[Federal Register Volume 64, Number 229 (Tuesday, November 30, 1999)]
[Proposed Rules]
[Pages 67130-67145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30776]
[[Page 67129]]
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Part VI
Department of Labor
_______________________________________________________________________
Wage and Hour Division, Employment Standards Administration
_______________________________________________________________________
29 CFR Parts 570 and 579
Child Labor Regulations, Orders and Statements of Interpretation Child
Labor Violations--Civil Money Penalties; Proposed Rules
Federal Register / Vol. 64, No. 229 / Tuesday, November 30, 1999 /
Proposed Rules
[[Page 67130]]
DEPARTMENT OF LABOR
Wage and Hour Division, Employment Standards Administration
29 CFR Parts 570 and 579
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: Notice of proposed rulemaking and request for comments.
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SUMMARY: The Department of Labor (Department or DOL) is proposing to
revise the child labor regulations in order to implement two amendments
of the Fair Labor Standards Act's child labor standards--the Compactors
and Balers Safety Standards Modernization Act, Public Law 104-174
(August 6, 1996) (The Compactor and Baler Act); and the Drive for Teen
Employment Act, Public Law 105-334 (October 31, 1998). 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. 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 Department is also proposing to revise regulation concerning
government-issued Certificates of Age. Presently, the regulation
requires that the employer return the certificate to the issuing
agency, except that a certificate issued for employment in agriculture
may be given to the named minor and a certificate issued to an 18- or
19-year-old shall be given to the named worker. The Department proposes
to modify the regulation so as to allow all workers to retrieve the
certificates from their employers when their employment ends.
Further, the Department is proposing revisions regarding the types
of cooking that 14- and 15-year-olds may perform. The Department
proposes to update the regulation and modify a long-standing DOL
interpretation of this child labor standard.
Finally, the Department is proposing revisions to certain
provisions which prescribe certain hazardous employment for 16- and 17-
year-olds. Currently, the regulation prohibits these minors from
working in roofing operations. The Department is proposing to revise
the regulation to prohibit all work on roofs. In addition, the
Department is proposing to revise 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: Comments are due on or before January 31, 2000.
ADDRESSES: Submit written comments to John R. Fraser, Deputy
Administrator, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Attention: Child Labor and
Special Employment Team, Room S-3510, 200 Constitution Avenue, NW.,
Washington, DC 20210. Commenters who wish to receive notification of
receipt of comments are requested to include a self-addressed, stamped
postcard, or to submit comments by certified mail, return receipt
requested. As a convenience, commenters may transmit comments by
facsimile (``FAX'') machine to (202) 693-1432. This is not a toll free
number. If comments are transmitted by FAX and a hard copy is also
submitted by mail, please indicate on the hard copy that it is a
duplicate copy of the FAX transmission.
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 proposed rulemaking may be obtained in alternative formats by
calling (202) 693-0072 or (202) 693-1461 (TTY). The alternative formats
available are large print, electronic file on computer disk (Word
Perfect, ASCII, Mates with Duxbury Braille System) and audio-tape.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
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 assure that the employer is protected
against unwitting violations of the child labor restrictions). 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 is
directed by the current regulation to return the certificate to the
office that issued it, except that a
[[Page 67131]]
certificate for employment in agriculture may be given to the youth;
any subsequent certificate of age requested for that youth may be
issued without additional proof of age. A certificate of age issued for
a youth 18 or 19 years of age is 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 is proposing, as
agreed with OMB, to revise 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 proposed
regulatory revision 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 is
also proposing to revise the statement at the end of Sec. 570.6(b)(2)
to reflect the new OMB control number.
Respondents and proposed frequency of response: It is estimated
that 45 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 seven and one-half hours (45 reports x 10 minutes).
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 nonsupervisory workers on nonfarm payrolls of
$12.26 for 1997 (Monthly Labor Review, U.S. Department of Labor, Bureau
of Labor Statistics, June 1998). Total annual respondent hour costs are
estimated at $91.95 ($12.26 x 7.5 hours).
Total estimated annual postage and envelope costs for transmitting
these applications are $16.20 (45 reports x $.33 postage+$.03 per
envelope).
Total annual respondent costs for form WH-14, application for
federal certificate of age--$108.15 ($91.95+$16.20).
Request for comments: The public is invited to provide comments on
this information collection requirement so that the Department may:
(1) Evaluate whether the proposed collections of information are
necessary for the proper performance of the functions of the agency,
including whether the information will have practical utility;
(2) Evaluate the accuracy of the agency's estimates of the burdens
of the collections of information, including the validity of the
methodology and assumptions used;
(3) Enhance the quality, utility and clarity of the information to
be collected; and
(4) Minimize the burden of the collections of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submission of responses.
Written comments should be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Attention: Desk
Officer for Employment Standards Administration, U.S. Department of
Labor, Washington, DC 20503.
II. Background
The child labor provisions of the Fair Labor Standards Act (FLSA)
establish a minimum age of 16 years for employment in nonagricultural
occupations, but the Secretary of Labor is authorized to provide by
regulation for 14- and 15-year-olds to work in suitable occupations
other than manufacturing or mining, and during periods and under
conditions that will not interfere with their schooling or health and
well-being. These 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
persons under age 18.
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. These amendments
opened up new 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 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, and a Final Rule in 1995.
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
[[Page 67132]]
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. In December 1991, the Department
promulgated a Final Rule which revised 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 and child labor advocates also commented and made various
recommendations. Among these were the Child Labor Coalition (CLC); the
National Consumers League (NCL); the Defense for Children International
USA (DCI); the National PTA (PTA); the United Food & Commercial Workers
International Union, AFL-CIO (UFCW); the Food & Allied Service Trades
Department, AFL-CIO (FAST); Letitia K. Davis, Sc.D, Ed.M, of the
Massachusetts State Department of Health, Occupational Health
Surveillance Program; the American Academy of Pediatrics (AAP);
Professor Laurence Steinberg of Temple University; and Susan H.
Pollack, M.D., Assistant Professor, Department of Pediatrics and
Preventive Medicine, University of Kentucky. Comments to the ANPRM are
discussed below in the pertinent sections of this preamble.
Twice in the last three 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.
In the present Notice of Proposed Rulemaking, the Department
proposes 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 are 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 is proposed. As a result of its ongoing review of
the child labor provisions, the Department is also proposing 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. The proposals are discussed below.
III. Proposed Regulatory Revisions
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 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. As described above (Item
I), 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) currently directs the employer to return the
certificate to the issuing authority when the named worker's employment
terminates, except that a certificate issued for employment in
agriculture may be given to the worker and a certificate issued to an
18-or 19-year-old shall be given to the worker. The Department proposes
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 may 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.
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 child labor provisions to certain
enterprises engaged in commerce or in the production of goods for
commerce. New areas of employment in retail, food service, and gasoline
service establishments were opened to minors.
[[Page 67133]]
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, 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 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 grille or stove, 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 fast food establishments 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 fast
food restaurants in 1977 and conducted a survey of fast food
establishments in 1979 to determine what, if any, changes were needed
in the cooking prohibitions. Interested parties, including major fast
food 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).
The Department continues to receive communications from the public
suggesting that certain changes should be made to the regulations
concerning cooking. A general consensus seems to have developed that
the ``in plain view'' interpretation no longer serves as an important
safety standard as it did in the 1960's, because the activities
involved are no longer limited to ``light'' cooking. Nor does the
interpretation provide sufficient guidance to employers, parents, and
working teens. The proscription of tasks mainly on the basis of place
of performance complicates the regulation and leads to confusion. For
example, in one fast food establishment, 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 recognizes 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 comments on this matter.
The National Institute for Occupational Safety and Health (NIOSH)
submitted epidemiological data supporting its recommendation of a
general prohibition against 14- and 15-year-old minors cooking and
working in close proximity of cooking appliances. NIOSH provided
statistics regarding numbers and risks of burns. NIOSH cited as
especially dangerous the contact burns associated with the cooking
process, servicing the cooking equipment and working in the general
area of cooking appliances. NIOSH also cited the hazard of slipping
into or against equipment, particularly when floors near deep fryers
and grilles become slippery from the oil. NIOSH cited the specific
types of accidents that occur and noted that occupational burns to
adolescents are frequently severe. NIOSH estimated that 5,200
adolescents sought emergency room treatment for work-related burns
associated with cooking or working in a place where food was being
prepared during the eighteen-month period of July 1992 through December
1993, and noted that the rate of burns in eating and drinking places--
2.1 per 100 fulltime workers--was over 10 times greater than the rate
for all other industries (0.2 per 100 fulltime workers). Citing that
teenagers comprise nearly one-quarter of total employment in eating and
drinking places, and stating that the ``in plain view'' policy provides
no additional safety factors for teens, NIOSH recommended that cooking
be prohibited regardless of where performed.
The Child Labor Coalition opposed 14- and 15-year-olds performing
any
[[Page 67134]]
cooking, grilling, or frying, citing some of the same studies as NIOSH
showing that burns are a leading cause of injuries among young workers.
The Defense for Children International USA (DCI) stated that no cooking
by 14- and 15-year-olds should be permitted in retail and food
establishments, citing accident and injury data reporting that such
work is dangerous. The DCI also endorsed the information provided by
NIOSH as to the physical dangers of cooking.
The Food and Allied Service Trades Department, AFL-CIO (FAST)
opposed any change that would relax or remove the restrictions against
workers under the age of 18 cooking in retail and food establishments.
The FAST based its comments on the incorrect premise that cooking is
prohibited for those under 18 (i.e., in fact, all cooking and baking
are permitted for 16- and 17-year-olds unless included in the HO 10 and
11 prohibitions (food slicers and bakery machines)). The FAST cited the
accident data regarding fast food workers, and noted that teenage cooks
suffer more burns than adult cooks and that the most common sources of
burns are cooking oils, grilles, and other cooking equipment.
An official of the Massachusetts Department of Health, Occupational
Health Surveillance Program, recommended prohibiting cooking by all 14-
and 15-year-olds irrespective of where the cooking takes place. The
recommendation was based on a study of injury data from emergency
departments in fourteen Massachusetts communities during 1979-1982. The
estimated occupational injury rate for all employed teens was 16 per
100 fulltime equivalent employees. Burns accounted for 6 percent of
occupational injuries to teens (but the study source data did not
contain information about the industries in which injured teens were
working). In an ongoing analysis of worker's compensation claims for
teens in Massachusetts, the official reported that burns accounted for
6 percent of all occupational injuries to teens and that burns also
accounted for 6 percent of cases of lost workdays of five or more days
leading to Worker's Compensation claims. The official also reported
that occupational burn injuries to teens are often severe, finding that
12 percent of occupational burns to teens covered multiple parts of the
body.
The National Consumers League opposed 14- and 15-year-olds
performing any cooking and cited several studies regarding the risks of
cooking. The Washington State Child Labor Committee and the Washington
State Department of Labor and Industries recommended that the
Department use the Washington State law as a model for Federal
regulations; those State child labor regulations contain a provision
banning cooking and baking by workers under 16 years of age.
The Ohio State Department of Education opposed any changes to the
cooking provisions and was the only commenter to recommend retaining
the ``in plain view'' interpretation. The agency also recommended
continuing the current policy of issuing variances to allow students in
Work Experience and Career Exploration Programs (WECEP) to cook under
certain conditions, as those students receive safety instruction and
are closely supervised throughout their WECEP participation.
The National Restaurant Association (NRA) supported allowing 14-
and 15-year-old minors to perform cooking, including immersing foods in
grease or tending cooking foods. The NRA suggested prohibiting minors
from handling hot grease (140 deg.F or higher) before or after
cooking, working over an open flame which is not contained in such a
way as to prevent the flame from igniting clothing, and cooking with
containers under pressure which have no safety valve. The NRA cited the
current regulations as ``a product of a bygone era'' and stated that
cooking and baking should be permitted regardless of where they are
performed. The NRA's proposal was similar to the Department's 1982
Proposed Rule.
The National Council of Chain Restaurants (NCCR) also supported
allowing 14- and 15-year-old minors to cook and bake. It labeled the
current regulations as outdated and stated that the ``in plain view''
interpretation does not lend itself to practical and consistent
application in the restaurant industry. The NCCR commented that modern
technology and equipment make cooking and baking safer than at any time
in the past. Six other comments, those from a State restaurant
association, a city government, and four restaurants or chains, urged
that cooking be permitted under conditions which make it safer (such as
under adult supervision or after safety training).
With respect to the types of cooking equipment that may be used and
temperatures of such equipment, one restaurant recommended allowing the
use of all cooking equipment but added that stricter reporting of
occupational injuries would be necessary. The Child Labor Coalition
(CLC) recommended a complete review of all machines and injury data, in
particular those which can cause burns from hot water and steam. The
CLC cited its research which showed that burns often occur in
connection with work involving deep fat fryers, dishwashers, and
cooking liquids.
The North Carolina State Department of Labor proposed that a
hazardous occupations order be adopted which would ban all minors under
age 18 from using deep fat or oil fryers not equipped with automated
food lowering devices, cleaning or removing of grease or oil filters
from any deep fat or oil fryer, and lifting, moving or carrying
receptacles or containers of hot grease or oil.
In addition to the comments summarized above, the Department also
received--in response to the 1994 ANPRM--several articles, studies, and
papers that discuss dangers associated with cooking.
The Department has carefully considered all the comments and
materials received, and has reviewed the Reg. 3 standards. The
Department recognizes 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. Just as in 1962, there are still some types of cooking
that are not appropriate for minors under 16 years of age because of
safety considerations. But as mentioned by several organizations that
commented on the ANPRM, the Department believes that there are certain
cooking duties minors can safely perform in modern food service
establishments. The Department has preliminarily concluded that the
current 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 believes
that this regulatory revision can be done without negatively impacting
employment opportunities for young workers.
The Department is proposing to establish standards for cooking
duties which the Department believes are safe and appropriate for these
minors regardless of where the cooking is performed within the food
service establishment. Thus, the current ``in plain view''
interpretation would be eliminated.
The proposal would permit 14- and 15-year-olds to: (1) Cook with
electric or gas grilles which do not involve cooking over an open
flame; (2) use deep fat fryers which are equipped with devices which
automatically raise and lower the ``baskets,'' but not pressurized
fryers; (3) clean, maintain (including the changing, cleaning, and
disposing of oil or grease and oil or grease filters) and repair
cooking devices (other than power-
[[Page 67135]]
driven equipment) when the surfaces of the equipment or liquids do not
exceed a temperature of 140 deg.F.
The maximum temperature of 140 deg.F was originally proposed in
1982 because it had been established as the minimum temperature at
which a first-degree burn can occur. Recent consultations between the
Wage and Hour Division and the Occupational Safety and Health
Administration (OSHA) have led the Department to believe that this
maximum temperature will protect minors who clean, maintain and repair
non-power-driven equipment and handle cooking oils and grease.
The proposal would prohibit 14- and 15-year-olds from cleaning
equipment such as grilles, deep fat fryers, and steam tables; removing
grease filters; and lifting, moving or carrying receptacles or
containers of hot grease or oil when the minor would be exposed to or
working with liquid or equipment surfaces which exceed a temperature of
140 deg.F. This ban on carrying hot oil would apply regardless of the
type of oil.
The ban on all baking activities by those under 16 years of age
would continue. These minors would still be prohibited from performing
all jobs that are part of the baking process, such as weighing and
mixing ingredients; operating ovens, including convection ovens,
microwave ovens (except those used for warming food as described
below), pizza ovens, and automatic feeding ovens; removing items from
ovens to 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 of ovens, and operating power-driven equipment. However, the
Department is reviewing this position and is seeking 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 we should therefore consider modifying the ban on the baking
process performed in retail establishments by 14- and 15-year-olds.
Specifically, the Department seeks 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. The weighing and measuring of ingredients could entail
lifting and moving large containers of materials. NIOSH, in its October
24, 1994 comments on the 1994 ANPRM, recommended certain weight limits
be adopted for jobs requiring lifting to reduce occupational
musculoskeletal injuries (sprains and strains) to workers.
Specifically, NIOSH recommended that the Department consider issuing a
Hazardous Occupation Order imposing the following restrictions on
manual handling jobs performed by minors under 18 years of age: ``(1)
Frequent lifting/lowering rates (not to exceed 6 lifts per minute),
maximum weight should not exceed 15 lbs per lift; (2) Infrequent
lifting/lowering rates (not to exceed once per minute), maximum weight
should not exceed 30 lbs per lift; (3) in all cases, maximum lifting
work duration should not exceed two continuous hours of work.'' The
Department therefore seeks evidence and comments as to whether, if the
Department does amend the rules to allow certain backing activities to
be performed, there should be a weight limit, such as 10 pounds, for
jobs requiring lifting by 14- and 15-year-olds.
Additionally, the proposal would continue the current ban against
minors under 16 using such equipment as rotisseries, pressurized
equipment including fryolators, and cooking devices that operate at
extremely high temperatures such as ``Neico broilers.''
This proposal would incorporate the Department's long-standing
policy of 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, and to use, dispense, and serve food from
warmers, steam tables, and other warming devices (even if the
temperatures exceed 140 deg.F). The proposal would also preserve the
current Reg. 3 standard allowing 14- and 15-year-olds to perform
kitchen work and other work to prepare and serve food and beverages.
Finally, the proposal would preserve the current Reg. 3 process
whereby State agencies operating approved Work Experience and Career
Exploration Programs (WECEP) (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.
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 proposes to revise the definition to
eliminate this ICC reference.
The Department considers it to be 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, DOL has sought
an alternate source of expertise in the identification of explosives
and explosive components. After careful consideration, the Department
is of the view that the appropriate source of expertise is the Bureau
of the Alcohol, Tobacco and Firearms, Department of the Treasury (ATF).
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. The most
recent list was published in the Federal Register on May 1, 1998 (63 FR
24207). The Department proposes to revise the HO 1 definition of
``explosives and articles containing explosive components'' to include
the materials identified in the 1998 ATF list, which will appear in an
appendix to the HO 1 subsection. By comparing this alphabetical list to
the product information for materials that are used or stored at the
work site (e.g, the list
[[Page 67136]]
of contents found on the product package), employers and other parties
can readily determine whether any product or material is an explosive
or contains explosive components, so as to be within the HO 1
prohibition.
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 restrictions that numerous States placed 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. These two exemptions are
addressed in this proposed rule, and 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 to 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 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
adapted 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 work time 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 minors 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;
``(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
[[Page 67137]]
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 affects the current HO 2
exemption for ``occasional and incidental'' driving, the Act does not
affect any other parts of HO 2. The HO applies to driving on public
roadways and has 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 regarding the
employment of 16- and 17-year-olds to drive motor vehicles other than
cars and truck--such as truck-tractors, trailers, semitrailers, and
motorcycles--on public roads 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 proposes 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 is of the 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 notes 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 does not propose to require that employers
create or maintain any records with regard to compliance with the Drive
for Teen Employment Act.
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 notes
that the Drive for Teen Employment Act limits the type and extent of
driving a 17-year-old may perform on-the-job. In order to better
protect themselves against unwitting violations of these HO 2
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.
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
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 proposes 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 sees
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.
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
[[Page 67138]]
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
establishment that used 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
solid 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 Department notes that the employer bears the burden of proving
compliance with the conditions established by the Compactor and Bailer
Act which allow 16- and 17-year-olds to load certain scrap paper balers
and paper box compactors.
The amendment also 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 Compactor and Baler Act also 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 sets a maximum of $10,000 per
violation for each minor who was the subject of the violation.
The Department proposes to amend HO 12 to incorporate the
provisions of the Compactor and Baler Act. 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 following
standards set by the Act. The Department notes that employers bear the
burden of proving compliance with these standards.
(1) The equipment must meet the ANSI standards imposed by the Act.
The Department recognizes 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
[[Page 67139]]
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.
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 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, DC 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 proposes 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 Compactor and Baler Act applies specific ANSI standards, issued
by the organization in 1990 and 1992. However, 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
Department is at this time proposing a regulation which incorporates
only the two ANSI standards specified by Congress.
The Department is 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). The Department is 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 indicates the new standards are as protective
as those cited in the Compactor and Baler Act and we are considering
whether to include them along with the older standards when the final
rule is promulgated. The public is 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 16- and 17-year-olds may only load the
equipment, and any employee under age 18 may not operate or unload such
equipment. The Department is proposing that the employer meets 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 proposes no specific form of notice but proposes 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
proposes to include these explicit requirements in the regulation.
The Department also proposes to include in the regulation a
specific identification of paper box compactors among the types of
equipment subject to HO 12. This addition is required by the
legislation, which explicitly includes paper box compactors. In
addition, this regulatory change will 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 proposes 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. 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. This narrow application ignored the fact
that these machines are used to compress materials other than paper
without any changes in design or procedures for loading, operating and
unloading, and that the risks to minors associated with the loading,
operating, and unloading of the machines remain the same regardless of
the materials. Such other materials which may be processed by scrap
paper balers and paper box compactors include, but are not limited to,
plastics, rubber, foam rubber and aluminum cans. This modification of
HO 12 is needed to prevent injuries to minors and, in addition, is
supported by the definitions of both balers and compactors contained in
the ANSI Standards which Congress adopted in the Compactor and Baler
Act. We have preliminarily concluded that occupations involving the
loading, operating and unloading of scrap paper bailers 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
proposal would also revise the title of the HO to reflect its expanded
coverage.
The proposed rule also amends 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.
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 the National Institute for Occupational Safety
and Health and
[[Page 67140]]
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 on a roof. The comments came from a variety of sources,
including industry organizations, child advocates, and State and
Federal agencies.
The National Roofing Contractors Association and the United Union
of Roofers, Waterproofers and Allied Workers, via a single letter
signed by their Presidents, supported a continuation of the prohibition
against minors working in roofing occupations. They also recommended
expanding the ban to include ``any phase of roofing work, including the
construction or repair of roof sheathing, installation of gutters and
downspouts or any other related roofing work.'' They saw ``no value to
exchanging the safety and health of 16- or 17-year-old minors for the
opportunity to learn limited phases of roofing.'' They stated the risk
was too great and the price was too high.
The Child Labor Coalition (CLC) and the National Consumers League
(NCL) supported a generic restriction with cross-industry application
involving all work at elevations; they recommended using the
Occupational Safety and Health Administration (OSHA) height standard
which lowered the fall protection standard from 16 feet to 6 feet and
which became effective on February 6, 1995 (59 FR 40672). The CLC and
the NCL supported a prohibition on all workplace activities by minors
involving elevations above 6 feet, whether on roofs, hanging out
windows, or working on ladders, scaffolds or other elevated surfaces.
The NCL cited injury and fatality data from OSHA and the Roofer's Union
that supported a ban on any work above 6 feet. The NCL also cited NIOSH
data from 1980 to 1985 which identified falls as a major cause of
injuries to construction workers.
An official of the Massachusetts State Department of Public Health,
Occupational Health Surveillance Program, noted that falls are a
leading cause of occupational fatalities in Massachusetts, as they are
nationally. She cited 1993 statistics in which deaths involving falls
exceeded motor vehicle related deaths and homicides, making them the
leading cause of fatal occupational injuries. The majority of falls
occurred in the construction industry (60 percent), but falls were a
problem in a wide spectrum of industries. The official favored a
generic approach to banning working at heights and would ban all work
on ladders or at heights greater than 6 feet (the OSHA standard).
Similarly, the North Carolina State Department of Labor supported a
ban on working at heights. It suggested banning ``any work which
involves the risk of falling from any elevated place located 10 feet or
more above the ground, including work involving the use of ladders and
scaffolds in which work is performed higher than 10 feet from the
ground surface.'' A member of the Washington State House of
Representatives who also served as a member of the Washington State
Child Labor Advisory Committee noted that the State of Washington's
child labor regulations contain a limit on working more than 10 feet
above ground or floor level and recommended that the Federal
regulations adopt a similar provision.
The single 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 noted that most
construction jobs require working at heights, and suggested that the
Department should take into consideration the strides OSHA has made in
protecting all construction workers. 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. ABC also stated that such a ban would bar
the construction industry from participating in school-to-work
programs. ABC stated that any blanket prohibition on occupations
involving heights or working with electricity would chill potential
career opportunities and prevent the brightest and best of non-college-
bound adolescents from being recruited into careers in the construction
industry.
The Department has carefully considered the comments and available
data and has concluded that the dangers cited in the original report
when HO 16 was first issued still persist for youths working on roofs.
The main danger for such youths is from falls which, as noted by
several commenters, may occur in any occupation performed on a roof. We
have preliminarily concluded that occupations involving working on
roofs, as well as all occupations in roofing operations, are
particularly hazardous for minors between 16 and 18 years of age. The
Department, therefore, is proposing to amend HO 16 to expand the ban
from all roofing occupations to include all work performed on 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, sheathing or roof bases,
television antennas, air conditioners, exhaust and ventilating
equipment, heating equipment, and similar appliances attached to roofs.
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 believes 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.
IV. Executive Order 12866
This proposed 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 Administration's priorities.
Therefore, the Office of Management and Budget has reviewed the
proposed rule. However, because this proposed 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.
This proposal would revise 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 additional revisions that are being proposed are also
expected to have little or no direct cost impact. The revisions
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. An amendment to HO 16 to prohibit youth under age 18
[[Page 67141]]
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. The proposal thus
overall relieves 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 and actually reduces 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 proposed 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.
V. Small Business Regulatory Enforcement Fairness Act
The Department has similarly concluded that this proposed 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.
VI. Unfunded Mandates Reform Act of 1995; Executive Order 12875
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).
For similar reasons, the proposed rule does not impose a
significant ``unfunded mandate'' within the meaning of Executive Order
12875. This order requires agencies to consult with State, local, and
tribal governments when developing regulatory proposals containing
significant unfunded mandates. By its terms, section 1 of E.O. 12875
applies to ``any regulation that is not required by statute and that
creates a mandate upon a State, local or tribal government.'' Two
provisions (driving and paper balers) are specifically required by
statutory amendments enacted by Congress. Furthermore, the Department
believes that there are very few if any minors employed by State, local
and tribal governments in the affected occupations. To the extent that
any minors may be so employed, the Department believes that any costs
that might result from using older employees to perform the prohibited
tasks would be minimal, and would be more than offset by reduced health
and productivity costs resulting from accidents and injuries to minors
on the job. Thus, as described above, this proposed rule does not
contain changes not otherwise required by statute that create
significant unfunded mandates on affected units of government.
VII. Regulatory Flexibility Act
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 balers provision 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
business, 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.
Document Preparation: This document was prepared under the
direction and control of John R. Fraser, Deputy Administrator, Wage and
Hour Division, Employment Standards Administration, U.S. Department of
Labor.
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, Penalties.
Signed at Washington, D.C. on the 22nd day of November, 1999.
Bernard E. Anderson,
Assistant Secretary, Employment Standards Administration.
For the reasons set forth above, title 29, parts 570 and 579, of
the Code of Federal Regulations are proposed to be amended as follows:
PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF
INTERPRETATION
1. The authority citation for part 570, subpart B, continues to
read as follows:
[[Page 67142]]
Authority: Secs. 3, 11, 12, 52 Stat. 1060, as amended, 1066 as
amended, 1067 as amended; 29 U.S.C. 203, 211, 212.
2. In Sec. 570.6, the section heading, paragraph (b)(1) and the
parenthetical statement following paragraph (b)(2) are proposed to be
revised to read as follows:
Sec. 570.6 What information is contained in Federal certificates of
age and how does an employer use it?
* * * * *
(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.)
3. The authority citation for part 570, subpart C, is proposed to
be revised to read as follows:
Authority: Sec. 3, 52 Stat. 1060, as amended; 29 U.S.C. 203,
212.
4. In Sec. 570.34, the section heading, paragraphs (a)(7) and
(b)(5) are proposed to be revised to read as follows:
Sec. 570.34 Which occupations are minors 14 and 15 years of age
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
machines, and devices used to maintain the temperature of prepared
foods (such as warmers, steam tables, and heat lamps). 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 140 deg.F;
* *
(b) * * *
(5) Baking and cooking except:
(i) Cooking with electric or gas grilles which does not involve
cooking over an open flame; and
(ii) Cooking with deep fryers which are equipped with a device
which automatically lowers the baskets into the hot oil or grease and
automatically raises the baskets from the hot oil or grease;
* * * * *
5. The authority citation for part 570, subpart E, is proposed to
be revised to read as follows:
Authority: Secs. 3, 12, 13(c), 18, 52 Stat. 1060, 1069; 29
U.S.C. 203, 212, 213(c), 218.
6. The heading of subpart E is proposed to be revised to read as
follows:
Subpart E--What Occupations Are Particularly Hazardous for the
Employment of 16- and 17-Year-Olds or Detrimental to Their Health
or Well-Being?
7. In Sec. 570.51, paragraph (b)(2) is proposed to be 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 all goods
identified in appendix A to this section.
* * * * *
8. A new Appendix A to Sec. 570.51 is proposed to be added to read
as follows:
Appendix A to Sec. 570.51--List of Explosive Materials
Acetylides of heavy metals; aluminum containing polymeric
propellant; aluminum ophorite explosive; amatex; amatol; ammonal;
ammonium nitrate explosive mixtures (cap sensitive); ammonium
nitrate explosive mixtures (non cap sensitive)* ; aromatic nitro
compound explosive mixtures; ammonium perchlorate explosive
mixtures; ammonium perchlorate composite propellant; ammonium
picrate (picrate of ammonia, Explosive D); ammonium salt lattice
with isomorphously substituted inorganic salts; ANFO (ammonium
nitrate-fuel oil); * baratol; baronol; BEAF (1,2-bis (2,2-diflouro-
2-nitroacetoxyethane)); black powder; black powder based explosive
mixtures; blasting agents, nitro-carbo-nitrates, including non cap
sensitive slurry and water gel explosives* ; blasting caps; blasting
gelatin; blasting powder; BTNEC (bis (trinitroethyl) carbonate);
bulk salutes; BTNEN (bis (trinitroethyl) nitramine); BTTN (1,2,4
butanetriol trinitrate); butyl tetryl; calcium nitrate explosive
mixture; cellulose hexanitrate explosive mixture; chlorate explosive
mixtures; composition A and variations; composition B and
variations; composition C and variations; copper acetylide; cyanuric
triazide; cyclotrimethylenetrinitramine (RDX);
cyclotetramethylenetetranitramine (HMX); cyclonite (RDX); cyclotol;
DATB (diaminotrinitrobenzene); DDNP (diazodinitrophenol); DEGDN
(diethyleneglycol dinitrate); detonating cord; detonators;
dimethylol dimethyl methane dinitrate composition;
dinitroethyleneurea; dinitroglycerine (glycerol dinitrate);
dinitrophenol; dinitrophenolates; dinitrophenyl hydrazine;
dinitroresorcinol; dinitrotoluene-sodium nitrate explosive mixtures;
DIPAM; dipicryl sulfone; dipicrylamine; display fireworks; DNPD
(dinitropentano nitrile); DNPA (2,2-dinitroprophy acrylate);
dynamite; EDDN (ethylene diamine dinitrate); EDNA; ednatol; EDNP
(ethyl 4,4-dinitropentanoate), erythritol tetranitrate explosives;
esters of nitro-substituted alcohols; EGDN (ethylene glycol
dinitrate); ethyl-tetryl; explosive conitrates; explosive gelatine;
explosive mixtures containing oxygen releasing inorganic salts and
hydrocarbons; explosive mixtures containing oxygen releasing
inorganic salts and nitro bodies; explosive mixtures containing
oxygen releasing inorganic salts and water insoluble fuels;
explosive mixtures containing oxygen releasing inorganic salts and
water soluble fuels; explosive mixtures containing sensitized
nitromethane; explosive mixtures containing tetranitromethane
(nitroform); explosive nitro compounds of aromatic hydrocarbons;
explosive organic nitrate mixtures; explosive liquids; explosive
powders; flash powder; fulminate of mercury; fulminate of silver;
fulminating gold; fulminating mercury; fulminating platinum
fulminating silver; gelatinized nitrocellolose; gem-dinitro
aliphatic explosive mixtures; guanyl nitrosamino guanyl tetrazene;
guanyl nitrosamino guanylidene hydrazine; guncotton; heavy metal
azides; hexanite; hexanitrodiphenylamine; hexanitrostilbene; hexogen
(RDX); hexogene or octogene and a nitrated N-methylaniline;
hexolites; HMX (cyclo-1,3,5,7-tetramethylene 2,4,6,8-tetranitramine;
octogen); hydrazinium nitrate/hydrazine/aluminum explosive system;
hydrazoic acid; igniter cord; igniters; initiating tube systems;
KDNBF (potassium dinitrobenzofuroxane); lead azide; lead mannite;
lead mononitroresorcinate; lead picrate; lead salts, explosive; lead
styphnate (styphnate of lead, lead trinitroresorcinate); liquid
nitrated polyol and trimethylolethane; liquid oxygen explosives;
magnesium ophorite explosives; mannitol hexanitrate; MDNP (methyl
4,4-dinitropentanoate); MEAN (monoethanolamine nitrate); mercuric
fulminate; mercury oxalate; mercury tartrate; metriol trinitrate;
minol-2 (40% TNT, 40% ammonium nitrate, 20% aluminum); MMAN
(monomethylamine nitrate), methylamine nitrate; mononitrotoluene-
nitroglycerin mixture; monopropellants; NIBTN (nitroisobutametriol
trinitrate); nitrate sensitezed with gelled nitroparaffin; nitrated
[[Page 67143]]
carbohydrate explosive; nitrated glucoside explosive; nitrated
polyhydric alcohol explosives; nitrates of soda explosive mixtures;
nitric acid and a nitro aromatic compound explosive; nitric acid and
carboxylic fuel explosive; nitric acid explosive mixtures; nitro
aromatic explosive mixtures; nitro compounds of furane explosive
mixtures; nitrocellulose explosive; nitroderivative of urea
explosive mixture; nitrogelatin explosive; nitrogen tricloride;
nitrogen tri-iodide; nitroglycerine (NG, RNG, nitro, glycerlyl
trinitrate, trinitroglycerine); nitroglycide; nitroglycol (ethylene
glycol dinitrate, EGDN); nitroguanidine explosives; nitroparaffins
explosive grade and ammonium nitrate mixtures; nitronium perchlorate
propellant mixtures; nitrostarch; nitro-substituted carboxylic
acids; nitrourea; octogen (HMX); octol (75 percent HMX, 25 percent
TNT); organic amine nitrates; organic nitramines; PBX (RDX and
plasticizer); pellet powder; penthrinite composition; pentolite;
perchlorate exploxive mixtures; peroxide based explosive mixtures;
PETN (nitropentaerythrite, pentaerythrite tetranitrate,
pentaerythritol tetranitrate); picramic acid and its salts;
picramide; picrate of potassium explosive mixtures; picratol; picric
acid (manufactured as an explosive); picryl chloride; picryl
fluoride; PLX (95% nitromethane, 5% ethylenediamine); polynitro
aliphatic compounds; polyolpolynitratenitrocellulose explosive gels;
potassium chlorate and lead sulfocyanate explosive; potassium
nitrate explosive mixtures; potassium nitroaminotetrazole;
pyrotechnic compositions; PYX (2,6-bis(picrylamino))=3,5-
dinitropyridine; RDX (cyclonite, hexogen, T4, cyclo-1,3,5,-
trimethylene-2,4,6, -trinitramine; hexahydro-1,3,5-trinitro-S-
triazine); safety fuse; salutes, (bulk); salts of organic amino
sulfonic acid explosive mixture; silver acetylide; silver azide;
silver fulminate; silver oxalate explosive mixtures; silver
styphnate; silver tartrate explosive mixtures; silver tetrazene;
slurried explosive mixtures of water, inorganic oxidizing salt,
gelling agent, fuel and sensitizer (cap sensitive); smokeless
powder; sodatol; sodium amatol; sodium azide explosive mixture;
sodium dinitro-ortho-cresolate; sodium nitrate-potassium nitrate
explosive mixture; sodium picramate; special fireworks; squibs;
styphnic acid explosives; tacot (tetranitro-2,3,5,6-dibenzo-1,
3a,4,6a tetrazapentalene); TATB (triaminotrinitrobenzene); TEGDN
(triethylene glycol dinitrate); tetrazene (tetracene, tetrazine,
1(5-tetrazolyl)-4-guanyl tetrazene hydrate); tetranitrocarbazole;
tetryl (2,4,6 tetranitro-N-methylaniline); tetrytol; thickened
inorganic oxidizer salt slurried explosive mixture; TMETN
(trimethylolethane trinitrate); TNEF (trinitroethyl formal); TNEOC
(trinitroethylorthocarbonate); TNEOF (trinitroethylorthoformate);
TNT (trinitrotoluene, trotyl, trilite, triton); torpex, tridite;
trimethylol ethyl methane trinitrate composition; trimethylolthane
trinitrate-nitrocellulose; trimonite; trinitroanisole;
trinitrobenzene; trinitrobenzoic acid; trinitrocresol; trinitro-
meta-cresol; trinitronaphthalene; trinitrophenetol;
trinitrophloroglucinol; trinitroresorcinol; tritonal; urea nitrate;
water bearing explosives having salts of oxidizing acids and
nitrogen bases, sulfates, or sulfamates (cap sensitive); water-in-
oil emulsion explosive compositions; xanthamonas hydrophilic colloid
explosive mixture.
This list was published in the Federal Register by the Bureau of
Alcohol, Tobacco and Firearms, Department of the Treasury, pursuant
to 18 U.S.C. 841(d) and 27 CFR 55.23.
* The asterisks indicate materials that constitute blasting
agents.
9. In Sec. 570.52, paragraph (b) is proposed to be revised and new
paragraphs (c)(5) and (c)(6) are proposed to be 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 work time 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.
10. In Sec. 570.63, the section heading and paragraphs (a)(1)(i),
(b) and (c) are proposed to be 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, envelope die-cutting press, guillotine paper cutter or shear,
horizontal bar scorer, laminating or combing machine, sheeting machine,
scrap paper baler, paper box compactor, or vertical slotter.
* * * * *
(b) Definitions.
(1) The term 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
[[Page 67144]]
an area nearby or adjacent to the machine where such employee does not
place the materials into the machine.
(2) The term paper products machine means 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. 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 applies to those machines
which, in addition to paper products, also process other material for
disposal.
(3) The term scrap-paper baler means a powered machine used to
compress paper and possibly other solid waste, with or without binding,
to a density of form that will support handling and transportation as a
material unit without requiring a disposable or reusable container.
(4) The term 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.
(5) The term applicable ANSI Standard means the American National
Standard Institute's Standard ANSI Z245.5-1990 for scrap paper balers
or the American National Standard Institute's Standard ANSI Z245.2-1992
for paper box compactors which are incorporated by reference as
specified in this paragraph, or any replacement standard adopted by the
American National Standard Institute which the Secretary of Labor 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.
(i) The standards which are incorporated by reference in this
paragraph 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.
(ii) 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 of Labor 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. 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.
(iii) Copies of these standards are available for purchase from the
American National Standards Institute (ANSI), 11 West 42nd St., New
York, NY, 10036. In addition, these standards are available for
inspection at the Office of the Federal Register, 800 North Capitol
Street, NW., Suite 700, Washington, DC, 20408, and through the
Occupational Safety and Health Administration Docket Office, Room
N2625, U.S. Department of Labor, 200 Constitution Avenue, NW,
Washington, DC, 20210, or any of its regional offices.
(c) Exemptions. (1)(i) Sixteen- and 17-year-old 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:
(A) 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 final determination when conducting an
investigation of the employer);
(B) 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;
(C) 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
(D) 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) stating that:
The scrap paper baler or compactor meets the industry safety
standard applicable to the machine (Standard ANSI Z245.5-1990 for
scrap paper balers and Standard ANSI Z245.2-1992 for paper box
compactors).
Sixteen- and 17-year-old employees may only load the scrap paper
baler or paper box compactor.
Any employee under the age of 18 may not 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).
11. In Sec. 570.67 the heading and paragraphs (a) and (b) are
proposed to be 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.
(1) The term 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.
(2) The term on or about a roof includes all work performed upon 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); 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 upon or about roofs.
* * * * *
PART 579--CHILD LABOR VIOLATIONS--CIVIL MONEY PENALTIES
12. The authority citation for part 579 is proposed to be revised
to read as follows:
Authority: 29 U.S.C. 203, 211, 212, 213, 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. 1371, 36 FR 8755; sec. 3103, Pub. L.
101-508; sec. 2, Pub. L. 104-174.
[[Page 67145]]
13. In Sec. 579.1, the section heading and paragraphs (a), (a)(1),
(a)(6) and (b) are proposed to be revised to read as follows:
Sec. 579.1 What does this regulation cover?
(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 $10,000
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).
* * * * *
(b) 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.
14. In Sec. 579.5, the section heading and paragraph (a) are
proposed to be revised to read as follows:
Sec. 579.5 How is the amount of the penalty determined and how is the
penalty assessed?
(a) The administrative determination of the amount of the civil
penalty, not to exceed $10,000 for each employee who was the subject of
a violation of section 12 or section 13(c)(5) of the Act, or of any
regulation issued under those sections, shall be based on the available
evidence of the violation or violations and shall take into
consideration the size of the business of the person charged and the
gravity of the violation as provided in paragraphs (b) through (d) of
this section.
Sec. 579.9 [Removed]
15. Section 579.9 is proposed to be removed.
[FR Doc. 99-30776 Filed 11-29-99; 8:45 am]
BILLING CODE 4510-27-P
