Child Labor Regulations, Orders and Statements of Interpretation, 19337-19373 [E7-7053]

Agencies

• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Proposed Rules]
[Pages 19337-19373]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7053]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 570

RIN 1215-AB57


Child Labor Regulations, Orders and Statements of Interpretation

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

ACTION: Notice of proposed rulemaking and request for comments.

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

[[Page 19338]]

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

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

ADDRESSES: You may submit comments, identified by RIN 1215-AB57, by 
either one of the following methods:
     Electronic comments, through the Federal eRulemaking 
Portal: https://www.regulations.gov. Follow the instructions for 
submitting comments.
     Mail: Wage and Hour Division, Employment Standards 
Administration, U.S. Department of Labor, Room S-3502, 200 Constitution 
Avenue, NW., Washington, DC 20210.
    Instructions: Please submit one copy of your comments by only one 
method. All submissions received must include the agency name and 
Regulatory Information Number (RIN) identified above for this 
rulemaking. All comments received will be posted without change to 
https://www.regulations.gov, including any personal information 
provided. Because we continue to experience delays in receiving mail in 
the Washington, DC area, commenters are strongly encouraged to transmit 
their comments electronically via the Federal eRulemaking Portal at 
https://www.regulations.gov or to submit them by mail early. For 
additional information on submitting comments and the rulemaking 
process, see the ``Public Participation'' heading of the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to the Federal eRulemaking Portal at https://
www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Arthur M. Kerschner, Jr., Office of 
Enforcement Policy, Child Labor and Special Employment Team, Wage and 
Hour Division, Employment Standards Administration, U.S. Department of 
Labor, Room S-3510, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone: (202) 693-0072 (this is not a toll free number). Copies of 
this notice of proposed rulemaking may be obtained in alternative 
formats (Large Print, Braille, Audio Tape, or Disc), upon request, by 
calling (202) 693-0023. TTY/TDD callers may dial toll-free (877) 889-
5627 to obtain information or request materials in alternative formats.
    Questions of interpretation and/or enforcement of regulations 
issued by this agency or referenced in this notice may be directed to 
the nearest Wage and Hour Division District Office. Locate the nearest 
office by calling the Wage and Hour Division's toll-free help line at 
(866) 4US-WAGE ((866) 487-9243) between 8 a.m. and 5 p.m. in your local 
time zone, or log onto the Wage and Hour Division's Web site for a 
nationwide listing of Wage and Hour District and Area Offices at: 
https://www.dol.gov/esa/contacts/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

I. Electronic Access and Filing Comments

    Public Participation: This notice of proposed rulemaking is 
available through the Federal Register and the https://
www.regulations.gov Web site. You may also access this document via the 
WHD home page at https://www.wagehour.dol.gov. To comment electronically 
on federal rulemakings, go to the Federal eRulemaking Portal at https://
www.regulations.gov, which will allow you to find, review, and submit 
comments on federal documents that are open for comment and published 
in the Federal Register. Please identify all comments submitted in 
electronic form by the RIN docket number (1215-AB57). Because of delays 
in receiving mail in the Washington, DC area, commenters should 
transmit their comments electronically via the Federal eRulemaking 
Portal at https://www.regulations.gov, or submit them by mail early to 
ensure timely receipt prior to the close of the comment period. Submit 
one copy of your comments by only one method.

II. Background

    The child labor provisions of the Fair Labor Standards Act (FLSA) 
establish a minimum age of 16 years for employment in nonagricultural 
occupations, but the Secretary of Labor is authorized to provide by 
regulation for 14- and 15-year-olds to work in suitable occupations 
other than manufacturing or mining, and during periods and under 
conditions that will not interfere with their schooling or health and 
well-being. The FLSA provisions permit 16- and 17-year-olds to work in 
the nonagricultural sector without hours or time limitations, except in 
certain occupations found and declared by the Secretary to be 
particularly hazardous, or detrimental to the health or well-being of 
such workers.
    The regulations for 14- and 15-year-olds are known as Child Labor 
Regulation No. 3 (Reg. 3) and are contained in subpart C of part 570 
(29 CFR 570.31-.38). Reg. 3 limits the hours and times of day that such 
minors may work and identifies occupations that are either permitted or 
prohibited for such minors. Under Reg. 3, 14- and 15-year-olds may work 
in certain occupations in retail, food service, and gasoline service 
establishments, but are not permitted to work in certain other 
occupations (including all occupations found by the Secretary to be 
particularly hazardous for 16- and 17-year-olds). Reg. 3, originally 
promulgated in 1939, was revised to reflect the 1961 amendments to the 
FLSA, which extended the Act's coverage to include enterprises engaged 
in commerce or the production of goods for commerce. Because of the 
statutory amendments, the FLSA's child labor protections became 
applicable to additional areas of employment for

[[Page 19339]]

young workers in retail, food service, and gasoline service 
establishments.
    The regulations concerning nonagricultural hazardous occupations 
are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68). 
These Hazardous Occupations Orders (HOs) apply on either an industry 
basis, specifying the occupations in a particular industry that are 
prohibited, or an occupational basis, irrespective of the industry in 
which the work is performed. The seventeen HOs were adopted 
individually during the period of 1939 through 1963. Some of the HOs, 
specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited 
exemptions that permit the employment of 16- and 17-year-old 
apprentices and student-learners under particular conditions to perform 
work otherwise prohibited to that age group. The terms and conditions 
for employing such apprentices and student-learners are detailed in 
Sec.  570.50(b) and (c).
    Because of changes in the workplace, the introduction of new 
processes and technologies, the emergence of new types of businesses 
where young workers may find employment opportunities, the existence of 
differing federal and state standards, and divergent views on how best 
to balance scholastic requirements and work experiences, the Department 
has long been reviewing the criteria for permissible child labor 
employment. In this review, the Department published a Notice of 
Proposed Rulemaking (NPRM) in 1982, an NPRM in 1990, a Final Rule in 
1991, both an Advance Notice of Proposed Rulemaking (ANPRM) and an NPRM 
in 1994, a Final Rule in 1995, an NPRM in 1999, and a Final Rule in 
2004.
    On July 16, 1982, an NPRM was published in the Federal Register (47 
FR 31254) which proposed to revise several elements of Reg. 3, 
including the permissible hours and times of employment for 14- and 15-
year-olds and the types of cooking operations those minors would be 
permitted to perform. The NPRM generated considerable public interest, 
mostly relating to the expansion of the hours and times of work for 
this age group. The Department subsequently suspended the proposal from 
further consideration and no final rule was implemented.
    The Department continued to receive suggestions from the public 
that certain changes should be made to the child labor regulations on a 
number of issues. In 1987, the Department established a Child Labor 
Advisory Committee (CLAC) composed of 21 members representing 
employers, education, labor, child guidance professionals, civic 
groups, child advocacy groups, state officials, and safety groups. The 
mission of the CLAC was to give advice and guidance in developing 
possible proposals to change existing standards. After reviewing a 
number of issues, the CLAC proposed making certain changes to the child 
labor regulations. The Department considered the CLAC's suggestions, as 
well as suggestions received from the public as noted above, and 
published an NPRM in October 1990, proposing changes to three HOs (55 
FR 42612). In December 1991, the Department promulgated a Final Rule 
which revised the three HOs (56 FR 58626).
    The Department continued to review the child labor regulations and 
on May 13, 1994, in an effort to accumulate data concerning all aspects 
of the provisions, published both an NPRM (59 FR 25164) and an ANPRM 
(59 FR 25167). The NPRM proposed to exempt 14- and 15-year-olds from 
Reg. 3 hours standards when employed under certain restrictions as 
sports attendants for professional sports teams, to standardize the 
Reg. 3 process for issuing occupational variances for Work Experience 
and Career Exploration Program (WECEP) participants, to remove an 
outdated exemption for enrollees in certain work training programs, and 
to revise the process by which HOs are promulgated. A Final Rule on 
these issues was published April 17, 1995 (60 FR 19336).
    The 1994 ANPRM requested public comment on several specific topics 
as well as all aspects of the child labor provisions. Several 
individuals and organizations submitted comments. The National 
Institute for Occupational Safety and Health (NIOSH) provided the 
Department with epidemiological data on a number of issues related to 
both Reg. 3 and the HOs. NIOSH also provided the Department with 
statistics regarding occupational injuries and made several 
recommendations. A number of child guidance professionals, educators, 
unions, employer associations, and child labor advocates also commented 
and made various recommendations.
    Congress has amended the child labor provisions of the FLSA three 
times since 1996. The Compactors and Balers Safety Standards 
Modernization Act, Pub. L. 104-174 (Compactor and Baler Act), was 
signed into law on August 6, 1996. This legislation added section 
13(c)(5) to the FLSA, permitting minors 16 and 17 years of age to load, 
but not operate or unload, certain scrap paper balers and paper box 
compactors when certain requirements are met. The Drive for Teen 
Employment Act, Pub. L. 105-334, was signed into law on October 31, 
1998. This legislation added section 13(c)(6) to the FLSA, prohibiting 
minors under 17 years of age from driving automobiles and trucks on 
public roadways on-the-job and establishing the conditions and criteria 
for 17-year-olds to drive automobiles and trucks on public roadways on-
the-job. The Department of Labor Appropriations Act, 2004, Pub. L. 108-
199, amended the FLSA by creating a limited exemption from the youth 
employment provisions for minors 14 to 18 years of age who are excused 
from compulsory school attendance beyond the eighth grade. The 
exemption, contained in section 13(c)(7) of the FLSA, allows eligible 
youth, under specific conditions, to be employed inside and outside of 
places of business that use machinery to process wood products, but 
does not allow such youth to operate or assist in operating power-
driven woodworking machines. This exemption overrides the FLSA's 
formerly complete prohibition on the employment of 14- and 15-year-olds 
in manufacturing occupations contained in section 3(l).
    The Department published an NPRM in the Federal Register on 
November 30, 1999 (64 FR 67130), inviting comments on revisions of 
regulations to implement the 1996 and 1998 amendments and to update 
certain regulatory standards. The Compactor and Baler Act affected the 
HO 12 standards (Occupations involved in the operation of paper-
products machines) (29 CFR 570.63) and certain other related 
regulations; amendments of those regulations were proposed. The Drive 
for Teen Employment Act affected the HO 2 standards (Occupations of 
motor-vehicle driver and outside helper) (29 CFR 570.52); an amendment 
of that regulation was proposed. As a result of its ongoing review of 
the child labor provisions, the Department also proposed changes to HO 
1 (Occupations in or about plants or establishments manufacturing or 
storing explosives or articles containing explosive components) (29 CFR 
570.51), HO 16 (Occupations in roofing operations) (29 CFR 570.67), the 
Reg. 3 limitations on cooking (29 CFR 570.34), and 29 CFR 570.6(b)(1) 
which deals with the disposition of a Certificate of Age when the named 
individual's employment ends. A Final Rule, addressing the above issues 
and implementing procedural changes dealing with administrative 
hearings and appeals of child labor civil money penalties, was issued 
on December 16, 2004 (69 FR 75382).

[[Page 19340]]

    In 1998, the Department provided funds to NIOSH to conduct a 
comprehensive review of scientific literature and available data in 
order to assess current workplace hazards and the adequacy of the 
current youth employment HOs to address them. This study was 
commissioned to provide the Secretary with another tool to use in her 
ongoing review of the youth employment provisions, and of the hazardous 
occupations orders in particular. The report, entitled National 
Institute for Occupational Safety and Health Recommendations to the 
U.S. Department of Labor for Changes to Hazardous Orders (hereinafter 
referred to as the NIOSH Report or the Report), was issued in July of 
2002. The Report, which makes 35 recommendations concerning the 
existing nonagricultural HOs and recommends the creation of 17 new HOs, 
also incorporated the comments NIOSH submitted in response to the 1999 
NPRM. The report is available for review on the Department's 
YouthRules! Web site at https://www.youthrules.dol.gov/resources.htm.
    The Department recognizes NIOSH's extensive research efforts in 
compiling and reviewing this data. However, it has cautioned readers 
about reaching conclusions and expecting revisions to the existing HOs 
based solely on the information in the Report. In the Report, NIOSH 
itself recognized the confines of its methodology and included 
appropriate caveats about limitations in available data and gaps in 
research. Of those limitations, the following are worth noting. The 
NIOSH Report recommendations are driven by information on high-risk 
activities for all workers, not just patterns of fatalities and serious 
injuries among young workers. There is little occupational injury, 
illness, and fatality data available regarding minors less than 16 
years of age. In addition, such data for youth 16 and 17 years of age 
tend to be mixed with that of older workers whose employment is not 
subject to the youth employment provisions of the FLSA. Also, available 
occupational injury, illness, fatality, and employment data on the 
specific operations in the specific industries covered by the NIOSH 
Report recommendations tend to be combined with data on other 
operations and/or industries. In some cases, this may result in a 
diminution of the risk by including less risky operations and 
industries in the employment estimates. In other cases, the risk may be 
exaggerated by including more dangerous operations/industries in the 
injury, illness, or fatality estimates.
    In addition, as NIOSH was tasked with examining issues within the 
framework of the current HOs only, the Report did not consider the 
extent to which fatalities occur despite existing HOs, Occupational 
Safety and Health Administration (OSHA) standards, or state laws 
prohibiting the activity. If fatalities result from recognized illegal 
activities, such as working with fireworks or a power-driven circular 
saw, the best strategy for preventing future injuries may not be to 
revise the regulations but to increase compliance with existing laws 
through public awareness initiatives, targeted compliance assistance 
efforts, and stepped-up enforcement activities. The Report also did not 
consider potential approaches for decreasing workplace injuries that 
provide an alternative to a complete ban on employment, such as safety 
training, increased supervision, the use of effective personal 
protective equipment, and strict adherence to recognized safe working 
practices.
    Though cognizant of the limitations of the Report, the Department 
places great value on the information provided by NIOSH. Since 
receiving the Report, the Department has conducted a detailed review 
and has met with various stakeholders to evaluate and prioritize each 
recommendation for possible regulatory action consistent with the 
established national policy of balancing the benefits of employment 
opportunities for youth with the necessary and appropriate safety 
protections. The 2004 Final Rule addressed six of the recommendations.
    As an adjunct to its review of these issues the Department 
contracted with a private consulting firm, SiloSmashers, Inc., to 
construct a model that, using quantitative analysis, would help 
determine the costs and benefits associated with implementing, or not 
implementing, each of the Report's recommendations. The SiloSmashers 
report, Determination of the Costs and Benefits of Implementing NIOSH 
Recommendations Relating to Child Labor Hazardous Orders, was completed 
in November 2004 and covers 34 of the NIOSH HO recommendations in 
agricultural and nonagricultural occupations, as well as several 
occupations or activities not presently addressed by an existing HO.
    The methodology used by SiloSmashers was to compare the direct 
costs and benefits of implementing or revising an HO, as recommended by 
NIOSH, with the costs and benefits of not implementing or revising the 
HO based on the NIOSH recommendations. Each SiloSmashers analysis was 
conducted on a mutually exclusive basis to yield a net present value 
(NPV). SiloSmashers defines NPV as ``the discounted dollar value of an 
investment across the expected planning horizon. As a dollar figure, 
NPV is presented at the full value level for each implementation 
approach (implementing versus not implementing) as well as at the 
incremental approach (the difference between implementing versus not 
implementing). As a comparison tool and under the incremental approach, 
the higher the NPV, the higher the expected value of implementation.'' 
The NPVs reported by SiloSmashers for each of the NIOSH recommendations 
addressing the current nonagricultural HOs range from a negative 
$9,537,000 to a positive $113,556,000.
    Although the SiloSmashers report includes both a quantitative 
analysis and a qualitative analysis of each NIOSH recommendation, the 
Department is concerned that some readers might try to rank each 
recommendation solely on the basis of the quantitative results (i.e., 
on the basis of the NPVs) listed in the HO Comprehensive Summary. This 
simplistic ranking would not be appropriate due to several constraints 
inherent in the methodology adopted by SiloSmashers, especially the 
lack of reliable and pertinent data.
    In addition, not only was the methodology used by SiloSmashers to 
generate the NPVs subject to the same data limitations faced by NIOSH 
regarding the employment, fatality, and injury rates of young workers, 
but it also raises additional concerns. First, if SiloSmashers were 
unable to identify any minors who were fatally injured while performing 
work that was the subject of the NIOSH recommendation being examined, 
even if many adult workers were killed while performing that exact same 
work, the analysis would reflect that implementation of the 
recommendation would have no benefit in reducing occupational hazards 
to youth. Such an assumption is contrary to the Department's long-held 
position that work which is dangerous for adults is inherently 
dangerous for youth. For example, because SiloSmashers found no deaths 
of youth resulting from the operation of chainsaws, it concluded that 
implementation of the NIOSH recommendation to expand HO 14 to prohibit 
the operation of chainsaws on all materials, and not just on wood and 
wood products as currently prohibited by HOs 4 and 5, would have no 
impact on the number of occupational fatalities suffered by 16- and 17-
year-olds. The Department strongly disagrees with this conclusion. 
NIOSH based its

[[Page 19341]]

recommendation on data that demonstrate that chainsaws continue to be 
the source of substantial numbers of fatalities as well as nonfatal 
injuries which may be unusually severe. Accordingly, the Department 
believes that the operation of chainsaws is inherently dangerous for 
young workers, regardless of the lack of youth-specific injury and 
fatality data. The Department agrees with NIOSH that the prudent course 
of action is to prohibit the use of chainsaws by all workers under the 
age of 18.
    Secondly, when youth fatalities were identified, the values the 
SiloSmashers report placed on the lives saved and injuries prevented 
under the various NIOSH Report recommendations are based on estimates 
published in economic literature that are based on adult populations. 
Applying those estimates to children may result in an underestimate of 
the risk to children because the susceptibility of a developing child's 
body to illness, injury, or death will most likely differ from that of 
the fully developed body of an adult. These differences are important 
in any such analysis, as society tends to place a higher value on the 
lives of children compared to adults. By their very nature, child labor 
laws are intended to protect children from situations that are 
permissible for adults. Thus, even without some of the other data 
limitations discussed above, the estimates presented in the 
SiloSmashers report consistently understate the benefits of 
implementing the NIOSH recommendations. Because of the data limitations 
and flaws in methodology, the Department does not consider the 
individual analysis prepared by SiloSmashers to be influential for 
rulemaking purposes.
    It was the Department's intention that the SiloSmashers analysis 
would help in identifying and defining the scope of each recommendation 
and provide additional information to consider after the decision was 
made to implement or not to implement a particular recommendation. This 
is in keeping with the ultimate recommendation made in the SiloSmashers 
report that the Department consider both quantitative and qualitative 
factors, as well as other internal and external factors-such as budget 
constraints, priorities established by the Department or 
Administration, additional stakeholder input, etc.--when determining 
which NIOSH Report recommendations to implement. The entire report 
provided to the Department by SiloSmashers can be viewed on the 
Internet at https://www.youthrules.dol.gov/clri/Final_Report.pdf.
    As mentioned, the NIOSH Report made 35 recommendations concerning 
the existing nonagricultural HOs. The Department addressed six of those 
recommendations in the 2004 Final Rule (see 69 FR 75382; Dec. 16, 
2004). The Department has decided that, in this first proposal since 
the dissemination of the NIOSH Report, it will address 25 of the 
remaining 29 Report recommendations dealing with existing 
nonagricultural hazardous occupations orders. The Department believes 
there is sufficient data to support implementing its proposals. In an 
attempt to acquire additional data in order to address the remaining 
nonagricultural NIOSH recommendations, as well as pursue items not 
explored in the NIOSH Report, the Department is publishing an ANPRM 
concurrently with this NPRM.
    The NIOSH Report also makes 11 recommendations that impact the 
current agricultural HOs as well as 17 recommendations that urge the 
creation of new HOs. The Department, in the ANPRM being published on 
the same day as this NPRM, is requesting public comment on the 
feasibility of one of those recommendations regarding the creation of 
an HO that would prohibit the employment of youth in construction 
occupations. The Department is continuing to review the remaining 
recommendations, but for administrative reasons excluded them from its 
consideration of the NIOSH proposals covered in this phase to keep the 
size and scope manageable. Their absence from this current round of 
rulemaking is not an indication that the Department believes them to be 
of less importance or that they will not be given the same level of 
consideration as the recommendations addressing the current 
nonagricultural HOs.

III. Proposed Regulatory Revisions

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

    Section 3(l) of the FLSA, defining oppressive child labor, 
expressly prohibits children under the age of 16 from performing any 
work other than that which the Secretary of Labor permits, by order or 
regulation, upon finding that it does not interfere with their 
schooling or health and well-being (see 29 U.S.C. 203(l), see also 29 
CFR 570.117-.119). Before 14- and 15-year-olds may legally perform work 
covered by the FLSA, the Act requires that the work itself be exempt, 
or that the Secretary determines that the work to be performed does not 
constitute oppressive child labor. The Secretary's declarations of what 
forms of labor are not deemed oppressive for children between the ages 
of 14 and 16 appear in Reg. 3 (29 CFR 570.31-.38).
    Reg. 3 identifies a number of occupations or activities that are 
specifically prohibited for these minors without regard to the industry 
or the type of business in which their employer is engaged (e.g., 
operating or tending any power-driven machinery other than office 
machines, see Sec.  570.33(b)). Reg. 3 also incorporates by reference 
all of the prohibitions contained in the Hazardous Occupations Orders 
(29 CFR 570.50-.68), which identify occupations that are ``particularly 
hazardous'' and, therefore, banned for 16- and 17-year-olds (e.g., 
occupations involved in the operation of power-driven metal forming, 
punching, and shearing machines, see Sec.  570.33(e)).
    As previously mentioned, Reg. 3 was revised to reflect the 1961 
amendments to the FLSA, which by extending the Act's coverage to 
include enterprises engaged in commerce or the production of goods for 
commerce, brought more working youth employed in retail, food service, 
and gasoline service establishments within the protections of the Act. 
Section 570.34(a) expressly authorizes the performance of certain 
activities by 14- and 15-year-olds in retail, food service, and 
gasoline service establishments, while Sec.  570.34(b) details those 
activities that 14- and 15-year-olds are expressly prohibited from 
performing in such establishments. For example, clerical work, 
cashiering, and clean-up work are authorized, whereas ``all work 
requiring the use of ladders, scaffolds, or their substitutes'' is 
prohibited. These special rules apply only in the designated types of 
business.
    Since 1961, new, positive, and safe employment opportunities have 
opened up for youth in industries other than retail, food service, and 
gasoline service that Reg. 3 does not currently specifically address. 
Jobs in such areas as state and local governments, banks, insurance 
companies, advertising agencies, and information technology firms all 
normally fall outside of the declarations made in Reg. 3. Because these 
jobs are not specifically permitted by Sec.  570.33, they are 
prohibited. There has been some confusion about this over the years. 
Some employers have believed that 14- and 15-year-old are permitted to 
be employed in any industry or occupations not expressly prohibited by 
Reg. 3, or that any employer in any industry may employ such youth in 
the occupations permitted

[[Page 19342]]

by Sec.  570.34(a). However, where these jobs are not located in 
retail, food service, or gasoline service establishments, the 
provisions of Sec.  570.34 (both authorizations and prohibitions) do 
not apply to the employment of 14- and 15-year-olds. The exception to 
this rule is where there is some discrete operation or division that 
could legitimately be characterized as such an establishment and 
therefore would be subject to these rules (e.g., minors employed in a 
food service operation at a city park or a publicly owned sports 
stadium). The Department's interpretation of Reg. 3 would prohibit 
employers such as state and local governments, banks, insurance 
companies, advertising agencies, and information technology firms from 
employing 14- and 15-year-old workers in any jobs other than those that 
occur in those discrete operations or divisions that may be 
characterized as retail, food service, or gasoline service 
establishments.
    In 2004, in recognition of the importance of youth employment 
programs operated by public sector employers that provide safe and 
meaningful developmental opportunities for young people, and in 
response to specific requests received from two municipalities, the 
Department adopted an enforcement position that permits state and local 
governments to employ 14- and 15-year-old minors under certain 
conditions. Consistent with its enforcement position, the Department 
has exercised its prosecutorial discretion, as authorized by 29 U.S.C. 
216(e), in declining to cite Reg. 3 occupations violations for the 
employment of 14- and 15-year-olds by state and local governments as 
long as that employment falls within the occupations authorized by Reg. 
3 (Sec.  570.34(a)) and does not involve any of the tasks or 
occupations prohibited by Reg. 3 (Sec. Sec.  570.33 and 570.34(b)). The 
other provisions of Reg. 3, including the restrictions on hours of 
work, remain fully applicable to the employment of such minors and 
continue to be enforced.
    The Department's administration of this enforcement position 
permitting the employment of 14- and 15-year-olds by state and local 
governments has had extremely positive results. There are strong 
indications that when such youth are employed under the guidelines 
established by this enforcement position, the employment does not 
interfere with their schooling or with their health and well-being, and 
thus accords with the FLSA.
    Based upon the success of the above enforcement position, the 
Department is proposing to revise and to reorganize Sec. Sec.  570.33 
and 570.34 to clarify and to expand the list of jobs that are either 
permitted or prohibited for minors who are 14 and 15 years of age and 
to remove the language that limits the application of Sec.  570.34 to 
only retail, food service, and gasoline service establishments. The 
revised Sec.  570.33 would detail certain specific occupations that are 
prohibited for 14- and 15-year-olds. This revision also necessitates a 
change to Sec.  570.35a(c)(3), which references the current Sec. Sec.  
570.33 and 570.34 as they pertain to WECEPs. The Department proposes to 
retain all the current prohibitions contained in Sec.  570.33 but will 
modify the prohibition regarding the employment of 14- and 15-year-olds 
in manufacturing occupations to comport with the provisions of the 
Department of Labor Appropriations Act, 2004, which enacted section 
13(c)(7) of the FLSA. Fourteen- and 15-year-olds would continue to be 
permitted to be employed in all those retail, food service, and 
gasoline service establishment occupations in which they may currently 
be employed.
    The Department also proposes to apply to FLSA-covered 
nonagricultural employers of minors, with certain modifications, all 
the permitted occupations contained in Sec.  570.34(a) and all the 
prohibited occupations contained in Sec.  570.34(b) that currently 
apply only to retail, food service, and gasoline service 
establishments. This proposal would be accomplished by revising Sec.  
570.34 to identify permitted occupations. The Department also proposes 
to continue to permit youth 14- and 15-years of age to perform those 
occupations involving processing, operating of machines, and working in 
rooms where processing and manufacturing take place, that are currently 
permitted under Sec.  570.34(a), as referenced in Sec.  570.34(b)(1).
    As mentioned, certain modifications to the existing lists of 
permissible and prohibited occupations are being proposed. The 
traditionally prohibited occupations and industries would be contained 
in a revised Sec.  570.33, and all the permitted occupations and 
industries would be contained in a revised Sec.  570.34. The Department 
is aware that, given the FLSA's mandate that before 14- or 15-year-olds 
may legally be employed to perform any covered work the Secretary of 
Labor must first determine that the work to be performed does not 
constitute oppressive child labor, it could choose to publish only a 
list of permissible occupations and industries, and not provide a list 
of certain commonly arising prohibited occupations and industries. 
However, the Department believes that by continuing the long-standing 
Reg. 3 tradition of publishing lists of those occupations and 
industries in which such youth may be employed as well as detailed 
examples of those industries and occupations in which the employment of 
such youth is prohibited, it can greatly enhance the public's 
understanding of these important provisions. The list of prohibited 
industries and occupations helps to define and to provide clarity to 
the list of permitted industries and occupations. However, the list of 
prohibited occupations is not intended to identify every prohibited 
occupation, but rather only to provide examples of those prohibited 
occupations that have historically been the most common sources of 
violations or concern. As previously explained, any job not 
specifically permitted is prohibited.
    The Department also understands that, given the constant 
development and changes occurring in the modern workplace, in 
continuing to provide a definitive list of permitted occupations and 
industries, the Department may unintentionally discourage the creation 
of positive and safe employment opportunities for young workers. But 
the Department believes that, by continuing its past practice of 
carefully reviewing inquiries regarding individual occupations or 
industries not currently addressed by Reg. 3 and then exercising its 
prosecutorial discretion and issuing enforcement positions that may 
eventually lead to rulemaking--as evidenced by certain proposals 
contained in this NPRM--it has developed an efficient and effective 
mechanism which overcomes the limitations of a definitive list.
    The proposed modifications to the list of prohibited occupations 
are as follows:
1. Prohibited Machinery (Sec. Sec.  570.33-.34)
    Section 570.33(b) prohibits youth 14 and 15 years of age from 
employment in occupations involving the operation or tending of any 
power-driven machinery other than office equipment. Even though this 
prohibition is clear and quite broad, other sections of Reg. 3 have 
traditionally named certain pieces of power-driven machinery so as to 
eliminate any doubt or confusion as to their prohibited status. For 
example, Sec.  570.34(a)(6) prohibits the employment of 14- and 15-
year-olds in the operation of power-driven mowers or cutters and Sec.  
570.34(b)(6) prohibits the employment of such minors in occupations 
that involve operating, setting up, adjusting, cleaning, oiling, or 
repairing power-

[[Page 19343]]

driven food slicers, grinders, choppers, and cutters, and bakery-type 
mixers.
    The Department proposes to combine Sec. Sec.  570.33(b), 
570.34(a)(6), and 570.34(b)(6)--all of which address power-driven 
machinery--into a single paragraph located at Sec.  570.33(e) and 
expand the list of examples of prohibited equipment to include power-
driven trimmers, weed-eaters, edgers, golf carts, food processors, and 
food mixers. Even though Reg. 3 for many years has prohibited the 
employment of 14- and 15-year-olds to operate any power-driven 
equipment other than office machines, the Department routinely receives 
inquiries as to the status under Reg. 3 of these individual pieces of 
equipment. The Department believes that by continuing to reference 
certain common prohibited machinery by name, both clarity and 
compliance will be increased.
2. Loading of Personal Hand Tools Onto Motor Vehicles and Riding on 
Motor Vehicles (Sec. Sec.  570.33(f) and 570.34(b)(8))
    Section 570.33(c) prohibits the employment of 14- and 15-year-olds 
in the operation of motor vehicles or service as helpers on such 
vehicles. The term motor vehicle is defined in Sec.  570.52(c)(1). The 
Department has interpreted the Reg. 3 prohibition regarding service as 
helpers on a motor vehicle to preclude youth under the age of 16 from 
riding outside the passenger compartment of the motor vehicle. Such 
youth may not ride in the bed of a pick-up truck, on the running board 
of a van, or on the bumper of a refuse truck. This interpretation dates 
back to at least the 1940 enactment of HO 2 which prohibits 16- and 17-
year-olds from serving as outside helpers on motor vehicles.
    The Department does not interpret the helper prohibition as 
applying to 14- and 15-year-olds who simply ride inside a motor vehicle 
as passengers and, thus, Reg. 3 permits a 14- or 15-year-old to ride 
inside the enclosed passenger compartment of a motor vehicle when 
driven by a driver whose employment complies with HO 2 under certain 
circumstances. For example, a minor may ride in a motor vehicle to 
reach another work site where he or she will perform work, to receive 
special training or instructions while riding, or to meet other 
employees or customers of the employer. While a 14- or 15-year old may 
be a passive passenger in a vehicle, that same minor is not permitted 
to ride in a motor vehicle when a significant reason for the minor 
being a passenger is for the purpose of performing work in connection 
with the transporting--or assisting in the transporting--of other 
persons or property. This interpretation comports with the provision of 
Sec.  570.33(f)(1), which prohibits the employment of 14- and 15-year-
olds in occupations in connection with the transportation of persons or 
property by highway. Performing work in connection with the 
transportation of the other persons or property does not have to be the 
primary reason for the trip for this prohibition to apply.
    The Department is proposing to include its long-standing 
interpretation that prohibits 14- and 15-year-olds riding outside of 
motor vehicles in Reg. 3 at Sec.  570.33(f). The Department is also 
proposing to revise Reg. 3 at Sec.  570.34(o) to permit 14- and 15-
year-olds to ride in the enclosed passenger compartments of motor 
vehicles, except when a significant reason for the minors being 
passengers in the vehicle is for the purpose of performing work in 
connection with the transporting--or assisting in the transporting--of 
other persons or property. Each minor must have his or her own seat in 
the passenger compartment, each seat must be equipped with a seat belt 
or similar restraining device, and the employer must instruct the 
minors that such belts or other devices must be used. These provisions 
mirror the requirements of Drive for Teen Employment Act as contained 
in HO 2.
    In addition, the Department's interpretation of prohibited helper 
services under Sec.  570.33(c), since at least the mid-1950s, has 
included the loading and unloading of materials from motor vehicles 
when the purpose of the operation of the vehicle is the transportation 
of such materials. Section 570.33(f)(1) furthers this prohibition by 
banning the employment of minors in occupations in connection with the 
transportation of property by highway. Section 570.34(b)(8) prohibits 
the employment of such youth by retail, food service, and gasoline 
service establishments to load or unload goods to and from trucks, 
railroad cars, or conveyors. These prohibitions are designed to protect 
young workers from the hazards associated with loading docks, motor 
vehicles, and receiving departments; strains from lifting and moving 
heavy items; and falls and falling items. Accordingly, 14- and 15-year-
olds generally are prohibited from loading and unloading any property 
(not just ``goods'') onto and from motor vehicles, including the light 
personal hand tools they use in performing their duties.
    In 2000, the Department was requested by a municipality (the City) 
to review certain aspects of the prohibitions against employing 14- and 
15-year-olds to load and unload items onto and from motor vehicles. The 
City advised the Department that, even with the adoption of the 
enforcement position that permits state and local governments to employ 
minors under certain conditions, it was being forced to abandon a 
youth-employment program that provided 14- and 15-year-olds with 
certain jobs because of the prohibition against loading materials into 
vehicles. The City specifically requested permission to allow such 
minors to load and unload, onto and from motor vehicles, the light, 
non-power-driven tools each youth would personally use as part of his 
or her employment. The Department carefully considered this request 
and, again using its prosecutorial discretion, decided that it would 
not assert a violation of the child labor provisions when 14- and 15-
year-old employees of state and local governments loaded and unloaded 
the light non-power-driven hand tools--such as rakes, hand-held 
clippers, and spades--that they personally use as part of their 
employment. The City was advised that this enforcement policy did not 
extend to other prohibited transportation-related work such as the 
loading or unloading of materials other than the light hand tools the 
minors may encounter on-the-job, such as trash or garbage, or power-
driven equipment such as lawn mowers, edgers, and weed trimmers--the 
use of which by this age group is prohibited under Reg. 3.
    The Department proposes to revise Reg. 3 at Sec. Sec.  570.33(f) 
and (k) and 570.34(k) to incorporate the enforcement position that 
allows 14- and 15-year-olds to be employed to load onto and unload from 
motor vehicles the light non-power-driven personal hand tools they use 
as part of their employment and to make it available to all covered 
employers, not just state and local governments. Such light non-power-
driven hand tools would include, but not be limited to, rakes, hand-
held clippers, shovels, and brooms, but would not include items like 
lawn mowers or other power-driven lawn maintenance equipment. In 
addition, such minors would be permitted to load onto and unload from 
motor vehicles any personal protective equipment they themselves will 
use at the work site and any personal items such as backpacks, lunch 
boxes, and coats their employers allow them to take to the work site. 
Such minors would not be permitted to load or unload such jobsite-
related equipment as barriers, cones or signage.

[[Page 19344]]

3. Work in Meat Coolers and Freezers (Sec.  570.34(b)(7))
    Section 570.34(b)(7) prohibits 14- and 15-year-olds from working in 
freezers and meat coolers. Since its inception, the Department has 
interpreted this section to mean that such youth are prohibited from 
working as dairy stock clerks, meat clerks, deli clerks, produce 
clerks, or frozen-food stock clerks where their duties would require 
them to enter and remain in the freezer or meat cooler for prolonged 
periods. Inventory and cleanup work, involving prolonged stays in 
freezers or meat coolers, are also prohibited. On the other hand, the 
Department has taken the position since at least 1981 that counter 
workers in quick service establishments or cashiers in grocery stores 
whose duties require them to occasionally enter freezers only 
momentarily to retrieve items are not considered to be working in the 
freezers for enforcement purposes. In order to provide clarification, 
the Department is proposing to incorporate this long-standing 
interpretation into the regulations at Sec.  570.33(i).
4. Youth Peddling
    The Department is proposing to amend Reg. 3 and create Sec.  
570.33(j) to ban the employment of 14- and 15-year-old minors in 
occupations involving youth peddling, also referred to as ``door-to-
door sales'' and ``street sales.'' Controversies regarding young 
children conducting commercial sales of items, often on a ``door-to-
door'' basis, are not new. The Department has over the years documented 
reports of minors, many as young as 10 or 11 years of age, working as 
part of mobile sales crews, selling such items as candy, calendars, and 
greeting cards for profit-making companies. Injuries, and even deaths, 
have occurred as the result of young children engaging in youth 
peddling activities. The door-to-door sales industry employing these 
minors generally is composed of a number of crew leaders who, during 
the course of a year, operate in many different states. The crew 
leaders, who often have ties to regional or national businesses, 
mistakenly claim that they and their young sales crews are independent 
contractors. Typically, a crew leader attempts to saturate a particular 
area with sales crews, make as many sales as possible, and then quickly 
move to a new location. Crews often work from late afternoon to late at 
night as that is when most of the potential customers are likely to be 
at home. Because youth peddlers typically qualify as outside sales 
employees under FLSA section 13(a)(1), they are usually exempt from the 
minimum wage and overtime requirements of the FLSA (see 29 CFR 
541.500).
    Congressional hearings and the Department's enforcement experience 
have shown that the problems associated with children performing door-
to-door sales and street sales are numerous. These youth are often 
transported by crew leaders in vans, which fail to meet proper safety 
and insurance requirements, to areas quite distant from their home 
neighborhoods. They are often required to work many hours on school 
nights and late into the evening. These minors are frequently placed by 
employers, without adult supervision, at subway entrances, outside 
large office buildings, at high-traffic street corners, and on median 
strips at busy intersections where they can attract potential 
customers. Reports of children being abandoned, suffering injuries from 
violence and motor vehicle crashes, and being exposed to the elements 
have been substantiated. Youth have been injured and have died as a 
result of these activities. Intimidation by crew leaders is commonly 
reported.
    In 1987, the permanent Subcommittee on Investigations of the 
Committee on Governmental Affairs of the United States Senate held 
hearings on the Exploitation of Young Adults in Door-to-Door Sales. The 
hearings included a staff study that documented many abuses that had 
occurred in this industry, including indentured servitude, physical and 
sexual abuse, and criminal activity. In 1998, the Interstate Labor 
Standards Association created a subcommittee to work toward ending 
door-to-door sales by children and recommended that the Department of 
Labor act as a national clearinghouse regarding information concerning 
door-to-door sales operations. In response to the 1994 ANPRM issued by 
the Department, calls for banning door-to-door sales by those under 18 
years of age were received from the National Consumers League, the 
Defense for Children International, USA, and the Food and Allied 
Service Trades Department, AFL-CIO. At least 17 states have rules 
prohibiting or regulating door-to-door sales by minors.
    The Department's proposal to prohibit youth peddling would not be 
limited to just the attempt to make a sale or the actual consummation 
of a sale, but would include such activities normally associated with 
and conducted as part of the individual youth peddler's sales 
activities, such as the loading and unloading of vans or other motor 
vehicles, the stocking and restocking of sales kits and trays, the 
exchanging of cash and checks, and the transportation of minors to and 
from the various sales areas by the employer.
    As used here, the terms youth peddling, door-to-door-sales, and 
street sales do not include legitimate fund-raising activities by 
eleemosynary organizations such as cookie sales conducted by the Girl 
Scouts of America or school fund-raising events where the students are 
truly volunteers and are not promised compensation for the sales they 
make. The term compensation would not include the small prizes, 
trophies, or other awards of minimal value that the eleemosynary 
organization may give a volunteer in recognition of his or her efforts. 
In administering the FLSA, the Department considers such individuals, 
who volunteer or donate their services, usually on a part-time basis, 
for public service, religious, or humanitarian objectives, without 
contemplation of pay, not to be employees of the religious, charitable, 
or similar nonprofit corporations that receive their services. In 
addition, FLSA section 3(e)(4) excludes from the definition of 
``employee'' individuals who volunteer to public agencies. These 
provisions apply equally whether the volunteer is an adult or a minor.
5. Poultry Catching and Cooping
    The Department has long taken the position that 14- and 15-year-
olds may not be employed to catch and coop poultry in preparation for 
transportation or for market because it is a ``processing'' occupation 
prohibited by Sec.  570.33(a). Such employees are often referred to as 
``chicken catchers or poultry catchers.'' In addition, the prohibitions 
against operating or tending power-driven equipment contained in Sec.  
570.33(b) and the prohibition against employment in occupations in 
connection with the transportation of property contained in Sec.  
570.33(f)(1) generally preclude the employment of such youth as poultry 
catchers. These activities are normally performed in environments and 
under conditions that present risks of injury and illness to young 
workers. Working in the dark, with the only illumination provided by 
``red lights'' which the fowl cannot see, and in poorly ventilated 
rooms, is not uncommon. The risks associated with poultry catching also 
occur in the catching and cooping of poultry other than chicken--for 
example, processors of turkeys and Cornish game hens employ similar 
methods of moving their products to slaughter.
    Despite the Department's consistent interpretation that 14- and 15-
year-olds

[[Page 19345]]

may not be employed as poultry catchers, employers still have questions 
concerning how the regulations address such work, and violations still 
occur. For example, the Department investigated the death of a 15-year-
old male in 1999 who was employed as a poultry catcher, working in the 
dark and under red lighting, in Arkansas. The youth was electrocuted 
shortly after midnight when he bumped into a fan while performing his 
``catching'' duties. In order to remove any confusion and increase 
employer compliance, the Department is therefore proposing to amend 
Reg. 3 and create Sec.  570.33(l) to specifically prohibit the 
employment of 14- and 15-year-old minors in occupations involving the 
catching and cooping of poultry for preparation for transport or for 
market. The prohibition would include the catching and cooping of all 
poultry, not just chickens.
    It is important to note that in those rare instances when the 
catching activities would be agricultural in nature, such as where 
poultry catchers are employed solely by a farmer on a farm to catch 
poultry raised by that farmer, the catchers would be subject to the 
agricultural child labor provisions contained in FLSA sections 13(c)(1) 
and (2).

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

    As mentioned, section 3(l) of the FLSA expressly prohibits children 
under the age of 16 from performing any work other than that which the 
Secretary of Labor permits, by order or regulation, upon finding that 
it does not interfere with their schooling or health and well-being 
(see 29 U.S.C. 203(l)). Before a 14- or 15-year-old may legally perform 
work covered by the FLSA, the Act requires that the work itself be 
exempt, or that the Secretary of Labor has determined that the work to 
be performed does not constitute oppressive child labor. The 
Secretary's declarations of what forms of labor are not deemed 
oppressive for children between the ages of 14 and 16 appear in Reg. 3 
(29 CFR 570.31-.38).
    Reg. 3 identifies a number of occupations or activities that are 
specifically permitted for the employment of youth 14 and 15 years of 
age in retail, food service, and gasoline service establishments. As 
mentioned, the Department proposes to revise this list of permitted 
occupations by clarifying it, adding to it, and extending its 
application to all employment covered by the FLSA, except those 
employers engaged in mining or manufacturing, or any industry or 
occupation prohibited by the proposed Sec.  570.33. This revised list 
would be contained in Sec.  570.34.
    The Department also proposes to revise Sec.  570.34(a)(8) by 
clarifying that 14- and 15-year-olds may perform car cleaning, washing, 
and polishing, but only by hand. Such youth are prohibited from 
operating or tending any power-driven machinery, other than office 
equipment, and this prohibition has always included automatic car 
washers, power-washers, and power-driven scrubbers and buffers. The 
Department believes this clarification will provide guidance to 
employers.
    The additional occupations the Department is proposing to permit 
14- and 15-year-olds to perform are discussed below.
1. Work of a Mental or Artistically Creative Nature
    The Department routinely receives inquiries asking whether 14- and 
15-year-old youth may be employed to perform certain mental or 
artistically creative activities in industries not specifically 
permitted by Reg. 3. The inquiries have concerned such jobs as a 
computer programmer and computer applications demonstrator for a 
college, print and runway model, and musical director at a church or 
school. Often, these inquiries concern students who are especially 
gifted or career oriented in a particular field. A strict adherence to 
Reg. 3 requirements would not permit the employment of a 14- or 15-
year-old in any of these scenarios, even though talented and motivated 
youth could safely and successfully perform these tasks without 
interfering with their schooling or health and well-being.
    The Department is proposing to revise Reg. 3 at Sec.  570.34(b) to 
permit the employment of 14- and 15-year-olds to perform work of a 
mental or artistically creative nature such as computer programming, 
the writing of software, teaching or performing as a tutor, serving as 
a peer counselor or teacher's assistant, singing, playing a musical 
instrument, and drawing. Permitted work of a mental nature would be 
limited to work that is similar to that performed in an office setting 
and not involving the use of any power-driven equipment other than 
office machines. Artistically creative work would be limited to work in 
a recognized field of artistic or creative endeavor. The employment 
would be permitted in any industry other than those prohibited by Reg. 
3 and would also be subject to all the applicable hours and times 
standards established in Sec.  570.35 and occupation standards 
contained in Sec.  570.33.
2. The Employment of 15-Year-Olds (But Not 14-Year-Olds) as Lifeguards
    The Department is proposing to revise Reg. 3 at Sec.  570.34(l) to 
permit the employment of 15-year-olds as lifeguards at swimming pools 
and water amusement parks under certain conditions. A local chapter of 
the American Red Cross (Chapter) first raised this issue in 2000. The 
Chapter advised the Department that the Red Cross had revised its own 
rules and was now certifying 15-year-olds as lifeguards. Prior to 2000, 
according to the Chapter, 16 years was generally the minimum age at 
which the Red Cross would provide such certification. The Chapter 
inquired as to whether Reg. 3 would permit the employment of 15-year-
olds as lifeguards. Also in 2000, a municipality contacted the 
Department inquiring whether it could legally employ such youth as 
lifeguards at its city-owned swimming pools.
    The occupation of lifeguard is not specifically authorized in Reg. 
3 as an occupation that 14- and 15-year-olds may perform. In response 
to the inquiries, the Department adopted an enforcement policy in 2000 
that allowed 15-year-olds (but not 14-year-olds) to be employed at 
swimming pools owned and operated by state and local governments or 
private-sector retail establishments under certain conditions. Those 
conditions included that the youth be trained and certified in aquatics 
and water safety by the Red Cross, or by some similarly recognized 
certifying organization, and that the youth work under conditions 
acceptable to the Red Cross, or some similarly recognized certifying 
organization. This enforcement position permitted such employment at 
swimming pools operated by hotels, amusement parks, cities, and state-
owned universities, but did not permit such employment at pools 
operated by non-public and non-retail establishments such as apartment 
houses, country clubs, private schools, home-owner associations, and 
private health clubs. In early 2005, the Department, after reviewing 
additional information, extended this enforcement position to permit 
the employment of 15-year-olds as lifeguards at (1) all traditional 
swimming pools regardless of who owns, operates or manages the 
establishments, and (2) those facilities of water amusement parks that 
constitute traditional swimming pools.
    The Department proposes to revise Reg. 3 by creating Sec.  
570.34(l) to incorporate portions of the current enforcement position. 
The revision would permit 15-year-olds, but not 14-year-olds, to be 
employed as lifeguards,

[[Page 19346]]

performing lifeguard duties, at traditional swimming pools and certain 
areas of amusement water parks operated by all types of employers, if 
the minors have been trained and certified by the Red Cross or a 
similarly recognized certifying organization.
    The occupation of lifeguard, as used in this subpart, entails the 
duties of rescuing swimmers in danger of drowning, the monitoring of 
activities at a swimming pool to prevent accidents, the teaching of 
water safety, and assisting patrons. Lifeguards may also help to 
maintain order and cleanliness in the pool and pool areas, give 
swimming instructions, conduct or officiate at swimming meets, and 
administer first aid. Additional ancillary lifeguard duties may include 
checking in and out such items as towels, rings, watches and apparel. 
Permitted duties for 15-year-olds would include the use of a ladder to 
access and descend from the lifeguard chair; the use of hand tools to 
clean the pool and pool area; and the testing and recording of water 
quality for temperature and/or pH levels, using all of the tools of the 
testing process including adding chemicals to the test water sample. 
Fifteen-year-olds employed as lifeguards would, however, be prohibited 
from entering or working in any mechanical rooms or chemical storage 
areas, including any areas where the filtration and chlorinating 
systems are housed. The other provisions of Reg. 3, including the 
restrictions on hours of work contained at Sec.  570.35(a), would 
continue to apply to the employment of 15-year-old lifeguards.
    Under the proposed rule, no youth under 15 years of age, whether 
properly certified or not, could legally perform any portion of the 
lifeguard duties detailed above as part of his or her FLSA covered 
employment. The core and defining duty of a lifeguard is the rescuing 
of swimmers in danger of drowning, often by entering the water and 
physically bringing the swimmer to safety. Under the Department's 
proposal, any employee under the age of 16 whose duties include this 
core duty--such as a ``junior lifeguard'' or a ``swim-teacher aide''--
or whose employment could place him or her in a situation where the 
employer would reasonably expect him or her to perform such rescue 
duties, would be performing the duties of a lifeguard while working in 
such a position. For such employment to comply with Reg. 3, the 
employee would have to be at least 15 years of age and be properly 
certified.
    A traditional swimming pool, as used in this subpart, would mean a 
water-tight structure of concrete, masonry, or other approved materials 
located either indoors or outdoors, used for bathing or swimming and 
filled with a filtered and disinfected water supply, together with 
buildings, appurtenances and equipment used in connection therewith. A 
water amusement park means an establishment that not only encompasses 
the features of a traditional swimming pool, but may also include such 
additional attractions as wave pools; lazy rivers; specialized 
activities areas such as baby pools, water falls, and spri