Child Labor [12/16/2004]
Volume 69, Number 241, Page 75381-75406
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Part II
Department of Labor
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Employment and Standards Administration
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Wage and Hour Division
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29 CFR Parts 570, 579, and 580
Child Labor Regulations, Orders and Statements of Interpretation; Child
Labor Violations--Civil Money Penalties; Final Rule
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DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Parts 570, 579, and 580
RIN 1215-AA09
Child Labor Regulations, Orders and Statements of Interpretation;
Child Labor Violations--Civil Money Penalties
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Final rule.
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SUMMARY: This document revises the child labor regulations in order to
implement two amendments of the Fair Labor Standards Act's child labor
standards--the Compactors and Balers Safety Standards Modernization
Act, (August 6, 1996) (The Compactor and Baler Act); and the Drive for
Teen Employment Act, (October 31, 1998). This document also revises
procedural regulations dealing with administrative hearings and appeals
of civil money penalties.
The Compactor and Baler Act sets conditions which permit 16- and
17-year-old workers to load, but not operate or unload, certain scrap
paper balers and paper box compactors. The Act also specifies that
civil money penalties may be assessed for violations of these
conditions. This document also revises the regulation to implement the
provisions of this Act. The Drive for Teen Employment Act prohibits
minors under 17 years of age from driving automobiles and trucks on
public roadways on the job, and establishes the conditions and criteria
under which 17-year-olds may drive automobiles and trucks on public
roadways on the job. The regulation is also revised to implement the
provisions of this Act.
A regulation concerning government-issued Certificates of Age is
also being revised. Prior to this Final Rule, the regulation required
that the employer return the certificate to the issuing agency when the
employee left employment, except that a certificate issued for
employment in agriculture may be given to the named minor at
termination of employment and a certificate issued to an 18- or 19-
year-old shall be given to the named worker at termination of
employment. This revision modifies the regulation to direct the
employer to give the certificates to the employees when their
employment ends.
Further, the Department is revising the regulation regarding the
types of cooking and cooking-related duties that 14- and 15-year-olds
may perform. The Department is updating the regulation to modify a
long-standing Department of Labor (DOL) interpretation of this child
labor standard.
Finally, this document revises certain other provisions which
proscribe certain hazardous employment for 16- and 17-year-olds. Prior
to this revision, the regulation prohibited these minors from working
in roofing operations. The Department has revised the regulation to
also prohibit all work on or about roofs. In addition, the Department
has revised the regulation to update the definition of the terms
explosives and articles containing explosive components in the
prohibition on employment of minors in establishments which manufacture
or store explosives.
DATES: Effective Dates: This rule is effective February 14, 2005. The
incorporation by reference of American National Standards Institute
standards in the regulations is approved by the Director of the Federal
Register as of February 14, 2005.
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 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 1-877-889-5627 to obtain information
or request materials in alternative formats.
Questions of interpretation and/or enforcement of final 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
1-866-4USWAGE (1-866-487-9243) between 8 a.m. and 5 p.m. in your local
time zone, or log onto the Wage and Hour Division's website for a
nationwide listing of Wage and Hour District and Area Offices at:
http://www.dol.gov/esa/contacts/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. 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 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 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 either on an industry
basis, specifying the occupations in the industry that are prohibited,
or on an occupational basis, irrespective of the industry in which
performed. The seventeen HOs were adopted individually during the
period of 1939 through 1963.
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 correlate school and work experiences, the Department has long been
reviewing the criteria for permissible child labor employment. In this
review, the
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Department published a Proposed Rule in 1982, a Final Rule in 1991,
both an Advance Notice of Proposed Rulemaking and a Proposed Rule in
1994, a Final Rule in 1995, and a Notice of Proposed Rulemaking in
1999.
On July 16, 1982, a Proposed Rule 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 Proposed Rule generated considerable
public interest and controversy, most having to do with 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 (50 FR 17434, April 29, 1985; DOL's
Semiannual Regulatory Agenda).
The Department continued to receive communications from the public
suggesting 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. A Proposed
Rule was published 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,
in an effort to accumulate data concerning all aspects of the
provisions, published both a Notice of Proposed Rulemaking (NPRM) (59
FR 25164) and an Advance Notice of Proposed Rulemaking (ANPRM) (59 FR
25167) on May 13, 1994.
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.
Twice in the last eight years, Congress has amended the child labor
provisions of the FLSA. The Compactors and Balers Safety Standards
Modernization Act, Public Law 104-174 (Compactor and Baler Act), was
signed by the President on August 6, 1996. This legislation adds a
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 if certain requirements are met. The Drive for
Teen Employment Act, Public Law 105-334, was signed by the President on
October 31, 1998. This legislation adds a 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 published a Notice of Proposed Rulemaking in the
Federal Register on November 30, 1999 (64 FR 67130), inviting comments
until January 31, 2000, on revisions of regulations to implement the
recent legislation and to update certain regulatory standards. The
Compactor and Baler Act affects 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 affects 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.
II. Summary of Comments
A total of 16 comments were received in response to the notice--
from trade and professional associations, advocacy organizations,
private consultants, an employer, a State department of labor, a State
department of education, and one Federal agency (the National Institute
for Occupational Safety and Health (NIOSH)). The sole employer
responding restricted his comments to recommending changes to Hazardous
Occupations Order No. 8 (Occupations involved in the operations of
power-driven metal forming, punching, and shearing machines), a subject
not raised by the Proposed Rule. The New Jersey Department of Labor
limited its comments to commending the Secretary's concern for the
safety of minors and advising her that the proposed rule would in no
way impede in the enforcement of New Jersey's child labor laws. A
consultant with the Ohio Department of Education reported that a
committee of teachers of Career Based Intervention Programs agreed with
all the proposals with the assumption that the Department would
continue to grant variances to WECEP participants as it has done in the
past.
In July of 2002, NIOSH disseminated its report entitled National
Institute for Occupational Safety and Health Recommendations to the
U.S. Department of Labor for Changes to Hazardous Orders. The report,
which makes many recommendations, also repeats the comments NIOSH
submitted in response to the NPRM which are discussed later in this
document. Since receiving the NIOSH report, the Department has been
conducting 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 to employment opportunities for youth with the necessary and
most effective safety protections.
A. Certificates of Age (29 CFR 570.5-.27)
Section 3(l) of the FLSA provides an affirmative defense against
the citation of child labor violations for employers who ``have on file
an unexpired
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certificate issued and held pursuant to regulations of the Secretary of
Labor certifying that such [employee] is above the oppressive child
labor age'' (29 U.S.C. 203(l)). The use of such certificates is not
mandatory under the FLSA. The Department's regulations, at 29 CFR
570.5-.27, set out the procedures for application, issuance, retention
and disposition of certificates of age. The regulations authorize the
issuance of certificates by most of the States as well as by the Wage
and Hour Division. Most certificates are, in fact, requested from and
issued by the States.
Section 570.6(b), prior to this Final Rule, directed the employer
to return the certificate to the issuing authority when the named
worker's employment terminated, except that a certificate issued for
employment in agriculture could be given to the worker and a
certificate issued to an 18- or 19-year-old was to be given to the
worker. The Department proposed to revise Sec. 570.6(b) to specify
that the worker's certificate issued by DOL be given to him/her when
employment ends, regardless of the worker's age or type of employment.
The youth could then provide the certificate to any future employer(s).
This regulatory amendment, suggested by the Office of Management and
Budget, would preclude unneeded repetition of the certification process
and reduce paperwork burdens on employers.
The Department received two comments on this proposal. A consultant
with the Ohio Department of Education's Career Based Intervention
Programs commented that when the responsibility of providing the age
certificate to the new employer is delegated to the minor, the
certificate may not actually get to the new employer in many cases. The
Department believes that young workers will be cooperative with
prospective employers in providing employment-related information. The
National Grocers Association (NGA) recommended that the proposal be
expanded to include certificates issued by State governments as well.
Although the Department encourages States to adopt similar rules
regarding the disposition of age certificates, it is left to the
individual States to establish rules regarding the disposition of the
certificates they issue. This portion of the proposal is adopted as a
Final Rule.
B. Reg. 3 Occupations: Cooking (29 CFR 570.34)
Reg. 3 established restrictions on the type of cooking and cooking-
related work which 14- and 15-year-olds may perform as employees of
retail, food service, and gasoline service establishments. At Sec.
570.34(b)(5), the regulation prohibits these minors from ``cooking
(except at soda fountains, lunch counters, snack bars, or cafeteria
serving counters) and baking.'' Under Sec. 570.34(a)(7), however, 14-
and 15-year-olds are permitted to perform ``kitchen work and other work
involved in preparing and serving food and beverages, including the
operation of machines and devices used in the performance of such work,
such as but not limited to, dish-washers, toasters, dumbwaiters,
popcorn poppers, milkshake blenders, and coffee grinders.''
These regulatory standards were added to Reg. 3 after the 1961 FLSA
amendments which extended the FLSA's coverage to include certain
enterprises engaged in commerce or in the production of goods for
commerce. The Act's child labor provisions became applicable to
additional areas of employment in retail, food service, and gasoline
service establishments. The regulations were the Department's response
to the challenge of identifying those food preparation activities which
14- and 15-year-olds could safely perform without interfering with
their schooling, health or well-being.
In establishing these standards, the Department recognized that
some forms of cooking were not appropriate for persons under 16 years
of age. Lifting large containers of hot materials, working over a hot
stove for long periods of time, cooking over an open flame or with
equipment that utilize extremely high temperatures, and operating
pressure cookers were all considered too dangerous for young workers.
On the other hand, preparing an occasional hamburger or grilled cheese
sandwich or performing simple cooking functions like those which minors
safely might do in their own homes did not seem to place young workers
at risk. The Department determined that the type of cooking performed
at a snack bar or soda fountain, where the worker would not only take
the customer's order but also prepare and serve the light fare, did not
pose serious risks to the minor's health or well-being. The work was
not strenuous, did not require continuous cooking at a stove or range,
and did not require the minor to use complicated or dangerous
equipment.
The Department's promulgation and interpretation of the Reg. 3
standards were based, to some extent, upon a factor common to snack
bars and soda fountains--namely, that the cooking performed in such
food service operations was performed ``in plain view'' of the
customer. This factor, in and of itself, did not make the activity
safer, but it did tend to limit the scope of the cooking to activities
that were relatively free of risk. By limiting cooking work to soda
fountains and snack bars, Reg. 3 barred the ``heavy duty'' and more
strenuous types of cooking performed in full-service restaurants, while
permitting other, less strenuous types of ``light'' cooking. Over a
period of time in the l960's, the Department developed an ``in plain
view'' interpretation of the regulation, making the Reg. 3 standard
dependent upon whether the 14- and 15-year-olds are performing their
cooking duties within the customers' sight. Under this interpretation,
cooking performed ``in plain view'' would be permissible even if the
minor was not working at a traditional soda fountain or snack bar, and
cooking performed out of plain view (i.e., in the kitchen or behind a
partition) would not be permissible.
The snack bars and soda fountains upon which the Reg. 3 standards
were established have been largely, if not entirely, replaced by
different kinds of quick-service restaurants (also referred to as fast
food establishments) that evolved during the decades of the 1970's,
1980's and 1990's. In recognition of the changing nature of the retail
food service industry, the Wage and Hour Division examined quick-
service restaurants in 1977 and conducted a survey of quick-service
restaurants in 1979 to determine what, if any, changes were needed in
the cooking prohibitions. Interested parties, including major quick-
service restaurant chains, organized labor, and child labor advocates,
were consulted.
In 1982, the Department published a Proposed Rule (47 FR 31254)
which would have revised 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 they would be allowed to perform. Under
the proposal, all cooking would have been permitted except: cooking
with hot oils at temperatures over 140 [deg]F; cooking over an open
flame; and cooking involving the use of pressure cookers without proper
safety valves. The ``in plain view'' interpretation would no longer
have been applied. The Proposed Rule generated considerable public
interest and controversy, most having to do with the expansion of the
hours and times of employment standards. The Department subsequently
suspended the proposal from further consideration and no final rule was
implemented (50 FR 17434, April 29, 1985; DOL's Semiannual Regulatory
Agenda).
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The Department continued to receive communications from the public
suggesting that certain changes should be made to the regulations
concerning cooking. A general consensus seemed to develop that the ``in
plain view'' interpretation no longer served as an important safety
standard as it did in the 1960's, because the activities involved were
no longer limited to ``light'' cooking. Further, the general view
appeared to be that the interpretation did not provide sufficient
guidance to employers, parents, and working teens. The proscription of
tasks mainly on the basis of place of performance complicated the
regulation and led to confusion. For example, in one quick-service
restaurant, 14- and 15-year-olds may perform most cooking jobs because
all cooking is performed in the plain view of the customers; but at
another food service establishment, those minors would not be able to
perform the identical functions because all cooking is done in a closed
kitchen away from the customer's view. Complications may also exist
within a single establishment when some cooking equipment is placed so
customers may view the cooking operation and additional pieces of the
same equipment are placed outside of the customer's line of sight.
The Department recognized the need to review and update the Reg. 3
standards. New generations of cooking devices have been introduced
since the cooking regulation was published in the 1960s, including
microwaves, automatic cooking machines and systems, and computerized
equipment and systems. Any proposed changes to the cooking
prohibitions--to take into account all of these changes in the food
service industry--must carefully consider the safety risks to young
workers.
In an effort to accumulate data concerning all aspects of the child
labor provisions, the Department in 1994 published an Advance Notice of
Proposed Rulemaking (ANPRM) (59 FR 25167). The ANPRM requested public
comment on many aspects of the child labor provisions, specifically
including the Reg. 3 cooking standards. The Department received
numerous and diverse comments on this matter.
The Department carefully considered all the comments and materials
received, and reviewed the Reg. 3 standards, to develop the Proposed
Rule which was published on November 30, 1999. Recognizing the delicate
balance between the value of jobs that provide positive, formative
experiences and the negative effects that the wrong type of jobs can
have on the health and well-being of young workers, the Department
preliminarily concluded that the regulations should be revised so that
14- and 15-year-olds may perform a limited number of cooking
activities--i.e., only those that are safe and appropriate for their
age group. The Department believed that this regulatory revision could
be accomplished without negatively impacting employment opportunities
for young workers.
The Department proposed to eliminate the ``in plain view''
interpretation and establish standards for cooking duties which it
believed to be safe and appropriate for these minors regardless of
where the cooking is performed within the food service establishment.
The proposed standards would prohibit 14- and 15-year-olds from any
cooking except cooking with electric or gas grilles which does not
involve cooking over an open flame, and using deep fat fryers which are
equipped with and utilize, during the frying process, devices which
automatically raise and lower the ``baskets,'' but not pressurized
fryers. The proposal also would permit 14- and 15-year-olds to clean,
maintain (including the changing, cleaning, and disposing of oil or
grease and oil or grease filters) and repair cooking devices (other
than power-driven equipment) when the surfaces of the equipment or
liquids do not exceed a temperature of 140 [deg]F. The proposal would,
thus, prohibit 14- and 15-year-olds from performing any of the
following duties when the minor would be exposed to or working with
liquid or equipment surfaces which exceed a temperature of 140 [deg]F:
cleaning equipment such as grilles, deep fat fryers, and steam tables;
removing grease filters; filtering grease or oil; and lifting, moving
or carrying receptacles or containers of hot grease or oil. This ban on
carrying or working with hot oil would apply regardless of the type of
oil.
The Department proposed to continue the current interpretation of
Reg. 3 as banning 14- and 15-year-olds from using such equipment as
rotisseries, pressurized equipment including fryolators, and cooking
devices that operate at extremely high temperatures such as ``Neico
broilers.'' The Department also proposed to continue its long-standing
interpretation of the regulation as permitting these minors to operate
microwave ovens that are used only to warm prepared food and do not
have the capacity to warm above 140 [deg]F, and to use, dispense, and
serve food from warmers, steam tables, and other warming devices (even
if the temperatures exceed 140 [deg]F). Further, the proposal preserved
the current Reg. 3 provision allowing these minors to perform kitchen
work and other work to prepare and serve food and beverages, including
operating certain machines used in performing such work.
Additionally, the Department proposed to continue the ban on all
baking activities by those under 16 years of age. These minors would
still be prohibited from performing all jobs that are part of the
baking process, such as weighing and mixing ingredients; placing or
assembling products in pans or on trays; operating ovens, including
convection ovens, microwave ovens (except those used for warming food
as described above), pizza ovens, and automatic feeding ovens; removing
items from ovens; placing items on cooling trays; and finishing baked
products. This ban on baking tasks exists because of the dangers to
young workers in activities such as lifting heavy bags of ingredients,
filling hot pans, moving hot pans and trays into and out of ovens,
emptying hot pans and trays, having clothing or fingers entangled in
conveyors or other mechanisms, and operating power-driven equipment.
Although the proposal continued the ban on all baking activities by
those under 16 years of age, the Department requested evidence
regarding whether certain activities would be safe for 14- and 15-year-
olds to perform in the baking process in retail establishments, and if
so, whether consideration should be given to modifying the ban on the
baking process performed in retail establishments by 14- and 15-year-
olds. Specifically, the Department sought evidence and comments on
whether such youths should be permitted to perform certain prescribed
activities such as measuring and weighing ingredients and finishing
baked goods, provided that operation of power-driven equipment is not
performed. As a result of recommendations submitted by NIOSH in
response to the 1994 ANPRM, the Department also sought evidence and
comments as to whether, if the Department does amend the rules to allow
certain baking activities to be performed, there should be a weight
limit, such as 10 pounds, for jobs requiring lifting by 14- and 15-year
olds.
Finally, the proposal preserved the current Reg. 3 process whereby
State agencies operating approved Work Experience and Career
Exploration Programs (WECEPs) (in which students are closely supervised
and receive safety instruction) may seek variances from the Department
to authorize students to cook and to perform certain jobs that would
otherwise be banned.
[[Page 75386]]
Ten comments were received in response to these proposals. The
commenters were unanimous in supporting the elimination of the ``in
plain view'' standard, although they disagreed concerning the standards
which had been proposed to replace it. NIOSH recommended that the ``in
plain view'' interpretation be withdrawn; this position was endorsed by
the American Federation of Labor and Congress of Industrial Relations
(AFL-CIO), the United Food and Commercial Workers International Union
(UFCW), and the Child Labor Coalition of the National Consumers League
(CLC). However, each of these commenters took issue with particular
aspects of the proposed standards. NIOSH noted that, when it had
commented on the Department's 1994 ANPRM, it had ``recommended that all
cooking and working in proximity to cooking appliances should be a
prohibited activity for youths under 16 years of age, regardless of
whether the cooking was within `plain view' of the customer.'' But in
commenting on the Proposed Rule, NIOSH endorsed the elimination of the
``in plain view'' standard while supporting some of the proposals
concerning permissible activities in food service employment. NIOSH
stated that it ``appreciates and concurs with DOL's intent [in the
Proposed Rule] to permit 14- and 15-year-olds to conduct safe and
appropriate work activities, including those associated with cooking,
while prohibiting them from performing more hazardous activities.'' The
NIOSH comment included copies of several reports and publications
concerning occupational injuries including injuries in food service
establishments. The National Restaurant Association (Association), the
National Child Labor Committee (NCLC), and the National Council of
Chain Restaurants (Council) commented that the ``in plain view''
standard is no longer appropriate and should be eliminated. The
Association approved of the `` `common sense' approach'' taken in the
Proposed Rule, and stated that ``[t]he current interpretation is a
product of a bygone era and is not practical in most restaurant
settings. * * * the Association supports the proposal to eliminate the
`in plain view' interpretation while allowing limited cooking and
cleaning of cooking devices.'' The Council pointed out that ``the
restaurant industry provides a tremendous number of entry level
positions that are often the ideal `first' jobs for teenage individuals
seeking part-time employment, but who otherwise have little or no job
skills to offer employers. * * * any expansion of the child labor
restrictions in a manner that is not directly necessary to the safety
and well-being of teenage employees will only serve to eliminate entry
level job opportunities for young individuals that otherwise may have
little experience to offer employers.''
The commenters expressed differing views with regard to the
proposal to allow 14- and 15-year-olds to cook with electric and gas
grills that do not involve cooking over an open flame and with deep
fryers which are equipped with and utilize devices which automatically
raise and lower the baskets.
Several commenters opposed the proposal. NIOSH stated that cooking
appliances, such as grills and deep fryers, are associated with serious
occupational burns among youth caused not only by cooking but also by
the worker coming into contact with hot surfaces or hot grease as a
result of slipping, or falling, or being in close enough proximity to
food that is ``popping'' as it cooks. NIOSH also commented that
limiting the use of fryers to only those which automatically raise and
lower cooking baskets may reduce the risk of injuries, but the
limitation would not prevent all burn injuries associated with fryers.
The CLC, the AFL-CIO, and the UFCW cited data provided by NIOSH and
expressed concerns about the risks associated with the high
temperatures at which grills and fryers operate. With regard to the use
of deep fat fryers equipped with devices that automatically raise and
lower the baskets, the UFCW questioned whether such devices are
effective in assuring safety; and the NCLC opposed allowing youths to
cook with such fryers because of the unreliability of such equipment
and a concern that supervisors of young workers would assign them to
operate equipment even though it did not comply with the restriction. A
Dallas based labor consultant recommended that the Department heed the
NIOSH and CLC recommendations.
The National Restaurant Association supported the proposal to allow
14- and 15-year-olds to cook with gas and electric grills that do not
involve cooking over an open flame; the Association did not comment
concerning the proposal pertaining to the use of deep fryers. The
National Council of Chain Restaurants supported the proposal regarding
cooking with gas and electric grills, and noted its assumption that the
proposal would allow these employees to operate ``automated broilers''
which cook chicken, hamburgers, and other foods without exposure to an
open flame. The Council recommended that the proposal regarding deep
fryers be modified, to permit these employees to cook with all fryers
including those not equipped with devices that automatically raise and
lower the baskets. The Council stated that such devices do not add to
operator safety and that ``the job of using a deep fryer is just as
safe for the operator regardless of whether the basket is lowered and
raised automatically or manually.'' The NCLC commented that, absent any
contrary-indicating injury data, it would appear that permitting the
use of electric and gas grills that do not include an open flame may
not contribute to a rise in teen occupational injuries; the NCLC stated
that should such data exist, promulgating this portion of the proposal
should be delayed until NIOSH could generate a study of teen
occupational injuries resulting from the use of such grills.
Only one commenter--NIOSH--addressed the proposal to continue the
Department's long-standing positions on several additional matters:
permitting 14- and 15-year-olds to operate microwave ovens that are
used only to warm prepared food and do not have the capacity to warm
above 140 [deg]F; permitting such minors to use, dispense, and serve
food from warmers, steam tables, and other warming devices (even if the
temperatures exceed 140 [deg]F); permitting them to perform kitchen
work and other work to prepare and serve food and beverages; and
banning them from using such equipment as rotisseries, pressurized
equipment including fryolators, and cooking devices that operate at
extremely high temperatures such as ``Neico broilers.'' On all of these
matters, NIOSH concurred with the Department's proposal.
The commenters expressed contradictory views with regard to the
proposal to allow 14- and 15-year-old workers to clean kitchen
equipment (not otherwise prohibited), remove oil or grease filters,
pour oil or grease through filters, and move receptacles containing hot
grease or hot oil, but only when the equipment, surfaces, containers
and liquids do not exceed a temperature of 140 [deg]F.
NIOSH did not oppose minors performing the named tasks, but did
object to establishing 140 [deg]F as the maximum temperature. Noting
that the Department had proposed this temperature because it had been
established as the minimum temperature at which a first-degree burn can
occur, NIOSH objected to the Department allowing youths performing
[[Page 75387]]
these clean-up tasks to be exposed to a temperature sufficient to cause
first-degree burns. The AFL-CIO, the UFCW, and the CLC expressed
similar concerns. Neither NIOSH nor any of the other commenters
suggested a temperature which, in their opinion, would be an acceptable
standard for the equipment or materials with which these youths would
be performing clean-up tasks. The AFL-CIO, the UFCW, and the CLC along
with the NCLC questioned the practicality of the proposal. These
commenters expressed doubt that the minors, their employers, and
enforcement officials would be able to determine when and if the
equipment, oil, or grease had cooled to the permissible temperature of
140 [deg]F, and the CLC inquired whether the Department could enforce
the standard ``short of a reported injury which indicates non-
compliance.'' The UFCW and the AFL-CIO expressed further concern about
the lack of training provided to adolescents in the quick-service
restaurant industry, as reported in a 1999 study by NIOSH.
The Education Development Center, Inc. (EDC) of Newton,
Massachusetts, took no position on the matter but submitted data and
incident reports from the Massachusetts Department of Public Health
regarding occupational injuries in restaurants and retail bakeries. The
EDC expressed the view that this information ``underscores the problem
of burn injuries among teen workers.'' Included in the information was
a reference to training materials prepared by the Educational
Foundation of the National Restaurant Association for its members,
Aware; Employee and Customer Safety. Manager's Manual, Preventing
Burns, 1997 (Inventory Code MG 525, ISBN: 1-883904-62-5. National
Safety Council Inventory Code: 15865-0600), which identified 100 [deg]F
as the appropriate temperature for oil or grease to be handled by
workers (adults or minors) for disposal.
The National Restaurant Association supported the proposal
concerning clean-up tasks, including the standard of a maximum
allowable temperature of 140 [deg]F for equipment and materials to be
handled by youths in such tasks. The National Council of Chain
Restaurants did not directly address the proposal concerning
permissible clean-up tasks and the maximum allowable temperature.
The Department received some general comments, but no detailed
information, in response to the Proposed Rule's request for data and
comments on baking activities. NIOSH and the UFCW recommended that the
Reg. 3 ban on all baking activities be maintained. The only comment
concerning a possible weight limitation came from the UFCW, which
recommended against establishing weight limitations on lifting by
minors, because a standard would be difficult to enforce and would not
work in practice. The Council of Chain Restaurants recommended that the
Department give consideration to relaxing the across-the-board
prohibition on baking when such functions are performed in a retail
restaurant setting, stating that such activities are ``generally
extremely safe'' for employees, including 14- and 15-year-olds. The
National Restaurant Association, while not addressing the issue of
identifying potentially permissible baking activities, offered to
conduct a survey of its membership to gather more detailed information
for the Department's consideration.
The Department has given careful consideration to all the views and
recommendations presented in the comments, and has examined all the
materials and authorities that were provided and/or cited by the
commenters. Based on this thorough evaluation, the Department has
concluded that the Proposed Rule concerning Reg. 3 cooking restrictions
will be made final with certain limited modifications as described
below.
With regard to the elimination of the ``in plain view''
interpretation, the Department has concluded that the proposed standard
should be adopted to replace the ``soda fountains, lunch counters,
snack bars'' regulatory language which had been the basis of that
interpretation. The Final Rule permits 14- and 15-year-olds to perform
only cooking tasks using electric or gas grills which do not have open
flames, and using deep fryers which are equipped with and utilize
devices that automatically lower and raise the baskets. This standard
allows all 14- and 15-year-olds to perform the kinds of cooking tasks
that many such workers have, for decades, been permitted to perform
under the ``lunch counter'' regulatory language (provided that these
tasks were performed ``in plain view'' of the customers). The
Department, therefore, does not view this standard as substantially
altering the nature of the Reg. 3 restriction, or as increasing the
exposure of individual youngsters to possible harm in their food
service establishment work sites. The standard provides more
consistency in protecting young workers' health and well-being, by
specifying the allowable cooking tasks without regard to the manner in
which work sites may be arranged by different employers (i.e., the
existence of a wall or a pass-though partition, which may vary from
worksite to worksite, will have no effect on whether a cooking task is
allowable). The standard provides more consistency for employers' child
labor compliance efforts and business operations, since all employers
will be held to the same rule on allowable cooking tasks regardless of
the appearance or arrangement of their worksites. The standard assures
the health and well-being of young workers by limiting their cooking
tasks to specific types of equipment (i.e., no open flames, no
manually-operated deep fryer baskets), but leaves opportunities for
employment in the food service establishments which have been--and will
continue to be--extremely important ``first job'' experiences for many
thousands of young workers. The Department is sensitive to the concerns
of commenters who recommended that 14- and 15-year-olds should no
longer be permitted to perform any cooking duties whatsoever, due to
the possibilities of accidents in the workplace. But the Department
believes that such a rule would be unnecessarily broad and that it
would be an unwarranted barrier to the personal development of youths
that benefit in many ways from positive, healthful work experiences in
food service establishments. The Department considers the Final Rule--
severely restricting the types of cooking duties that may be performed
by such minors--to be appropriate.
The Department seeks to forestall any confusion which might arise
from the comment of the Council of Chain Restaurants concerning this
portion of the Proposed Rule. The Council indicated that it viewed the
proposal to allow youths to cook with ``no open flame'' electric and
gas grills as permitting these workers to use a number of automated
broilers which are used to broil chicken, beef, and hamburgers as well
as toast bread and buns. The Department cautions that the proposal did
not alter the Department's long-standing position that cooking with
such broilers is prohibited. That position is expressly stated in the
Final Rule to prevent misunderstanding, as further discussed below. The
Council also recommended that 14- and 15-year-old employees be
permitted to cook with all deep fryers, including those not equipped
with devices that automatically raise and lower the baskets. The
Council stated that ``the job of using a deep fryer is just as safe for
the operator regardless of whether the basket is lowered and raised
automatically or manually.'' The Department considers both the use of
[[Page 75388]]
baskets and the automatic basket device to be important safety features
because they significantly restrict the young workers' likelihood of
contact with the hot oil or grease in the fryer. Therefore, the
Department cautions that 14- and 15-year-olds may not use deep fryers
that do not use baskets to contain the food product during frying, nor
may they use fryers that require the operator to manually lower or
raise the baskets. To assure that employers are fully informed, the
Final Rule expressly requires that deep fryers must utilize automatic
baskets in order for such employees to cook with them.
In connection with the proposal to continue several long-standing
Departmental positions concerning cooking and cooking-related
activities, the Department has concluded that the positions should be
continued in the Final Rule. As explained in the NPRM Preamble, these
positions ban 14- and 15-year-olds from using equipment such as
rotisseries, fryolators and ``Neico broilers,'' and permit them to use
certain microwave ovens, to use and serve foods from certain warming
devices, and to perform various food preparation and kitchen work. The
only commenter that addressed these positions--NIOSH--specifically
endorsed each of them. No commenter objected to any of the positions.
In light of the comment record, as well as the Department's enforcement
experience, we believe that it is appropriate to maintain all of these
positions. In addition, we believe that the text of Reg. 3 should be
modified to add clear statements of two of these standards that have,
heretofore, been interpretations of the existing regulatory provisions.
Having all of these standards expressly included in the regulation will
provide better guidance for employers and greater protections for young
workers. Consequently, the Final Rule contains all of these long-
established departmental standards.
With regard to the proposal that 14- and 15-year-olds be permitted
to perform certain clean-up functions on equipment and materials at a
temperature no higher than 140 [deg]F, the Department has concluded--
after review of the comments--that a modification in the maximum
allowable temperature is appropriate.
While the commenters did not object to the tasks that would be
permitted, most of the commenters objected to the maximum allowable
temperature of 140 [deg]F, the temperature at which a minor would be
exposed to a first-degree burn. Upon careful consideration, the
Department concurs with the views of the commenters and has concluded
that the regulation should set a temperature standard which would
substantially alleviate the potential for these young employees
receiving even a superficial burn when performing the authorized
cleaning, filtering and disposal activities. None of the commenters
suggested an alternative to the proposed maximum allowable temperature.
Therefore, the Department has looked to available data and industry
publications in order to identify the appropriate maximum allowable
temperature of 100 [deg]F.
The Department has reviewed the data presented in a 1990 article
entitled Recommended Maximum Temperatures for Touchable Surfaces
(Applied Ergonomics 1990, 21.1, 69-73), in which the author, H.
Siekman, demonstrates that there can be no single ``maximum temperature
for touchable surfaces'' below which burns can be avoided. The maximum
safe temperature varies with both the materials from which the surface
is made and the amount of time the skin stays in contact with the hot
surface. The article notes that the maximum safe touchable temperature
is attained at 140 [deg]F when contact is made for a period of 3-4
seconds with a smooth, uncoated metal surface or with water. The
maximum safe touchable temperature for these two same surfaces is
reached at 149 [deg]F when the contact lasts no more than one second.
Although the author did not determine the maximum safe touchable
temperature for oil or grease, the Occupational Safety and Health
Administration's Office of Occupational Medicine has advised us that
similar burns will occur from contact with oil or water when the
temperature and length of the exposures are the same for each liquid.
The Department has considered the safety guidelines for the food
service industry, published by the Educational Foundation of the
National Restaurant Association--Aware: Employee and Customer Safety.
Manager's Manual, Preventing Burns, 1997 (Inventory Code MG 525, ISBN:
1-883904-62-5. National Safety Council Inventory Code: 15865-0600).
These safety guidelines recommend that the oil from deep fryers be
cooled to 100 [deg]F prior to disposal (without differentiating when an
adult or a minor employee performs such tasks).
The Department has concluded that a maximum allowable temperature
of 100 [deg]F--for equipment surfaces as well as for oil and grease--
will significantly diminish the possibility of young workers suffering
burns while cleaning equipment and surfaces or while filtering and
disposing of cooking oil and grease.
The Department recognizes that compliance with this standard will
require vigilance by employers, whose managers and supervisors must
assure that equipment and materials have cooled to 100 [deg]F or less,
before young workers are allowed to undertake any clean-up tasks such
as washing the machines or removing or filtering the oil or grease.
This supervision may be exercised through the use of thermometers, and
through the imposition of cool-down waiting periods during which the
equipment is out of use while the temperature falls. The Department's
enforcement of this standard will use the investigative methods which
have consistently been used in the child labor program. As with other
child labor restrictions, the investigator would, of course, consider a
violation to be self-evident where there is an injury to a young worker
as a result of the specified activities (e.g., worker's hand burned by
oil that the worker was filtering or removing). As with other
restrictions, the investigator would also identify violations through
observations at the worksite and through interviews with workers (both
adults and minors) and supervisors, to obtain information concerning
the tasks performed by youths.
The ban on cleaning grilles that exceed a temperature of 100 [deg]F
would not prohibit 14- and 15-year-olds from performing the normal
grill ``maintenance'' that an employee routinely does during the actual
cooking process involving the use of water and a spatula to scrape away
and remove food particles and grease from the surface of the grill.
With regard to the Reg. 3 prohibition on all baking activities by
14- and 15-year-olds, the Department has concluded that no regulatory
modification will be undertaken at the present time. The comments
addressing this point were general statements of positions, either
opposed to any change in the existing regulation or in favor of a
relaxation of the existing prohibition. No specific information was
submitted. The National Restaurant Association offered to conduct a
survey of its members to obtain information and requested an extension
of the comment period for this purpose, but the Department concluded
that it would not be appropriate to further delay the rule making
procedure to provide time for this activity. The Department would
welcome any survey information that the Association may provide. The
matter of the Reg. 3 prohibition on
[[Page 75389]]
baking activities may be considered in future rule making.
The Proposed Rule did not contain provisions dealing with the
training of young workers. However, several commenters expressed
concerns that young workers fail to receive on-the-job training that is
crucial to protecting their health and well-being. The Department
recognizes the important roles that occupational safety education and
training--in the home, in the classroom, and on-the-job--play in
helping teens experience positive work experiences and in reducing
injuries to all workers. The Department encourages all those who can
positively impact the health and well-being of young workers to expand
their efforts in this important area of safety instruction.
C. Explosives and Articles Containing Explosive Materials (HO 1) (29
CFR 570.51)
Hazardous Occupations Order No. 1, originally issued in 1939,
greatly restricts the employment of minors in any establishment which
manufactures or stores explosives or articles containing explosive
components (e.g., plants that manufacture dynamite, fireworks, or
gunpowder). HO 1 also prohibits minors from handling and transporting
primers and blasting caps.
The regulation's definition of the crucial terms ``explosives and
articles containing explosive components'' has become, in part,
obsolete. The definition states that these terms ``mean and include
ammunition, black powder, blasting caps, fireworks, high explosives,
primers, smokeless powder, and all goods classified and defined as
explosives by the Interstate Commerce Commission in regulations for the
transportation of explosives and other dangerous substances by common
carriers * * * issued pursuant to the [Interstate Commerce Act] * * *
''. Congress abolished the Interstate Commerce Commission in 1995. The
HO 1 incorporation of ICC regulatory standards is, therefore, no longer
feasible and the Department proposed to revise the definition to
eliminate this ICC reference.
The Department considers it essential that the HO 1 definition of
``explosives and explosive components'' be as complete, clear, and
user-friendly as possible, so as to best serve the FLSA's purpose of
protecting young workers from hazards. Therefore, while preparing to
delete the incorporation of ICC standards, the Department sought an
alternate source of expertise in the identification of explosives and
explosive components. After careful consideration, the Department
concluded that the appropriate source of expertise is the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, Department of Justice
(ATF). Prior to the enactment of the Homeland Security Act of 2002, the
ATF was part of the Department of Treasury and was named the Bureau of
Alcohol, Tobacco and Firearms. Under statutory and regulatory mandates
(18 U.S.C. 841(d); 27 CFR 55.23), the Director of ATF must revise and
publish at least annually in the Federal Register a list of explosives
covered by the U.S. Code Title 18 provisions concerning importation,
manufacture, distribution and storage of explosive materials. The ATF
list, which covers explosives, blasting agents and detonators, is
intended to include any and all mixtures containing any of the
materials on the list. At the time of the publication of the Proposed
Rule, the most recent ATF list had been published in the Federal
Register on May 1, 1998 (63 FR 24207). The most recent list was
published in the Federal Register on March 31, 2004 (69 FR 16958). The
Department proposed to revise the HO 1 definition of ``explosives and
articles containing explosive components'' to include the materials
identified in the 1998 ATF list, and have it appear in an appendix to
the HO 1 subsection of the regulations. The Department pointed out
that, by comparing this alphabetical list of materials to the product
information for materials that are used or stored at the work site
(e.g., the list of contents found on the product package), employers
and other parties could readily determine whether any product or
material is an explosive or contains explosive components, so as to be
within the HO 1 prohibition.
Only two comments were received on this proposal. NIOSH recommended
that, as the ATF list is to be updated in the Federal Register
annually, the Department should reference the ``current'' list rather
than incorporate the 1998 list into the regulations. NIOSH also
recommended that the Department retain the more general terminology
(e.g., ammunition, fireworks, primers and smokeless powders) within the
text of HO 1 as these terms are not contained in the List of Explosive
Materials. The CLC supported the Department's referencing of the ATF
list of explosives but expressed a concern about the Department's
``enforcement of HO 1 protection when it comes to minors being employed
in the U. S. military.''
The Department has carefully considered these comments and
consulted with the ATF. The ATF has advised that the Department's
proposed definition of explosives and articles containing explosive
components is incomplete as it does not contain all the explosives
listed in 18 U.S.C. 841(c)-(f). The ATF noted that the proposed
definition, should, but does not, ``encompass any chemical compound,
mixture or device, the primary or common purpose of which is to
function by explosion'' as per 18 U.S.C. 841(d). The ATF also reminded
the Department that its annual list of explosive materials is not all-
inclusive and the fact that an explosive material is not on the list
does not mean that it falls outside of the coverage of the law if it
otherwise meets the statutory definitions in 18 U.S.C. 841. The ATF
also recommended, as did NIOSH, that the Department not publish the
annual list of explosives as an appendix of HO 1 but incorporate the
list in the HO by reference so as to ensure that the list is current
and to avoid the need for additional rulemaking each time the list is
revised. The ATF also recommended that the regulation refer the public
to the website where ATF publishes the list.
As explained above, the Department's intention in the Proposed Rule
was to provide the most complete, clear and user friendly regulation
possible, through the incorporation of the ATF list into the regulation
(as a complete, alphabetical list in Appendix A) rather than a mere
cross-reference to the ATF publication. Upon reconsideration, the
Department agrees with NIOSH and the ATF that these goals can be better
achieved by incorporating the ATF list of explosive materials into the
rule by reference and by providing the public with information as to
how to obtain the most current list. Accordingly, the HO 1 Appendix
presented in the Proposed Rule has been omitted.
The Department also agrees that greater clarity can be brought to
the definition of explosives and articles containing explosive
component by adopting ATF's recommendations to expand that definition
to include ``any chemical compound, mixture, or device the primary or
common purpose of which is to function by explosion'' and incorporate
the statement, as contained on the ATF list of explosive materials,
that the list is updated annually and not intended to be all-inclusive.
The Department believes that these changes serve to clarify the
proposed definition and are of such a nature that they can be
incorporated into the final rule without additional public comment.
Accordingly, the Department adopts the proposal as a Final Rule with
the modifications listed above.
The Department notes that, while the Proposed Rule contained a
detailed list
[[Page 75390]]
of particular materials in the Appendix, it did not propose to remove
the more general terminology of ammunition, black powder, blasting
caps, fireworks, high explosives, primers, and smokeless powder from
the HO 1 definition of the terms explosives and articles containing
explosive components. Therefore, the NIOSH concern about the regulatory
definition is accommodated through the adoption of the rule, as
proposed.
In response to the comments of the CLC concerning minors in
military service, the Department notes that the jurisdiction of the
FLSA--including its child labor provisions--does not extend to members
of the United States' armed forces.
D. Driving on Public Roads or Highways (HO 2) (29 CFR 570.52)
Hazardous Occupations Order No. 2, originally issued in 1940,
generally prohibits minors under 18 years of age from employment in the
occupations of motor-vehicle driver and outside helper on any public
road or highway; in or about any mine, logging or sawmilling
operations; or in any excavation covered by HO 17 (which includes
excavation in trenches, building construction, or tunnels; 29 CFR
570.68). The occupational dangers specifically identified by the
original HO 2 included the high degree of accident risk for persons of
any age in these occupations, the fact that 16- and 17-year-old drivers
experience a proportionately larger number of fatal accidents than
older drivers, and the fact that States placed numerous restrictions on
employees who perform as drivers and driver helpers.
HO 2 contains two limited exemptions to the prohibition on minors
driving on public roads and highways: ``incidental and occasional''
driving under certain restrictions; and school bus drivers for a
limited period under certain restrictions. The history of these two
exemptions was discussed in the Proposed Rule. The exemptions are
discussed separately below.
1. ``Incidental and occasional driving'' (Sec. 570.52(b)(1)).
HO 2 provides a limited exemption (Sec. 570.52(b)(1)) permitting
16- and 17-year-olds to drive automobiles and trucks on public roads
and highways on an ``incidental and occasional'' basis when all the
following criteria are met:
The automobile or truck being driven does not exceed 6,000
pounds gross vehicle weight;
The driving is restricted to daylight hours;
The minor holds a State driver's license valid for the
type of driving involved in the job performed and has completed a
State-approved driver education course; and
The vehicle is equipped with a seat belt or similar
restraining device for the driver and for each helper, and the employer
has instructed each minor that such belts or other devices must be
used.
The limited exemption is not applicable to any occupation of motor-
vehicle driver that involves towing a vehicle.
The term ``incidental and occasional''--while not defined in the
regulations--was for many years interpreted by the Department to mean
only driving that involves emergency-type situations or that happens at
rare intervals. Thus, the Department enforced the exemption as not
including driving which, even if only infrequent or sporadic, is an
integral part of the job. The Department's interpretation excluded from
the exemption any situations where a minor's employment requires
routine and regular driving, such as to deliver auto parts, make pizza
deliveries, or run errands.
The Department reviewed HO 2 in 1984 and concluded, based upon data
involving vehicle-related injuries and fatalities, that HO 2 should be
retained in its current form. The Department found that 16-year-olds
were involved in a disproportionate share of accidents and tended to be
responsible for fatal accidents more often than other drivers.
Seventeen-year-old drivers were the next most likely to be involved in
such accidents. Teenagers accounted for 8 percent of the population at
the time but sustained 17 percent of fatal injuries in automobile
accidents.
In 1987, concerned that some of the child labor regulations needed
updating, the Department created the Child Labor Advisory Committee
(CLAC), a committee whose mandate was to consider, among other things,
the appropriate scope of ``incidental and occasional'' driving in the
HO 2 exemption. In 1989, after careful consideration of HO 2, the CLAC
recommended clarification of the term ``incidental and occasional''
driving. The committee's recommendation, discussed below, was later
adopted with modifications and issued by the Department as
interpretative guidance.
In 1994, in its continuing effort to review its child labor
regulations, the Department published an Advance Notice of Proposed
Rulemaking (59 FR 25167) seeking the views of the public on possible
changes in the child labor regulations, including the Hazardous
Occupations Orders. Although HO 2 was not specifically mentioned in the
ANPRM, the Department received comments from various groups with
differing views of HO 2. For example, the National Automobile Dealers
Association (NADA), individual automobile dealerships, and florists
requested more flexibility in the Department's interpretation of
``incidental and occasional'' driving and urged a change in HO 2 to
permit minors to spend more time driving on the job. Child advocacy
groups, on the other hand, sought to further limit, or to abolish
completely, job-related teenage driving. The Child Labor Coalition, for
example, supported a definition of ``incidental and occasional'' which
permitted emergency-situation driving only. The Washington State Child
Labor Advisory Committee recommended a complete ban on teenagers
driving on-the-job.
As a result of comments received in response to the ANPRM, the
Department decided to review HO 2. In 1995, in order to clarify the
appropriate scope of ``incidental and occasional'' driving until
further rulemaking could be completed, the Wage and Hour Division
adopted the Child Labor Advisory Committee's 1989 recommended
interpretation. Under this Departmental interpretation of the
regulatory language, driving was deemed incidental if it was limited to
no more than 20% of the minor's work in any workday and did not exceed
5% of the minor's worktime in any workweek when performed. Driving was
deemed occasional if the minor drove on average no more than once in a
workweek and no more than four times in a calendar month. A ``single
episode'' of driving meant an occurrence when the employee was working
and operated a motor vehicle on behalf of the employer. Although the
Child Labor Advisory Committee also recommended that the HO 2 exception
should be permitted only for 17-year-olds, the Department did not
address this point because it was considered too substantive to be
adopted without rulemaking.
The Drive for Teen Employment Act (Pub. L. 105-334) was signed by
the President on October 31, 1998. The Act amended the FLSA by adding a
new subsection 13(c)(6). This provision prohibits employees under 17
years of age from performing any on-the-job driving of automobiles and
trucks on public roadways. It permits 17-year-old employees to drive
automobiles and trucks on public roadways only if such driving meets
all of the following conditions:
``(A) Such driving is restricted to daylight hours;
[[Page 75391]]
``(B) The employee holds a State license valid for the type of
driving involved in the job performed and has no records of any moving
violation at the time of hire;
``(C) The employee has successfully completed a State approved
driver education course;
``(D) The automobile or truck is equipped with a seat belt for the
driver and any passengers and the employee's employer has instructed
the employee that the seat belts must be used when driving the
automobile or truck;
``(E) The automobile or truck does not exceed 6,000 pounds of gross
vehicle weight;
``(F) Such driving does not include--
``(i) The towing of vehicles;
``(ii) Route deliveries or route sales;
``(iii) The transportation for hire of property, goods, or
passengers;
``(iv) Urgent, time-sensitive deliveries;
``(v) More than two trips away from the primary place of employment
in any single day for the purpose of delivering goods of the employee's
employer or to a customer (other than urgent, time-sensitive
deliveries);
``(vi) More than two trips away from the primary place of
employment in any single day for the purpose of transporting passengers
(other than employees of the employer);
``(vii) Transporting more than three passengers (including
employees of the employer); or
``(viii) Driving beyond a 30 mile radius from the employee's place
of employment; and
``(G) Such driving is only occasional and incidental to the
employee's employment.
``For purposes of subparagraph (G), the term ``occasional and
incidental'' is no more than one-third of an employee's worktime in any
workday and no more than 20 percent of an employee's worktime in any
workweek.''
While the Drive for Teen Employment Act affected the HO 2 exemption
for ``occasional and incidental'' driving, the Act did not affect any
other parts of HO 2, which continue to apply as it has since the
regulation's promulgation. The HO restrictions apply to driving on
public roadways and have no effect on driving of motor vehicles by 16-
and 17-year-old employees when performed exclusively on private
property (except in or about any mine, logging or sawmilling
operations, or any excavation covered by HO 17). The HO 2 prohibition
against the employment of 16- and 17-year-olds driving motor vehicles
on public roads other than cars and trucks--such as truck-tractors,
trailers, semitrailers, and motorcycles--remains the same. The HO 2
prohibition concerning the towing of any vehicle (whether such vehicle
is motorized or non-motorized) also remains the same. The HO 2
prohibition concerning the employment of 16- and 17-year-olds as
``outside helpers'' on motor vehicles is unchanged. The Act also leaves
unchanged the applicability of HO 2 regardless of the registration or
ownership of the vehicle being driven by the minor. Further, the Act
has no effect on the relationship between the FLSA, HO 2, and State
laws. Many States have laws setting standards for child labor and teen
drivers. When both Federal and State laws apply, the law setting the
more stringent standard must be observed.
The Department proposed to revise HO 2 to incorporate the
provisions of the Drive for Teen Employment Act and to provide guidance
regarding what constitutes ``urgent, time-sensitive deliveries.'' The
Department stated its view that such deliveries--prohibited by the
Act--would include trips which, because of such factors as customer
satisfaction, the rapid deterioration of the quality or change in
temperature of the product, and/or economic incentives, are subject to
time-lines, schedules, and/or turn-around times which might impel the
driver to hurry in the completion of the delivery. Such trips would
include, but are not limited to, the delivery of pizzas and prepared
foods to the customer; the delivery of materials under a deadline (such
as deposits to a bank at closing); and the shuttling of passengers to
and from transportation depots to meet transport schedules. ``Urgent,
time-sensitive deliveries'' would not depend on the delivery's points
of origin and termination, and would include the delivery of people and
things to the employer's place of business as well as from that
business to some other location.
The Department noted that the employer bears the burden of proving
compliance with several conditions contained in the Drive for Teen
Employment Act that must be met before a 17-year-old employee may drive
automobiles and trucks on public roadways in his/her job performance.
These conditions include: the employee must have a State license valid
for the type of driving being performed; the employee must have
successfully completed a State approved driver education course; and
the employee must have no records of any moving violations at the time
of hire. The Department did not propose to require that employers
create or maintain any records with regard to compliance with the Drive
for Teen Employment Act. The Department observed that, in order to
better protect themselves against unwitting violations of HO 2,
employers may wish to obtain, at the time of hire, sufficient
documentation from 17-year-old employees who will be expected to drive
on-the-job. This documentation could include such things as an age
certificate issued in accordance with the child labor regulations (29
CFR 570.5-.27), photocopies of the minor's driver license and his/her
certificate of completion or diploma issued by the State approved
driver education course, and correspondence from State or local
authorities and/or the minor's insurance company verifying that the
minor has no records of moving violations.
The Department also noted that the Drive for Teen Employment Act
limits the type and extent of driving a 17-year-old may perform on-the-
job. The Department did not propose to require that employers create or
maintain any records with regard to compliance with these provisions of
the Act. The Department observed, however, that in order to better
protect themselves against unwitting violations of these restrictions,
employers may wish to maintain logs to keep track of on-the-job driving
performed by 17-year-old employees. These logs could identify the
driver and show such things as the starting and stopping times of each
trip, the destination of each trip, the purpose of each trip, the
number of miles driven, the vehicle driven, and the number of
passengers riding in the vehicle.
Four comments were received on the proposal to revise HO 2.
NIOSH concurred with the Department's proposal to incorporate the
provisions of the Drive for Teen Employment Act in HO 2 and supported
the proposed standard regarding ``urgent and time-sensitive
deliveries.'' Though agreeing that requiring employers to create new
systems of records to document compliance with the revised HO 2 would
be unnecessarily prescriptive, NIOSH expressed the view that the
proposed guidance to employers--concerning possible records and driving
log information--would be helpful to them in their efforts to comply
with the law. NIOSH recommended that these suggestions and guidance
should be retained in the final rule.
The NCLC stated that it was ``disturbed by the extension of
commercial driving activities permitted for seventeen year olds'' but
did support the requirements that these drivers be properly licensed
and have no record of moving violations. The NCLC expressed concern as
to the enforceability of the proposed regulation, and stated that the
[[Page 75392]]
Department might be able to monitor and enforce compliance if the
Department's suggestions (concerning employer documentation of the
licensing and driving history of 17-year-olds, as well as logs
concerning the nature and extent of their driving) were made
requirements.
A Dallas-based labor consultant echoed the sentiments of the NCLC
and stated that the proposal--suggesting, but not requiring, possible
records--gave an incentive for the employer not to keep any records. He
recommended that the rule should require that adequate records be
maintained ``so that when an investigator checks for compliance it is
all documented.'' He also suggested that the rule should include a
requirement that 17-year-old drivers maintain safe driving records
while employed.
The National Automobile Dealers Association (NADA) commented on
three aspects of the proposal. First, NADA objected to the NPRM
Preamble statement that ``the employer bears the burden of proving
compliance'' with the Drive for Teen Employment Act; NADA suggested
that the statement should be that ``employers are responsible for
complying with the Act and with HO 2.'' Further, NADA objected to the
NPRM Preamble's ``list[ing] gratuitously a host of detailed
recordkeeping `suggestions.' '' NADA recommended that these suggestions
be deleted ``so as to avoid any conflict with the Act's intent or with
Paperwork Reduction and Regulatory Flexibility Acts requirements.''
Finally, NADA objected to the proposed definition of urgent, time
sensitive deliveries. While acknowledging that ``employers should not
require employee drivers, least of all teenagers, to drive under time
restraints that may result in speeding or otherwise compromise
safety,'' NADA stated that that the proposed definition ``can be read
to restrict an employer's ability to see that work responsibilities are
completed in a timely manner and without inappropriate delay.'' NADA
observed that ``[t]he fact is, younger workers often require extra
oversight regarding their work timeliness. Consequently, the * * *
definition should * * * distinguish between deliveries that are
prohibited because they necessarily call for haste or undue speed and
those that evidence responsible work habits.'' NADA did not suggest
alternative language.
The Department has fully considered these comments.
With regard to the employer's obligation to assure compliance, and
the NPRM Preamble suggestions as to methods by which the employer may
meet that obligation, the Department has concluded that the rule will
be issued as proposed and that the compliance suggestions (which were
not proposed for inclusion in the regulation) will not be withdrawn.
As pointed out by NADA, the employer bears the burden of complying
with the Drive for Teen Employment Act. An employer can permit a 17-
year-old employee to drive on public roads or highways in the course of
his/her job duties only through the ``incidental and occasional
driving'' exemption incorporated into the FLSA by the Drive for Teen
Employment Act. If the Department conducts an investigation, it will
follow its normal investigation procedures to determine if the employer
complied with child labor requirements, including the restrictions on
driving. If the Department finds a violation, it will be the employer's
burden--as it is for all statutory and regulatory exemptions--to
establish that it did not violate the driving restrictions. It is well
settled that an employer seeking to avail itself of any exemption to
FLSA provisions must be able to prove satisfaction of all the
requirements of that exemption. See e.g., Arnold v. Ben Kanowsky, 361
U.S. 388, 392 ; reh. denied, 362 U.S. 945 (1947); Donovan v. United
Video, Inc., 725 F.2d 577, 580-81 (10th Cir. 1984). The employer may
carry this burden of proof through documents or records of its own
choice; the Department does not impose any particular requirements as
to documentation. However, we consider it to be appropriate to offer
assistance to employers who seek to comply with the FLSA and HO 2.
Therefore, the Department has made suggestions of several easy-to-use
methods that employers may wish to follow--which include obtaining and/
or photocopying documentation concerning such things as the age,
licensing and driving history of the 17-year-old, and the maintaining
of certain logs concerning on-the-job driving. These suggested methods
are purely voluntary, despite the recommendations of some commenters
that these records be made mandatory. No employer will be penalized for
not having the materials identified in the suggestions. Since the
Department is not imposing any recordkeeping burdens on employers
through this compliance assistance, there is no conflict with the
intent of the Drive for Teen Employment Act, or with the requirements
of the Paperwork Reduction Act and Regulatory Flexibility Act.
With regard to the definition of urgent, time-sensitive deliveries,
the Department has concluded that the rule will be issued as proposed.
The definition encompasses the types of on-the-job driving that are
likely to involve 17-year-old employees in hurried and therefore
hazardous work activity. The Department concurs with NADA's comment
that ``young workers often require extra oversight regarding their work
timeliness'' and believes that this need for oversight is a natural
result of their youth and inexperience in the world of work. The
Department recognizes that, on a day-to-day basis, employers of young
workers provide training in important work habits such as timeliness,
productive use of worktime, attention to details, and responsiveness to
instructions. Employers can better protect the health and well-being of
their young workers by taking their need for extra oversight into
account during all aspects of their employment. An employer's oversight
should include assuring that adequate time is provided for the young
worker's safe completion of tasks, and assuring that appropriate
instructions are given to the worker in a clear and effective manner.
Employers should be aware that if a young driver is not given enough
time to complete a trip without hurrying, or if he/she is given
instructions which imply a requirement for hurried action, an on-the-
job trip that would not normally fall within the definition of an
urgent, time-sensitive delivery would become one. The Department is
confident that employers of 17-year-old drivers will recognize the
needs of their young workers, and will exercise appropriate oversight
in developing work skills while assuring compliance with the Drive for
Teen Employment Act.
The Department has considered the suggestion of one commenter that
the rule should include a requirement that 17-year-old drivers maintain
safe driving records while employed. However, we have concluded that
the Drive for Teen Employment Act does not authorize the imposition of
such a requirement. The statute speaks only of the young driver having
``no records of any moving violation at the time of hire.''
2. School Bus Drivers (Sec. 570.52(b)(2))
Hazardous Occupations Order No. 2 provides a limited exemption for
driving on public roads and highways by certain youths employed as
school bus drivers (Sec. 570.52(b)(2)). This exemption has been
included in HO 2 for decades, but was revised to its present form in
1991. The Department conducted a review of the school bus driver
exemption in 1990, and gave particular attention to the views of the
Child Labor Advisory Committee (discussed above). A Proposed Rule was
[[Page 75393]]
published in 1990, addressing this exemption along with some other
issues concerning other HOs (55 FR 42812). A Final Rule was issued in
1991 (56 FR 58626), revising the school bus drivers exemption to permit
employment of young workers as school bus drivers only through the
1995-1996 school year, for certain schools that were already employing
young drivers under authorizations previously issued by the Department.
The Department proposed to delete from HO 2 the now-expired school
bus driver exemption. The exemption was available only to certain
``grandfathered'' school districts and, by the explicit language of the
regulation, expired with the 1995-1996 school year. The Department saw
no justification for a revival of the exemption, since our records
reflect that this exemption was last used by a school district in the
1994-1995 school year, one year before the exemption's last available
school term under the regulation.
No comments were received concerning this proposal. The proposed
deletion of this HO 2 provision is implemented in the Final Rule.
E. Scrap Paper Balers and Paper Box Compactors (HO 12) (29 CFR 570.63)
Hazardous Occupations Order No. 12 generally prohibits minors under
18 years of age from working in occupations involving the operation of
paper-products machines. The HO prohibits the loading, operation and
unloading of scrap paper balers, including paper box balers and
compacting machines, and other power-driven machines used in the
remanufacture or conversion of paper or pulp into a finished product.
When HO 12 was promulgated in 1954, the dangers specifically associated
with the operation of scrap paper balers involved being caught in the
plungers during the compression process and suffering strains and other
injuries while moving the compressed bales.
The Department has consistently interpreted HO 12 to apply to any
establishments that use such paper-products machines, including retail
stores. The Department has long interpreted the regulation as applying
to paper box compactors (which generally perform the same function,
utilize the same processes of compacting, and present the same dangers
as scrap paper balers) although paper box compactors are not
specifically named in the HO. The Department has also interpreted the
prohibitions of HO 12 as applying to equipment used exclusively to
process paper products, even though machines used to process other
materials, in addition to paper products, share the identical machine
designs, operation methods, and potential risks.
As a result of reports the Department received in the 1980s of
injuries to minors employed in retail stores involving paper balers, in
1990-91 the Wage and Hour Division conducted a review of HO 12 as it
applied to grocery stores and other retail operations. Through a
Proposed Rule (55 FR 42812), followed by a Final Rule (56 FR 58626), HO
12 was amended in December 1991. The regulation was clarified as
applying where the baled paper products were recycled, as well as where
they were disposed of as trash. Further, the regulation's prohibition
on ``operation'' was clarified as not including the stacking of
materials in areas adjacent to the machine. Finally, the regulation was
revised to explicitly state that HO 12 applied to all establishments
that used such machines, consistent with long-established Departmental
interpretation.
The Department published an Advance Notice of Proposed Rulemaking
in 1994 (59 FR 25167), seeking the public's views on possible changes
in the child labor regulations, including the Hazardous Occupations
Orders. Although HO 12 was not specifically mentioned in the ANPRM, the
Department received comments from representatives of the grocery
industry asserting that recent technological changes have rendered
certain new balers and compactors safe for minors to load. The Food and
Allied Service Trades Department, AFL-CIO, opposed any relaxation of
the prohibitions contained in HO 12. The Child Labor Coalition also
opposed any relaxation of HO 12 and suggested that it should be
expanded to include all compactors.
The Compactor and Baler Act was signed by the President on August
6, 1996 (Pub. L. 104-174). This legislation amends the FLSA by adding a
new subsection 13(c)(5) to permit 16- and 17-year-olds to load, but not
operate or unload, scrap paper balers and paper box compactors only if
all of the following conditions are met:
``(A) [The loading involves] * * * scrap paper balers and paper box
compactors--
``(i) That are safe for 16- and 17-year-old employees loading the
[machines]; and
``(ii) That cannot be operated while being loaded.
``(B) For purposes of subparagraph (A), scrap paper balers and
paper box compactors shall be considered safe for 16- and 17-year-old
employees to load only if:
``(i)(I) The scrap paper balers and paper box compactors meet the
American National Standard Institute's Standard ANSI Z245.5-1990 for
scrap paper balers and Standard ANSI Z245.2-1992 for paper box
compactors; or
``(II) The scrap paper balers and paper box compactors meet an
applicable standard that is adopted by the American National Standards
Institute after the date of enactment of this paragraph and that is
certified by the Secretary to be at least as protective of the safety
of minors as the standard described in subclause (I);
``(ii) The scrap paper balers and paper box compactors include an
on-off switch incorporating a key-lock or other system and the control
of the system is maintained in the custody of employees who are 18
years of age or older;
``(iii) The on-off switch of the scrap paper balers and paper box
compactors is maintained in an off position when the scrap paper balers
and paper box compactors are not in operation; and
``(iv) The employer of 16- and 17-year-old employees provides
notice, and posts a notice, on the scrap paper balers and paper box
compactors stating that:
``(I) The scrap paper balers and paper box compactors meet the
applicable standard described in clause (i);
``(II) 16- and 17-year-old employees may only load the scrap paper
balers and paper box compactors; and
``(III) Any employee under the age of 18 may not operate or unload
the scrap paper balers and paper box compactors.''
The NPRM stated that the Compactor and Baler Act required that all
employers subject to the FLSA submit a report to the Secretary of Labor
when an employee under 18 years of age died or suffered an injury
requiring medical treatment (other than first aid) as a result of
contact with a scrap paper baler or a paper box compactor during the
loading, operation, or unloading of the equipment (Sec. 13(c)(5)(C)).
This reporting obligation, which expired on August 6, 1998, required
that the report be submitted within ten days of the occurrence of the
injury or death. Only one report, involving the serious injury of a
minor in Cass County, Texas, was received by the Department during the
mandatory reporting period.
The NPRM also explained that the Compactor and Baler Act modified
section 16(e) of the FLSA--concerning civil money penalties--to specify
that such penalties may be assessed for violations of the new
subsection 13(c)(5) as well as other child labor provisions. The Act
did not modify the amount of the penalty under section 16(e), which
[[Page 75394]]
at that time was a maximum of $10,000 per violation for each minor who
was the subject of the violation.
The Department proposed to amend HO 12 to incorporate the
provisions of the Compactor and Baler Act. The NPRM specified that the
regulation's prohibition on 16- and 17-year-olds operating and
unloading compactors and balers would not be changed, and the
regulation would specify that these minors may load machines only in
accordance with the standards set by the Act. The Department noted that
employers bear the burden of proving compliance with these standards:
(1) The equipment must meet the ANSI standards imposed by the Act.
The NPRM recognized that Congress explicitly applied certain industry
standards for the determination of which balers and/or compactors are
safe for minors to load: American National Standards Institute's (ANSI)
Standard ANSI Z245.5-1990 for scrap paper balers or Standard ANSI
Z245.2-1992 for paper box compactors. ANSI is a national organization
that coordinates the development of voluntary, consensus standards in a
wide range of areas, including product and worker safety. Congress has
used ANSI standards in other contexts as expressions of the best
available technology in the safety area. For example, the Occupational
Safety and Health Act of 1970 directed the Department of Labor to adopt
the then-existing ANSI standards, rather than delay any activity until
the agency promulgated particular occupational safety and health
standards (see section 6(a) of the Occupational Safety and Health Act,
29 U.S.C. Sec. 655(a)). The ANSI standards for scrap paper balers and
paper box compactors govern the manufacture and modification of the
equipment, the operation and maintenance of the equipment, and employee
training. Because these ANSI standards are copyright-protected, the
NPRM stated that the Department cannot include them in the regulations
or reproduce them for distribution to the public. Copies of the
applicable ANSI standards are available for inspection at the Office of
the Federal Register, 800 North Capitol Street, NW., Suite 700,
Washington, DC, 20408, at the Occupational Safety and Health
Administration Docket Office at Room N2625, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, D.C., 20210, and at any of
the OSHA regional offices. Copies of these standards are available for
purchase at the American National Standards Institute, 11 West 42nd
Street, New York, New York 10036.
The Department proposed that the employer will be required to make
an initial determination of whether its machine(s) meet the ANSI
standards, and that the Wage and Hour Division may make a final
determination in any investigation concerning minors' work with the
machines.
The Department's proposal incorporated only the two ANSI standards
specified in the Compactor and Baler Act. However, the Department
recognized that the Act also provides that any new standard(s) adopted
by ANSI would be sufficient for the determination of safety of the
balers and compactors if the Secretary of Labor certifies the new
standards to be at least as protective of the safety of minors as
Standard ANSI Z245.5-1990 for scrap paper balers or Standard ANSI
Z245.2-1992 for paper box compactors. The NPRM explained that the
Department was aware that ANSI has adopted newer standards for scrap
paper balers (Standard ANSI Z245.5-1997) and for paper box compactors
(Standard ANSI Z245.2-1997). When the NPRM was issued, the Department
was in the process of reviewing these standards to determine if they
are at least as protective of the safety of minors as those standards
cited in the Compactor and Baler Act. A preliminary review indicated
the new standards are as protective as those cited in the Act, and the
NPRM noted that the Department was considering whether to include the
new standards along with the older standards when the final rule was
promulgated. The public was invited to provide comment on whether
Standard ANSI Z245.5-1997 is as protective of the safety of minors as
Standard ANSI-S245.5-1990, and whether Standard ANSI Z245.2-1997 is as
protective of the safety of minors as Standard ANSI Z245.2-1992.
(2) Notice is provided and posted on each piece of equipment. The
Compactor and Baler Act requires that, before any 16- or 17-year-olds
may load materials into scrap paper balers and paper box compactors,
the employer must provide notice and post a notice on each piece of
equipment stating that the machine meets the applicable ANSI standard,
that 16- and 17-year-olds may only load the equipment, and that no
employee under age 18 may operate or unload such equipment. The
Department proposed that the employer meet this statutory requirement
by posting a permanent notice--containing the necessary information--in
a place on the machine that is prominent and easily visible to any
persons loading, operating, or unloading it. The Department proposed no
specific form of notice but proposed specific language taken from the
statutory requirements to be included in the notice.
(3) The equipment must have certain controls and locks. The
Compactor and Baler Act requires that the equipment must include an on-
off switch incorporating a key-lock or other system, that the control
of the system must be maintained in the custody of employees who are 18
years of age or older, and that the on-off switch must be maintained in
an off position when the equipment is not in operation. The Department
proposed to include these explicit requirements in the regulation.
The Department also proposed to include in the regulation a
specific identification of paper box compactors among the types of
equipment subject to HO 12. The NPRM explained that this addition was
required by the legislation, which explicitly includes paper box
compactors. In addition, the NPRM stated, this regulatory change would
communicate the Department's long held position that HO 12 also applies
to paper box compactors which perform the same function, operate in a
similar manner, and present the same risks as scrap paper balers, which
are explicitly listed in the current regulation.
In addition to the regulatory changes necessitated by the Compactor
and Baler Act, the Department proposed to modify HO 12 and its title to
include scrap paper balers and paper box compactors that are used to
process other materials in addition to paper products. In the past, HO
12 has prohibited minors from loading, operating, and unloading only
those scrap paper balers and paper box compactors that are used
exclusively to process paper products.
The proposed rule also would amend the regulations in part 579
concerning civil money penalties, to implement the Compactor and Baler
Act's explicit authorization for penalties not to exceed $10,000 for
each employee who was the subject of a violation of new subsection
13(c)(5) of the FLSA.
The Department received six comments on this proposal--from NIOSH,
the Food Marketing Institute (FMI), the Council, the NCLC, the CLC, and
the National Grocers Association (NGA). None of the commenters opposed
the proposal to incorporate the provisions of the Compactor and Baler
Act into the regulation. However, the commenters differed with regard
to some of the particulars of the proposed regulation, as discussed by
topic below.
Notice to be posted on machine. Opinions differed as to the wording
of the notices that must be posted on balers and compactors that 16-
and 17-
[[Page 75395]]
year-olds would be authorized to load, but not operate or unload.
The Department proposed that the exact language appearing in the
statute be required on all notices in order to eliminate confusion and
provide employers with clear guidance. The Department also believed
that minors, who change jobs frequently, would receive greater overall
protection if the posting language were consistent among all employers.
The NCLC commented that, while it had opposed and continues to
oppose the Compactor and Baler Act, it realized that the Department
must implement the provisions of the statute. In that context, the NCLC
stated that it supported ``the clear and stringent proposed revisions''
to HO 12. The CLC also supported the Department's proposal but
recommended that the notice should also include language prohibiting
any minor from placing his or her hands, arms, or legs into the machine
at any time.
Both the NGA and the FMI objected to the Department's proposal to
adopt, for the required notice, the language exactly as it appears in
the statute. Both organizations recommended that the Department not
adopt the verbatim statutory language for the notice but, instead,
allow employers to use the notice ``stickers'' which these
organizations have developed for their industry. The NGA stated that,
along with the FMI, it had undertaken an educational compliance program
to inform retailers and wholesalers of how to comply with the new law.
This program included the developing and marketing of notice stickers,
copies of which were provided to the Department along with their
comments. The organizations asserted that these stickers were in
compliance with the posting requirements of the Compactor and Baler
Act. The FMI also stated that it worked closely with ANSI experts to
ensure that the stickers were consistent with industry safety standards
and would effectively attract the attention of employees approaching or
intending to use the machines. The FMI and the NGA pointed out that
adoption of the proposed rule would render their stickers unusable.
After carefully considering the comments, the Department agrees
that accepting only those notices which reflect the exact wording of
the Compactor and Baler Act would be overly prescriptive. The
Department believes that the intent of the Compactor and Baler Act will
be satisfied if each notice: (1) Contains an accurate statement that
the baler or compactor to be loaded by the minor meets the applicable
ANSI standard named in section 13(c)(5)(B)(i)(I) of the FLSA or meets a
more recent ANSI standard which the Secretary has certified to be at
least as protective of the safety of minors as the standard described
in section 13(c)(5)(B)(i)(I); (2) cites the specific ANSI standard,
including the year of issuance, that the employer is providing notice
that the equipment meets; (3) includes a clear statement that 16- and
17-year-olds may only load the scrap paper balers and paper box
compactors; and, (4) includes a clear statement that no employee under
the age of 18 may operate or unload the scrap paper balers and paper
box compactors.
The Department has examined the sample notices--stickers--provided
by both the NGA and the FMI. We note that these stickers do not clearly
identify the applicable ANSI standard as required by the Compactor and
Baler Act. ANSI includes, in the caption or title of each of its
standards, both a ``series identifier'' and a year of issuance, so as
to eliminate confusion between different editions of standards that
apply to the same type of machinery. Congress recognized this precision
of ANSI nomenclature when, in adopting the Compactor and Baler Act, it
specifically required that balers meet Standard ANSI Z245.5-1990 and
compactors meet Standard ANSI Z245.2-1992. ANSI has issued a succession
of standards in the Z245.5 series for balers: Standard ANSI Z245.5-
1982; revised and replaced by Standard ANSI Z245.5-1990 (approved
December 12, 1989); revised and replaced by Standard ANSI Z245.5-1997.
ANSI does not always adopt the same series identifier when revising and
replacing standards for a type of machinery. The standard specified in
the Act for compactors--Standard ANSI Z245.2-1992--replaced Standard
ANSI Z245.1-1984. The sample notices submitted by the FMI and the NGA
do not include the year the ANSI standard was issued, but merely
reference the series identifier number. The Department considers this
notice to be inadequate. We are concerned that an employer who utilizes
a baler that is over 20 years old--but which meets the antiquated
Standard ANSI Z245.5-1982--would be under the mistaken impression that
after applying the sticker provided by the FMI or NGA, he/she could
legally allow 16- and 17-year-old employees to load that equipment. We
are also concerned about employers who might apply this sticker, and
mistakenly assume themselves to be in compliance with the law by
relying on a new ANSI standard which had not been certified by the
Department as providing at least the same levels of protection to young
workers as those specifically named in the Compactor and Baler Act. It
is imperative that all notices posted in accordance with the Compactor
and Baler Act cite both the series identifier and year of issuance for
the ANSI standard, so that employers, their supervisory staff, and
their young workers are fully informed, as Congress intended them to
be.
The Department would consider the NGA and FMI stickers to
constitute acceptable notices if they are modified to state explicitly
the full caption of the ANSI standard (both the series identifier and
the year of issuance). This modification may, of course, be made by
printing all future stickers with the full, accurate information as to
the specific applicable standard. But existing stickers may also be
modified by making hand-written insertions of the additional
information that is necessary to identify the specific standard. Such
insertions must be written legibly, in indelible ink, and in the same
size of lettering as the ANSI standard identifiers already printed on
the sticker.
The NGA and the FMI have also provided copies of stickers they have
developed to be placed on equipment that does not meet the requirements
of the Compactor and Baler Act and, therefore, cannot be loaded,
operated or unloaded by any employee who is less than 18 years of age.
These stickers, which are not required by the Act and the use of which
is completely voluntary, alert employees that they may not load,
operate or unload the equipment unless they are 18 years of age or
older. The Department appreciates these efforts by the NGA and the FMI
and encourages all employers to adopt similar signage when applicable,
as part of their efforts to reduce occupational injuries to young
workers and increase compliance with the child labor provisions.
Making the determination that the equipment meets the ANSI standard
named in the Compactor and Baler Act or a more recent ANSI standard the
Secretary has certified as being at least as protective of the safety
of minors. The FMI objected to the Department proposal that the
employer will be required to make an initial determination of whether
its machine(s) meet the ANSI standards, and that the Wage and Hour
Division may make a final determination in any investigation concerning
minors' work with the machines. The FMI asserted that the Compactor and
Baler Act does not support this proposal, and suggested
[[Page 75396]]
that a machine's satisfaction of ANSI standards should be established
by the reasonable assurances of the machine's manufacturer coupled with
maintenance records. The FMI expressed concern that the employer should
not be required to maintain any records beyond these assurances and
maintenance records.
The Department considers the proposed provision to be necessary to
achieve the clear intent of the Act, which is to allow minors to load
machines (despite the HO 12 prohibition) only if such machines meet the
ANSI standards specified in the statutory and regulatory exemption. The
employer which has its young employees loading these machines can
lawfully do so only pursuant to this exemption. As discussed above with
respect to the HO 2 ``incidental and occasional driving'' regulation,
the employer must be able to prove its satisfaction of all the
requirements of this, or any other, FLSA exemption. The employer cannot
know whether its operation is in compliance with the exemption (i.e.,
cannot know whether its minor employees are permitted to load a
particular machine) unless and until it determines that the machine
meets the applicable ANSI standard. While the information mentioned by
FMI would, of course, be important, the employer should also consider
other pertinent information, such as equipment modifications,
performance of scheduled maintenance, and equipment malfunctions. The
Department does not, and will not, prescribe that any particular
documentation or records be created by the employer.
As part of an investigation authorized by section 11(a) of the
FLSA, the Wage and Hour Administrator may make a determination as to
whether the equipment meets the ANSI standard cited on the notice
posted by the employer on the machine; such a determination may be
essential to an investigative finding of whether the employer has
violated the regulation. The employer, of course, may request
administrative review where the Administrator determines that minors
are working in violation of the regulation because the machine they are
using does not meet the ANSI standard. Upon reflection, the Department
recognizes that the phrase ``final determination'' in the Proposed Rule
may be confusing, in that the Administrator's investigative
determination would be subject to review and, if appropriate, to
revision in the administrative adjudicatory process. Therefore, the
Department has concluded that the regulation should not state that the
Administrator's investigative determination is ``final.''
After carefully considering the FMI comment, the Department has
concluded that the proposed provision is necessary and appropriate
under the FLSA and the Compactor and Baler Act. The proposed
provision--with the word ``final'' deleted--is included in the Final
Rule.
The Secretary's review of the more recent ANSI standards. The
Compactor and Baler Act applies specific ANSI standards, issued by the
organization in 1990 (balers) and 1992 (compactors). However, the Act
also provides that any new standard(s) adopted by ANSI would also be
sufficient for the determination of safety of the balers and
compactors, if the Secretary of Labor certifies the new standard(s) to
be at least as protective of the safety of minors as the two standards
specified in the Act. In the NPRM, the Department stated that it was
reviewing two new ANSI standards, and invited the public to comment on
whether those standards should be certified by the Secretary.
Only one commenter, NIOSH, directly addressed the newer ANSI
standards, supporting their incorporation into the regulation ``as they
are as protective as previous standards cited in the Compactor and
Baler Act.'' The CLC cautioned the Department to review thoroughly new
ANSI standards for their effectiveness in protecting working minors,
and to revise the regulation to reflect improved safety protection
standards as they are introduced. The Department agrees with the CLC,
concerning the importance of careful consideration of new safety
standards. The Department's review of the new ANSI standards agrees
with NIOSH's findings. The Secretary, in promulgating this Final Rule,
hereby certifies that Standard ANSI Z245.5-1997 is as protective of the
safety of minors as Standard ANSI-S245.5-1990 and that Standard ANSI
Z245.2-1997 is as protective of the safety of minors as Standard ANSI
Z245.2-1992. Accordingly, these newer standards are included in the
Final Rule.
Revising HO 12 to include scrap paper balers and paper box
compactors that are used to process other materials in addition to
paper products. The Department proposed to modify HO 12 to include
scrap paper balers and paper box compactors that are used to process
other materials in addition to paper products. As explained in the
NPRM, HO 12 has, in the past, prohibited minors from loading,
operating, and unloading only those scrap paper balers and paper box
compactors that are used exclusively to process paper products.
The FMI and the NGA objected to this proposal as being
unauthorized, stating that the Compactor and Baler Act addresses only
machinery used for paper products. These commenters, along with the
Council, also stated that the Department had provided no basis or
evidence for the expansion of HO 12.
NIOSH supported this proposal, stating ``[r]eview of surveillance
and investigation data demonstrate that baling and compacting equipment
are associated with deaths and injuries of workers, that these deaths
are associated with uncontrolled hazardous energy and inadequate
machine guards, and that deaths and injuries result from machines that
process non-paper materials (e.g., aluminum cans, plastic, foam, and
rubber) as well as paper materials.'' NIOSH reported that data covering
the period of October 1, 1996 through December 31, 1999, reflects that
balers and compactors were responsible for an estimated 2,625 injury
reports nationwide. Almost half of the injuries occurred while working
in either a retail or grocery store, with 24% occurring in
manufacturing. NIOSH also reported that at least 29 occupational
fatalities involving paper balers and compactors occurred between 1992
and 1997.
In making the proposal to modify HO 12, and in considering the
comments on the proposal, the Department has given careful thought to
the Secretary's long-standing and important statutory duty to ban
unsafe working conditions for minors. The FLSA, at section 3(l), gives
the Secretary the authority and responsibility to identify and declare
those occupations which are ``particularly hazardous for the employment
of children * * * or detrimental to their health or well-being.'' In
meeting this statutory duty, the Secretary has promulgated the
seventeen Hazardous Occupations Orders, including HO 12 on balers and
compactors. The Secretary need not and should not wait for additional
legislation when making determinations concerning the safety and well-
being of working youth.
Since its inception, HO 12 has prohibited minors from loading,
operating and unloading balers and compactors that are used exclusively
to process paper products. In proposing to expand the scope of the
regulation, the Department recognized that the existing, narrow
prohibition ignores the fact that these machines are used to compress
materials in addition to paper without any changes in design or
procedures for loading, operating and unloading. Such other materials
which may be processed
[[Page 75397]]
by scrap paper balers and paper box compactors include, but are not
limited to, plastics, rubber, food waste, foam rubber and aluminum
cans. The risks which these machines present to minor employees remain
the same, regardless of the materials being processed. The information
provided by NIOSH demonstrates that injuries and deaths continue to
occur in the loading, operation and unloading of these machines,
whether or not they are used exclusively for paper products. Further,
the Department's enforcement experience shows that these machines are,
indeed, ``particularly hazardous'' to load, operate or unload. For
example, in recent years the Wage and Hour Administrator has
investigated cases involving a 16-year-old who was killed operating a
compactor, a 17-year-old whose arm was crushed while operating a
compactor, and a 15-year-old who suffered a serious injury to his hand
while operating a paper baler.
The Department does not believe that its revision of the scope of
HO 12 required a new legislative authorization through the enactment of
the Compactor and Baler Act. The Department's authority with regard to
all of the Hazardous Occupations Orders is based on long-standing FLSA
provisions. However, we note that the proposed expansion of HO 12 to
include machines used for materials in addition to paper products is,
in fact, supported by the definitions of both balers and compactors
contained in the ANSI Standards which Congress adopted in the Compactor
and Baler Act. Standard Z245.5-1990, for balers, identifies the
materials which may be processed by the machines: ``Primary materials
includ[ing] natural and synthetic fibers and their by-products;''
``Waste paper (newsprint, corrugated containers, and the like), trim
scrap, mill broke, metals (other than ferrous scrap), and textiles* *
*'' Standard Z245.2-1992, for compactors, identifies the ``refuse''
which may be processed: ``Any type of solid waste (except human
wastes), including garbage, rubbish, ashes, incinerator residues,
street cleanings, plant trimmings, and residential, commercial, and
industrial solid wastes, including recyclable materials.'' Further, the
Department takes the position that the lack of reports from employers
pursuant to the Compactor and Baler Act is not a factor in this
revision of HO 12; the Department's enforcement experience and the data
provided by NIOSH are ample information as to the ``particular
hazards'' of these machines. We note, however, that the one report
submitted by an employer pursuant to the Act involved an incident in
which a 17-year-old had both his legs amputated in a baler machine at a
recycling center. At the time of his injury, the machine was crushing
cardboard, but the machine was the only baler at the center and,
therefore, was also used for processing other materials, including
plastic.
Accordingly, the Secretary has determined that occupations
involving the loading, operating and unloading of scrap paper balers
and paper box compactors that process other materials in addition to
paper are particularly hazardous for minors between 16 and 18 years of
age. The proposed modification of HO 12 is included in the Final Rule.
The Department notes that after the issuance of this Final Rule,
there will still be one class of balers and compactors that falls
outside of the scope of HO 12--those machines that process everything
and anything but paper products. These machines share similar designs
and operating procedures with those compactors and balers that process
only paper products or process other materials in addition to paper
products. The Secretary has not made a determination that occupations
involving the loading, operating and unloading of balers and compactors
that do not process paper are particularly hazardous to the health and
well-being of youths between 16 and 18 years of age. The Department
will continue to review this matter and may consider future rulemaking
to further revise HO 12.
In addition, two minor editorial modifications to the existing
regulation have been made in the Final Rule. The word ``also'' in the
last sentence of section 570.63(b)(2) (ii) which is part of the
definition of the term paper products machine was moved to avoid any
confusion over what types of machines are subject to the HO. The word
``of'' in section 570.63(b) (3) that defines the term scrap paper baler
has been replaced with the word ``or'' to comport with the language in
the ANSI standard.
Proposal to amend the regulations in part 579 concerning civil
money penalties. In the 1999 NPRM, the Department proposed to amend the
regulations in sections 579.1 and 579.5 to implement the Compactor and
Baler Act's explicit authorization for civil money penalties not to
exceed $10,000 for each employee who was the subject of a violation of
new subsection 13(c)(5) of the FLSA. No comments were received on this
proposal. After publication of the 1999 NPRM, but prior to the
publication of this Final Rule, the Department published a different
Final Rule in accordance with the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996 (66 FR 63501, December 7, 2001). That regulatory action not
only increased the maximum amount of the civil money penalty that may
be assessed under the FLSA for a child labor violation to $11,000, but
also implemented the Compactor and Baler Act's authorization for civil
money penalties. As the Compactor and Baler Act's authorization for
civil money penalties has already been incorporated into section 579.5,
that proposed change need not be included in this Final Rule. The
corresponding proposed changes to section 579.1, however, are included
in this Final Rule.
The Final Rule includes both the Federal Civil Penalties Inflation
Adjustment Act change in the maximum amount of the penalty and the
change specified in the Proposed Rule.
F. Work in Roofing Occupations (HO 16) (29 CFR 570.67)
Hazardous Occupations Order No. 16 covers ``occupations in roofing
operations.'' It bans all occupations in roofing, but not all work on
roofs. Roofing operations, as defined by the regulation, include most
roofing activities and related occupations whether performed at
elevations or at ground level. Not included are other tasks performed
on or near roofs such as the installation, repair and maintenance of
roofing sheathing, television and microwave antennas, air conditioning
equipment, and gutters and downspouts.
The Department has received inquiries questioning why employees
under 18 years of age may perform any work on a roof. Available data,
such as that provided by NIOSH and the Massachusetts State Department
of Health, indicates that working at heights is a major contributor to
injuries and deaths of young workers.
The Department's 1994 Advance Notice of Proposed Rulemaking (59 FR
25167) raised the issue of minors working at heights. The ANPRM
requested comments regarding a ban on all work performed by minors on
roofs. The ANPRM also requested information as to whether such a
prohibition should be a generic restriction or one limited to a
particular industry or industries. Finally, the ANPRM sought
information regarding exemptions from HO 16 for apprentices and student
learners.
The Department received a number of comments on this issue, the
vast majority of which supported the prohibition of roofing work and
all work
[[Page 75398]]
on a roof. Many supported a complete prohibition against minors working
above a certain elevation, often specified as 6 to 10 feet. The
comments came from a variety of sources, including industry
organizations, child advocates, and State and Federal agencies.
The single ANPRM commenter not in favor of prohibiting all work on
a roof was the Associated Builders and Contractors, Inc. (ABC), which
opposed a ban on 16- and 17-year-olds working at heights. ABC commented
that a ban would jeopardize valuable career-advancing opportunities and
that proper supervision, safety instructions, and training are
sufficient to reduce or alleviate any heightened risk of injury without
sacrificing the benefit of work experience.
After considering all of the information obtained in response to
the ANPRM, the Department proposed to amend HO 16 to expand the ban
from all roofing occupations to include all work performed on or about
a roof. This ban would include, but not be limited to, occupations on
or in close proximity to roofs such as the installation, repair, and
maintenance of gutters and downspouts, installation of sheathing, roof
trusses or roof bases, television antennas, air conditioners, exhaust
and ventilating equipment, heating equipment, and similar appliances
attached to roofs. The Department also proposed that the exemption for
apprentices and student-learners employed under the conditions
prescribed in 29 CFR 570.50(b) and (c) would continue to apply under HO
16. The Department stated its view that the additional supervision and
training required by the exemption, coupled with the limited exposures
provided by the exemption, will help to reduce safety risks to 16- and
17-year-olds working on roofs.
Four comments were received concerning this proposal.
NIOSH supported broadening the scope of HO 16, as proposed. NIOSH
reported that the roofer occupation is among the occupations at highest
risk of fatal work-related injury among workers of all ages. NIOSH
stated that work on and around roofs is associated with falls from
heights and contact with electrical energy, and that these two causes
of injury together accounted for 18% of work-related injury deaths of
16- and 17-year-olds in the 1980's. Further, NIOSH reported that
hazards are associated with workers using roofs as a means of access or
support for other work at heights. As an example of such hazards, NIOSH
discussed the death of a 17-year-old window washer who plunged 15
floors to his death due to the failure of the rigging he had attached
to the roof of the building.
ABC--which had been the only ANPRM commenter that did not favor
prohibiting all work on a roof--commented that it believed its previous
concerns had been substantially addressed through the proposed
regulation's preservation of the exceptions for apprentices and
student-learners.
The NCLC and the CLC opposed the proposal as not having gone far
enough. These commenters recommended that the regulation should
prohibit minors working at elevations ``in any and every capacity''
whether on roofs, hanging out windows, or working on ladders,
scaffolds, or other elevated surfaces. The CLC suggested that the
prohibition should apply to work at elevations above 6 feet.
The Department has carefully considered the comments and available
data, as well as our own enforcement experience. Based on this
information, the Department has concluded that the dangers cited in the
report supporting the promulgation of HO 16 still persist for youths
working not only in roofing occupations but also on or about roofs. The
main danger for such youths is from falls which may occur in any work
performed on or about a roof. This danger was demonstrated by three
recent incidents investigated by the Wage and Hour Administrator. Two
minors (one in Pennsylvania and one in Alabama) fell to their deaths
while employed in the installation of roofing trusses (part of building
construction, but not a roofing occupation under the current
regulation). A third minor, 16 years of age, died in July of 2002 in
Arizona after falling from a roof while assisting in the maintenance of
an air conditioning unit (again, work on a roof but not a roofing
occupation under the current regulation). The danger of falls was also
demonstrated in the incident cited by NIOSH: death of a window washer
who worked on the roof of the building to attach and then enter the
rigging which failed and caused his fall. Additional dangers in work on
or about a roof include exposure to electricity, as discussed by NIOSH
and as demonstrated in a case recently investigated by the Wage and
Hour Administrator in which a 17-year-old was killed when the pipes he
was hoisting to a roof (for assembly there into clothing racks) came
into contact with overhead power lines.
The Department notes that the regulatory phrase on or about a roof
is not limited to circumstances where the minor employee is standing or
working on the roof itself. The prohibition extends to standing or
working on a ladder or scaffold at or near the roof, working on the
installation of roof trusses or joists which will support the roof, as
well as working from or being transported to or from the roof in
mechanical devices such as hoists. Thus, for example, a minor is
prohibited from working on a scaffold (as well as on the roof itself)
to install roof flashing or gutters. To avoid the possibility of
confusion as to the scope of this prohibition, the proposed definition
of the term on or about a roof has been modified in the Final Rule, to
clarify that the term includes work ``upon or in close proximity to a
roof'' and to clarify that the installation of trusses or joists is
included in the ``construction of the base of roofs'' within the
meaning of this definition.
The Department has carefully considered the views of commenters who
suggested that the regulation should ban all work at an elevation, such
as at a height of six feet. While we recognize that there may be some
risk of accidents whenever workers are performing tasks above ground
level, we have concluded, based on available data, that all such work
by minors cannot be declared to be particularly hazardous. Therefore,
we believe that such an across-the-board prohibition would be
unwarranted, at the present time, and would deny minors many safe and
promising employment opportunities such as library assistants climbing
low ladders to retrieve or replace books, or retail stock clerks
retrieving or restoring merchandise to shelving, or lifeguards mounting
their stands at poolside. This matter may be further addressed in a
future rule making, if appropriate.
The Department has concluded that occupations involving working on
or about roofs, as well as all occupations in roofing operations, are
particularly hazardous for minors between 16 and 18 years of age, and
accordingly adopts the proposal as a Final Rule with the modifications
discussed above.
G. Miscellaneous Matters
The Department has also made minor, nonsubstantive, changes to the
regulations that are not discussed above. The 1999 NPRM proposed that
the section headings contained in Subparts B and C of 29 CFR Part 570
and in 29 CFR Part 579 be presented as questions. It was believed such
a format would more clearly identify the contents of each section. Upon
further review, the Department has determined that headings consisting
of a few words, or a short phrase, will be more useful to
[[Page 75399]]
the reader. Accordingly, the question format has not been adopted and
the section headings will now consist of a few words or a short phrase.
Also, as mentioned earlier, the 1999 NPRM proposed to revise 29 CFR
Part 579.5 to incorporate the civil money penalty provisions of the
Compactor and Baler Act. This revision was accomplished by a separate
Final Rule published by the Department (66 FR 63501, December 7, 2001)
and therefore does not need to be included in this Final Rule.
Furthermore, the Department has concluded that four numbered
subsections of the existing regulation on civil money penalties are
obsolete--three ``reserved'' (Sec. Sec. 579.6-.8) and one dealing with
the implementation of the1990 FLSA amendment which increased the child
labor civil money penalty to $10,000 (Sec. 579.9). The Final Rule
removes these subsections from the regulation. In addition, the
Department is also revising 29 CFR Part 579.3(a)(5) to remove a no
longer appropriate reference to 29 CFR Part 545. Part 545, which was
titled Homeworkers in Industries in Puerto Rico, was removed by the
Department in 1990 as a result of the 1989 amendments to the FLSA (55
FR 12114, March 30, 1990). Finally, in keeping with current guidance
provided by the Federal Register, we have restructured the definitions
in 29 CFR 570.63 and 570.67 to reflect an alphabetical sequence.
III. Changes to Procedural Regulations (29 CFR Part 580)
The Department has determined that the procedural regulations--
dealing with administrative hearings and appeals of civil money
penalties--require updating to make it clear that the administrative
procedures are a prerequisite to judicial review and to identify the
Department's Administrative Review Board as the entity to which appeals
from Administrative Law Judge decisions are taken. The Final Rule makes
the necessary changes in Part 580 procedural regulations. Because these
revisions pertain to rules of agency procedure or practice, notice of
proposed rulemaking and public comment procedures are not required for
these revisions pursuant to Section 553(b)(3)(A) of the Administrative
Procedure Act, 5 U.S.C. 553(b)(3)(A). Therefore, these procedural
amendments are being adopted as a final rule without prior notice and
comment.
IV. Paperwork Reduction Act
Federal Certificate of Age
Title: Form WH-14, Application for Federal Certificate of Age.
Summary: Section 3(l) of the Fair Labor Standards Act (FLSA), 29
U.S.C. 203(l), provides, in part, that an employer may protect against
unwitting employment of ``oppressive child labor'' (as defined in
section 3(l)) by having on file a certificate issued pursuant to DOL
regulations, certifying that the named person meets the FLSA minimum
age requirements for employment.
Section 11(c) of the FLSA, 29 U.S.C. 211(c), requires that all
employers covered by the Act make, keep and preserve records of wages,
hours and other conditions and practices of employment with respect to
their employees. The employer is to maintain the records for such
period of time and make such reports as prescribed by regulations
issued by the Secretary of Labor.
Regulations, at 29 CFR Part 570, subpart B, set forth the
requirements for obtaining certificates of age from the Department. The
regulations provide that State-issued age, employment or working
certificates, which substantially meet the Federal regulatory
requirements for certificates of age, are an acceptable alternative to
obtaining a Federal certificate of age. The regulations contain a list
of States that may issue such acceptable certificates. Since age
certificates are issued by most States, these are widely used as proof
of age for FLSA child labor purposes.
Federal certificates of age are issued by the Department upon
request by the youth and the prospective employer. Form WH-14 is the
DOL application form. As a practical matter, it is used in those States
where no State certificates are issued or State certificates do not
meet the Federal regulatory requirements. The Wage and Hour Division
reviews each WH-14 application and the accompanying proof of age, which
is identified in the regulation as sufficient to establish the young
applicant's age and thus to achieve the intended purpose of the
statutory provision (i.e., to afford the employer an affirmative
defense against unwitting violations of the child labor provisions). As
appropriate, a Federal certificate of age is issued and forwarded to
the employer (if the youth is under 18 years of age) or to the youth
(if he/she is 18 or 19 years of age). The supporting evidence of age is
returned to the applicant(s). The 18- or 19-year-old presents the
certificate to his/her employer upon entering employment.
The employer is required to keep the certificate on file for the
duration of the youth's employment, in order to achieve the intended
purpose of the FLSA provision (i.e., to protect the employer in
situations where compliance with the child labor standards is
questioned). The estimated average employment period is 6 months. When
a youth under 18 years of age leaves employment, the employer was
directed, prior to this revision of the regulation, to return the
certificate to the office that issued it, except that a certificate for
employment in agriculture might be given to the youth; any subsequent
certificate of age requested for that youth could be issued without
additional proof of age. A certificate of age issued for a youth 18 or
19 years of age was to be given by the employer to the youth upon his/
her leaving employment.
Need: In August 1998, the Office of Management and Budget (OMB), in
its review and approval of the Form WH-14 under the Paperwork Reduction
Act, approved this information collection (OMB No. 1215-0083). OMB's
approval was contingent upon DOL's agreement to eliminate the
requirement for an employer to return the certificate to the issuing
official in certain circumstances. The Department, as agreed with OMB,
has revised the regulation at Sec. 570.6(b)(1) to direct employers to
give to each employee, upon termination of employment, any Federal age
certificate issued in his/her name. This would occur regardless of the
age of the employee and regardless of the type of employment (i.e.,
agriculture or nonagriculture). This regulatory provision will enable
young workers to provide future employer(s) with a properly issued age
certificate without having to make another application to a government
official. The Department has also revised the statement at the end of
Sec. 570.6(b)(2) to reflect the new OMB control number.
Respondents and frequency of response: It is estimated that 10 such
WH-14 applications will be submitted annually.
Estimated total annual burden: It is estimated that each such
application will take approximately ten minutes to complete for a total
annual burden of one and two-thirds hours (10 applications x 10 minutes
per application = 1.667 hours). The filing of a Federal Certificate of
Age is estimated to take one-half minute per document for a total
annual burden of .083 hours (10 Federal Certificates of Age x .5
minutes = .083 hours).
Total Annual Reporting and Recordkeeping Burden = 1.75 Hours.
[[Page 75400]]
Employees and employers of any of a wide variety of businesses,
from small farms or retail stores to large manufacturing plants, may
request Federal certificates of age. Absent specific wage data
regarding applicants, respondent costs are estimated utilizing the
average hourly rate of non-supervisory workers on non-farm payrolls of
$15.38 for 2003 (Monthly Labor Review, U.S. Department of Labor, Bureau
of Labor Statistics). Total annual respondent costs are estimated at
$26.92 ($15.38 x 1.75 hours).
Total estimated annual postage and envelope costs for transmitting
these applications are $4.00 (10 reports x $.37 postage + $.03 per
envelope).
Total Annual Respondent Costs for FORM WH-14, Application for
Federal Certificated of Age--$30.92 ($26.92 + $4.00).
No comments were received from the public regarding this burden.
Two comments were received on the substantive aspects of the regulatory
proposal concerning age certificates and these are discussed earlier in
this document.
No changes have been made in this Final Rule which affect the
information collection and recordkeeping requirements and estimated
burdens previously submitted to OMB and discussed in the proposed rule.
V. Executive Order 12866
This rule is being treated as a ``significant regulatory action''
within the meaning of Executive Order 12866, because of its importance
to the public and the Department's priorities. Therefore, the Office of
Management and Budget has reviewed the rule. However, because this rule
is not ``economically significant'' as defined in section 3(f)(1) of EO
12866, it does not require a full economic impact analysis under
section 6(a)(3)(C) of the Order. In addition, this rule imposes no new
information collection, recordkeeping, or reporting requirements
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et
seq.).
It is well established that several characteristics of youth place
adolescent workers at increased risk of injury and death. Lack of
experience in the work place and in assessing risks, and developmental
factors--physical, cognitive, and psychological--all contribute to the
higher rates of occupational injuries and deaths experienced by young
workers. The Census of Fatal Occupational Injuries, U.S. Department of
Labor, Bureau of Labor Statistics, reported that during the years of
1992-1997, 15-year-olds actually experience an occupational fatality
rate per 100,000 fulltime equivalents that is greater than the average
for all workers. A NIOSH report also showed that the fatality rate for
adolescents aged 16 and 17 was 5.1 per 100,000 full-time equivalent
workers for the 10-year period 1980-89 [Castillo et al. 1994], while
the rate for adults aged 18 and older was 6.1. As NIOSH stated,
``[t]his relatively small difference in rates is cause for concern
because youths under age 18 are employed less frequently in especially
hazardous jobs.'' Special Hazard Review: Child Labor Research Needs.
Recommendations from the NIOSH Child Labor Working Team, Ch. 2, August
1997. NIOSH also estimates that youth work injuries exceed 200,000 each
year, and of that number, 77,000 are serious enough to warrant
treatment in hospital emergency rooms. The NIOSH statistics show that,
despite the fact that workers aged 15 through 17 are generally
restricted from performing in hazardous occupations such as mining,
motor-vehicle driving, logging, sawmilling and construction, they have
a higher rate of injuries requiring emergency room treatment than any
other age group except 18- and 19-year-olds (who are not restricted
from performing such work). NIOSH Recommendations to the U. S.
Department of Labor for Changes to Hazardous Orders, p. 8, May 2002.
The economic and social costs associated with the deaths and serious
injuries of young workers are substantial.
The Department considers the issuance of this rule as an important
and necessary step in its ongoing review of the criteria for
permissible child labor employment, a review which strives to balance
the potential benefits of transitional, staged employment opportunities
for youth with the necessary protections for their education, health
and safety. Because youth often overcome the effects of those
characteristics that initially place them at increased risk of injury
and death in the workplace only through the maturation process, it is
believed that requiring older workers to perform those tasks that
present greater risks to younger workers actually eliminates injuries
and deaths `` rather than delaying them or transferring them to the
older workers.
This rule revises the child labor regulations in response to two
statutory amendments enacted by the Congress that altered two of the
child labor hazardous occupation orders: HO 12, affecting activities
involving certain scrap paper balers and paper box compactors; and HO
2, affecting the operation of motor vehicles. The economic impact of
these statutory provisions is expected to be minimal. The Department
believes that only a few minors employed in such occupations would be
affected by these revisions. In addition, any costs that might result
from using older employees to perform the prohibited tasks would be
more than offset by reduced health and productivity costs resulting
from accidents and injuries to minors on the job. The additional
changes are also expected to have little or no direct cost impact. The
changes affecting the types of cooking and related food preparation
activities that 14- and 15-year olds may perform in food service
establishments (Reg. 3 Occupations) are primarily clarifications of
existing provisions. Changes to HO 16 to prohibit youth under age 18
from performing all work on roofs and an update of definitions for the
term ``explosives'' in HO 1 that prohibits minors working where
``explosives'' are made or stored are expected to affect few minors. A
change in the regulation on government-issued certificates of age
intended to reduce paperwork when a minor's employment ends would
reduce the cost impact of the existing regulation.
In addition, the information required to be disclosed or posted on
machines covered by the Baler and Compactor Act does not impose new
burdens under the Paperwork Reduction Act because the information to be
disclosed is originally supplied by the Federal government under the
statute and these regulations (see 5 CFR 1320.3(c)(2)). The Department
believes that any new costs incurred by employers to comply with the
notice requirements would be de minimis. The Department estimates that
the largest group of employers that will qualify for and take advantage
of this limited exemption are grocery stores and food service
establishments, of which only approximately 20% of the grocery stores
(3,395) and 1% of the eating and drinking establishments (2,003) are
covered by the FLSA, have balers or compactors which meet the ANSI
standards named in the Compactor and Baler Act, and employ 16- and 17-
year-old minors who they wish to utilize to load the balers or
compactors, for a total of 5,398 affected employers.
Compliance with the notice requirements can be achieved by
purchasing or creating a notice with all required information and
affixing it to the baler or compactor. Once the notice is affixed and
assuming all the equipment continues to meet the required ANSI
Standard, the requirement is permanently satisfied and need only be
repeated if the notice
[[Page 75401]]
is damaged or destroyed. Some employers may purchase the required
notice. Some employers may create their own notice. Some employers have
only one baler or compactor; others have several, possibly at multiple
locations. Considering these various situations, we estimate that it
will take an average of 4 minutes per employer to satisfy the notice
requirement for a total, one-time burden of 360 hours. Absent specific
wage data regarding the employees who will satisfy these notice
requirements, respondent costs are estimated utilizing the average
hourly rate of nonsupervisory workers of $10.04 in the retail trade for
2002 (Monthly Labor Review, U.S. Department of Labor, Bureau of Labor
Statistics). The total additional costs associated with the notice
requirement are estimated at $3,614.40 ($10.04 x 360 hours).
The Department also believes that this rule will not reduce the
overall number of safe, positive and legal employment opportunities
available to young workers. The rule overall modifies certain existing
restrictions under two of the HOs and Reg. 3 occupations, expands
restrictions under one HO, reduces paperwork burden involving age
certificates, and makes other technical, clarifying changes. Although a
small number of employers may be required to hire an older worker to
perform the prohibited tasks, we believe that any resulting costs
directly incurred would be minimal. Rules that limit permissible job
activities for working youth to those that are safe do not, by
themselves, impose significant added costs on employers, in our view.
In fact, ensuring that permissible job opportunities for working youth
are safe and healthy and not detrimental to their education, as
required by the statute, produces many positive benefits in addition to
fewer occupational injuries and deaths, including reduced health and
productivity costs that employers may otherwise incur because of higher
accident and injury rates to young and inexperienced workers. In any
event, the direct, incremental costs imposed by this rule are expected
to be minimal. Collectively, they will not have an annual effect on the
economy of $100 million or more or adversely affect in a material way
the economy or its individual sectors, productivity, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities. Therefore, this rule is not ``economically
significant'' and no regulatory impact analysis has been prepared.
VI. Small Business Regulatory Enforcement Fairness Act
The Department has similarly concluded that this rule is not a
``major rule'' requiring approval by the Congress under the Small
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et
seq.). It will not likely result in (1) an annual effect on the economy
of $100 million or more; (2) a major increase in costs or prices for
consumers, individual industries, Federal, State or local government
agencies, or geographic regions; or (3) significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of U.S.-based enterprises to compete with foreign-based
enterprises in domestic or export markets.
VII. Regulatory Flexibility Act and Executive Order 13272
This rule is not expected to have a significant economic impact on
a substantial number of small entities. Two provisions (driving and
paper balers) are specifically required by statutory amendments enacted
by Congress. It is anticipated that the other provisions would have
little or no cost impact on any small entities. The amendment to the
provisions concerning the circumstances when 14- and 15-year-olds are
permitted to cook is primarily a clarification of the existing
provision. We believe that the prohibition against work on a roof and
the revision to the paper baler and box compactor provisions would
affect few minors, and therefore few small businesses. Although a small
number of employers would be required to use an older employee to
perform the prohibited tasks, we believe that any resulting costs
directly incurred would be minimal. Indeed, we believe that the child
labor regulations, by fostering safer work environments for working
youth, would reduce health and productivity costs to employers,
including covered small businesses, resulting from accidents and
injuries to minors on the job. Thus, given the nature of the changes
proposed by the rule, and for the reasons discussed above, we do not
believe the rule will have a significant economic impact on a
substantial number of small entities. The Department has certified to
this effect to the Chief Counsel for Advocacy of the U.S. Small
Business Administration. Therefore, no Regulatory Flexibility Analysis
is required.
VIII. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531
et seq.) directs agencies to assess the effects of Federal regulatory
actions on State, local, and tribal governments, and the private
sector, ``...(other than to the extent that such regulations
incorporate requirements specifically set forth in law).'' For purposes
of the Unfunded Mandates Reform Act, and as noted above, this rule does
not include any Federal mandate that may result in increased annual
expenditures in excess of $100 million by State, local or tribal
governments in the aggregate, or by the private sector. Moreover, two
of the changes constitute ``regulations [that] incorporate requirements
specifically set forth in law'' (i.e., amendments to HO 2 and HO 12).
IX. Effects on Families
This rule has been assessed under section 654 of the Treasury and
General Government Appropriations Act, 1999, for its effect on family
well-being and the undersigned hereby certifies that the rule will not
adversely affect the well-being of families.
X. Executive Order 13045, Protection of Children
Executive Order No. 13045, dated April 23, 1997 (62 FR 19885),
applies to any rule that (1) is determined to be ``economically
significant'' as defined in Executive Order No. 12866, and (2) concerns
an environmental health or safety risk that the promulgating agency has
reason to believe may have a disproportionate effect on children. This
action is not subject to Executive Order No. 13045 because it is not
economically significant as defined in Executive Order No. 12866. In
addition, although this rule impacts the youth employment provisions of
the FLSA and the employment of adolescents and young adults, it does
not impact the environmental health or safety risks of children.
XI. Executive Order 13132, Federalism
The Department has reviewed this rule in accordance with Executive
Order 13132 regarding federalism, and has determined that it does not
have ``federalism implications.'' The rule does not ``have substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
[[Page 75402]]
XII. Executive Order 13175, Indian Tribal Governments
This rule was reviewed under the terms of E.O. 13175 and determined
not to have ``tribal implications.'' The rule does not have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and the Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and the Indian tribes.'' As a result, no tribal summary
impact statement has been prepared.
XIII. Executive Order 12630, Constitutionally Protected Property Rights
This rule is not subject to E.O. 12630 because it does not involve
implementation of a policy ``that has takings implications'' or that
could impose limitations on private property use.
XIV. Executive Order 12988, Civil Justice Reform Analysis
This final rule was drafted and reviewed in accordance with E.O.
12988 and will not unduly burden the Federal court system. The rule
was: (1) Reviewed to eliminate drafting errors and ambiguities; (2)
written to minimize litigation; and (3) written to provide a clear
legal standard for affected conduct, and to promote burden reduction.
XV. Executive Order 13211, Energy Supply
This rule is not subject to E.O. 13211. It will not have a
significant adverse effect on the supply, distribution, or use of
energy.
XVI. Environmental Impact Assessment
The Department has reviewed this rule in accordance with the
requirements of the National Environmental Policy Act (NEPA) of 1969
942 U.S.C. 1500) and the Department's NEPA procedures (29 CFR part 11).
The rule will not have a significant impact on the quality of the human
environment, and, thus, the Department has not conducted an
environmental assessment or an environmental impact statement.
List of Subjects
29 CFR Part 570
Child labor, Child labor occupations, Employment, Government,
Incorporation by reference, Intergovernmental relations,
Investigations, Labor, Law enforcement, Minimum age.
29 CFR Part 579
Child labor, Law enforcement, Penalties.
29 CFR Part 580
Administrative practice and procedure, Child labor, Employment,
Labor, Law enforcement, Penalties.
Signed at Washington, DC on the 7th day of December, 2004.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Alfred B. Robinson, Jr.,
Acting Administrator, Wage and Hour Division.
0
For the reasons set forth above, title 29, parts 570, 579, and 580, of
the Code of Federal Regulations are amended as set forth below.
PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF
INTERPRETATION
Subpart B--[Amended]
0
1.-2. The authority citation for part 570 Subpart B is revised to read
as follows:
Authority: 29 U.S.C. 203(l), 211, 212.
0
3. In Sec. 570.5, the section heading is revised to read as follows:
Sec. 570.5 Certificates of age and their effect.
0
4. In Sec. 570.6, the section heading, paragraph (b)(1) and the
parenthetical statement following paragraph (b)(2) are revised to read
as follows:
Sec. 570.6 Contents and disposition of certificates of age.
* * * * *
(b)(1) We will send a certificate of age for a minor under 18 years
of age to the prospective employer of the minor. That employer must
keep the certificate on file at the minor's workplace. When the minor
terminates employment, the employer must give the certificate to the
minor. The minor may then present the previously issued certificate to
future employers as proof of age as described in Sec. 570.5.
(2) * * *
(The information collection requirements contained in paragraph
(a) were approved by the Office of Management and Budget under
control number 1215-0083.)
0
5. In Sec. 570.7, the section heading is revised to read as follows:
Sec. 570.7 Documentary evidence required for issuance of a
certificate of age.
0
6. In Sec. 570.8, the section heading is revised to read as follows:
Sec. 570.8 Issuance of a Federal certificate of age.
0
7. In Sec. 570.9, the section heading is revised to read as follows:
Sec. 570.9 States in which State certificates of age are accepted.
0
8. In Sec. 570.10, the section heading is revised to read as follows:
Sec. 570.10 Rules for certificates of age in the State of Alaska and
the Territory of Guam.
0
9. In Sec. 570.11, the section heading is revised to read as follows:
Sec. 570.11 Continued acceptability of certificates of age.
0
10. In Sec. 570.12, the section heading is revised to read as follows:
Sec. 570.12 Revoked certificates of age.
0
11. In Sec. 570.25, the section heading is revised to read as follows:
Sec. 570.25 Effect on laws other than the Federal child labor
standards.
0
12. In Sec. 570.27, the section heading is revised to read as follows:
Sec. 570.27 Revision of subpart B.
Subpart C--[Amended]
0
13. The authority citation for part 570 Subpart C is revised to read as
follows:
Authority: 29 U.S.C. 203(l), 212.
0
14. In Sec. 570.31, the section heading is revised to read as follows:
Sec. 570.31 Secretary's determinations concerning the employment of
minors 14 and 15 years of age.
0
15. In Sec. 570.32, the section heading is revised to read as follows:
Sec. 570.32 Effect of subpart C.
0
16. In Sec. 570.33, the section heading is revised to read as follows:
Sec. 570.33 Prohibited occupations for minors 14 and 15 years of age.
0
17. In Sec. 570.34, the section heading and paragraphs (a)(7) and
(b)(5) are revised to read as follows:
Sec. 570.34 Occupations minors 14 and 15 years of age are permitted
to perform in retail, food service, and gasoline service
establishments.
(a) * * *
(7) Kitchen work and other work involved in preparing and serving
food and beverages, including operating machines and devices used in
performing such work. Examples of permitted machines and devices
include, but are not limited to, dishwashers, toasters, dumbwaiters,
popcorn poppers, milk shake blenders, coffee grinders, automatic coffee
[[Page 75403]]
machines, devices used to maintain the temperature of prepared foods
(such as warmers, steam tables, and heat lamps), and microwave ovens
that are used only to warm prepared food and do not have the capacity
to warm above 140 [deg]F. Minors are permitted to clean kitchen
equipment (not otherwise prohibited), remove oil or grease filters,
pour oil or grease through filters, and move receptacles containing hot
grease or hot oil, but only when the equipment, surfaces, containers
and liquids do not exceed a temperature of 100 [deg]F;
* * * * *
(b) * * *
(5) Baking and cooking are prohibited except:
(i) Cooking is permitted with electric or gas grilles which does
not involve cooking over an open flame (Note: this provision does not
authorize cooking with equipment such as rotisseries, broilers,
pressurized equipment including fryolators, and cooking devices that
operate at extremely high temperatures such as ``Neico broilers''); and
(ii) Cooking is permitted with deep fryers that are equipped with
and utilize a device which automatically lowers the baskets into the
hot oil or grease and automatically raises the baskets from the hot oil
or grease;
* * * * *
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18. In Sec. 570.35, the section heading is revised to read as follows:
Sec. 570.35 Hours of work and conditions of employment permitted for
minors 14 and 15 years of age.
0
19. In Sec. 570.35a, the section heading is revised to read as
follows:
Sec. 570.35a Work experience and career exploration program.
0
20. In Sec. 570.36, the section heading is revised to read as follows:
Sec. 570.36 Effect of a certificate of age under this subpart.
0
21. In Sec. 570.37, the section heading is revised to read as follows:
Sec. 570.37 Effect of this subpart on other laws.
0
22. In Sec. 570.38, the section heading is revised to read as follows:
Sec. 570.38 Revision of subpart C.
Subpart E--[Amended]
0
23. The authority citation for part 570 subpart E is revised to read as
follows:
Authority: 29 U.S.C. 203(l), 212, 213(c).
0
24. In Sec. 570.51, paragraph (b) (2) is revised to read as follows:
Sec. 570.51 Occupations in or about plants or establishments
manufacturing or storing explosives or articles containing explosive
components (Order 1).
* * * * *
(b) * * *
(2) The terms explosives and articles containing explosive
components mean and include ammunition, black powder, blasting caps,
fireworks, high explosives, primers, smokeless powder, and explosives
and explosive materials as defined in 18 U.S.C. 841(c)-(f) and the
implementing regulations at 27 CFR part 555. The terms include any
chemical compound, mixture, or device, the primary or common purpose of
which is to function by explosion, as well as all goods identified in
the most recent list of explosive materials published by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, Department of Justice. This
list is not intended to be all-inclusive and is updated and published
annually in the Federal Register pursuant to 18 U.S.C. 841(d). A copy
of the most recent version of the list may be found through the Bureau
of Alcohol, Tobacco, Firearms, and Explosives' Web site at http://www.atf.gov
.
* * * * *
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25. In Sec. 570.52, paragraph (b) is revised and new paragraphs (c)(5)
and (c)(6) are added to read as follows:
Sec. 570.52 Occupations of motor-vehicle driver and outside helper
(Order 2).
* * * * *
(b) Exemption--Incidental and occasional driving by 17-year-olds.
Minors who are at least 17 years of age may drive automobiles and
trucks on public roadways when all the following criteria are met:
(1) The automobile or truck does not exceed 6,000 pounds gross
vehicle weight, and the vehicle is equipped with a seat belt or similar
restraining device for the driver and for any passengers and the
employer has instructed the employee that such belts or other devices
must be used;
(2) The driving is restricted to daylight hours;
(3) The minor holds a State license valid for the type of driving
involved in the job performed and has no records of any moving
violations at the time of hire;
(4) The minor has successfully completed a State-approved driver
education course;
(5) The driving does not involve: the towing of vehicles; route
deliveries or route sales; the transportation for hire of property,
goods, or passengers; urgent, time-sensitive deliveries; or the
transporting at any one time of more than three passengers, including
the employees of the employer;
(6) The driving performed by the minor does not involve more than
two trips away from the primary place of employment in any single day
for the purpose of delivering goods of the minor's employer to a
customer (except urgent, time-sensitive deliveries which are completely
banned in paragraph (b)(5) of this section;
(7) The driving performed by the minor does not involve more than
two trips away from the primary place of employment in any single day
for the purpose of transporting passengers (other than the employees of
the employer);
(8) The driving takes place within a thirty (30) mile radius of the
minor's place of employment; and,
(9) The driving is only occasional and incidental to the employee's
employment.
(c) * * *
(5) The term occasional and incidental means no more than one-third
of an employee's worktime in any workday and no more than 20 percent of
an employee's worktime in any workweek.
(6) The term urgent, time-sensitive deliveries means trips which,
because of such factors as customer satisfaction, the rapid
deterioration of the quality or change in temperature of the product,
and/or economic incentives, are subject to time-lines, schedules, and/
or turn-around times which might impel the driver to hurry in the
completion of the delivery. Prohibited trips would include, but are not
limited to, the delivery of pizzas and prepared foods to the customer;
the delivery of materials under a deadline (such as deposits to a bank
at closing); and the shuttling of passengers to and from transportation
depots to meet transport schedules. Urgent, time-sensitive deliveries
would not depend on the delivery's points of origin and termination,
and would include the delivery of people and things to the employer's
place of business as well as from that business to some other location.
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26. In Sec. 570.63, the section heading and paragraphs (a)(1)(i), (b)
and (c) are revised to read as follows:
Sec. 570.63 Occupations involved in the operation of paper-products
machines, scrap paper balers, and paper box compactors (Order 12).
(a) * * *
(1) * * *
(i) Arm-type wire stitcher or stapler, circular or band saw, corner
cutter or mitering machine, corrugating and single-or-double facing
machine,
[[Page 75404]]
envelope die-cutting press, guillotine paper cutter or shear,
horizontal bar scorer, laminating or combining machine, sheeting
machine, scrap paper baler, paper box compactor, or vertical slotter.
* * * * *
(b) Definitions.
Applicable ANSI Standard means the American National Standard
Institute's Standard ANSI Z245.5-1990 (``American National Standard for
Refuse Collection, Processing, and Disposal--Baling Equipment--Safety
Requirements'') for scrap paper balers or the American National
Standard Institute's Standard ANSI Z245.2-1992 (``American National
Standard for Refuse Collection, Processing, and Disposal Equipment--
Stationary Compactors--Safety Requirements'') for paper box compactors.
Additional applicable standards are the American National Standard
Institute's Standard ANSI Z245.5-1997 (``American National Standard for
Equipment Technology and Operations for Wastes and Recyclable
Materials--Baling Equipment--Safety Requirements'') for scrap paper
balers or the American National Standard Institute's Standard ANSI
Z245.2-1997 (``American National Standard for Equipment Technology and
Operations for Wastes and Recyclable Materials--Stationary Compactors--
Safety Requirements'') for paper box compactors, which the Secretary
has certified to be at least as protective of the safety of minors as
Standard ANSI Z245.5-1990 for scrap paper balers or ANSI Z245.2-1992
for paper box compactors. The ANSI standards for scrap paper balers and
paper box compactors govern the manufacture and modification of the
equipment, the operation and maintenance of the equipment, and employee
training. These ANSI standards are incorporated by reference in this
paragraph and have the same force and effect as other standards in this
part. Only the mandatory provisions (i.e., provisions containing the
word ``shall'' or other mandatory language) of these standards are
adopted as standards under this part. These standards are incorporated
by reference as they exist on the date of the approval; if any changes
are made in these standards which the Secretary finds to be as
protective of the safety of minors as the current standards, the
Secretary will publish a Notice of the change of standards in the
Federal Register. These incorporations by reference were approved by
the Director of the Federal Register in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51. Copies of these standards are available for purchase
from the American National Standards Institute (ANSI), 23 West 43rd
St., Fourth Floor, New York, NY, 10036. In addition, these standards
are available for inspection at the National Archives and Records
Administration (NARA) and at the Occupational Safety and Health
Administration's Docket Office, Room N2625, U.S. Department of Labor,
200 Constitution Avenue, NW., Washington, DC, 20210, or any of its
regional offices. For information on the availability of this material
at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html
.
Operating or assisting to operate means all work which involves
starting or stopping a machine covered by this section, placing
materials into or removing materials from a machine, including clearing
a machine of jammed paper or cardboard, or any other work directly
involved in operating the machine. The term does not include the
stacking of materials by an employee in an area nearby or adjacent to
the machine where such employee does not place the materials into the
machine.
Paper box compactor means a powered machine that remains stationary
during operation, used to compact refuse, including paper boxes, into a
detachable or integral container or into a transfer vehicle.
Paper products machine means:
(1) All power-driven machines used in--(i) Remanufacturing or
converting paper or pulp into a finished product, including preparing
such materials for recycling; or
(ii) Preparing such materials for disposal.
(2) The term applies to such machines whether they are used in
establishments that manufacture converted paper or pulp products, or in
any other type of manufacturing or nonmanufacturing establishment. The
term also applies to those machines which, in addition to paper
products, process other material for disposal.
Scrap paper baler means a powered machine used to compress paper
and possibly other solid waste, with or without binding, to a density
or form that will support handling and transportation as a material
unit without requiring a disposable or reusable container.
(c) Exemptions. (1) Sixteen- and 17-year-olds minors may load
materials into, but not operate or unload, those scrap paper balers and
paper box compactors that are safe for 16- and 17-year-old employees to
load and cannot be operated while being loaded. For the purpose of this
exemption, a scrap paper baler or a paper box compactor is considered
to be safe for 16- and 17-year-old to load only if all of the following
conditions are met:
(i) The scrap paper baler or paper box compactor meets the
applicable ANSI standard (the employer must initially determine if the
equipment meets the applicable ANSI standard, and the Administrator or
his/her designee may make a determination when conducting an
investigation of the employer);
(ii) The scrap paper baler or paper box compactor includes an on-
off switch incorporating a key-lock or other system and the control of
the system is maintained in the custody of employees who are 18 years
of age or older;
(iii) The on-off switch of the scrap paper baler or paper box
compactor is maintained in an off position when the machine is not in
operation; and
(iv) The employer posts a notice on the scrap paper baler or paper
box compactor (in a prominent position and easily visible to any person
loading, operating, or unloading the machine) that includes and conveys
all of the following information:
(A) That the scrap paper baler or compactor meets the industry
safety standard applicable to the machine, as specified in paragraph
(b)(5) of this section. The notice shall completely identify the
appropriate ANSI standard.
(B) That sixteen- and 17-year-old employees may only load the scrap
paper baler or paper box compactor.
(C) That no employee under the age of 18 may operate or unload the
scrap paper baler or paper box compactor.
(2) This section shall not apply to the employment of apprentices
or student-learners under the conditions prescribed in Sec. 570.50 (b)
and (c).
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27. In Sec. 570.67 the section heading and paragraphs (a) and (b) are
revised to read as follows:
Sec. 570.67 Occupations in roofing operations and on or about a roof
(Order 16).
(a) Finding and declaration of fact. All occupations in roofing
operations and all occupations on or about a roof are particularly
hazardous for the employment of minors between 16 and 18 years of age
or detrimental to their health.
(b) Definitions.
On or about a roof includes all work performed upon or in close
proximity to a roof, including carpentry and metal work, alterations,
additions, maintenance and repair, including painting and coating of
existing roofs; the construction of the sheathing or base of roofs
(wood or metal), including roof
[[Page 75405]]
trusses or joists; gutter and downspout work; the installation and
servicing of television and communication equipment such as cable and
satellite dishes; the installation and servicing of heating,
ventilation and air conditioning equipment or similar appliances
attached to roofs; and any similar work that is required to be
performed on or about roofs.
Roofing operations means all work performed in connection with the
installation of roofs, including related metal work such as flashing,
and applying weatherproofing materials and substances (such as
waterproof membranes, tar, slag or pitch, asphalt prepared paper, tile,
composite roofing materials, slate, metal, translucent materials, and
shingles of asbestos, asphalt, wood or other materials) to roofs of
buildings or other structures. The term also includes all jobs on the
ground related to roofing operations such as roofing laborer, roofing
helper, materials handler and tending a tar heater.
* * * * *
PART 579--CHILD LABOR VIOLATIONS--CIVIL MONEY PENALTIES
0
28.-29. The authority citation for part 579 is revised to read as
follows:
Authority: 29 U.S.C. 203(l), 211, 212, 213(c), 216; Reorg. Plan
No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 Stat.
72, 76; Secretary of Labor's Order No. 4-2001, 66 FR 29656; 104
Stat. 890 (28 U.S.C. 2461 note), as amended by 110 Stat. 1321-373
and 112 Stat. 3293.
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30. In Sec. 579.1, the section heading and paragraphs (a) introductory
text, (a)(1), (a)(6) and (c) are revised to read as follows:
Sec. 579.1 Purpose and scope.
(a) Section 16(e), added to the Fair Labor Standards Act of 1938,
as amended, by the Fair Labor Standards Amendments of 1974, and as
further amended by the Fair Labor Standards Amendments of 1989, the
Omnibus Budget Reconciliation Act of 1990, and the Compactors and
Balers Safety Standards Modernization Act of 1996, provides that--
(1) Any person who violates the provisions of section 12 relating
to child labor, section 13(c)(5), or any regulation issued under those
sections shall be subject to a civil penalty of not to exceed $11,000
for each employee who was the subject of such a violation.
* * * * *
(6) Except for civil money penalties collected for violations of
sections 12 and 13(c)(5), sums collected as penalties pursuant to this
section shall be applied toward reimbursement of the costs of
determining the violations and assessing and collecting such penalties
in accordance with the provision of section 2 of an Act entitled ``An
Act to authorize the Department of Labor to make special statistical
studies upon payment of the cost thereof, and for other purposes'' (29
U.S.C. 9a).
* * * * *
(c) This part explains our procedures for issuing a notice of civil
penalty to an employer that has violated section 12 or section 13(c)(5)
of the Act, or any regulation issued under those sections; describes
the types of violations for which we may impose a penalty and the
factors we will consider in assessing the amount of the penalty;
outlines the procedure for a person charged with violations to file an
exception to the determination that the violations occurred; and
summarizes the methods we will follow for collecting and recovering the
penalty.
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31. In Sec. 579.3, the section heading and paragraph (a)(5) are
revised to read as follows:
Sec. 579.3 Violations for which child labor civil money penalties may
be assessed.
(a) * * *
(5) The failure by an employer employing any minor for whom records
must be kept under any provision of part 516 of this title to maintain
and preserve, as required by such provision, such records concerning
the date of the minor's birth and concerning the proof of the minor's
age as specified therein; and
* * * * *
0
32. In Sec. 579.5, the section heading is revised to read as follows:
Sec. 579.5 Determining the amount of the penalty and assessing the
penalty.
Sec. Sec. 579.6 through 579.8 [Removed]
0
33. Sections 579.6 through 579.8 are removed.
PART 580--CIVIL MONEY PENALTIES--PROCEDURES FOR ASSESSING AND
CONTESTING PENALTIES
0
34.-35. The authority citation for part 580 is revised to read as
follows:
Authority: 29 U.S.C. 9a, 203, 209, 211, 212, 213(c), 216; Reorg.
Plan No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88
Stat. 72, 76; Secretary of Labor's Order No. 4-2001, 66 FR 29656; 5
U.S.C. 500, 503, 551, 559; 103 Stat. 938.
0
36. Section 580.5 is revised to read as follows:
Sec. 580.5 Finality of notice.
If the person charged with violations does not, within 15 days
after receipt of the notice, take exception to the determination that
the violation or violations for which the penalty is imposed occurred,
the administrative determination by the Administrator of the amount of
such penalty shall be deemed final and not subject to administrative or
judicial review. Upon the determination becoming final in such a
manner, collection and recovery of the penalty shall be instituted
pursuant to Sec. 580.18.
0
37. In Sec. 580.6, paragraph (a) is revised to read as follows:
Sec. 580.6 Exception to determination of penalty and request for
hearing.
(a) Any person desiring to take exception to the determination of
penalty, or to seek judicial review, shall request an administrative
hearing pursuant to this part. The exception shall be in writing to the
official who issued the determination at the Wage and Hour Division
address appearing on the determination notice, and must be received no
later than 15 days after the date of receipt of the notice referred to
in Sec. 580.3. No additional time shall be added where service of the
determination of penalties or of the exception thereto is made by mail.
If such a request for an administrative hearing is timely filed, the
Administrator's determination shall be inoperative unless and until the
case is dismissed or the Administrative Law Judge issues a decision
affirming the determination.
* * * * *
0
38. Section 580.13 is revised to read as follows:
Sec. 580.13 Procedures for appeals to the Administrative Review
Board.
(a) Any party desiring review of a decision of the Administrative
Law Judge, including judicial review, must file a petition for review
with the Department's Administrative Review Board (Board). To be
effective, such petition must be received by the Board within 30 days
of the date of the decision of the Administrative Law Judge. Copies of
the appeal shall be served on all parties and on the Chief
Administrative Law Judge. If such a petition for review is timely
filed, the decision of the Administrative Law Judge shall be
inoperative unless and until the Board dismisses the appeal or issues a
decision affirming the decision of the Administrative Law Judge.
(b) All documents submitted to the Board shall be filed with the
Administrative Review Board, Room S-
[[Page 75406]]
4309, U.S. Department of Labor, Washington, DC 20210. An original and
two copies of all documents must be filed.
(c) Documents are not deemed filed with the Board until actually
received by the Board, either on or before the due date. No additional
time shall be added where service of a document requiring action within
a prescribed time was made by mail.
(d) A copy of each document filed with the Board shall be served
upon all other parties involved in the proceeding. Such service shall
be by personal delivery or by mail. Service by mail is deemed effected
at the time of mailing to the last known address of the party.
Sec. 580.14 [Removed and Reserved]
0
39. Section 580.14 is removed and reserved.
0
40. Section 580.16 is revised to read as follows:
Sec. 580.16 Final decision of the Administrative Review Board.
The Board's final decision shall be served upon all parties and the
Chief Administrative Law Judge, in person or by mail to the last known
address.
0
41. In Sec. 580.18, paragraph (a) is revised to read as follows:
Sec. 580.18 Collection and recovery of penalty.
(a) When the determination of the amount of any civil money penalty
provided for in this part becomes final under Sec. 580.5 in accordance
with the administrative assessment thereof, or pursuant to the decision
and order of an Administrative Law Judge in an administrative
proceeding as provided in Sec. 580.12, or the decision of the Board
pursuant to Sec. 580.16, the amount of the penalty as thus determined
is immediately due and payable to the U.S. Department of Labor. The
person against whom such penalty has been assessed or imposed shall
promptly remit the amount thereof, as finally determined. The payment
shall be by certified check or by money order, made payable to the
order of the Wage and Hour Division, and shall be delivered or mailed
to the District Office of the Wage and Hour Division which issued and
served the original notice of the penalty.
* * * * *
[FR Doc. 04-27182 Filed 12-15-04; 8:45 am]
BILLING CODE 4510-27-P
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