Child Labor Regulations, Orders and Statements of Interpretation, 28404-28461 [2010-11434]

Agencies

• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 75, Number 97 (Thursday, May 20, 2010)]
[Rules and Regulations]
[Pages 28404-28461]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-11434]



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Part IV





Department of Labor





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Wage and Hour Division



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29 CFR Parts 570 and 579



Child Labor Regulations, Orders and Statements of Interpretation; Final 
Rule

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

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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.

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

SUPPLEMENTARY INFORMATION: The revisions in this Final Rule continue 
the Department of Labor's tradition of fostering permissible and 
appropriate job opportunities for working youth that are healthy, safe, 
and not detrimental to their education.
    The Regulatory Information Number (RIN) identified for this 
rulemaking changed with the publication of the 2010 Spring Regulatory 
Agenda due to an organizational restructuring. The old RIN was assigned 
to the Employment Standards Administration, which no longer exists. A 
new RIN has been assigned to the Wage and Hour Division.

I. Background

    The child labor provisions of the Fair Labor Standards Act (FLSA) 
establish a minimum age of 16 years for employment in nonagricultural 
occupations, but the Secretary of Labor is authorized to provide by 
regulation for 14- and 15-year-olds to work in suitable occupations 
other than manufacturing or mining, and during periods and under 
conditions that will not interfere with their schooling or health and 
well-being. The child labor provisions of the FLSA permit 16- and 17-
year-olds to work in the nonagricultural sector without hours or time 
limitations, except in certain occupations found and declared by the 
Secretary to be particularly hazardous or detrimental to the health or 
well-being of such workers.
    The regulations for 14- and 15-year-olds are known as Child Labor 
Regulation No. 3 (Reg. 3) and are contained in subpart C of part 570 
(29 CFR 570.31-.37). Reg. 3 limits the hours and times of day that such 
minors may work and identifies occupations that are either permitted or 
prohibited for such minors. Under Reg. 3, 14- and 15-year-olds may work 
in certain occupations in retail, food service, and gasoline service 
establishments, but are not permitted to work in certain other 
occupations (including all occupations found by the Secretary to be 
particularly hazardous for 16- and 17-year-olds). Reg. 3, originally 
promulgated in 1939, was revised to reflect the 1961 amendments to the 
FLSA, which extended the Act's coverage to include enterprises engaged 
in commerce or the production of goods for commerce and thereby brought 
more working youth employed in retail, food service, and gasoline 
service establishments within the protections of the Act.
    The regulations concerning nonagricultural hazardous occupations 
are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68). 
These Hazardous Occupations Orders (HOs) apply on either an industry 
basis, specifying the occupations in a particular industry that are 
prohibited, or an occupational basis, irrespective of the industry in 
which the work is performed. The seventeen HOs were adopted 
individually during the period of 1939 through 1963. Some of the HOs, 
specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited 
exemptions that permit the employment of 16- and 17-year-old 
apprentices and student-learners under particular conditions to perform 
work otherwise prohibited to that age group. The terms and conditions 
for employing such apprentices and student-learners are detailed in 
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. 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 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 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, 
Sec.  108, which was signed into law on January 23, 2004, amended the 
FLSA by creating a limited exemption from the child labor provisions 
for minors 14 to 18 years of age who are excused from compulsory school 
attendance beyond the eighth grade. The exemption, contained in section 
13(c)(7) of the FLSA, allows eligible youth, under specific conditions, 
to be employed inside and outside of places of business that use 
machinery to process wood products, but does not allow such youth to 
operate or assist in operating power-driven woodworking machines. This 
exemption overrides the FLSA's formerly complete prohibition on the 
employment of 14- and 15-year-olds in manufacturing occupations 
contained in section 3(l).
    The Department proposed revisions of the child labor regulations to 
implement the 2004 legislation, address 25 of the remaining 29 NIOSH 
Report recommendations dealing with existing nonagricultural hazardous 
occupations orders, and revise and/or clarify the permitted and 
prohibited occupations and industries and conditions and periods of 
employment established for 14- and 15-year-olds by Reg. 3, in an NPRM 
published in the Federal Register on April 17, 2007 (72 FR 19337). The 
NPRM also proposed to incorporate into the regulations three long-
standing enforcement positions regarding the cleaning of power-driven 
meat processing equipment, the operation of certain power-driven pizza-
dough rollers, and the definition of high-lift trucks. In addition, the 
Department proposed to expand the HO that prohibits youth from 
operating power-driven circular saws, band saws, and guillotine shears 
to also prohibit the operation of power-driven chain saws, wood 
chippers, and reciprocating saws. Finally, the Department proposed to 
revise subpart G of the child labor regulations, entitled General 
Statements of Interpretation of the Child Labor Provisions of the Fair 
Labor Standards Act of 1938, as Amended, to incorporate all the changes 
adopted by the agency since this subpart was last revised in 1971.
    The Genetic Information Nondiscrimination Act of 2008 (GINA) (Pub. 
L. 110-233) was enacted into law on May 21, 2008, after the publication 
of the 2007 NPRM. GINA, among other things, amended FLSA section 16(e) 
to provide that any person who violates the provisions of sections 12 
or 13(c) of the FLSA, relating to child labor, or any regulation issued 
pursuant to such sections, shall be subject to a civil money penalty 
not to exceed $11,000 for each employee who was the subject of such a 
violation. In addition, GINA also permits the assessment of a civil 
money penalty up to $50,000 with regard to each violation that caused 
the death or serious injury of any employee under the age of 18 years. 
That penalty may be doubled, up to $100,000, when such violation is 
determined by the Department to be a repeated or willful violation. 
These changes in the law became effective May 21, 2008.
    As mentioned, the NIOSH Report made 35 recommendations concerning 
the existing nonagricultural HOs. The Department addressed six of those 
recommendations in the 2004 Final Rule published December 16, 2004 (see 
69 FR 75382). The Department, in the April 17, 2007 NPRM, based on its 
determination that there was sufficient

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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 https://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 https://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 Sec.  570.33(f)(2)(old) or Sec.  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-year-olds may legally perform work covered by the FLSA, the 
Act requires that the work itself be exempt, or that the Secretary 
determines that the work to be performed does not constitute oppressive 
child labor. The Secretary's declarations of what work is not deemed 
oppressive for children between the ages of 14 and 16 appear in Reg. 3 
(29 CFR 570.31-.37).
    Reg. 3 identifies a number of occupations and activities that are 
specifically prohibited for these minors without regard to the industry 
or the type of business in which their employer is engaged (e.g., 
operating or tending any power-driven machinery other than office 
machines, see Sec.  570.33(b) (old) and Sec.  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 Sec.  570.33(e) (old) and Sec.  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 Sec.  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 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 Sec.  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 Sec.  570.34(a) (old). However, when those jobs are not 
located in retail, food service, or gasoline service establishments, 
the provisions of Sec.  570.34 (old) (both authorizations and 
prohibitions) do not apply to the employment of 14- and 15-year-olds. 
The exception to this rule is where there is some discrete operation or 
division that could legitimately be characterized as such an 
establishment and therefore would be subject to these rules (e.g., 
minors employed in a food service operation at a city park or a 
publicly owned sports stadium). The existing Reg. 3 prohibits employers 
such as state and local governments, banks, insurance companies, 
advertising agencies, and information technology firms from employing 
14- and 15-year-old workers in any jobs other than those that occur in 
those discrete operations or divisions that could be characterized as 
retail, food service, or gasoline service establishments.
    In 2004, in recognition of the importance of youth employment 
programs operated by public sector employers that provide safe and 
meaningful developmental opportunities for young people, and in 
response to specific requests received from two municipalities, the 
Department adopted an enforcement position that permits state and local 
governments to employ 14- and 15-year-old minors under certain 
conditions. Consistent with its enforcement position, the Department 
exercised its prosecutorial discretion, as authorized by 29 U.S.C. 
216(e), and declined to cite Reg. 3 occupations violations for the 
employment of 14- and 15-year-olds by state and local governments as 
long as that employment fell within the occupations authorized by Reg. 
3 (Sec.  570.34(a) (old)) and did not involve any of the tasks or 
occupations prohibited by Reg. 3 (Sec. Sec.  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 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. The Department also proposed to remove the 
language that limited the application of Sec.  570.34 to only retail, 
food service, and gasoline service establishments. As proposed, the 
revised Sec.  570.33 detailed certain specific occupations prohibited 
for 14- and 15-year-olds. This revision also necessitates a change to 
Sec.  570.35a(c)(3) (old) because it references Sec. Sec.  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 Sec.  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 Sec.  570.34(a) (old) and all 
the prohibited occupations contained in Sec.  570.34(b) (old) 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 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 Sec.  570.34(a) (old), as referenced in Sec.  
570.34(b)(1) (old).
    As mentioned, certain modifications to the existing lists of 
permissible and prohibited occupations were also

[[Page 28408]]

proposed. The traditionally prohibited occupations and industries 
would, after adoption of the proposal, 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, 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 (Sec. Sec.  570.33-.34)
    Section 570.33(b) (old) prohibits youth 14 and 15 years of age from 
employment in occupations involving the operation or tending of any 
power-driven machinery other than office equipment. The Department has 
always interpreted the term power-driven machinery very broadly to 
include machines driven by electrical, mechanical, water, or other 
power such as steam or hydraulic. The term also includes battery-
operated machines and tools, but does not apply to machines or tools 
driven exclusively by human hand or foot power.
    Even though this prohibition is clear and quite broad, other 
sections of Reg. 3 have traditionally named certain pieces of power-
driven machinery so as to eliminate any doubt or confusion as to their 
prohibited status. For example, Sec.  570.34(a)(6) (old) prohibits the 
employment of 14- and 15-year-olds in the operation of power-driven 
mowers or cutters and Sec.  570.34(b)(6) (old) prohibits the employment 
of such minors in occupations that involve operating, setting up, 
adjusting, cleaning, oiling, or repairing power-driven food slicers, 
grinders, choppers, and cutters, and bakery-type mixers.
    The Department proposed to combine 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 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 Sec.  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 Sec.  570.33 include an 
introductory statement reinforcing the principle detailed in Sec.  
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 Sec.  570.33(e) as that subsection already prohibits the 
operating or tending of food grinders, food choppers, and cutters (see 
Sec.  570.34(b)(6) (old)).
    The National Council of Chain Restaurants (the Council), which 
described itself as a national trade industry group representing the 
interests of the nation's largest multi-unit, multi-state chain 
restaurant companies, requested that the proposed Sec.  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 Sec.  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 Sec.  570.34(b)(6) (old) 
and Sec.  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

[[Page 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 Sec.  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 Sec.  570.52(c) (old and new), 14- and 
15-year-olds would be prohibited from operating such equipment under 
Sec.  570.33(c) (old) and Sec.  570.33(f) (new). But because greater 
clarity and protections can be realized, the Department will add ATVs 
to the list of named equipment.
    With regard to cooking and the use of kitchen equipment, the 
Department notes that it implemented new rules concerning the types of 
cooking that may be performed by 14- and 15-year-olds in its Final Rule 
published in the Federal Register on December 16, 2004 (69 FR 75382). 
That Final Rule limited permitted cooking duties to cooking (1) with 
electric or gas grills which does not involve an open flame (see Sec.  
570.34(b)(5)(i) (old) and Sec.  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 Sec.  
570.34(b)(5)(ii) (old) and Sec.  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 Sec.  570.34(a)(7) (old) and Sec.  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 [deg]F.
    Although there may have been some confusion among employers, the 
Department has long interpreted the term toaster to mean that type of 
equipment that was generally found in snack bars and lunch counters 
when Reg. 3 was issued and used to toast such items as slices of bread 
and English muffins. This includes such equipment as the two- or four-
slice ``pop-up'' toasters similar to those manufactured for home use 
and the conveyor-type bread toaster now often found at self-service 
breakfast buffets. Broilers, automatic broiler systems, high speed 
ovens, and rapid toaster machines used at both quick service and full-
service restaurants to toast such items as buns, bagels, sandwiches, 
and muffins--all of which operate at high temperatures, often in excess 
of 500 [deg]F--are not toasters under Sec.  570.34(a)(7) (old) and 
Sec.  570.34(i) (new) and minors generally must be at least 16 years of 
age to operate them.
    There has also been some confusion among employers as to what 
constitutes a milk shake blender under Reg. 3. The Department has long 
interpreted this term to mean that type of equipment that was generally 
found in snack bars and lunch counters when Reg. 3 was issued and used 
to prepare a ``to-order'' milk shake for an individual customer. Such 
equipment required that the worker place the ice cream, milk, and 
flavorings in a stainless steel mixing cup that generally has a maximum 
capacity of 20 ounces. The cup was then positioned on the machine so 
that the single spindle--with an aeration disk or disks mounted at the 
bottom--could blend the milk shake. Some permitted milk shake blenders 
had more than one spindle so multiple products could be processed 
simultaneously. Most of these blenders were free standing counter-top 
models while others were incorporated into other equipment such as milk 
dispensers. These are the types of milk shake blenders that 14- and 15-
year-olds may operate under Reg. 3.
    Except as described below, other types of blenders, mixers, and 
``blixers''--used for a variety of food preparation operations 
including the blending of milk shakes--continue to be prohibited to 
that age group. Such prohibited equipment often have containers or 
mixing chambers that exceed a 20-ounce capacity--some can accommodate 
up to 60 quarts. In addition, some of this prohibited equipment, when 
used to process meat or mix batter--with or without the use of special 
``attachments''--may not be operated by employees under the age of 18 
because of the prohibitions of HO 10 or HO 11, respectively.
    The Department has also included certain countertop blenders used 
to make beverages such as milk shakes, fresh fruit drinks, and 
smoothies within the term milk shake blender as used in Reg. 3. Such 
machines generally consist of a base motor that supports a glass jar. 
The blending blades are attached, often permanently, to the bottom of 
the glass jar. Operators place the glass jar on top of the base, place 
the ingredients in the jar, affix the lid to the jar, press the 
appropriate button or switch, and blend the product. The permitted 
blenders are identical to models used in private homes, generally do 
not operate at more than 600 watts, and have jar capacities that do not 
exceed 8 cups (64 ounces). As with the blenders discussed above, their 
operation by minors under the age of 18 is prohibited under HO 10 when 
used to process meat.
    For these reasons, the Department does not agree with the YWN's 
understanding that the existing regulation prohibits 14- and 15-year-
olds from operating blenders that create ice cream desserts as the 
Department has previously opined that this equipment is a type of 
``milk shake blender'' which has long been permitted by Sec.  
570.34(a)(7) (old) and will continue to be permitted by Sec.  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 Sec.  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

[[Page 28410]]

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[deg] F, when presented in Sec.  570.34(a)(7) 
(old) and Sec.  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 [deg]F.''
    The Department has decided not to adopt the Council's 
recommendation to revise Reg. 3 to permit 14- and 15-year-olds to 
operate table top food processors and food mixers as no such proposal 
was contemplated by the NPRM and no data has been received that 
demonstrates that 14- and 15-year-olds can safely operate such 
equipment. The Department does, however, address the issue of older 
youth operating certain counter-top mixers later in this Final Rule 
with regard to HO 11.
    The Department does not accept the DOLWD's recommendation that Reg. 
3 be revised to permit 14- and 15-year-olds to operate certain weed-
eaters because of the potential for injury associated with the 
operation of such equipment. In fact, as discussed earlier, weed-eaters 
are among the equipment the Department is adding as an example of 
power-driven machinery such youth are prohibited from operating (see 
Sec.  570.33(e) (new)). The Department continues to be concerned about 
issues involving injuries to workers resulting from flying objects, 
burns, fuel safety, and improper ergonomics. In its Document 
5108, Weed Trimmers Can Throw Objects and Injure Eyes, the 
U.S. Consumer Product Safety Commission estimated that, in 1989, there 
were approximately 4,600 injuries associated with power lawn trimmers 
or edgers that required emergency room treatment. It reported that 
about one-third of those injuries were to the eye. Nor does the 
Department accept DOLWD's recommendation to allow 14- and 15-year-olds 
to operate certain residential-style clothes washers and dryers. Not 
only is the operation of such power-driven machinery prohibited by 
Sec.  570.33(b) (old) and Sec.  570.33(e) (new), the laundering of 
clothes and other materials generally constitutes a ``processing 
occupation'' which is prohibited under Sec.  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 Sec.  570.33 to repeat 
the statement contained in Sec.  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 
Sec.  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 Sec.  570.34(i)(new).
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) (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 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 anywhere outside the passenger compartment of the motor 
vehicle. Such youth may not ride in the bed of a pick-up truck, on the 
running board of a van, or on the bumper of a refuse truck. This 
interpretation dates back to at least the 1940 enactment of HO 2, which 
prohibits 16- and 17-year-olds from serving as outside helpers on motor 
vehicles.
    The Department does not interpret the helper prohibition as 
applying to 14- and 15-year-olds who simply ride inside a motor vehicle 
as passengers and, thus, Reg. 3 permits a 14- or 15-year-old, under 
certain circumstances, to ride inside the enclosed passenger 
compartment of a motor vehicle operated by a driver whose employment 
complies with the conditions specified in HO 2. For example, a minor 
may ride in a motor vehicle to reach another work site where he or she 
will perform work, to receive special training or instructions while 
riding, or to meet other employees or customers of the employer. While 
a 14- or 15-year old may be a passive passenger in a vehicle, that same 
minor is not permitted to ride in a motor vehicle when a significant 
reason for the minor being a passenger is for the purpose of performing 
work in connection with the transporting--or assisting in the 
transporting--of other persons or property. Such work would include, 
for example, delivering items to a customer or assisting passengers 
with the loading and unloading of their luggage in conjunction with the 
operation of an airport shuttle van. This interpretation comports with 
the provision of Sec.  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 Sec.  570.33(f) (new). The Department also proposed to revise 
Reg. 3 at Sec.  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 Sec.  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.

[[Page 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-year-olds with 
certain jobs because of the prohibition against loading materials into 
vehicles. The City specifically requested permission to allow such 
minors to load and unload, onto and from motor vehicles, the light, 
non-power-driven tools each youth would personally use as part of his 
or her employment. The Department carefully considered this request 
and, again using its prosecutorial discretion, decided that it would 
not assert a violation of the child labor provisions when 14- and 15-
year-old employees of state and local governments loaded and unloaded 
the light non-power-driven hand tools--such as rakes, hand-held 
clippers, and spades--that they personally use as part of their 
employment. The City was advised that this enforcement policy did not 
extend to other prohibited transportation-related work such as the 
loading or unloading of materials other than the light hand tools the 
minors may use on-the-job, such as trash or garbage, or power-driven 
equipment such as lawn mowers, edgers, and weed trimmers--the use of 
which by this age group is prohibited under Reg. 3.
    The Department proposed to revise Reg. 3 at new 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 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 Sec.  570.34(k) (new). The 
AFL-CIO supported the proposal as written. The CLC again stated that it 
did not have enough information to adequately comment on the proposal. 
The YWN agreed with this proposal with the added requirements that 
``[w]ritten permission from parent or legal guardian is required to 
permit employer to transport 14- and 15-year-olds and a copy of written 
permission must be maintained by employer'' and ``[a] minor cannot be 
abandoned at worksite without adult supervision.'' The DOLWD supported 
the proposal provided adequate safety provisions were in place. The 
DOLWD stated that ``[t]hese provisions would include that the vehicle 
shall not be running and must be properly secured with the wheels 
blocked during any loading and unloading operations.''
    After carefully considering all the comments, the Department has 
decided to adopt the proposal as originally written, with one 
modification and minor editorial changes. The Department noted in its 
2007 NPRM that it did not interpret the Reg. 3 helper prohibitions as 
applying to 14- and 15-year-olds who ride inside the enclosed passenger 
compartment of a motor vehicle when driven by a driver whose employment 
complies with HO 2 under specified conditions (see 72 FR 19343). The 
Department believes this long-standing important safety-affecting 
interpretation requiring compliance with HO 2 should be included in the 
regulatory language. In addition, the Department believes that the 
drivers of the vehicles transporting the young workers should, as 
recommended by the YWN, hold valid state drivers' licenses. 
Accordingly, the Department has added the following sentence at the end 
of Sec.  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 Sec.  570.52.
    While the Department appreciates the remaining safety-affecting 
recommendations made by the YWN, CLC, and DOLWD, it believes the 
provisions of the original proposal, when coupled with other existing 
state and federal provisions dealing with the safe operation of motor 
vehicles, will provide ample protections to young workers. In addition, 
when drafting the proposal regarding youth riding as passive passengers 
in motor vehicles, the Department looked for guidance for establishing 
the criteria regarding the use of seat belts or other safety 
restraining devices. The most recent guidance came from Congress with 
the enactment of The Drive for Teen Employment Act, Public Law 105-334, 
in 1998. This legislation added section 13(c)(6) to the FLSA, which 
permits 17-year-olds to perform certain limited on-the-job driving 
under very specific conditions. One such condition is that the vehicle 
be equipped with a seat belt for the driver and any passengers and that 
the young driver's employer has instructed the youth that the seat 
belts must be used when driving the vehicle. The Department believes by 
adopting in Reg. 3 the identical language contained in HO 2 (see Sec.  
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 (Sec.  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.

[[Page 28412]]

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 
Sec.  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 Sec.  
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 Sec.  570.34(i). Even though, under this rule, 14- and 
15-year-olds may only occasionally enter freezers momentarily to 
retrieve items (see Sec.  570.33(i) (new) and Sec.  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 Sec.  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, Sec.  
570.33 is a non-exhaustive list that only sets forth common examples of 
prohibited occupations.
4. Youth Peddling
    The Department proposed to amend Reg. 3 and create 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''