Child Labor Regulations, Orders and Statements of Interpretation Child Labor ViolationsCivil Money Penalties

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