On November 22, 2002, the Administrator appealed the ALJ's decision to this Board. Although it replied to the Administrator's petition, FFI did not appeal the ALJ's findings.

    We consider (1) whether the Company's arguments that this case is moot and that use of the penalty multiplier is inappropriate are properly before this Board; and (2) whether the ALJ erred in reducing by twenty-five per cent the civil money penalty assessed against FFI.

   The Secretary has delegated to the Administrative Review Board the authority and responsibility to act for her in civil money penalty cases arising under the child labor provisions of the FLSA. Secretary's Order No. 1-2002, 67 Fed. Reg. 64272 (Oct. 17, 2002); see 29 U.S.C.A. § 216(e). The Board has jurisdiction, inter alia, to hear and decide appeals taken from the ALJ's decisions and orders. 29 C.F.R. § 580.13.

    Section 16(e) requires that administrative hearings in cases involving civil money penalties for violations of the child labor provisions be conducted in accordance with Section 554 of the Administrative Procedure Act (APA). 5 U.S.C.A. § 554 (West 1996). See 29 U.S.C.A. § 216(e). Section 557(b) of the APA states, in pertinent part, that "[o]n appeal from or review of the initial decision, the agency has all the powers which it would have in making the initial decision . . . ." 5 U.S.C.A. § 557(b). Thus, the Board has the authority to review the ALJ's decision under a de novo standard. 5 U.S.C.A. §§ 554, 557; see Administrator v. Sizzler Family Steakhouse, 90-CLA-35, slip op. at 4 (Sec'y 1995).

   Section 12 of the FLSA provides that covered employers may not employ children under "oppressive child labor" conditions. 29 U.S.C.A. § 212(c). The Act defines "oppressive child labor" as including, for minors under the age of 18, "any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous" to such children or "detrimental to their health or well-being." The Secretary has promulgated Hazardous Occupation Orders that prohibit or strictly regulate certain activities by employed minors between the ages of 16 and 18. See 29 C.F.R. Part 570, Subpart E. The applicable regulation in this case is Hazardous Occupation Order No. 7, 29 C.F.R. § 570.58, which prohibits the use of forklift trucks. In addition, the Secretary has also prohibited specifically the employment of minors under the age of 16 in a workplace where goods are being processed. See 29 C.F.R. § 570.33(a). The ALJ affirmed the Administrator's findings that FFI had violated these and other portions of the child labor provisions of the FLSA, and therefore, the issue on appeal to this Board involves only the ALJ's reduction in the amount of the civil money penalty assessed against the Company.

   I. FFI's arguments that this case is moot and that use of the penalty multiplier is inappropriate are not properly before this Board.

    FFI failed to appeal the ALJ's decision to this Board, but it nonetheless requests that the Board address two issues. First, it argues that the Administrator's assessment of civil money penalties is moot because the Administrator failed to "commence an action to enforce the penalties" within two years of October 20, 2000, the date of Joseph Marzullo's death. Resp. Reply Brief at 7-8. Second, the Company argues that the ALJ erred by approving a broad definition of the term "similarly employed." The Company is mistaken.

   First, FFI failed to petition this Board for review of the ALJ's decision and instead raised the two issues in its brief in reply to the Administrator's petition for review. The ARB generally does not consider issues raised for the first time on appeal. Bauer v. United States Enrichment Corp., ARB No. 01-056, ALJ No. 2001-ERA-9, slip op. at n.3 (ARB May 30, 2003); Thomas and Sons Building Contractors, Inc., ARB No. 98-164, ALJ No. 1996-DBA-33 (ARB Oct. 19, 1999). In the instant case, FFI has clearly failed to file a cross-petition in which to raise these two arguments. Therefore, we decline to consider these newly raised arguments.

   Even if these arguments were properly presented in a petition for review, they would still fail. The Portal-to-Portal Act, which the Company argues rules this action, is applicable "to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act." (Emphasis added). 29 U.S.C.A. § 255(a) (West 1998). As the instant action is not one for unpaid minimum wages, unpaid overtime compensation or liquidated damages, the Portal-to-Portal Act by its own language does not apply. See generally 29 U.S.C.A. § 216(b). Furthermore, the Board has consistently held that the limitations in the Portal-to-Portal Act are not applicable to administrative proceedings such as this. Cody-Zeigler v. Administrator, ARB Case Nos. 01-014, 01-015, ALJ No. 97-DBA-17, slip op. at 32 (ARB Dec. 19, 2003). See also Unexcelled Chemical Corp. v. United States, 345 U.S. 59, 64 (1953).

   Second, FFI objects to the ALJ's application of the "similarly employed" element in the penalty calculation. Specifically, FFI argues that the ALJ erred by including as "similarly employed" all minors employed during the investigation period. Without citation to authority, the Company insists that only the two minors employed on October 20, 2000, the day Mr. Marzullo died in the forklift accident, are "similarly employed." Resp. Reply Br. at 12. FFI is in error.

    Consistent with our case precedent, the ALJ correctly found that all minors who drove the forklift truck during the two-year investigation period were exposed to the same hazard as Mr. Marzullo and correctly enhanced the assessed penalty for each such minor. R. D. & O. at 16.

   II. The ALJ erred in reducing by twenty-five per cent the civil money penalty assessed against FFI.

   In a timely filed petition for appeal, the Administrator argued that the facts of this case warrant the maximum penalty and that the ALJ erred in reducing the penalty amount.

    Under Section 16(e) of the FLSA, an employer who violates the child labor provisions shall be subject to civil money penalties for each minor employed in violation of the statute or the regulations. 29 U.S.C.A. § 216(e). The maximum penalty for each employee is $10,000. Id. In determining the amount of the civil money penalty, "the appropriateness of [the] penalty to the size of the business of the person charged and the gravity of the violation shall be considered." Id. The regulation lists several factors to be considered in weighing the "appropriateness" of the penalty in relation to both the size of the business and the gravity of the violation:

With regard to the size of the business, one should take into account the number of persons employed, the dollar volume of sales or business done, the amount of capital investment and financial resources, and such other information as may be available relative to the size of the business.

29 C.F.R. § 579.5(b).

With regard to the gravity of the violation, one should take into account, any history of prior violations; any evidence of willfulness or failure to take reasonable precautions to avoid violations; the number of minors illegally employed; the age of minors so employed and records of required proof of age; the occupations in which the minors were so employed; exposure of such minors to hazards and any resultant injury to such minors; the duration of such illegal employment; and, as appropriate, the hours of the day and whether such employment was during or outside school hours.

29 C.F.R. § 579.5(c). Using these factors, we analyze the "appropriateness" of the civil money penalty.

    The Company failed to take reasonable precautions to protect the minors. In addition to permitting the youngsters to use the forklift, FFI failed to take the precaution of training them in its safe use. The Company stipulated that none of FFI's employees were given formal safety training on the use of the forklift. Tr. at 184-185. Typically, the children were shown how to use the machine by another child. Tr. at 162-165. Furthermore, although the managers observed minors driving the forklift truck, none of them bothered to instruct, let alone require, the children to use the forklift seatbelt. Tr. at 104-106, 970-971.

   Based on our analysis of the relevant factors regarding the size of FFI and the gravity of the violations, we conclude that FFI is not a small company and that the gravity of the violations is such that no reduction in the penalty is appropriate.

    Furthermore, the behavior of Michael Graffeo at the time of the first visit by the investigator did little to boost our view of his trustworthiness. Initially, Michael Graffeo told the investigator that Sean Donovan, who was the co-worker and best friend of Joseph Marzullo and who was at the scene when the accident occurred, told Graffeo that, on the day of the accident, "Joe was speeding and burning rubber on the forklift in the alley." Resp. Exh. 9 at 3. On the stand, Sean Donovan denied both that Joe was fooling around on the forklift on the day of the accident, and that he had ever told Michael Graffeo that Joe had been. Tr. at 192.

   At this same interview, Michael Graffeo also told the investigator that he was "not aware of any minor operating the forklift" Resp. Exh. 9 at 3. At the hearing, however, Mr. Graffeo reversed his story and testified about the cleaner's daily use of the forklift to put the trash pallet on the trucks and the "rare" occasion when these minors used the forklift to load or unload buckets of fish. Tr. at 73-75.

    Finally, Michael Graffeo failed to tell the investigator the complete truth. When, at the initial visit by the investigator, he was asked how many underage employees FFI had hired during the two-year investigation period, and he answered, "we've only employed five minors in the last two years." Resp. Exh. 9 at 3. In fact, FFI had hired 31 minors during that period. Id.

    We do not believe that the ALJ gave sufficient attention to the above examples of FFI's behavior to get an accurate picture of the Company. The ALJ found that FFI was not officially charged with concealment, and that Michael Graffeo was "completely cooperative and forthcoming at the hearing." R. D. &. O. at 20. We do not refute these findings but believe that our analysis provides a clearer picture of the Company, and this picture does not tempt us to reduce the penalty. We find that reducing the penalty assessed against FFI is not appropriate and reverse the ALJ's twenty-five per cent penalty reduction. Accordingly, we reinstate the assessment of a civil money penalty against FFI for its child labor provision violations in the amount of $132,575.

   >For the foregoing reasons, we REVERSE the ALJ's twenty-five per cent reduction of the civil money penalty. Fisherman's Fleet d/b/a Maplewood Fish Market is ORDERED to pay a civil money penalty of $132,575.

   SO ORDERED.

      WAYNE C. BEYER
      Administrative Appeals Judge

       M. CYNTHIA DOUGLASS
       Chief Administrative Appeals Judge