008) for scrap paper balers or 

the American National Standard 

Institute’s Standard ANSI Z245.2–1997 

American National Standard for 

Equipment Technology and Operations 

for Wastes and Recyclable Materials— 

Stationary Compactors—Safety 

Requirements (ANSI Z245.2–1997), the 

American National Standard Institute’s 

Standard ANSI Z245.2–2004 American 

National Standard for Equipment 

Technology and Operations for Wastes 

and Recyclable Materials—Stationary 

Compactors—Safety Requirements for 

Installation, Maintenance and 

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Operation (ANSI Z245.2–2004), and the 

American National Standard Institute’s 

Standard ANSI Z245.2–2008 American 

National Standard for Equipment 

Technology and Operations for Wastes 

and Recyclable Materials—Stationary 

Compactors—Safety Requirements for 

Installation, Maintenance and 

Operation (ANSI Z245.2–2008) for 

paper box compactors, which the 

Secretary has certified to be at least as 

protective of the safety of minors as 

Standard ANSI Z245.5–1990 for scrap 

paper balers or Standard ANSI Z245.2– 

1992 for paper box compactors. The 

ANSI standards for scrap paper balers 

and paper box compactors govern the 

manufacture and modification of the 

equipment, the operation and 

maintenance of the equipment, and 

employee training. These ANSI 

standards are incorporated by reference 

in this paragraph and have the same 

force and effect as other standards in 

this part. Only the mandatory 

provisions (i.e., provisions containing 

the word ‘‘shall’’ or other mandatory 

language) of these standards are adopted 

as standards under this part. These 

standards are incorporated by reference 

as they exist on the date of the approval; 

if any changes are made in these 

standards which the Secretary finds to 

be as protective of the safety of minors 

as the current standards, the Secretary 

will publish a Notice of the change of 

standards in the Federal Register. These 

incorporations by reference were 

approved by the Director of the Federal 

Register in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. Copies of 

these standards are available for 

purchase from the American National 

Standards Institute (ANSI), 25 West 

43rd St., Fourth Floor, New York, NY 

10036. The telephone number for ANSI 

is (212) 642–4900 and its Web site is 

located at http://www.ansi.org. In 

addition, these standards are available 

for inspection at the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, call (202) 741– 

6030, or go to: http://www.archives.gov/ 

federal_register/code_of_federal_

regulations/ibr_locations.html. These 

standards are also available for 

inspection at the Occupational Safety 

and Health Administration’s Docket 

Office, Room N–2625, U.S. Department 

of Labor, 200 Constitution Avenue, 

NW., Washington, DC 20210, or any of 

its regional offices. The telephone 

number for the Occupational Safety and 

Health Administration’s Docket Office is 

(202) 693–2350 and its Web site is 

located at http://dockets.osha.gov. 

Baler that is designed or used to 

process materials other than paper 

means a powered machine designed or 

used to compress materials other than 

paper and cardboard boxes, with or 

without binding, to a density or form 

that will support handling and 

transportation as a material unit without 

requiring a disposable or reusable 

container. 

Compactor that is designed or used to 

process materials other than paper 

means a powered machine that remains 

stationary during operation, designed or 

used to compact refuse other than paper 

or cardboard boxes into a detachable or 

integral container or into a transfer 

vehicle. 

Operating or assisting to operate 

means all work that involves starting or 

stopping a machine covered by this 

section, placing materials into or 

removing materials from a machine, 

including clearing a machine of jammed 

materials, paper, or cardboard, or any 

other work directly involved in 

operating the machine. The term does 

not include the stacking of materials by 

an employee in an area nearby or 

adjacent to the machine where such 

employee does not place the materials 

into the machine. 

Paper box compactor means a 

powered machine that remains 

stationary during operation, used to 

compact refuse, including paper boxes, 

into a detachable or integral container or 

into a transfer vehicle. 

Paper products machine means all 

power-driven machines used in 

remanufacturing or converting paper or 

pulp into a finished product, including 

preparing such materials for recycling; 

or preparing such materials for disposal. 

The term applies to such machines 

whether they are used in establishments 

that manufacture converted paper or 

pulp products, or in any other type of 

manufacturing or nonmanufacturing 

establishment. The term also applies to 

those machines which, in addition to 

paper products, process other material 

for disposal. 

Scrap paper baler means a powered 

machine used to compress paper and 

possibly other solid waste, with or 

without binding, to a density or form 

that will support handling and 

transportation as a material unit without 

requiring a disposable or reusable 

container. 

(c)(1) * * * 

(iv) * * * 

(A)(1) That the scrap paper baler or 

compactor meets the industry safety 

standard applicable to the machine, as 

specified in paragraph (b) of this section 

and displayed in the following table. 

In order for employers to take advantage of the limited exception discussed in this section, the scrap paper 

baler must meet one of the following ANSI Standards: 

In order for employers to take 

advantage of the limited exception discussed in this section, the 

paper box compactor must meet 

one of the following ANSI Standards: 

ANSI Standard Z245.5–1990 ................................................................................................................................ ANSI Standard Z245.2–1992. 

ANSI Standard Z245.5–1997 ................................................................................................................................ ANSI Standard Z245.2–1997. 

ANSI Standard Z245.5–2004 ................................................................................................................................ ANSI Standard Z245.2–2004. 

ANSI Standard Z245.5–2008 ................................................................................................................................ ANSI Standard Z245.2–2008. 

(2) The notice shall completely 

identify the appropriate ANSI standard. 

* * * * * 

■ 15. In § 570.65, the section heading 

and paragraph (a)(2) are revised, 

paragraph (a)(3) is added, and paragraph 

(b) is revised to read as follows: 

§ 570.65 Occupations involving the 

operation of circular saws, band saws, 

guillotine shears, chain saws, reciprocating 

saws, wood chippers, and abrasive cutting 

discs (Order 14). 

(a) * * * 

(2) The occupations of operator of or 

helper on the following power-driven 

fixed or portable machines: 

(i) Chain saws. 

(ii) Reciprocating saws. 

(iii) Wood chippers. 

(iv) Abrasive cutting discs. 

(3) The occupations of setting-up, 

adjusting, repairing, oiling, or cleaning 

circular saws, band saws, guillotine 

shears, chain saws, reciprocating saws, 

wood chippers, and abrasive cutting 

discs. 

(b) Definitions. As used in this 

section: 

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3Both of these exemptions are contained in 

section 13(d) of the FLSA. 4Section 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.’’ 

Abrasive cutting disc shall mean a 

machine equipped with a disc 

embedded with abrasive materials used 

for cutting materials. 

Band saw shall mean a machine 

equipped with an endless steel band 

having a continuous series of notches or 

teeth, running over wheels or pulleys, 

and used for sawing materials. 

Chain saw shall mean a machine that 

has teeth linked together to form an 

endless chain used for cutting materials. 

Circular saw shall mean a machine 

equipped with a thin steel disc having 

a continuous series of notches or teeth 

on the periphery, mounted on shafting, 

and used for sawing materials. 

Guillotine shear shall mean a machine 

equipped with a moveable blade 

operated vertically and used to shear 

materials. The term shall not include 

other types of shearing machines, using 

a different form of shearing action, such 

as alligator shears or circular shears. 

Helper shall mean a person who 

assists in the operation of a machine 

covered by this section by helping place 

materials into or remove them from the 

machine. 

Operator shall mean a person who 

operates a machine covered by this 

section by performing such functions as 

starting or stopping the machine, 

placing materials into or removing them 

from the machine, or any other 

functions directly involved in operation 

of the machine. 

Reciprocating saw shall mean a 

machine equipped with a moving blade 

that alternately changes direction on a 

linear cutting axis used for sawing 

materials. 

Wood chipper shall mean a machine 

equipped with a feed mechanism, 

knives mounted on a rotating chipper 

disc or drum, and a power plant used 

to reduce to chips or shred such 

materials as tree branches, trunk 

segments, landscape waste, and other 

materials. 

* * * * * 

Subpart G—General Statements of 

Interpretation of the Child Labor 

Provisions of the Fair Labor Standards 

Act of 1938, as Amended 

■ 16. The authority citation for subpart 

G continues to read as follows: 

Authority: 52 Stat. 1060–1069 as amended; 

29 U.S.C. 201–219. 

■ 17. Section 570.102 is revised to read 

as follows: 

§ 570.102. General scope of statutory 

provisions. 

The most important of the child labor 

provisions are contained in sections 

12(a), 12(c), and 3(l) of the Act. Section 

12(a) provides that no producer, 

manufacturer, or dealer shall ship or 

deliver for shipment in interstate or 

foreign commerce any goods produced 

in an establishment in or about which 

oppressive child labor was employed 

within 30 days before removal of the 

goods. The full text of this subsection is 

set forth in § 570.104 and its terms are 

discussed in §§ 570.105 to 570.111, 

inclusive. Section 12(c) prohibits any 

employer from employing oppressive 

child labor in interstate or foreign 

commerce or in the production of goods 

for such commerce. The text and 

discussion of this provision appear in 

§§ 570.112 and 570.113. Section 3(l) of 

the Act, which defines the term 

‘‘oppressive child labor,’’ is set forth in 

§ 570.117 and its provisions are 

discussed in §§ 570.118 to 570.121, 

inclusive. It will further be noted that 

the Act provides various specific 

exemptions from the foregoing 

provisions which are set forth and 

discussed in §§ 570.122 to 570.130, 

inclusive. 

■ 18. In § 570.103, paragraph (c) is 

revised to read as follows: 

§ 570.103 Comparison with wage and hour 

provisions. 

* * * * * 

(c) Another distinction is that the 

exemptions provided by the Act from 

the minimum wage and/or overtime 

provisions are more numerous and 

differ from the exemptions granted from 

the child labor provisions. There are 

only eight specific child labor 

exemptions of which only two apply to 

the minimum wage and overtime pay 

requirements as well. These are the 

exemptions for employees engaged in 

the delivery of newspapers to the 

consumer and homeworkers engaged in 

the making of wreaths composed 

principally of evergreens.3 Apart from 

these two exceptions, none of the 

specific exemptions from the minimum 

wage and/or overtime pay requirements 

applies to the child labor provisions. 

However, it should be noted that the 

exclusion of certain employers by 

section 3(d) 4 of the Act applies to the 

child labor provisions as well as the 

wage and hours provisions. 

§ 570.111 [Amended] 

■ 19. In § 570.111, footnote 21 is revised 

to read ‘‘However, section 12(a) contains 

a provision relieving innocent 

purchasers from liability thereunder 

provided certain conditions are met. For 

a discussion of this provision, see 

§ 570.141.’’ 

■ 20. Sections 570.118 through 570.120 

are revised to read as follows: 

* * * * * 

§ 570.118 Sixteen-year minimum. 

§ 570.119 Fourteen-year minimum. 

§ 570.120 Eighteen-year minimum. 

* * * * * 

§ 570.118 Sixteen-year minimum. 

The Act sets a 16-year-age minimum 

for employment in manufacturing or 

mining occupations, although under 

FLSA section 13(c)(7), certain youth 

between the ages of 14 and 18 may, 

under specific conditions, be employed 

inside and outside of places of business 

that use power-driven machinery to 

process wood products. Furthermore, 

the 16-year-age minimum for 

employment is applicable to 

employment in all other occupations 

unless otherwise provided by regulation 

or order issued by the Secretary. 

§ 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 

§ 570.34 all those occupations in which 

14- and 15-year-olds may be employed 

when the work is performed outside 

school hours and is confined to other 

specified limits. The Secretary, in order 

to provide clarity and assist employers 

in attaining compliance, has listed in 

§ 570.33 certain prohibited occupations 

that, over the years, have been the 

frequent subject of questions or 

violations. The list of occupations in 

§ 570.33 is not exhaustive. The 

Secretary has also set forth, in § 570.35, 

additional conditions that limit the 

periods during which 14- and 15-yearolds 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. 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28459 

§ 570.120 Eighteen-year minimum. 

To protect young workers from 

hazardous employment, the FLSA 

provides for a minimum age of 18 years 

in occupations found and declared by 

the Secretary to be particularly 

hazardous or detrimental to the health 

or well-being for minors 16 and 17 years 

of age. Hazardous occupations orders 

are the means through which 

occupations are declared to be 

particularly hazardous for minors. Since 

1995, the promulgation and amendment 

of the hazardous occupations orders 

have been effectuated under the 

Administrative Procedure Act (APA), 5 

U.S.C. 551 et seq. The effect of these 

orders is to raise the minimum age for 

employment to 18 years in the 

occupations covered. Seventeen orders, 

published in subpart E of this part, have 

thus far been issued under the FLSA 

and are now in effect. 

■ 21. Section 570.122 is revised to read 

as follows: 

§ 570.122 General. 

(a) Specific exemptions from the child 

labor requirements of the Act are 

provided for: 

(1) Employment of children in 

agriculture outside of school hours for 

the school district where they live while 

so employed; 

(2) Employment of employees 

engaged in the delivery of newspapers 

to the consumer; 

(3) Employment of children as actors 

or performers in motion pictures or in 

theatrical, radio, or television 

productions; 

(4) Employment by a parent or a 

person standing in a parent’s place of 

his own child or a child in his custody 

under the age of sixteen years in any 

occupation other than manufacturing, 

mining, or an occupation found by the 

Secretary to be particularly hazardous 

for the employment of children between 

the ages of sixteen and eighteen years or 

detrimental to their health or wellbeing. 

(5) Employment of homeworkers 

engaged in the making of evergreen 

wreaths, including the harvesting of the 

evergreens or other forest products used 

in making such wreaths. 

(6) Employment of 16- and 17-yearolds to load, but not operate or unload, 

certain scrap paper balers and paper box 

compactors under specified conditions. 

(7) Employment of 17-year-olds to 

perform limited driving of cars and 

trucks during daylight hours under 

specified conditions. 

(8) Employment of youths between 

the ages of 14 and 18 years who, by 

statute or judicial order, are excused 

from compulsory school attendance 

beyond the eighth grade, under 

specified conditions, in places of 

business that use power-driven 

machinery to process wood products. 

(b) When interpreting these 

provisions, the Secretary will be guided 

by the principle that such exemptions 

should be narrowly construed and their 

application limited to those employees 

who are plainly and unmistakably 

within their terms. Thus, the fact that a 

child’s occupation involves the 

performance of work which is 

considered exempt from the child labor 

provisions will not relieve his employer 

from the requirements of section 12(c) 

or the producer, manufacturer, or dealer 

from the requirements of section 12(a) 

if, during the course of his employment, 

the child spends any part of his time 

doing work which is covered but not so 

exempt. 

■ 22. The undesignated center heading 

preceding § 570.127 is removed. 

■ 23. Section 570.127 is revised to read 

as follows: 

§ 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). 

§ 570.128 [Redesignated as § 570.141] 

■ 24. Section 570.128 is redesignated as 

§ 570.141 and a new § 570.128 is added 

to read as follows: 

§ 570.128 Loading of certain scrap paper 

balers and paper box compactors. 

(a) Section 13(c)(5) of the FLSA 

provides for an exemption from the 

child labor provisions for the 

employment of 16- and 17-year-olds to 

load, but not operate or unload, certain 

power-driven scrap paper balers and 

paper box compactors under certain 

conditions. The provisions of this 

exemption, which are contained in HO 

12 (§ 570.63) include that the scrap 

paper baler or compactor meet an 

applicable standard established by the 

American National Standards Institute 

(ANSI) and identified in the statute, or 

a more recent ANSI standard that the 

Secretary of Labor has found, 

incorporated by reference (see § 570.63), 

and declared to be as protective of the 

safety of young workers as the ANSI 

standard named in the statute. 

(b) These standards have been 

incorporated into these regulations by 

reference by the Federal Register as 

discussed in § 570.63. In addition, the 

scrap paper baler or paper box 

compactor must include an on-off 

switch incorporating a key-lock or other 

system and the control of the system 

must be maintained in the custody of 

employees who are at least 18 years of 

age. The on-off switch of the scrap paper 

baler or paper box compactor must be 

maintained in an off position when the 

machine is not in operation. 

Furthermore, the employer must also 

post a notice on the scrap paper baler or 

paper box compactor that conveys 

certain information, including the 

identification of the applicable ANSI 

standard that the equipment meets, that 

16- and 17-year-old employees may only 

load the scrap paper baler or paper box 

compactor, and that no employee under 

the age of 18 may operate or unload the 

scrap paper baler or paper box 

compactor. 

§ 570.129 [Redesignated as § 570.142] 

■ 25. Section 570.129 is redesignated as 

§ 570.142 

■ 26. A new § 570.129 is added to read 

as follows: 

§ 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 (§ 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 Stateapproved 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 

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to a 30-mile radius of the minor’s place 

of employment. 

■ 27. A new § 570.130 is added to read 

as follows: 

§ 570.130 Employment of certain youth 

inside and outside of places of business 

that use power-driven machinery to process 

wood products. 

Section 13(c)(7) of the FLSA provides 

a limited exemption from the child 

labor provisions for certain youths 

between the ages of 14 and 18 years 

who, by statute or judicial order, are 

excused from compulsory school 

attendance beyond the eighth grade, that 

permits their employment inside and 

outside of places of business that use 

power-driven machinery to process 

wood products. The provisions of this 

exemption are contained in subpart C of 

this part (§ 570.34(m)) and HO 4 

(§ 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. 

■ 28. A new center heading and a new 

§ 570.140 are added to read as follows: 

Enforcement 

§ 570.140 General. 

(a) Section 15(a)(4) of the Act makes 

any violation of the provisions of 

sections 12(a) or 12(c) unlawful. Any 

such unlawful act or practice may be 

enjoined by the United States District 

Courts under section 17 upon court 

action, filed by the Secretary pursuant 

to section 12(b) and, if willful will 

subject the offender to the criminal 

penalties provided in section 16(a) of 

the Act. Section 16(a) provides that any 

person who willfully violates any of the 

provisions of section 15 shall upon 

conviction thereof be subject to a fine of 

not more than $10,000, or to 

imprisonment for not more than six 

months, or both. No person shall be 

imprisoned under this subsection 

except for an offense committed after 

the conviction of such person for a prior 

offense under this subsection. 

(b) In addition, FLSA section 16(e) 

states that any person who violates the 

provisions of FLSA sections 12 or 13(c), 

relating to child labor, or any 

regulations issued under those sections, 

shall be subject to a civil penalty, not to 

exceed: 

(1) $11,000, for each employee who 

was the subject of such a violation; or 

(2) $50,000 with regard to each such 

violation that causes the death or 

serious injury of any employee under 

the age of 18 years, which penalty may 

be doubled where the violation is 

repeated or willful. 

(c) Part 579 of this chapter, Child 

Labor Violations—Civil Money 

Penalties, provides for the issuance of 

the notice of civil money penalties for 

any violation of FLSA sections 12 or 

13(c) relating to child labor. Part 580 of 

this chapter, Civil Money Penalties— 

Procedures for Assessing and Contesting 

Penalties, describes the administrative 

process for assessment and resolution of 

the civil money penalties. When a civil 

money penalty is assessed against an 

employer for a child labor violation, the 

employer has the right, within 15 days 

after receipt of the notice of such 

penalty, to file an exception to the 

determination that the violation or 

violations occurred. When such an 

exception is filed with the office making 

the assessment, the matter is referred to 

the Chief Administrative Law Judge, 

and a formal hearing is scheduled. At 

such a hearing, the employer or an 

attorney retained by the employer may 

present such witnesses, introduce such 

evidence and establish such facts as the 

employer believes will support the 

exception. The determination of the 

amount of any civil money penalty 

becomes final if no exception is taken to 

the administrative assessment thereof, 

or if no exception is filed to the decision 

and order of the administrative law 

judge. 

PART 579—CHILD LABOR 

VIOLATIONS—CIVIL MONEY 

PENALTIES 

■ 29. The authority citation for part 579 

is revised to read as follows: 

Authority: 29 U.S.C. 203(l), 211, 212, 

213(c), 216; Reorg. Plan No. 6 of 1950, 64 

Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 Stat. 

72, 76; Secretary of Labor’s Order No. 09– 

2009 (Nov. 16, 2009): Delegation of 

Authorities and Assignment of 

Responsibilities to the Administrator, Wage 

and Hour Division, 74 FR 58836; 104 Stat. 

890 (28 U.S.C. 2461 note), as amended by 110 

Stat. 1321–373 and 112 Stat. 3293. 

■ 30. In § 579.1, paragraph (a) is revised 

to read as follows: 

(a) Section 16(e), added to the Fair 

Labor Standards Act of 1938, as 

amended, by the Fair Labor Standards 

Amendments of 1974, and as further 

amended by the Fair Labor Standards 

Amendments of 1989, the Omnibus 

Budget Reconciliation Act of 1990, the 

Compactor and Balers Safety Standards 

Modernization Act of 1996, and the 

Genetic Information Nondiscrimination 

Act of 2008, provides for the imposition 

of civil money penalties in the following 

manner: 

(1)(i) Any person who violates the 

provisions of sections 212 or 213(c) of 

the FLSA, relating to child labor, or any 

regulation issued pursuant to such 

sections, shall be subject to a civil 

penalty not to exceed: 

(A) $11,000 for each employee who 

was the subject of such a violation; or 

(B) $50,000 with regard to each such 

violation that causes the death or 

serious injury of any employee under 

the age of 18 years, which penalty may 

be doubled where the violation is a 

repeated or willful violation. 

(ii) For purposes of paragraph 

(a)(1)(i)(B) of this section, the term 

‘‘serious injury’’ means: 

(A) Permanent loss or substantial 

impairment of one of the senses (sight, 

hearing, taste, smell, tactile sensation); 

(B) Permanent loss or substantial 

impairment of the function of a bodily 

member, organ, or mental faculty, 

including the loss of all or part of an 

arm, leg, foot, hand or other body part; 

or 

(C) Permanent paralysis or substantial 

impairment that causes loss of 

movement or mobility of an arm, leg, 

foot, hand or other body part. 

(2) Any person who repeatedly or 

willfully violates section 206 or 207 of 

the FLSA, relating to wages, shall be 

subject to a civil penalty not to exceed 

$1,100 for each such violation. 

(3) In determining the amount of any 

penalty under section 216(e) of the 

FLSA, the appropriateness of such 

penalty to the size of the business of the 

person charged and the gravity of the 

violation shall be considered. The 

amount of any penalty under section 

216(e) of the FLSA, when finally 

determined, may be: 

(i) Deducted from any sums owing by 

the United States to the person charged; 

(ii) Recovered in a civil action brought 

by the Secretary in any court of 

competent jurisdiction, in which 

litigation the Secretary shall be 

represented by the Solicitor of Labor; or 

(iii) Ordered by the court, in an action 

brought for a violation of section 

215(a)(4) or a repeated or willful 

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Federal Register / Vol. 75, No. 97 / Thursday, May 20, 2010 / Rules and Regulations 28461 

violation of section 215(a)(2) of the 

FLSA, to be paid to the Secretary. 

(4) Any administrative determination 

by the Secretary of the amount of any 

penalty under section 216(e) of the 

FLSA shall be final, unless within 15 

days after receipt of notice thereof by 

certified mail the person charged with 

the violation takes exception to the 

determination that the violations for 

which the penalty is imposed occurred, 

in which event final determination of 

the penalty shall be made in an 

administrative proceeding after 

opportunity for hearing in accordance 

with section 554 of title 5, United States 

Code, and regulations to be promulgated 

by the Secretary. 

(5) Except for civil penalties collected 

for violations of section 212 of the 

FLSA, sums collected as penalties 

pursuant to section 216(e) of the FLSA 

shall be applied toward reimbursement 

of the costs of determining the 

violations and assessing and collecting 

such penalties, in accordance with the 

provision of section 202 of the Act 

entitled ‘‘An Act to authorize the 

Department of Labor to make special 

statistical studies upon payment of the 

cost thereof and for other purposes’’ (29 

U.S.C. 9a). Civil penalties collected for 

violations of section 212 shall be 

deposited in the general fund of the 

Treasury. 

* * * * * 

■ 31. Section 579.2 is revised to read as 

follows: 

§ 579.2 Definitions. 

As used in this part and part 580 of 

this chapter: 

Act means the Fair Labor Standards 

Act of 1938, as amended (52 Stat. 1060, 

as amended; 29 U.S.C. 201, et seq.). 

Administrative law judge means a 

person appointed as provided in 5 

U.S.C. 3105 and subpart B of part 930 

of title 5 of the CFR, and qualified to 

preside at hearings under 5 U.S.C. 554– 

557. 

Administrator means the 

Administrator of the Wage and Hour 

Division, U.S. Department of Labor, and 

includes an authorized representative 

designated by the Administrator to 

perform any of the functions of the 

Administrator under this part and part 

580 of this chapter. 

Agency has the meaning given it by 5 

U.S.C. 551. 

Chief Administrative Law Judge 

means the Chief Administrative Law 

Judge, Office of Administrative Law 

Judges, U.S. Department of Labor, 800 K 

Street, NW., Suite 400, Washington, DC 

20001–8002. 

Department means the U.S. 

Department of Labor. 

Person includes any individual, 

partnership, corporation, association, 

business trust, legal representative, or 

organized group of persons. 

Repeated violations has two 

components. An employer’s violation of 

section 12 or section 13(c) of the Act 

relating to child labor or any regulation 

issued pursuant to such sections shall 

be deemed to be repeated for purposes 

of this section: 

(1) Where the employer has 

previously violated section 12 or section 

13(c) of the Act relating to child labor 

or any regulation issued pursuant to 

such sections, provided the employer 

has previously received notice, through 

a responsible official of the Wage and 

Hour Division or otherwise 

authoritatively, that the employer 

allegedly was in violation of the 

provisions of the Act; or, 

(2) Where a court or other tribunal has 

made a finding that an employer has 

previously violated section 12 or section 

13(c) of the Act relating to child labor 

or any regulation issued pursuant to 

such sections, unless an appeal 

therefrom which has been timely filed is 

pending before a court or other tribunal 

with jurisdiction to hear the appeal, or 

unless the finding has been set aside or 

reversed by such appellate tribunal. 

Secretary means the Secretary of 

Labor, U.S. Department of Labor, or an 

authorized representative of the 

Secretary. 

Serious injury means: 

(1) Permanent loss or substantial 

impairment of one of the senses (sight, 

hearing, taste, smell, tactile sensation); 

(2) Permanent loss or substantial 

impairment of the function of a bodily 

member, organ, or mental faculty, 

including the loss of all or part of an 

arm, leg, foot, hand or other body part; 

or, 

(3) Permanent paralysis or substantial 

impairment that causes loss of 

movement or mobility of an arm, leg, 

foot, hand or other body part. 

Solicitor of Labor means the Solicitor, 

U.S. Department of Labor, and includes 

attorneys designated by the Solicitor to 

perform functions of the Solicitor under 

this part and part 780 of this chapter. 

Willful violations under this section 

has several components. An employer’s 

violation of section 12 or section 13(c) 

of the Act relating to child labor or any 

regulation issued pursuant to such 

sections, shall be deemed to be willful 

for purposes of this section where the 

employer knew that its conduct was 

prohibited by the Act or showed 

reckless disregard for the requirements 

of the Act. All of the facts and 

circumstances surrounding the violation 

shall be taken into account in 

determining whether a violation was 

willful. In addition, for purposes of this 

section, an employer’s conduct shall be 

deemed knowing, among other 

situations, if the employer received 

advice from a responsible official of the 

Wage and Hour Division to the effect 

that the conduct in question is not 

lawful. For purposes of this section, an 

employer’s conduct shall be deemed to 

be in reckless disregard of the 

requirements of the Act, among other 

situations, if the employer should have 

inquired further into whether its 

conduct was in compliance with the 

Act, and failed to make adequate further 

inquiry. 

■ 32. In § 579.5, paragraphs (a) and (e) 

are revised to read as follows: 

§ 579.5 Determining the amount of the 

penalty and assessing the penalty. 

(a) The administrative determination 

of the amount of the civil penalty for 

each employee who was the subject of 

a violation of section 12 or section 13(c) 

of the Act relating to child labor or of 

any regulation under those sections will 

be based on the available evidence of 

the violation or violations and will take 

into consideration the size of the 

business of the person charged and the 

gravity of the violations as provided in 

paragraphs (b) through (d) of this 

section. The provisions of section 

16(e)(1)(A)(ii) of the Fair Labor 

Standards Act, regarding the assessment 

of civil penalties not to exceed $50,000 

with regard to each violation that causes 

the death or serious injury of any 

employee under the age of 18 years, 

apply only to those violations that occur 

on or after May 21, 2008. 

* * * * * 

(e) An administrative determination 

of the amount of the civil money 

penalty for a particular violation or 

particular violations of section 12 or 

section 13(c) relating to child labor or 

any regulation issued under those 

sections shall become final 15 days after 

receipt of the notice of penalty by 

certified mail by the person so charged 

unless such person has, pursuant to 

§ 580.6 filed with the Secretary an 

exception to the determination that the 

violation or violations for which the 

penalty is imposed occurred. 

* * * * * 

[FR Doc. 2010–11434 Filed 5–19–10; 8:45 am] 

BILLING CODE 4510–27–P 

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