[Federal Register Volume 69, Number 241 (Thursday, December 16, 2004)]
[Rules and Regulations]
[Pages 75382-75406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27182]



[[Page 75381]]

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Part II





Department of Labor





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Employment and Standards Administration



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Wage and Hour Division



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29 CFR Parts 570, 579, and 580



Child Labor Regulations, Orders and Statements of Interpretation; Child 
Labor Violations--Civil Money Penalties; Final Rule

  Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / 
Rules and Regulations  

[[Page 75382]]


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DEPARTMENT OF LABOR

Employment Standards Administration

Wage and Hour Division

29 CFR Parts 570, 579, and 580

RIN 1215-AA09


Child Labor Regulations, Orders and Statements of Interpretation; 
Child Labor Violations--Civil Money Penalties

AGENCY: Wage and Hour Division, Employment Standards Administration, 
Labor.

ACTION: Final rule.

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SUMMARY: This document revises the child labor regulations in order to 
implement two amendments of the Fair Labor Standards Act's child labor 
standards--the Compactors and Balers Safety Standards Modernization 
Act, (August 6, 1996) (The Compactor and Baler Act); and the Drive for 
Teen Employment Act, (October 31, 1998). This document also revises 
procedural regulations dealing with administrative hearings and appeals 
of civil money penalties.
    The Compactor and Baler Act sets conditions which permit 16- and 
17-year-old workers to load, but not operate or unload, certain scrap 
paper balers and paper box compactors. The Act also specifies that 
civil money penalties may be assessed for violations of these 
conditions. This document also revises the regulation to implement the 
provisions of this Act. The Drive for Teen Employment Act prohibits 
minors under 17 years of age from driving automobiles and trucks on 
public roadways on the job, and establishes the conditions and criteria 
under which 17-year-olds may drive automobiles and trucks on public 
roadways on the job. The regulation is also revised to implement the 
provisions of this Act.
    A regulation concerning government-issued Certificates of Age is 
also being revised. Prior to this Final Rule, the regulation required 
that the employer return the certificate to the issuing agency when the 
employee left employment, except that a certificate issued for 
employment in agriculture may be given to the named minor at 
termination of employment and a certificate issued to an 18- or 19-
year-old shall be given to the named worker at termination of 
employment. This revision modifies the regulation to direct the 
employer to give the certificates to the employees when their 
employment ends.
    Further, the Department is revising the regulation regarding the 
types of cooking and cooking-related duties that 14- and 15-year-olds 
may perform. The Department is updating the regulation to modify a 
long-standing Department of Labor (DOL) interpretation of this child 
labor standard.
    Finally, this document revises certain other provisions which 
proscribe certain hazardous employment for 16- and 17-year-olds. Prior 
to this revision, the regulation prohibited these minors from working 
in roofing operations. The Department has revised the regulation to 
also prohibit all work on or about roofs. In addition, the Department 
has revised the regulation to update the definition of the terms 
explosives and articles containing explosive components in the 
prohibition on employment of minors in establishments which manufacture 
or store explosives.

DATES: Effective Dates: This rule is effective February 14, 2005. The 
incorporation by reference of American National Standards Institute 
standards in the regulations is approved by the Director of the Federal 
Register as of February 14, 2005.

FOR FURTHER INFORMATION CONTACT: Arthur M. Kerschner, Jr., Office of 
Enforcement Policy, Child Labor and Special Employment Team, Wage and 
Hour Division, Employment Standards Administration, U.S. Department of 
Labor, Room S-3510, 200 Constitution Avenue, NW., Washington, DC 20210; 
telephone: (202) 693-0072 (this is not a toll free number). Copies of 
this final rule may be obtained in alternative formats (Large Print, 
Braille, Audio Tape or Disc), upon request, by calling (202) 693-0023. 
TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information 
or request materials in alternative formats.
    Questions of interpretation and/or enforcement of final regulations 
issued by this agency or referenced in this notice may be directed to 
the nearest Wage and Hour Division District Office. Locate the nearest 
office by calling the Wage and Hour Division's toll-free help line at 
1-866-4USWAGE (1-866-487-9243) between 8 a.m. and 5 p.m. in your local 
time zone, or log onto the Wage and Hour Division's website for a 
nationwide listing of Wage and Hour District and Area Offices at: 
http://www.dol.gov/esa/contacts/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

I. Background

    The child labor provisions of the Fair Labor Standards Act (FLSA) 
establish a minimum age of 16 years for employment in nonagricultural 
occupations, but the Secretary of Labor is authorized to provide by 
regulation for 14- and 15-year-olds to work in suitable occupations 
other than manufacturing or mining, and during periods and under 
conditions that will not interfere with their schooling or health and 
well-being. The FLSA provisions permit 16- and 17-year-olds to work in 
the nonagricultural sector, without hours or time limitations, except 
in certain occupations found and declared by the Secretary to be 
particularly hazardous, or detrimental to the health or well-being of 
such workers.
    The regulations for 14- and 15-year-olds are known as Child Labor 
Regulation No. 3 (Reg. 3) and are contained in subpart C of part 570 
(29 CFR 570.31-.38). Reg. 3 limits the hours and times of day that such 
minors may work, and identifies occupations that are either permitted 
or prohibited for such minors. Under Reg. 3, 14- and 15-year-olds may 
work in certain occupations in retail, food service, and gasoline 
service establishments, but are not to work in certain other 
occupations (including all occupations found by the Secretary to be 
particularly hazardous for 16- and 17-year-olds). Reg. 3, originally 
promulgated in 1939, was revised to reflect the 1961 amendments to the 
FLSA which extended the Act's coverage to include enterprises engaged 
in commerce or the production of goods for commerce. Because of the 
statutory amendments, the FLSA's child labor protections became 
applicable to additional areas of employment for young workers in 
retail, food service, and gasoline service establishments.
    The regulations concerning nonagricultural hazardous occupations 
are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68). 
These Hazardous Occupations Orders (HOs) apply either on an industry 
basis, specifying the occupations in the industry that are prohibited, 
or on an occupational basis, irrespective of the industry in which 
performed. The seventeen HOs were adopted individually during the 
period of 1939 through 1963.
    Because of changes in the workplace, the introduction of new 
processes and technologies, the emergence of new types of businesses 
where young workers may find employment opportunities, the existence of 
differing Federal and State standards, and divergent views on how best 
to correlate school and work experiences, the Department has long been 
reviewing the criteria for permissible child labor employment. In this 
review, the

[[Page 75383]]

Department published a Proposed Rule in 1982, a Final Rule in 1991, 
both an Advance Notice of Proposed Rulemaking and a Proposed Rule in 
1994, a Final Rule in 1995, and a Notice of Proposed Rulemaking in 
1999.
    On July 16, 1982, a Proposed Rule was published in the Federal 
Register (47 FR 31254) which proposed to revise several elements of 
Reg. 3, including the permissible hours and times of employment for 14- 
and 15-year-olds and the types of cooking operations those minors would 
be permitted to perform. The Proposed Rule generated considerable 
public interest and controversy, most having to do with the expansion 
of the hours and times of work for this age group. The Department 
subsequently suspended the proposal from further consideration and no 
final rule was implemented (50 FR 17434, April 29, 1985; DOL's 
Semiannual Regulatory Agenda).
    The Department continued to receive communications from the public 
suggesting that certain changes should be made to the child labor 
regulations on a number of issues. In 1987, the Department established 
a Child Labor Advisory Committee (CLAC) composed of 21 members 
representing employers, education, labor, child guidance professionals, 
civic groups, child advocacy groups, State officials and safety groups. 
The mission of the CLAC was to give advice and guidance in developing 
possible proposals to change existing standards. After reviewing a 
number of issues, the CLAC proposed making certain changes to the child 
labor regulations. The Department considered the CLAC's suggestions, as 
well as suggestions received from the public as noted above. A Proposed 
Rule was published in October 1990, proposing changes to three HOs (55 
FR 42612). In December 1991, the Department promulgated a Final Rule 
which revised the three HOs (56 FR 58626).
    The Department continued to review the child labor regulations and, 
in an effort to accumulate data concerning all aspects of the 
provisions, published both a Notice of Proposed Rulemaking (NPRM) (59 
FR 25164) and an Advance Notice of Proposed Rulemaking (ANPRM) (59 FR 
25167) on May 13, 1994.
    The NPRM proposed to exempt 14- and 15-year-olds from Reg. 3 hours 
standards when employed under certain restrictions as sports attendants 
for professional sports teams, to standardize the Reg. 3 process for 
issuing occupational variances for Work Experience and Career 
Exploration Program (WECEP) participants, to remove an outdated 
exemption for enrollees in certain work training programs, and to 
revise the process by which HOs are promulgated. A Final Rule on these 
issues was published April 17, 1995 (60 FR 19336).
    The 1994 ANPRM requested public comment on several specific topics 
as well as all aspects of the child labor provisions. Several 
individuals and organizations submitted comments. The National 
Institute for Occupational Safety and Health (NIOSH) provided the 
Department with epidemiological data on a number of issues related to 
both Reg. 3 and the HOs. NIOSH also provided the Department with 
statistics regarding occupational injuries and made several 
recommendations. A number of child guidance professionals, educators, 
unions, employer associations and child labor advocates also commented 
and made various recommendations.
    Twice in the last eight years, Congress has amended the child labor 
provisions of the FLSA. The Compactors and Balers Safety Standards 
Modernization Act, Public Law 104-174 (Compactor and Baler Act), was 
signed by the President on August 6, 1996. This legislation adds a 
section 13(c)(5) to the FLSA, permitting minors 16 and 17 years of age 
to load, but not operate or unload, certain scrap paper balers and 
paper box compactors if certain requirements are met. The Drive for 
Teen Employment Act, Public Law 105-334, was signed by the President on 
October 31, 1998. This legislation adds a section 13(c)(6) to the FLSA, 
prohibiting minors under 17 years of age from driving automobiles and 
trucks on public roadways on the job and establishing the conditions 
and criteria for 17-year-olds to drive automobiles and trucks on public 
roadways on the job.
    The Department published a Notice of Proposed Rulemaking in the 
Federal Register on November 30, 1999 (64 FR 67130), inviting comments 
until January 31, 2000, on revisions of regulations to implement the 
recent legislation and to update certain regulatory standards. The 
Compactor and Baler Act affects the HO 12 standards (Occupations 
involved in the operation of paper-products machines) (29 CFR 570.63) 
and certain other related regulations; amendments of those regulations 
were proposed. The Drive for Teen Employment Act affects the HO 2 
standards (Occupations of motor-vehicle driver and outside helper) (29 
CFR 570.52); an amendment of that regulation was proposed. As a result 
of its ongoing review of the child labor provisions, the Department 
also proposed changes to HO 1 (Occupations in or about plants or 
establishments manufacturing or storing explosives or articles 
containing explosive components) (29 CFR 570.51), HO 16 (Occupations in 
roofing operations) (29 CFR 570.67), the Reg. 3 limitations on cooking 
(29 CFR 570.34), and 29 CFR 570.6(b)(1) which deals with the 
disposition of a Certificate of Age when the named individual's 
employment ends.

II. Summary of Comments

    A total of 16 comments were received in response to the notice--
from trade and professional associations, advocacy organizations, 
private consultants, an employer, a State department of labor, a State 
department of education, and one Federal agency (the National Institute 
for Occupational Safety and Health (NIOSH)). The sole employer 
responding restricted his comments to recommending changes to Hazardous 
Occupations Order No. 8 (Occupations involved in the operations of 
power-driven metal forming, punching, and shearing machines), a subject 
not raised by the Proposed Rule. The New Jersey Department of Labor 
limited its comments to commending the Secretary's concern for the 
safety of minors and advising her that the proposed rule would in no 
way impede in the enforcement of New Jersey's child labor laws. A 
consultant with the Ohio Department of Education reported that a 
committee of teachers of Career Based Intervention Programs agreed with 
all the proposals with the assumption that the Department would 
continue to grant variances to WECEP participants as it has done in the 
past.
    In July of 2002, NIOSH disseminated its report entitled National 
Institute for Occupational Safety and Health Recommendations to the 
U.S. Department of Labor for Changes to Hazardous Orders. The report, 
which makes many recommendations, also repeats the comments NIOSH 
submitted in response to the NPRM which are discussed later in this 
document. Since receiving the NIOSH report, the Department has been 
conducting a detailed review and has met with various stakeholders to 
evaluate and prioritize each recommendation for possible regulatory 
action consistent with the established national policy of balancing the 
benefits to employment opportunities for youth with the necessary and 
most effective safety protections.

A. Certificates of Age (29 CFR 570.5-.27)

    Section 3(l) of the FLSA provides an affirmative defense against 
the citation of child labor violations for employers who ``have on file 
an unexpired

[[Page 75384]]

certificate issued and held pursuant to regulations of the Secretary of 
Labor certifying that such [employee] is above the oppressive child 
labor age'' (29 U.S.C. 203(l)). The use of such certificates is not 
mandatory under the FLSA. The Department's regulations, at 29 CFR 
570.5-.27, set out the procedures for application, issuance, retention 
and disposition of certificates of age. The regulations authorize the 
issuance of certificates by most of the States as well as by the Wage 
and Hour Division. Most certificates are, in fact, requested from and 
issued by the States.
    Section 570.6(b), prior to this Final Rule, directed the employer 
to return the certificate to the issuing authority when the named 
worker's employment terminated, except that a certificate issued for 
employment in agriculture could be given to the worker and a 
certificate issued to an 18- or 19-year-old was to be given to the 
worker. The Department proposed to revise Sec.  570.6(b) to specify 
that the worker's certificate issued by DOL be given to him/her when 
employment ends, regardless of the worker's age or type of employment. 
The youth could then provide the certificate to any future employer(s). 
This regulatory amendment, suggested by the Office of Management and 
Budget, would preclude unneeded repetition of the certification process 
and reduce paperwork burdens on employers.
    The Department received two comments on this proposal. A consultant 
with the Ohio Department of Education's Career Based Intervention 
Programs commented that when the responsibility of providing the age 
certificate to the new employer is delegated to the minor, the 
certificate may not actually get to the new employer in many cases. The 
Department believes that young workers will be cooperative with 
prospective employers in providing employment-related information. The 
National Grocers Association (NGA) recommended that the proposal be 
expanded to include certificates issued by State governments as well. 
Although the Department encourages States to adopt similar rules 
regarding the disposition of age certificates, it is left to the 
individual States to establish rules regarding the disposition of the 
certificates they issue. This portion of the proposal is adopted as a 
Final Rule.

B. Reg. 3 Occupations: Cooking (29 CFR 570.34)

    Reg. 3 established restrictions on the type of cooking and cooking-
related work which 14- and 15-year-olds may perform as employees of 
retail, food service, and gasoline service establishments. At Sec.  
570.34(b)(5), the regulation prohibits these minors from ``cooking 
(except at soda fountains, lunch counters, snack bars, or cafeteria 
serving counters) and baking.'' Under Sec.  570.34(a)(7), however, 14- 
and 15-year-olds are permitted to perform ``kitchen work and other work 
involved in preparing and serving food and beverages, including the 
operation of machines and devices used in the performance of such work, 
such as but not limited to, dish-washers, toasters, dumbwaiters, 
popcorn poppers, milkshake blenders, and coffee grinders.''
    These regulatory standards were added to Reg. 3 after the 1961 FLSA 
amendments which extended the FLSA's coverage to include certain 
enterprises engaged in commerce or in the production of goods for 
commerce. The Act's child labor provisions became applicable to 
additional areas of employment in retail, food service, and gasoline 
service establishments. The regulations were the Department's response 
to the challenge of identifying those food preparation activities which 
14- and 15-year-olds could safely perform without interfering with 
their schooling, health or well-being.
    In establishing these standards, the Department recognized that 
some forms of cooking were not appropriate for persons under 16 years 
of age. Lifting large containers of hot materials, working over a hot 
stove for long periods of time, cooking over an open flame or with 
equipment that utilize extremely high temperatures, and operating 
pressure cookers were all considered too dangerous for young workers. 
On the other hand, preparing an occasional hamburger or grilled cheese 
sandwich or performing simple cooking functions like those which minors 
safely might do in their own homes did not seem to place young workers 
at risk. The Department determined that the type of cooking performed 
at a snack bar or soda fountain, where the worker would not only take 
the customer's order but also prepare and serve the light fare, did not 
pose serious risks to the minor's health or well-being. The work was 
not strenuous, did not require continuous cooking at a stove or range, 
and did not require the minor to use complicated or dangerous 
equipment.
    The Department's promulgation and interpretation of the Reg. 3 
standards were based, to some extent, upon a factor common to snack 
bars and soda fountains--namely, that the cooking performed in such 
food service operations was performed ``in plain view'' of the 
customer. This factor, in and of itself, did not make the activity 
safer, but it did tend to limit the scope of the cooking to activities 
that were relatively free of risk. By limiting cooking work to soda 
fountains and snack bars, Reg. 3 barred the ``heavy duty'' and more 
strenuous types of cooking performed in full-service restaurants, while 
permitting other, less strenuous types of ``light'' cooking. Over a 
period of time in the l960's, the Department developed an ``in plain 
view'' interpretation of the regulation, making the Reg. 3 standard 
dependent upon whether the 14- and 15-year-olds are performing their 
cooking duties within the customers' sight. Under this interpretation, 
cooking performed ``in plain view'' would be permissible even if the 
minor was not working at a traditional soda fountain or snack bar, and 
cooking performed out of plain view (i.e., in the kitchen or behind a 
partition) would not be permissible.
    The snack bars and soda fountains upon which the Reg. 3 standards 
were established have been largely, if not entirely, replaced by 
different kinds of quick-service restaurants (also referred to as fast 
food establishments) that evolved during the decades of the 1970's, 
1980's and 1990's. In recognition of the changing nature of the retail 
food service industry, the Wage and Hour Division examined quick-
service restaurants in 1977 and conducted a survey of quick-service 
restaurants in 1979 to determine what, if any, changes were needed in 
the cooking prohibitions. Interested parties, including major quick-
service restaurant chains, organized labor, and child labor advocates, 
were consulted.
    In 1982, the Department published a Proposed Rule (47 FR 31254) 
which would have revised several elements of Reg. 3, including the 
permissible hours and times of employment for 14- and 15-year-olds and 
the types of cooking operations they would be allowed to perform. Under 
the proposal, all cooking would have been permitted except: cooking 
with hot oils at temperatures over 140 [deg]F; cooking over an open 
flame; and cooking involving the use of pressure cookers without proper 
safety valves. The ``in plain view'' interpretation would no longer 
have been applied. The Proposed Rule generated considerable public 
interest and controversy, most having to do with the expansion of the 
hours and times of employment standards. The Department subsequently 
suspended the proposal from further consideration and no final rule was 
implemented (50 FR 17434, April 29, 1985; DOL's Semiannual Regulatory 
Agenda).

[[Page 75385]]

    The Department continued to receive communications from the public 
suggesting that certain changes should be made to the regulations 
concerning cooking. A general consensus seemed to develop that the ``in 
plain view'' interpretation no longer served as an important safety 
standard as it did in the 1960's, because the activities involved were 
no longer limited to ``light'' cooking. Further, the general view 
appeared to be that the interpretation did not provide sufficient 
guidance to employers, parents, and working teens. The proscription of 
tasks mainly on the basis of place of performance complicated the 
regulation and led to confusion. For example, in one quick-service 
restaurant, 14- and 15-year-olds may perform most cooking jobs because 
all cooking is performed in the plain view of the customers; but at 
another food service establishment, those minors would not be able to 
perform the identical functions because all cooking is done in a closed 
kitchen away from the customer's view. Complications may also exist 
within a single establishment when some cooking equipment is placed so 
customers may view the cooking operation and additional pieces of the 
same equipment are placed outside of the customer's line of sight.
    The Department recognized the need to review and update the Reg. 3 
standards. New generations of cooking devices have been introduced 
since the cooking regulation was published in the 1960s, including 
microwaves, automatic cooking machines and systems, and computerized 
equipment and systems. Any proposed changes to the cooking 
prohibitions--to take into account all of these changes in the food 
service industry--must carefully consider the safety risks to young 
workers.
    In an effort to accumulate data concerning all aspects of the child 
labor provisions, the Department in 1994 published an Advance Notice of 
Proposed Rulemaking (ANPRM) (59 FR 25167). The ANPRM requested public 
comment on many aspects of the child labor provisions, specifically 
including the Reg. 3 cooking standards. The Department received 
numerous and diverse comments on this matter.
    The Department carefully considered all the comments and materials 
received, and reviewed the Reg. 3 standards, to develop the Proposed 
Rule which was published on November 30, 1999. Recognizing the delicate 
balance between the value of jobs that provide positive, formative 
experiences and the negative effects that the wrong type of jobs can 
have on the health and well-being of young workers, the Department 
preliminarily concluded that the regulations should be revised so that 
14- and 15-year-olds may perform a limited number of cooking 
activities--i.e., only those that are safe and appropriate for their 
age group. The Department believed that this regulatory revision could 
be accomplished without negatively impacting employment opportunities 
for young workers.
    The Department proposed to eliminate the ``in plain view'' 
interpretation and establish standards for cooking duties which it 
believed to be safe and appropriate for these minors regardless of 
where the cooking is performed within the food service establishment. 
The proposed standards would prohibit 14- and 15-year-olds from any 
cooking except cooking with electric or gas grilles which does not 
involve cooking over an open flame, and using deep fat fryers which are 
equipped with and utilize, during the frying process, devices which 
automatically raise and lower the ``baskets,'' but not pressurized 
fryers. The proposal also would permit 14- and 15-year-olds to clean, 
maintain (including the changing, cleaning, and disposing of oil or 
grease and oil or grease filters) and repair cooking devices (other 
than power-driven equipment) when the surfaces of the equipment or 
liquids do not exceed a temperature of 140 [deg]F. The proposal would, 
thus, prohibit 14- and 15-year-olds from performing any of the 
following duties when the minor would be exposed to or working with 
liquid or equipment surfaces which exceed a temperature of 140 [deg]F: 
cleaning equipment such as grilles, deep fat fryers, and steam tables; 
removing grease filters; filtering grease or oil; and lifting, moving 
or carrying receptacles or containers of hot grease or oil. This ban on 
carrying or working with hot oil would apply regardless of the type of 
oil.
    The Department proposed to continue the current interpretation of 
Reg. 3 as banning 14- and 15-year-olds from using such equipment as 
rotisseries, pressurized equipment including fryolators, and cooking 
devices that operate at extremely high temperatures such as ``Neico 
broilers.'' The Department also proposed to continue its long-standing 
interpretation of the regulation as permitting these minors to operate 
microwave ovens that are used only to warm prepared food and do not 
have the capacity to warm above 140 [deg]F, and to use, dispense, and 
serve food from warmers, steam tables, and other warming devices (even 
if the temperatures exceed 140 [deg]F). Further, the proposal preserved 
the current Reg. 3 provision allowing these minors to perform kitchen 
work and other work to prepare and serve food and beverages, including 
operating certain machines used in performing such work.
    Additionally, the Department proposed to continue the ban on all 
baking activities by those under 16 years of age. These minors would 
still be prohibited from performing all jobs that are part of the 
baking process, such as weighing and mixing ingredients; placing or 
assembling products in pans or on trays; operating ovens, including 
convection ovens, microwave ovens (except those used for warming food 
as described above), pizza ovens, and automatic feeding ovens; removing 
items from ovens; placing items on cooling trays; and finishing baked 
products. This ban on baking tasks exists because of the dangers to 
young workers in activities such as lifting heavy bags of ingredients, 
filling hot pans, moving hot pans and trays into and out of ovens, 
emptying hot pans and trays, having clothing or fingers entangled in 
conveyors or other mechanisms, and operating power-driven equipment. 
Although the proposal continued the ban on all baking activities by 
those under 16 years of age, the Department requested evidence 
regarding whether certain activities would be safe for 14- and 15-year-
olds to perform in the baking process in retail establishments, and if 
so, whether consideration should be given to modifying the ban on the 
baking process performed in retail establishments by 14- and 15-year-
olds. Specifically, the Department sought evidence and comments on 
whether such youths should be permitted to perform certain prescribed 
activities such as measuring and weighing ingredients and finishing 
baked goods, provided that operation of power-driven equipment is not 
performed. As a result of recommendations submitted by NIOSH in 
response to the 1994 ANPRM, the Department also sought evidence and 
comments as to whether, if the Department does amend the rules to allow 
certain baking activities to be performed, there should be a weight 
limit, such as 10 pounds, for jobs requiring lifting by 14- and 15-year 
olds.
    Finally, the proposal preserved the current Reg. 3 process whereby 
State agencies operating approved Work Experience and Career 
Exploration Programs (WECEPs) (in which students are closely supervised 
and receive safety instruction) may seek variances from the Department 
to authorize students to cook and to perform certain jobs that would 
otherwise be banned.

[[Page 75386]]

    Ten comments were received in response to these proposals. The 
commenters were unanimous in supporting the elimination of the ``in 
plain view'' standard, although they disagreed concerning the standards 
which had been proposed to replace it. NIOSH recommended that the ``in 
plain view'' interpretation be withdrawn; this position was endorsed by 
the American Federation of Labor and Congress of Industrial Relations 
(AFL-CIO), the United Food and Commercial Workers International Union 
(UFCW), and the Child Labor Coalition of the National Consumers League 
(CLC). However, each of these commenters took issue with particular 
aspects of the proposed standards. NIOSH noted that, when it had 
commented on the Department's 1994 ANPRM, it had ``recommended that all 
cooking and working in proximity to cooking appliances should be a 
prohibited activity for youths under 16 years of age, regardless of 
whether the cooking was within `plain view' of the customer.'' But in 
commenting on the Proposed Rule, NIOSH endorsed the elimination of the 
``in plain view'' standard while supporting some of the proposals 
concerning permissible activities in food service employment. NIOSH 
stated that it ``appreciates and concurs with DOL's intent [in the 
Proposed Rule] to permit 14- and 15-year-olds to conduct safe and 
appropriate work activities, including those associated with cooking, 
while prohibiting them from performing more hazardous activities.'' The 
NIOSH comment included copies of several reports and publications 
concerning occupational injuries including injuries in food service 
establishments. The National Restaurant Association (Association), the 
National Child Labor Committee (NCLC), and the National Council of 
Chain Restaurants (Council) commented that the ``in plain view'' 
standard is no longer appropriate and should be eliminated. The 
Association approved of the `` `common sense' approach'' taken in the 
Proposed Rule, and stated that ``[t]he current interpretation is a 
product of a bygone era and is not practical in most restaurant 
settings. * * * the Association supports the proposal to eliminate the 
`in plain view' interpretation while allowing limited cooking and 
cleaning of cooking devices.'' The Council pointed out that ``the 
restaurant industry provides a tremendous number of entry level 
positions that are often the ideal `first' jobs for teenage individuals 
seeking part-time employment, but who otherwise have little or no job 
skills to offer employers. * * * any expansion of the child labor 
restrictions in a manner that is not directly necessary to the safety 
and well-being of teenage employees will only serve to eliminate entry 
level job opportunities for young individuals that otherwise may have 
little experience to offer employers.''
    The commenters expressed differing views with regard to the 
proposal to allow 14- and 15-year-olds to cook with electric and gas 
grills that do not involve cooking over an open flame and with deep 
fryers which are equipped with and utilize devices which automatically 
raise and lower the baskets.
    Several commenters opposed the proposal. NIOSH stated that cooking 
appliances, such as grills and deep fryers, are associated with serious 
occupational burns among youth caused not only by cooking but also by 
the worker coming into contact with hot surfaces or hot grease as a 
result of slipping, or falling, or being in close enough proximity to 
food that is ``popping'' as it cooks. NIOSH also commented that 
limiting the use of fryers to only those which automatically raise and 
lower cooking baskets may reduce the risk of injuries, but the 
limitation would not prevent all burn injuries associated with fryers. 
The CLC, the AFL-CIO, and the UFCW cited data provided by NIOSH and 
expressed concerns about the risks associated with the high 
temperatures at which grills and fryers operate. With regard to the use 
of deep fat fryers equipped with devices that automatically raise and 
lower the baskets, the UFCW questioned whether such devices are 
effective in assuring safety; and the NCLC opposed allowing youths to 
cook with such fryers because of the unreliability of such equipment 
and a concern that supervisors of young workers would assign them to 
operate equipment even though it did not comply with the restriction. A 
Dallas based labor consultant recommended that the Department heed the 
NIOSH and CLC recommendations.
    The National Restaurant Association supported the proposal to allow 
14- and 15-year-olds to cook with gas and electric grills that do not 
involve cooking over an open flame; the Association did not comment 
concerning the proposal pertaining to the use of deep fryers. The 
National Council of Chain Restaurants supported the proposal regarding 
cooking with gas and electric grills, and noted its assumption that the 
proposal would allow these employees to operate ``automated broilers'' 
which cook chicken, hamburgers, and other foods without exposure to an 
open flame. The Council recommended that the proposal regarding deep 
fryers be modified, to permit these employees to cook with all fryers 
including those not equipped with devices that automatically raise and 
lower the baskets. The Council stated that such devices do not add to 
operator safety and that ``the job of using a deep fryer is just as 
safe for the operator regardless of whether the basket is lowered and 
raised automatically or manually.'' The NCLC commented that, absent any 
contrary-indicating injury data, it would appear that permitting the 
use of electric and gas grills that do not include an open flame may 
not contribute to a rise in teen occupational injuries; the NCLC stated 
that should such data exist, promulgating this portion of the proposal 
should be delayed until NIOSH could generate a study of teen 
occupational injuries resulting from the use of such grills.
    Only one commenter--NIOSH--addressed the proposal to continue the 
Department's long-standing positions on several additional matters: 
permitting 14- and 15-year-olds to operate microwave ovens that are 
used only to warm prepared food and do not have the capacity to warm 
above 140 [deg]F; permitting such minors to use, dispense, and serve 
food from warmers, steam tables, and other warming devices (even if the 
temperatures exceed 140 [deg]F); permitting them to perform kitchen 
work and other work to prepare and serve food and beverages; and 
banning them from using such equipment as rotisseries, pressurized 
equipment including fryolators, and cooking devices that operate at 
extremely high temperatures such as ``Neico broilers.'' On all of these 
matters, NIOSH concurred with the Department's proposal.
    The commenters expressed contradictory views with regard to the 
proposal to allow 14- and 15-year-old workers to clean kitchen 
equipment (not otherwise prohibited), remove oil or grease filters, 
pour oil or grease through filters, and move receptacles containing hot 
grease or hot oil, but only when the equipment, surfaces, containers 
and liquids do not exceed a temperature of 140 [deg]F.
    NIOSH did not oppose minors performing the named tasks, but did 
object to establishing 140 [deg]F as the maximum temperature. Noting 
that the Department had proposed this temperature because it had been 
established as the minimum temperature at which a first-degree burn can 
occur, NIOSH objected to the Department allowing youths performing

[[Page 75387]]

these clean-up tasks to be exposed to a temperature sufficient to cause 
first-degree burns. The AFL-CIO, the UFCW, and the CLC expressed 
similar concerns. Neither NIOSH nor any of the other commenters 
suggested a temperature which, in their opinion, would be an acceptable 
standard for the equipment or materials with which these youths would 
be performing clean-up tasks. The AFL-CIO, the UFCW, and the CLC along 
with the NCLC questioned the practicality of the proposal. These 
commenters expressed doubt that the minors, their employers, and 
enforcement officials would be able to determine when and if the 
equipment, oil, or grease had cooled to the permissible temperature of 
140 [deg]F, and the CLC inquired whether the Department could enforce 
the standard ``short of a reported injury which indicates non-
compliance.'' The UFCW and the AFL-CIO expressed further concern about 
the lack of training provided to adolescents in the quick-service 
restaurant industry, as reported in a 1999 study by NIOSH.
    The Education Development Center, Inc. (EDC) of Newton, 
Massachusetts, took no position on the matter but submitted data and 
incident reports from the Massachusetts Department of Public Health 
regarding occupational injuries in restaurants and retail bakeries. The 
EDC expressed the view that this information ``underscores the problem 
of burn injuries among teen workers.'' Included in the information was 
a reference to training materials prepared by the Educational 
Foundation of the National Restaurant Association for its members, 
Aware; Employee and Customer Safety. Manager's Manual, Preventing 
Burns, 1997 (Inventory Code MG 525, ISBN: 1-883904-62-5. National 
Safety Council Inventory Code: 15865-0600), which identified 100 [deg]F 
as the appropriate temperature for oil or grease to be handled by 
workers (adults or minors) for disposal.
    The National Restaurant Association supported the proposal 
concerning clean-up tasks, including the standard of a maximum 
allowable temperature of 140 [deg]F for equipment and materials to be 
handled by youths in such tasks. The National Council of Chain 
Restaurants did not directly address the proposal concerning 
permissible clean-up tasks and the maximum allowable temperature.
    The Department received some general comments, but no detailed 
information, in response to the Proposed Rule's request for data and 
comments on baking activities. NIOSH and the UFCW recommended that the 
Reg. 3 ban on all baking activities be maintained. The only comment 
concerning a possible weight limitation came from the UFCW, which 
recommended against establishing weight limitations on lifting by 
minors, because a standard would be difficult to enforce and would not 
work in practice. The Council of Chain Restaurants recommended that the 
Department give consideration to relaxing the across-the-board 
prohibition on baking when such functions are performed in a retail 
restaurant setting, stating that such activities are ``generally 
extremely safe'' for employees, including 14- and 15-year-olds. The 
National Restaurant Association, while not addressing the issue of 
identifying potentially permissible baking activities, offered to 
conduct a survey of its membership to gather more detailed information 
for the Department's consideration.
    The Department has given careful consideration to all the views and 
recommendations presented in the comments, and has examined all the 
materials and authorities that were provided and/or cited by the 
commenters. Based on this thorough evaluation, the Department has 
concluded that the Proposed Rule concerning Reg. 3 cooking restrictions 
will be made final with certain limited modifications as described 
below.
    With regard to the elimination of the ``in plain view'' 
interpretation, the Department has concluded that the proposed standard 
should be adopted to replace the ``soda fountains, lunch counters, 
snack bars'' regulatory language which had been the basis of that 
interpretation. The Final Rule permits 14- and 15-year-olds to perform 
only cooking tasks using electric or gas grills which do not have open 
flames, and using deep fryers which are equipped with and utilize 
devices that automatically lower and raise the baskets. This standard 
allows all 14- and 15-year-olds to perform the kinds of cooking tasks 
that many such workers have, for decades, been permitted to perform 
under the ``lunch counter'' regulatory language (provided that these 
tasks were performed ``in plain view'' of the customers). The 
Department, therefore, does not view this standard as substantially 
altering the nature of the Reg. 3 restriction, or as increasing the 
exposure of individual youngsters to possible harm in their food 
service establishment work sites. The standard provides more 
consistency in protecting young workers' health and well-being, by 
specifying the allowable cooking tasks without regard to the manner in 
which work sites may be arranged by different employers (i.e., the 
existence of a wall or a pass-though partition, which may vary from 
worksite to worksite, will have no effect on whether a cooking task is 
allowable). The standard provides more consistency for employers' child 
labor compliance efforts and business operations, since all employers 
will be held to the same rule on allowable cooking tasks regardless of 
the appearance or arrangement of their worksites. The standard assures 
the health and well-being of young workers by limiting their cooking 
tasks to specific types of equipment (i.e., no open flames, no 
manually-operated deep fryer baskets), but leaves opportunities for 
employment in the food service establishments which have been--and will 
continue to be--extremely important ``first job'' experiences for many 
thousands of young workers. The Department is sensitive to the concerns 
of commenters who recommended that 14- and 15-year-olds should no 
longer be permitted to perform any cooking duties whatsoever, due to 
the possibilities of accidents in the workplace. But the Department 
believes that such a rule would be unnecessarily broad and that it 
would be an unwarranted barrier to the personal development of youths 
that benefit in many ways from positive, healthful work experiences in 
food service establishments. The Department considers the Final Rule--
severely restricting the types of cooking duties that may be performed 
by such minors--to be appropriate.
    The Department seeks to forestall any confusion which might arise 
from the comment of the Council of Chain Restaurants concerning this 
portion of the Proposed Rule. The Council indicated that it viewed the 
proposal to allow youths to cook with ``no open flame'' electric and 
gas grills as permitting these workers to use a number of automated 
broilers which are used to broil chicken, beef, and hamburgers as well 
as toast bread and buns. The Department cautions that the proposal did 
not alter the Department's long-standing position that cooking with 
such broilers is prohibited. That position is expressly stated in the 
Final Rule to prevent misunderstanding, as further discussed below. The 
Council also recommended that 14- and 15-year-old employees be 
permitted to cook with all deep fryers, including those not equipped 
with devices that automatically raise and lower the baskets. The 
Council stated that ``the job of using a deep fryer is just as safe for 
the operator regardless of whether the basket is lowered and raised 
automatically or manually.'' The Department considers both the use of

[[Page 75388]]

baskets and the automatic basket device to be important safety features 
because they significantly restrict the young workers' likelihood of 
contact with the hot oil or grease in the fryer. Therefore, the 
Department cautions that 14- and 15-year-olds may not use deep fryers 
that do not use baskets to contain the food product during frying, nor 
may they use fryers that require the operator to manually lower or 
raise the baskets. To assure that employers are fully informed, the 
Final Rule expressly requires that deep fryers must utilize automatic 
baskets in order for such employees to cook with them.
    In connection with the proposal to continue several long-standing 
Departmental positions concerning cooking and cooking-related 
activities, the Department has concluded that the positions should be 
continued in the Final Rule. As explained in the NPRM Preamble, these 
positions ban 14- and 15-year-olds from using equipment such as 
rotisseries, fryolators and ``Neico broilers,'' and permit them to use 
certain microwave ovens, to use and serve foods from certain warming 
devices, and to perform various food preparation and kitchen work. The 
only commenter that addressed these positions--NIOSH--specifically 
endorsed each of them. No commenter objected to any of the positions. 
In light of the comment record, as well as the Department's enforcement 
experience, we believe that it is appropriate to maintain all of these 
positions. In addition, we believe that the text of Reg. 3 should be 
modified to add clear statements of two of these standards that have, 
heretofore, been interpretations of the existing regulatory provisions. 
Having all of these standards expressly included in the regulation will 
provide better guidance for employers and greater protections for young 
workers. Consequently, the Final Rule contains all of these long-
established departmental standards.
    With regard to the proposal that 14- and 15-year-olds be permitted 
to perform certain clean-up functions on equipment and materials at a 
temperature no higher than 140 [deg]F, the Department has concluded--
after review of the comments--that a modification in the maximum 
allowable temperature is appropriate.
    While the commenters did not object to the tasks that would be 
permitted, most of the commenters objected to the maximum allowable 
temperature of 140 [deg]F, the temperature at which a minor would be 
exposed to a first-degree burn. Upon careful consideration, the 
Department concurs with the views of the commenters and has concluded 
that the regulation should set a temperature standard which would 
substantially alleviate the potential for these young employees 
receiving even a superficial burn when performing the authorized 
cleaning, filtering and disposal activities. None of the commenters 
suggested an alternative to the proposed maximum allowable temperature. 
Therefore, the Department has looked to available data and industry 
publications in order to identify the appropriate maximum allowable 
temperature of 100 [deg]F.
    The Department has reviewed the data presented in a 1990 article 
entitled Recommended Maximum Temperatures for Touchable Surfaces 
(Applied Ergonomics 1990, 21.1, 69-73), in which the author, H. 
Siekman, demonstrates that there can be no single ``maximum temperature 
for touchable surfaces'' below which burns can be avoided. The maximum 
safe temperature varies with both the materials from which the surface 
is made and the amount of time the skin stays in contact with the hot 
surface. The article notes that the maximum safe touchable temperature 
is attained at 140 [deg]F when contact is made for a period of 3-4 
seconds with a smooth, uncoated metal surface or with water. The 
maximum safe touchable temperature for these two same surfaces is 
reached at 149 [deg]F when the contact lasts no more than one second. 
Although the author did not determine the maximum safe touchable 
temperature for oil or grease, the Occupational Safety and Health 
Administration's Office of Occupational Medicine has advised us that 
similar burns will occur from contact with oil or water when the 
temperature and length of the exposures are the same for each liquid.
    The Department has considered the safety guidelines for the food 
service industry, published by the Educational Foundation of the 
National Restaurant Association--Aware: Employee and Customer Safety. 
Manager's Manual, Preventing Burns, 1997 (Inventory Code MG 525, ISBN: 
1-883904-62-5. National Safety Council Inventory Code: 15865-0600). 
These safety guidelines recommend that the oil from deep fryers be 
cooled to 100 [deg]F prior to disposal (without differentiating when an 
adult or a minor employee performs such tasks).
    The Department has concluded that a maximum allowable temperature 
of 100 [deg]F--for equipment surfaces as well as for oil and grease--
will significantly diminish the possibility of young workers suffering 
burns while cleaning equipment and surfaces or while filtering and 
disposing of cooking oil and grease.
    The Department recognizes that compliance with this standard will 
require vigilance by employers, whose managers and supervisors must 
assure that equipment and materials have cooled to 100 [deg]F or less, 
before young workers are allowed to undertake any clean-up tasks such 
as washing the machines or removing or filtering the oil or grease. 
This supervision may be exercised through the use of thermometers, and 
through the imposition of cool-down waiting periods during which the 
equipment is out of use while the temperature falls. The Department's 
enforcement of this standard will use the investigative methods which 
have consistently been used in the child labor program. As with other 
child labor restrictions, the investigator would, of course, consider a 
violation to be self-evident where there is an injury to a young worker 
as a result of the specified activities (e.g., worker's hand burned by 
oil that the worker was filtering or removing). As with other 
restrictions, the investigator would also identify violations through 
observations at the worksite and through interviews with workers (both 
adults and minors) and supervisors, to obtain information concerning 
the tasks performed by youths.
    The ban on cleaning grilles that exceed a temperature of 100 [deg]F 
would not prohibit 14- and 15-year-olds from performing the normal 
grill ``maintenance'' that an employee routinely does during the actual 
cooking process involving the use of water and a spatula to scrape away 
and remove food particles and grease from the surface of the grill.
    With regard to the Reg. 3 prohibition on all baking activities by 
14- and 15-year-olds, the Department has concluded that no regulatory 
modification will be undertaken at the present time. The comments 
addressing this point were general statements of positions, either 
opposed to any change in the existing regulation or in favor of a 
relaxation of the existing prohibition. No specific information was 
submitted. The National Restaurant Association offered to conduct a 
survey of its members to obtain information and requested an extension 
of the comment period for this purpose, but the Department concluded 
that it would not be appropriate to further delay the rule making 
procedure to provide time for this activity. The Department would 
welcome any survey information that the Association may provide. The 
matter of the Reg. 3 prohibition on

[[Page 75389]]

baking activities may be considered in future rule making.
    The Proposed Rule did not contain provisions dealing with the 
training of young workers. However, several commenters expressed 
concerns that young workers fail to receive on-the-job training that is 
crucial to protecting their health and well-being. The Department 
recognizes the important roles that occupational safety education and 
training--in the home, in the classroom, and on-the-job--play in 
helping teens experience positive work experiences and in reducing 
injuries to all workers. The Department encourages all those who can 
positively impact the health and well-being of young workers to expand 
their efforts in this important area of safety instruction.

C. Explosives and Articles Containing Explosive Materials (HO 1) (29 
CFR 570.51)

    Hazardous Occupations Order No. 1, originally issued in 1939, 
greatly restricts the employment of minors in any establishment which 
manufactures or stores explosives or articles containing explosive 
components (e.g., plants that manufacture dynamite, fireworks, or 
gunpowder). HO 1 also prohibits minors from handling and transporting 
primers and blasting caps.
    The regulation's definition of the crucial terms ``explosives and 
articles containing explosive components'' has become, in part, 
obsolete. The definition states that these terms ``mean and include 
ammunition, black powder, blasting caps, fireworks, high explosives, 
primers, smokeless powder, and all goods classified and defined as 
explosives by the Interstate Commerce Commission in regulations for the 
transportation of explosives and other dangerous substances by common 
carriers * * * issued pursuant to the [Interstate Commerce Act] * * * 
''. Congress abolished the Interstate Commerce Commission in 1995. The 
HO 1 incorporation of ICC regulatory standards is, therefore, no longer 
feasible and the Department proposed to revise the definition to 
eliminate this ICC reference.
    The Department considers it essential that the HO 1 definition of 
``explosives and explosive components'' be as complete, clear, and 
user-friendly as possible, so as to best serve the FLSA's purpose of 
protecting young workers from hazards. Therefore, while preparing to 
delete the incorporation of ICC standards, the Department sought an 
alternate source of expertise in the identification of explosives and 
explosive components. After careful consideration, the Department 
concluded that the appropriate source of expertise is the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives, Department of Justice 
(ATF). Prior to the enactment of the Homeland Security Act of 2002, the 
ATF was part of the Department of Treasury and was named the Bureau of 
Alcohol, Tobacco and Firearms. Under statutory and regulatory mandates 
(18 U.S.C. 841(d); 27 CFR 55.23), the Director of ATF must revise and 
publish at least annually in the Federal Register a list of explosives 
covered by the U.S. Code Title 18 provisions concerning importation, 
manufacture, distribution and storage of explosive materials. The ATF 
list, which covers explosives, blasting agents and detonators, is 
intended to include any and all mixtures containing any of the 
materials on the list. At the time of the publication of the Proposed 
Rule, the most recent ATF list had been published in the Federal 
Register on May 1, 1998 (63 FR 24207). The most recent list was 
published in the Federal Register on March 31, 2004 (69 FR 16958). The 
Department proposed to revise the HO 1 definition of ``explosives and 
articles containing explosive components'' to include the materials 
identified in the 1998 ATF list, and have it appear in an appendix to 
the HO 1 subsection of the regulations. The Department pointed out 
that, by comparing this alphabetical list of materials to the product 
information for materials that are used or stored at the work site 
(e.g., the list of contents found on the product package), employers 
and other parties could readily determine whether any product or 
material is an explosive or contains explosive components, so as to be 
within the HO 1 prohibition.
    Only two comments were received on this proposal. NIOSH recommended 
that, as the ATF list is to be updated in the Federal Register 
annually, the Department should reference the ``current'' list rather 
than incorporate the 1998 list into the regulations. NIOSH also 
recommended that the Department retain the more general terminology 
(e.g., ammunition, fireworks, primers and smokeless powders) within the 
text of HO 1 as these terms are not contained in the List of Explosive 
Materials. The CLC supported the Department's referencing of the ATF 
list of explosives but expressed a concern about the Department's 
``enforcement of HO 1 protection when it comes to minors being employed 
in the U. S. military.''
    The Department has carefully considered these comments and 
consulted with the ATF. The ATF has advised that the Department's 
proposed definition of explosives and articles containing explosive 
components is incomplete as it does not contain all the explosives 
listed in 18 U.S.C. 841(c)-(f). The ATF noted that the proposed 
definition, should, but does not, ``encompass any chemical compound, 
mixture or device, the primary or common purpose of which is to 
function by explosion'' as per 18 U.S.C. 841(d). The ATF also reminded 
the Department that its annual list of explosive materials is not all-
inclusive and the fact that an explosive material is not on the list 
does not mean that it falls outside of the coverage of the law if it 
otherwise meets the statutory definitions in 18 U.S.C. 841. The ATF 
also recommended, as did NIOSH, that the Department not publish the 
annual list of explosives as an appendix of HO 1 but incorporate the 
list in the HO by reference so as to ensure that the list is current 
and to avoid the need for additional rulemaking each time the list is 
revised. The ATF also recommended that the regulation refer the public 
to the website where ATF publishes the list.
    As explained above, the Department's intention in the Proposed Rule 
was to provide the most complete, clear and user friendly regulation 
possible, through the incorporation of the ATF list into the regulation 
(as a complete, alphabetical list in Appendix A) rather than a mere 
cross-reference to the ATF publication. Upon reconsideration, the 
Department agrees with NIOSH and the ATF that these goals can be better 
achieved by incorporating the ATF list of explosive materials into the 
rule by reference and by providing the public with information as to 
how to obtain the most current list. Accordingly, the HO 1 Appendix 
presented in the Proposed Rule has been omitted.
    The Department also agrees that greater clarity can be brought to 
the definition of explosives and articles containing explosive 
component by adopting ATF's recommendations to expand that definition 
to include ``any chemical compound, mixture, or device the primary or 
common purpose of which is to function by explosion'' and incorporate 
the statement, as contained on the ATF list of explosive materials, 
that the list is updated annually and not intended to be all-inclusive. 
The Department believes that these changes serve to clarify the 
proposed definition and are of such a nature that they can be 
incorporated into the final rule without additional public comment. 
Accordingly, the Department adopts the proposal as a Final Rule with 
the modifications listed above.
    The Department notes that, while the Proposed Rule contained a 
detailed list

[[Page 75390]]

of particular materials in the Appendix, it did not propose to remove 
the more general terminology of ammunition, black powder, blasting 
caps, fireworks, high explosives, primers, and smokeless powder from 
the HO 1 definition of the terms explosives and articles containing 
explosive components. Therefore, the NIOSH concern about the regulatory 
definition is accommodated through the adoption of the rule, as 
proposed.
    In response to the comments of the CLC concerning minors in 
military service, the Department notes that the jurisdiction of the 
FLSA--including its child labor provisions--does not extend to members 
of the United States' armed forces.

D. Driving on Public Roads or Highways (HO 2) (29 CFR 570.52)

    Hazardous Occupations Order No. 2, originally issued in 1940, 
generally prohibits minors under 18 years of age from employment in the 
occupations of motor-vehicle driver and outside helper on any public 
road or highway; in or about any mine, logging or sawmilling 
operations; or in any excavation covered by HO 17 (which includes 
excavation in trenches, building construction, or tunnels; 29 CFR 
570.68). The occupational dangers specifically identified by the 
original HO 2 included the high degree of accident risk for persons of 
any age in these occupations, the fact that 16- and 17-year-old drivers 
experience a proportionately larger number of fatal accidents than 
older drivers, and the fact that States placed numerous restrictions on 
employees who perform as drivers and driver helpers.
    HO 2 contains two limited exemptions to the prohibition on minors 
driving on public roads and highways: ``incidental and occasional'' 
driving under certain restrictions; and school bus drivers for a 
limited period under certain restrictions. The history of these two 
exemptions was discussed in the Proposed Rule. The exemptions are 
discussed separately below.
1. ``Incidental and occasional driving'' (Sec.  570.52(b)(1)).
    HO 2 provides a limited exemption (Sec.  570.52(b)(1)) permitting 
16- and 17-year-olds to drive automobiles and trucks on public roads 
and highways on an ``incidental and occasional'' basis when all the 
following criteria are met:
     The automobile or truck being driven does not exceed 6,000 
pounds gross vehicle weight;
     The driving is restricted to daylight hours;
     The minor holds a State driver's license valid for the 
type of driving involved in the job performed and has completed a 
State-approved driver education course; and
     The vehicle is equipped with a seat belt or similar 
restraining device for the driver and for each helper, and the employer 
has instructed each minor that such belts or other devices must be 
used.

The limited exemption is not applicable to any occupation of motor-
vehicle driver that involves towing a vehicle.
    The term ``incidental and occasional''--while not defined in the 
regulations--was for many years interpreted by the Department to mean 
only driving that involves emergency-type situations or that happens at 
rare intervals. Thus, the Department enforced the exemption as not 
including driving which, even if only infrequent or sporadic, is an 
integral part of the job. The Department's interpretation excluded from 
the exemption any situations where a minor's employment requires 
routine and regular driving, such as to deliver auto parts, make pizza 
deliveries, or run errands.
    The Department reviewed HO 2 in 1984 and concluded, based upon data 
involving vehicle-related injuries and fatalities, that HO 2 should be 
retained in its current form. The Department found that 16-year-olds 
were involved in a disproportionate share of accidents and tended to be 
responsible for fatal accidents more often than other drivers. 
Seventeen-year-old drivers were the next most likely to be involved in 
such accidents. Teenagers accounted for 8 percent of the population at 
the time but sustained 17 percent of fatal injuries in automobile 
accidents.
    In 1987, concerned that some of the child labor regulations needed 
updating, the Department created the Child Labor Advisory Committee 
(CLAC), a committee whose mandate was to consider, among other things, 
the appropriate scope of ``incidental and occasional'' driving in the 
HO 2 exemption. In 1989, after careful consideration of HO 2, the CLAC 
recommended clarification of the term ``incidental and occasional'' 
driving. The committee's recommendation, discussed below, was later 
adopted with modifications and issued by the Department as 
interpretative guidance.
    In 1994, in its continuing effort to review its child labor 
regulations, the Department published an Advance Notice of Proposed 
Rulemaking (59 FR 25167) seeking the views of the public on possible 
changes in the child labor regulations, including the Hazardous 
Occupations Orders. Although HO 2 was not specifically mentioned in the 
ANPRM, the Department received comments from various groups with 
differing views of HO 2. For example, the National Automobile Dealers 
Association (NADA), individual automobile dealerships, and florists 
requested more flexibility in the Department's interpretation of 
``incidental and occasional'' driving and urged a change in HO 2 to 
permit minors to spend more time driving on the job. Child advocacy 
groups, on the other hand, sought to further limit, or to abolish 
completely, job-related teenage driving. The Child Labor Coalition, for 
example, supported a definition of ``incidental and occasional'' which 
permitted emergency-situation driving only. The Washington State Child 
Labor Advisory Committee recommended a complete ban on teenagers 
driving on-the-job.
    As a result of comments received in response to the ANPRM, the 
Department decided to review HO 2. In 1995, in order to clarify the 
appropriate scope of ``incidental and occasional'' driving until 
further rulemaking could be completed, the Wage and Hour Division 
adopted the Child Labor Advisory Committee's 1989 recommended 
interpretation. Under this Departmental interpretation of the 
regulatory language, driving was deemed incidental if it was limited to 
no more than 20% of the minor's work in any workday and did not exceed 
5% of the minor's worktime in any workweek when performed. Driving was 
deemed occasional if the minor drove on average no more than once in a 
workweek and no more than four times in a calendar month. A ``single 
episode'' of driving meant an occurrence when the employee was working 
and operated a motor vehicle on behalf of the employer. Although the 
Child Labor Advisory Committee also recommended that the HO 2 exception 
should be permitted only for 17-year-olds, the Department did not 
address this point because it was considered too substantive to be 
adopted without rulemaking.
    The Drive for Teen Employment Act (Pub. L. 105-334) was signed by 
the President on October 31, 1998. The Act amended the FLSA by adding a 
new subsection 13(c)(6). This provision prohibits employees under 17 
years of age from performing any on-the-job driving of automobiles and 
trucks on public roadways. It permits 17-year-old employees to drive 
automobiles and trucks on public roadways only if such driving meets 
all of the following conditions:
    ``(A) Such driving is restricted to daylight hours;

[[Page 75391]]

    ``(B) The employee holds a State license valid for the type of 
driving involved in the job performed and has no records of any moving 
violation at the time of hire;
    ``(C) The employee has successfully completed a State approved 
driver education course;
    ``(D) The automobile or truck is equipped with a seat belt for the 
driver and any passengers and the employee's employer has instructed 
the employee that the seat belts must be used when driving the 
automobile or truck;
    ``(E) The automobile or truck does not exceed 6,000 pounds of gross 
vehicle weight;
    ``(F) Such driving does not include--
    ``(i) The towing of vehicles;
    ``(ii) Route deliveries or route sales;
    ``(iii) The transportation for hire of property, goods, or 
passengers;
    ``(iv) Urgent, time-sensitive deliveries;
    ``(v) More than two trips away from the primary place of employment 
in any single day for the purpose of delivering goods of the employee's 
employer or to a customer (other than urgent, time-sensitive 
deliveries);
    ``(vi) More than two trips away from the primary place of 
employment in any single day for the purpose of transporting passengers 
(other than employees of the employer);
    ``(vii) Transporting more than three passengers (including 
employees of the employer); or
    ``(viii) Driving beyond a 30 mile radius from the employee's place 
of employment; and
    ``(G) Such driving is only occasional and incidental to the 
employee's employment.
    ``For purposes of subparagraph (G), the term ``occasional and 
incidental'' is no more than one-third of an employee's worktime in any 
workday and no more than 20 percent of an employee's worktime in any 
workweek.''
    While the Drive for Teen Employment Act affected the HO 2 exemption 
for ``occasional and incidental'' driving, the Act did not affect any 
other parts of HO 2, which continue to apply as it has since the 
regulation's promulgation. The HO restrictions apply to driving on 
public roadways and have no effect on driving of motor vehicles by 16- 
and 17-year-old employees when performed exclusively on private 
property (except in or about any mine, logging or sawmilling 
operations, or any excavation covered by HO 17). The HO 2 prohibition 
against the employment of 16- and 17-year-olds driving motor vehicles 
on public roads other than cars and trucks--such as truck-tractors, 
trailers, semitrailers, and motorcycles--remains the same. The HO 2 
prohibition concerning the towing of any vehicle (whether such vehicle 
is motorized or non-motorized) also remains the same. The HO 2 
prohibition concerning the employment of 16- and 17-year-olds as 
``outside helpers'' on motor vehicles is unchanged. The Act also leaves 
unchanged the applicability of HO 2 regardless of the registration or 
ownership of the vehicle being driven by the minor. Further, the Act 
has no effect on the relationship between the FLSA, HO 2, and State 
laws. Many States have laws setting standards for child labor and teen 
drivers. When both Federal and State laws apply, the law setting the 
more stringent standard must be observed.
    The Department proposed to revise HO 2 to incorporate the 
provisions of the Drive for Teen Employment Act and to provide guidance 
regarding what constitutes ``urgent, time-sensitive deliveries.'' The 
Department stated its view that such deliveries--prohibited by the 
Act--would include trips which, because of such factors as customer 
satisfaction, the rapid deterioration of the quality or change in 
temperature of the product, and/or economic incentives, are subject to 
time-lines, schedules, and/or turn-around times which might impel the 
driver to hurry in the completion of the delivery. Such trips would 
include, but are not limited to, the delivery of pizzas and prepared 
foods to the customer; the delivery of materials under a deadline (such 
as deposits to a bank at closing); and the shuttling of passengers to 
and from transportation depots to meet transport schedules. ``Urgent, 
time-sensitive deliveries'' would not depend on the delivery's points 
of origin and termination, and would include the delivery of people and 
things to the employer's place of business as well as from that 
business to some other location.
    The Department noted that the employer bears the burden of proving 
compliance with several conditions contained in the Drive for Teen 
Employment Act that must be met before a 17-year-old employee may drive 
automobiles and trucks on public roadways in his/her job performance. 
These conditions include: the employee must have a State license valid 
for the type of driving being performed; the employee must have 
successfully completed a State approved driver education course; and 
the employee must have no records of any moving violations at the time 
of hire. The Department did not propose to require that employers 
create or maintain any records with regard to compliance with the Drive 
for Teen Employment Act. The Department observed that, in order to 
better protect themselves against unwitting violations of HO 2, 
employers may wish to obtain, at the time of hire, sufficient 
documentation from 17-year-old employees who will be expected to drive 
on-the-job. This documentation could include such things as an age 
certificate issued in accordance with the child labor regulations (29 
CFR 570.5-.27), photocopies of the minor's driver license and his/her 
certificate of completion or diploma issued by the State approved 
driver education course, and correspondence from State or local 
authorities and/or the minor's insurance company verifying that the 
minor has no records of moving violations.
    The Department also noted that the Drive for Teen Employment Act 
limits the type and extent of driving a 17-year-old may perform on-the-
job. The Department did not propose to require that employers create or 
maintain any records with regard to compliance with these provisions of 
the Act. The Department observed, however, that in order to better 
protect themselves against unwitting violations of these restrictions, 
employers may wish to maintain logs to keep track of on-the-job driving 
performed by 17-year-old employees. These logs could identify the 
driver and show such things as the starting and stopping times of each 
trip, the destination of each trip, the purpose of each trip, the 
number of miles driven, the vehicle driven, and the number of 
passengers riding in the vehicle.
    Four comments were received on the proposal to revise HO 2.
    NIOSH concurred with the Department's proposal to incorporate the 
provisions of the Drive for Teen Employment Act in HO 2 and supported 
the proposed standard regarding ``urgent and time-sensitive 
deliveries.'' Though agreeing that requiring employers to create new 
systems of records to document compliance with the revised HO 2 would 
be unnecessarily prescriptive, NIOSH expressed the view that the 
proposed guidance to employers--concerning possible records and driving 
log information--would be helpful to them in their efforts to comply 
with the law. NIOSH recommended that these suggestions and guidance 
should be retained in the final rule.
    The NCLC stated that it was ``disturbed by the extension of 
commercial driving activities permitted for seventeen year olds'' but 
did support the requirements that these drivers be properly licensed 
and have no record of moving violations. The NCLC expressed concern as 
to the enforceability of the proposed regulation, and stated that the

[[Page 75392]]

Department might be able to monitor and enforce compliance if the 
Department's suggestions (concerning employer documentation of the 
licensing and driving history of 17-year-olds, as well as logs 
concerning the nature and extent of their driving) were made 
requirements.
    A Dallas-based labor consultant echoed the sentiments of the NCLC 
and stated that the proposal--suggesting, but not requiring, possible 
records--gave an incentive for the employer not to keep any records. He 
recommended that the rule should require that adequate records be 
maintained ``so that when an investigator checks for compliance it is 
all documented.'' He also suggested that the rule should include a 
requirement that 17-year-old drivers maintain safe driving records 
while employed.
    The National Automobile Dealers Association (NADA) commented on 
three aspects of the proposal. First, NADA objected to the NPRM 
Preamble statement that ``the employer bears the burden of proving 
compliance'' with the Drive for Teen Employment Act; NADA suggested 
that the statement should be that ``employers are responsible for 
complying with the Act and with HO 2.'' Further, NADA objected to the 
NPRM Preamble's ``list[ing] gratuitously a host of detailed 
recordkeeping `suggestions.' '' NADA recommended that these suggestions 
be deleted ``so as to avoid any conflict with the Act's intent or with 
Paperwork Reduction and Regulatory Flexibility Acts requirements.'' 
Finally, NADA objected to the proposed definition of urgent, time 
sensitive deliveries. While acknowledging that ``employers should not 
require employee drivers, least of all teenagers, to drive under time 
restraints that may result in speeding or otherwise compromise 
safety,'' NADA stated that that the proposed definition ``can be read 
to restrict an employer's ability to see that work responsibilities are 
completed in a timely manner and without inappropriate delay.'' NADA 
observed that ``[t]he fact is, younger workers often require extra 
oversight regarding their work timeliness. Consequently, the * * * 
definition should * * * distinguish between deliveries that are 
prohibited because they necessarily call for haste or undue speed and 
those that evidence responsible work habits.'' NADA did not suggest 
alternative language.
    The Department has fully considered these comments.
    With regard to the employer's obligation to assure compliance, and 
the NPRM Preamble suggestions as to methods by which the employer may 
meet that obligation, the Department has concluded that the rule will 
be issued as proposed and that the compliance suggestions (which were 
not proposed for inclusion in the regulation) will not be withdrawn.
    As pointed out by NADA, the employer bears the burden of complying 
with the Drive for Teen Employment Act. An employer can permit a 17-
year-old employee to drive on public roads or highways in the course of 
his/her job duties only through the ``incidental and occasional 
driving'' exemption incorporated into the FLSA by the Drive for Teen 
Employment Act. If the Department conducts an investigation, it will 
follow its normal investigation procedures to determine if the employer 
complied with child labor requirements, including the restrictions on 
driving. If the Department finds a violation, it will be the employer's 
burden--as it is for all statutory and regulatory exemptions--to 
establish that it did not violate the driving restrictions. It is well 
settled that an employer seeking to avail itself of any exemption to 
FLSA provisions must be able to prove satisfaction of all the 
requirements of that exemption. See e.g., Arnold v. Ben Kanowsky, 361 
U.S. 388, 392 ; reh. denied, 362 U.S. 945 (1947); Donovan v. United 
Video, Inc., 725 F.2d 577, 580-81 (10th Cir. 1984). The employer may 
carry this burden of proof through documents or records of its own 
choice; the Department does not impose any particular requirements as 
to documentation. However, we consider it to be appropriate to offer 
assistance to employers who seek to comply with the FLSA and HO 2. 
Therefore, the Department has made suggestions of several easy-to-use 
methods that employers may wish to follow--which include obtaining and/
or photocopying documentation concerning such things as the age, 
licensing and driving history of the 17-year-old, and the maintaining 
of certain logs concerning on-the-job driving. These suggested methods 
are purely voluntary, despite the recommendations of some commenters 
that these records be made mandatory. No employer will be penalized for 
not having the materials identified in the suggestions. Since the 
Department is not imposing any recordkeeping burdens on employers 
through this compliance assistance, there is no conflict with the 
intent of the Drive for Teen Employment Act, or with the requirements 
of the Paperwork Reduction Act and Regulatory Flexibility Act.
    With regard to the definition of urgent, time-sensitive deliveries, 
the Department has concluded that the rule will be issued as proposed. 
The definition encompasses the types of on-the-job driving that are 
likely to involve 17-year-old employees in hurried and therefore 
hazardous work activity. The Department concurs with NADA's comment 
that ``young workers often require extra oversight regarding their work 
timeliness'' and believes that this need for oversight is a natural 
result of their youth and inexperience in the world of work. The 
Department recognizes that, on a day-to-day basis, employers of young 
workers provide training in important work habits such as timeliness, 
productive use of worktime, attention to details, and responsiveness to 
instructions. Employers can better protect the health and well-being of 
their young workers by taking their need for extra oversight into 
account during all aspects of their employment. An employer's oversight 
should include assuring that adequate time is provided for the young 
worker's safe completion of tasks, and assuring that appropriate 
instructions are given to the worker in a clear and effective manner. 
Employers should be aware that if a young driver is not given enough 
time to complete a trip without hurrying, or if he/she is given 
instructions which imply a requirement for hurried action, an on-the-
job trip that would not normally fall within the definition of an 
urgent, time-sensitive delivery would become one. The Department is 
confident that employers of 17-year-old drivers will recognize the 
needs of their young workers, and will exercise appropriate oversight 
in developing work skills while assuring compliance with the Drive for 
Teen Employment Act.
    The Department has considered the suggestion of one commenter that 
the rule should include a requirement that 17-year-old drivers maintain 
safe driving records while employed. However, we have concluded that 
the Drive for Teen Employment Act does not authorize the imposition of 
such a requirement. The statute speaks only of the young driver having 
``no records of any moving violation at the time of hire.''
2. School Bus Drivers (Sec.  570.52(b)(2))
    Hazardous Occupations Order No. 2 provides a limited exemption for 
driving on public roads and highways by certain youths employed as 
school bus drivers (Sec.  570.52(b)(2)). This exemption has been 
included in HO 2 for decades, but was revised to its present form in 
1991. The Department conducted a review of the school bus driver 
exemption in 1990, and gave particular attention to the views of the 
Child Labor Advisory Committee (discussed above). A Proposed Rule was

[[Page 75393]]

published in 1990, addressing this exemption along with some other 
issues concerning other HOs (55 FR 42812). A Final Rule was issued in 
1991 (56 FR 58626), revising the school bus drivers exemption to permit 
employment of young workers as school bus drivers only through the 
1995-1996 school year, for certain schools that were already employing 
young drivers under authorizations previously issued by the Department.
    The Department proposed to delete from HO 2 the now-expired school 
bus driver exemption. The exemption was available only to certain 
``grandfathered'' school districts and, by the explicit language of the 
regulation, expired with the 1995-1996 school year. The Department saw 
no justification for a revival of the exemption, since our records 
reflect that this exemption was last used by a school district in the 
1994-1995 school year, one year before the exemption's last available 
school term under the regulation.
    No comments were received concerning this proposal. The proposed 
deletion of this HO 2 provision is implemented in the Final Rule.

E. Scrap Paper Balers and Paper Box Compactors (HO 12) (29 CFR 570.63)

    Hazardous Occupations Order No. 12 generally prohibits minors under 
18 years of age from working in occupations involving the operation of 
paper-products machines. The HO prohibits the loading, operation and 
unloading of scrap paper balers, including paper box balers and 
compacting machines, and other power-driven machines used in the 
remanufacture or conversion of paper or pulp into a finished product. 
When HO 12 was promulgated in 1954, the dangers specifically associated 
with the operation of scrap paper balers involved being caught in the 
plungers during the compression process and suffering strains and other 
injuries while moving the compressed bales.
    The Department has consistently interpreted HO 12 to apply to any 
establishments that use such paper-products machines, including retail 
stores. The Department has long interpreted the regulation as applying 
to paper box compactors (which generally perform the same function, 
utilize the same processes of compacting, and present the same dangers 
as scrap paper balers) although paper box compactors are not 
specifically named in the HO. The Department has also interpreted the 
prohibitions of HO 12 as applying to equipment used exclusively to 
process paper products, even though machines used to process other 
materials, in addition to paper products, share the identical machine 
designs, operation methods, and potential risks.
    As a result of reports the Department received in the 1980s of 
injuries to minors employed in retail stores involving paper balers, in 
1990-91 the Wage and Hour Division conducted a review of HO 12 as it 
applied to grocery stores and other retail operations. Through a 
Proposed Rule (55 FR 42812), followed by a Final Rule (56 FR 58626), HO 
12 was amended in December 1991. The regulation was clarified as 
applying where the baled paper products were recycled, as well as where 
they were disposed of as trash. Further, the regulation's prohibition 
on ``operation'' was clarified as not including the stacking of 
materials in areas adjacent to the machine. Finally, the regulation was 
revised to explicitly state that HO 12 applied to all establishments 
that used such machines, consistent with long-established Departmental 
interpretation.
    The Department published an Advance Notice of Proposed Rulemaking 
in 1994 (59 FR 25167), seeking the public's views on possible changes 
in the child labor regulations, including the Hazardous Occupations 
Orders. Although HO 12 was not specifically mentioned in the ANPRM, the 
Department received comments from representatives of the grocery 
industry asserting that recent technological changes have rendered 
certain new balers and compactors safe for minors to load. The Food and 
Allied Service Trades Department, AFL-CIO, opposed any relaxation of 
the prohibitions contained in HO 12. The Child Labor Coalition also 
opposed any relaxation of HO 12 and suggested that it should be 
expanded to include all compactors.
    The Compactor and Baler Act was signed by the President on August 
6, 1996 (Pub. L. 104-174). This legislation amends the FLSA by adding a 
new subsection 13(c)(5) to permit 16- and 17-year-olds to load, but not 
operate or unload, scrap paper balers and paper box compactors only if 
all of the following conditions are met:
    ``(A) [The loading involves] * * * scrap paper balers and paper box 
compactors--
    ``(i) That are safe for 16- and 17-year-old employees loading the 
[machines]; and
    ``(ii) That cannot be operated while being loaded.
    ``(B) For purposes of subparagraph (A), scrap paper balers and 
paper box compactors shall be considered safe for 16- and 17-year-old 
employees to load only if:
    ``(i)(I) The scrap paper balers and paper box compactors meet the 
American National Standard Institute's Standard ANSI Z245.5-1990 for 
scrap paper balers and Standard ANSI Z245.2-1992 for paper box 
compactors; or
    ``(II) The scrap paper balers and paper box compactors meet an 
applicable standard that is adopted by the American National Standards 
Institute after the date of enactment of this paragraph and that is 
certified by the Secretary to be at least as protective of the safety 
of minors as the standard described in subclause (I);
    ``(ii) The scrap paper balers and paper box compactors include an 
on-off switch incorporating a key-lock or other system and the control 
of the system is maintained in the custody of employees who are 18 
years of age or older;
    ``(iii) The on-off switch of the scrap paper balers and paper box 
compactors is maintained in an off position when the scrap paper balers 
and paper box compactors are not in operation; and
    ``(iv) The employer of 16- and 17-year-old employees provides 
notice, and posts a notice, on the scrap paper balers and paper box 
compactors stating that:
    ``(I) The scrap paper balers and paper box compactors meet the 
applicable standard described in clause (i);
    ``(II) 16- and 17-year-old employees may only load the scrap paper 
balers and paper box compactors; and
    ``(III) Any employee under the age of 18 may not operate or unload 
the scrap paper balers and paper box compactors.''
    The NPRM stated that the Compactor and Baler Act required that all 
employers subject to the FLSA submit a report to the Secretary of Labor 
when an employee under 18 years of age died or suffered an injury 
requiring medical treatment (other than first aid) as a result of 
contact with a scrap paper baler or a paper box compactor during the 
loading, operation, or unloading of the equipment (Sec.  13(c)(5)(C)). 
This reporting obligation, which expired on August 6, 1998, required 
that the report be submitted within ten days of the occurrence of the 
injury or death. Only one report, involving the serious injury of a 
minor in Cass County, Texas, was received by the Department during the 
mandatory reporting period.
    The NPRM also explained that the Compactor and Baler Act modified 
section 16(e) of the FLSA--concerning civil money penalties--to specify 
that such penalties may be assessed for violations of the new 
subsection 13(c)(5) as well as other child labor provisions. The Act 
did not modify the amount of the penalty under section 16(e), which

[[Page 75394]]

at that time was a maximum of $10,000 per violation for each minor who 
was the subject of the violation.
    The Department proposed to amend HO 12 to incorporate the 
provisions of the Compactor and Baler Act. The NPRM specified that the 
regulation's prohibition on 16- and 17-year-olds operating and 
unloading compactors and balers would not be changed, and the 
regulation would specify that these minors may load machines only in 
accordance with the standards set by the Act. The Department noted that 
employers bear the burden of proving compliance with these standards:
    (1) The equipment must meet the ANSI standards imposed by the Act. 
The NPRM recognized that Congress explicitly applied certain industry 
standards for the determination of which balers and/or compactors are 
safe for minors to load: American National Standards Institute's (ANSI) 
Standard ANSI Z245.5-1990 for scrap paper balers or Standard ANSI 
Z245.2-1992 for paper box compactors. ANSI is a national organization 
that coordinates the development of voluntary, consensus standards in a 
wide range of areas, including product and worker safety. Congress has 
used ANSI standards in other contexts as expressions of the best 
available technology in the safety area. For example, the Occupational 
Safety and Health Act of 1970 directed the Department of Labor to adopt 
the then-existing ANSI standards, rather than delay any activity until 
the agency promulgated particular occupational safety and health 
standards (see section 6(a) of the Occupational Safety and Health Act, 
29 U.S.C. Sec. 655(a)). The ANSI standards for scrap paper balers and 
paper box compactors govern the manufacture and modification of the 
equipment, the operation and maintenance of the equipment, and employee 
training. Because these ANSI standards are copyright-protected, the 
NPRM stated that the Department cannot include them in the regulations 
or reproduce them for distribution to the public. Copies of the 
applicable ANSI standards are available for inspection at the Office of 
the Federal Register, 800 North Capitol Street, NW., Suite 700, 
Washington, DC, 20408, at the Occupational Safety and Health 
Administration Docket Office at Room N2625, U.S. Department of Labor, 
200 Constitution Avenue, NW., Washington, D.C., 20210, and at any of 
the OSHA regional offices. Copies of these standards are available for 
purchase at the American National Standards Institute, 11 West 42nd 
Street, New York, New York 10036.
    The Department proposed that the employer will be required to make 
an initial determination of whether its machine(s) meet the ANSI 
standards, and that the Wage and Hour Division may make a final 
determination in any investigation concerning minors' work with the 
machines.
    The Department's proposal incorporated only the two ANSI standards 
specified in the Compactor and Baler Act. However, the Department 
recognized that the Act also provides that any new standard(s) adopted 
by ANSI would be sufficient for the determination of safety of the 
balers and compactors if the Secretary of Labor certifies the new 
standards to be at least as protective of the safety of minors as 
Standard ANSI Z245.5-1990 for scrap paper balers or Standard ANSI 
Z245.2-1992 for paper box compactors. The NPRM explained that the 
Department was aware that ANSI has adopted newer standards for scrap 
paper balers (Standard ANSI Z245.5-1997) and for paper box compactors 
(Standard ANSI Z245.2-1997). When the NPRM was issued, the Department 
was in the process of reviewing these standards to determine if they 
are at least as protective of the safety of minors as those standards 
cited in the Compactor and Baler Act. A preliminary review indicated 
the new standards are as protective as those cited in the Act, and the 
NPRM noted that the Department was considering whether to include the 
new standards along with the older standards when the final rule was 
promulgated. The public was invited to provide comment on whether 
Standard ANSI Z245.5-1997 is as protective of the safety of minors as 
Standard ANSI-S245.5-1990, and whether Standard ANSI Z245.2-1997 is as 
protective of the safety of minors as Standard ANSI Z245.2-1992.
    (2) Notice is provided and posted on each piece of equipment. The 
Compactor and Baler Act requires that, before any 16- or 17-year-olds 
may load materials into scrap paper balers and paper box compactors, 
the employer must provide notice and post a notice on each piece of 
equipment stating that the machine meets the applicable ANSI standard, 
that 16- and 17-year-olds may only load the equipment, and that no 
employee under age 18 may operate or unload such equipment. The 
Department proposed that the employer meet this statutory requirement 
by posting a permanent notice--containing the necessary information--in 
a place on the machine that is prominent and easily visible to any 
persons loading, operating, or unloading it. The Department proposed no 
specific form of notice but proposed specific language taken from the 
statutory requirements to be included in the notice.
    (3) The equipment must have certain controls and locks. The 
Compactor and Baler Act requires that the equipment must include an on-
off switch incorporating a key-lock or other system, that the control 
of the system must be maintained in the custody of employees who are 18 
years of age or older, and that the on-off switch must be maintained in 
an off position when the equipment is not in operation. The Department 
proposed to include these explicit requirements in the regulation.
    The Department also proposed to include in the regulation a 
specific identification of paper box compactors among the types of 
equipment subject to HO 12. The NPRM explained that this addition was 
required by the legislation, which explicitly includes paper box 
compactors. In addition, the NPRM stated, this regulatory change would 
communicate the Department's long held position that HO 12 also applies 
to paper box compactors which perform the same function, operate in a 
similar manner, and present the same risks as scrap paper balers, which 
are explicitly listed in the current regulation.
    In addition to the regulatory changes necessitated by the Compactor 
and Baler Act, the Department proposed to modify HO 12 and its title to 
include scrap paper balers and paper box compactors that are used to 
process other materials in addition to paper products. In the past, HO 
12 has prohibited minors from loading, operating, and unloading only 
those scrap paper balers and paper box compactors that are used 
exclusively to process paper products.
    The proposed rule also would amend the regulations in part 579 
concerning civil money penalties, to implement the Compactor and Baler 
Act's explicit authorization for penalties not to exceed $10,000 for 
each employee who was the subject of a violation of new subsection 
13(c)(5) of the FLSA.
    The Department received six comments on this proposal--from NIOSH, 
the Food Marketing Institute (FMI), the Council, the NCLC, the CLC, and 
the National Grocers Association (NGA). None of the commenters opposed 
the proposal to incorporate the provisions of the Compactor and Baler 
Act into the regulation. However, the commenters differed with regard 
to some of the particulars of the proposed regulation, as discussed by 
topic below.
    Notice to be posted on machine. Opinions differed as to the wording 
of the notices that must be posted on balers and compactors that 16- 
and 17-

[[Page 75395]]

year-olds would be authorized to load, but not operate or unload.
    The Department proposed that the exact language appearing in the 
statute be required on all notices in order to eliminate confusion and 
provide employers with clear guidance. The Department also believed 
that minors, who change jobs frequently, would receive greater overall 
protection if the posting language were consistent among all employers.
    The NCLC commented that, while it had opposed and continues to 
oppose the Compactor and Baler Act, it realized that the Department 
must implement the provisions of the statute. In that context, the NCLC 
stated that it supported ``the clear and stringent proposed revisions'' 
to HO 12. The CLC also supported the Department's proposal but 
recommended that the notice should also include language prohibiting 
any minor from placing his or her hands, arms, or legs into the machine 
at any time.
    Both the NGA and the FMI objected to the Department's proposal to 
adopt, for the required notice, the language exactly as it appears in 
the statute. Both organizations recommended that the Department not 
adopt the verbatim statutory language for the notice but, instead, 
allow employers to use the notice ``stickers'' which these 
organizations have developed for their industry. The NGA stated that, 
along with the FMI, it had undertaken an educational compliance program 
to inform retailers and wholesalers of how to comply with the new law. 
This program included the developing and marketing of notice stickers, 
copies of which were provided to the Department along with their 
comments. The organizations asserted that these stickers were in 
compliance with the posting requirements of the Compactor and Baler 
Act. The FMI also stated that it worked closely with ANSI experts to 
ensure that the stickers were consistent with industry safety standards 
and would effectively attract the attention of employees approaching or 
intending to use the machines. The FMI and the NGA pointed out that 
adoption of the proposed rule would render their stickers unusable.
    After carefully considering the comments, the Department agrees 
that accepting only those notices which reflect the exact wording of 
the Compactor and Baler Act would be overly prescriptive. The 
Department believes that the intent of the Compactor and Baler Act will 
be satisfied if each notice: (1) Contains an accurate statement that 
the baler or compactor to be loaded by the minor meets the applicable 
ANSI standard named in section 13(c)(5)(B)(i)(I) of the FLSA or meets a 
more recent ANSI standard which the Secretary has certified to be at 
least as protective of the safety of minors as the standard described 
in section 13(c)(5)(B)(i)(I); (2) cites the specific ANSI standard, 
including the year of issuance, that the employer is providing notice 
that the equipment meets; (3) includes a clear statement that 16- and 
17-year-olds may only load the scrap paper balers and paper box 
compactors; and, (4) includes a clear statement that no employee under 
the age of 18 may operate or unload the scrap paper balers and paper 
box compactors.
    The Department has examined the sample notices--stickers--provided 
by both the NGA and the FMI. We note that these stickers do not clearly 
identify the applicable ANSI standard as required by the Compactor and 
Baler Act. ANSI includes, in the caption or title of each of its 
standards, both a ``series identifier'' and a year of issuance, so as 
to eliminate confusion between different editions of standards that 
apply to the same type of machinery. Congress recognized this precision 
of ANSI nomenclature when, in adopting the Compactor and Baler Act, it 
specifically required that balers meet Standard ANSI Z245.5-1990 and 
compactors meet Standard ANSI Z245.2-1992. ANSI has issued a succession 
of standards in the Z245.5 series for balers: Standard ANSI Z245.5-
1982; revised and replaced by Standard ANSI Z245.5-1990 (approved 
December 12, 1989); revised and replaced by Standard ANSI Z245.5-1997. 
ANSI does not always adopt the same series identifier when revising and 
replacing standards for a type of machinery. The standard specified in 
the Act for compactors--Standard ANSI Z245.2-1992--replaced Standard 
ANSI Z245.1-1984. The sample notices submitted by the FMI and the NGA 
do not include the year the ANSI standard was issued, but merely 
reference the series identifier number. The Department considers this 
notice to be inadequate. We are concerned that an employer who utilizes 
a baler that is over 20 years old--but which meets the antiquated 
Standard ANSI Z245.5-1982--would be under the mistaken impression that 
after applying the sticker provided by the FMI or NGA, he/she could 
legally allow 16- and 17-year-old employees to load that equipment. We 
are also concerned about employers who might apply this sticker, and 
mistakenly assume themselves to be in compliance with the law by 
relying on a new ANSI standard which had not been certified by the 
Department as providing at least the same levels of protection to young 
workers as those specifically named in the Compactor and Baler Act. It 
is imperative that all notices posted in accordance with the Compactor 
and Baler Act cite both the series identifier and year of issuance for 
the ANSI standard, so that employers, their supervisory staff, and 
their young workers are fully informed, as Congress intended them to 
be.
    The Department would consider the NGA and FMI stickers to 
constitute acceptable notices if they are modified to state explicitly 
the full caption of the ANSI standard (both the series identifier and 
the year of issuance). This modification may, of course, be made by 
printing all future stickers with the full, accurate information as to 
the specific applicable standard. But existing stickers may also be 
modified by making hand-written insertions of the additional 
information that is necessary to identify the specific standard. Such 
insertions must be written legibly, in indelible ink, and in the same 
size of lettering as the ANSI standard identifiers already printed on 
the sticker.
    The NGA and the FMI have also provided copies of stickers they have 
developed to be placed on equipment that does not meet the requirements 
of the Compactor and Baler Act and, therefore, cannot be loaded, 
operated or unloaded by any employee who is less than 18 years of age. 
These stickers, which are not required by the Act and the use of which 
is completely voluntary, alert employees that they may not load, 
operate or unload the equipment unless they are 18 years of age or 
older. The Department appreciates these efforts by the NGA and the FMI 
and encourages all employers to adopt similar signage when applicable, 
as part of their efforts to reduce occupational injuries to young 
workers and increase compliance with the child labor provisions.
    Making the determination that the equipment meets the ANSI standard 
named in the Compactor and Baler Act or a more recent ANSI standard the 
Secretary has certified as being at least as protective of the safety 
of minors. The FMI objected to the Department proposal that the 
employer will be required to make an initial determination of whether 
its machine(s) meet the ANSI standards, and that the Wage and Hour 
Division may make a final determination in any investigation concerning 
minors' work with the machines. The FMI asserted that the Compactor and 
Baler Act does not support this proposal, and suggested

[[Page 75396]]

that a machine's satisfaction of ANSI standards should be established 
by the reasonable assurances of the machine's manufacturer coupled with 
maintenance records. The FMI expressed concern that the employer should 
not be required to maintain any records beyond these assurances and 
maintenance records.
    The Department considers the proposed provision to be necessary to 
achieve the clear intent of the Act, which is to allow minors to load 
machines (despite the HO 12 prohibition) only if such machines meet the 
ANSI standards specified in the statutory and regulatory exemption. The 
employer which has its young employees loading these machines can 
lawfully do so only pursuant to this exemption. As discussed above with 
respect to the HO 2 ``incidental and occasional driving'' regulation, 
the employer must be able to prove its satisfaction of all the 
requirements of this, or any other, FLSA exemption. The employer cannot 
know whether its operation is in compliance with the exemption (i.e., 
cannot know whether its minor employees are permitted to load a 
particular machine) unless and until it determines that the machine 
meets the applicable ANSI standard. While the information mentioned by 
FMI would, of course, be important, the employer should also consider 
other pertinent information, such as equipment modifications, 
performance of scheduled maintenance, and equipment malfunctions. The 
Department does not, and will not, prescribe that any particular 
documentation or records be created by the employer.
    As part of an investigation authorized by section 11(a) of the 
FLSA, the Wage and Hour Administrator may make a determination as to 
whether the equipment meets the ANSI standard cited on the notice 
posted by the employer on the machine; such a determination may be 
essential to an investigative finding of whether the employer has 
violated the regulation. The employer, of course, may request 
administrative review where the Administrator determines that minors 
are working in violation of the regulation because the machine they are 
using does not meet the ANSI standard. Upon reflection, the Department 
recognizes that the phrase ``final determination'' in the Proposed Rule 
may be confusing, in that the Administrator's investigative 
determination would be subject to review and, if appropriate, to 
revision in the administrative adjudicatory process. Therefore, the 
Department has concluded that the regulation should not state that the 
Administrator's investigative determination is ``final.''
    After carefully considering the FMI comment, the Department has 
concluded that the proposed provision is necessary and appropriate 
under the FLSA and the Compactor and Baler Act. The proposed 
provision--with the word ``final'' deleted--is included in the Final 
Rule.
    The Secretary's review of the more recent ANSI standards. The 
Compactor and Baler Act applies specific ANSI standards, issued by the 
organization in 1990 (balers) and 1992 (compactors). However, the Act 
also provides that any new standard(s) adopted by ANSI would also be 
sufficient for the determination of safety of the balers and 
compactors, if the Secretary of Labor certifies the new standard(s) to 
be at least as protective of the safety of minors as the two standards 
specified in the Act. In the NPRM, the Department stated that it was 
reviewing two new ANSI standards, and invited the public to comment on 
whether those standards should be certified by the Secretary.
    Only one commenter, NIOSH, directly addressed the newer ANSI 
standards, supporting their incorporation into the regulation ``as they 
are as protective as previous standards cited in the Compactor and 
Baler Act.'' The CLC cautioned the Department to review thoroughly new 
ANSI standards for their effectiveness in protecting working minors, 
and to revise the regulation to reflect improved safety protection 
standards as they are introduced. The Department agrees with the CLC, 
concerning the importance of careful consideration of new safety 
standards. The Department's review of the new ANSI standards agrees 
with NIOSH's findings. The Secretary, in promulgating this Final Rule, 
hereby certifies that Standard ANSI Z245.5-1997 is as protective of the 
safety of minors as Standard ANSI-S245.5-1990 and that Standard ANSI 
Z245.2-1997 is as protective of the safety of minors as Standard ANSI 
Z245.2-1992. Accordingly, these newer standards are included in the 
Final Rule.
    Revising HO 12 to include scrap paper balers and paper box 
compactors that are used to process other materials in addition to 
paper products. The Department proposed to modify HO 12 to include 
scrap paper balers and paper box compactors that are used to process 
other materials in addition to paper products. As explained in the 
NPRM, HO 12 has, in the past, prohibited minors from loading, 
operating, and unloading only those scrap paper balers and paper box 
compactors that are used exclusively to process paper products.
    The FMI and the NGA objected to this proposal as being 
unauthorized, stating that the Compactor and Baler Act addresses only 
machinery used for paper products. These commenters, along with the 
Council, also stated that the Department had provided no basis or 
evidence for the expansion of HO 12.
    NIOSH supported this proposal, stating ``[r]eview of surveillance 
and investigation data demonstrate that baling and compacting equipment 
are associated with deaths and injuries of workers, that these deaths 
are associated with uncontrolled hazardous energy and inadequate 
machine guards, and that deaths and injuries result from machines that 
process non-paper materials (e.g., aluminum cans, plastic, foam, and 
rubber) as well as paper materials.'' NIOSH reported that data covering 
the period of October 1, 1996 through December 31, 1999, reflects that 
balers and compactors were responsible for an estimated 2,625 injury 
reports nationwide. Almost half of the injuries occurred while working 
in either a retail or grocery store, with 24% occurring in 
manufacturing. NIOSH also reported that at least 29 occupational 
fatalities involving paper balers and compactors occurred between 1992 
and 1997.
    In making the proposal to modify HO 12, and in considering the 
comments on the proposal, the Department has given careful thought to 
the Secretary's long-standing and important statutory duty to ban 
unsafe working conditions for minors. The FLSA, at section 3(l), gives 
the Secretary the authority and responsibility to identify and declare 
those occupations which are ``particularly hazardous for the employment 
of children * * * or detrimental to their health or well-being.'' In 
meeting this statutory duty, the Secretary has promulgated the 
seventeen Hazardous Occupations Orders, including HO 12 on balers and 
compactors. The Secretary need not and should not wait for additional 
legislation when making determinations concerning the safety and well-
being of working youth.
    Since its inception, HO 12 has prohibited minors from loading, 
operating and unloading balers and compactors that are used exclusively 
to process paper products. In proposing to expand the scope of the 
regulation, the Department recognized that the existing, narrow 
prohibition ignores the fact that these machines are used to compress 
materials in addition to paper without any changes in design or 
procedures for loading, operating and unloading. Such other materials 
which may be processed

[[Page 75397]]

by scrap paper balers and paper box compactors include, but are not 
limited to, plastics, rubber, food waste, foam rubber and aluminum 
cans. The risks which these machines present to minor employees remain 
the same, regardless of the materials being processed. The information 
provided by NIOSH demonstrates that injuries and deaths continue to 
occur in the loading, operation and unloading of these machines, 
whether or not they are used exclusively for paper products. Further, 
the Department's enforcement experience shows that these machines are, 
indeed, ``particularly hazardous'' to load, operate or unload. For 
example, in recent years the Wage and Hour Administrator has 
investigated cases involving a 16-year-old who was killed operating a 
compactor, a 17-year-old whose arm was crushed while operating a 
compactor, and a 15-year-old who suffered a serious injury to his hand 
while operating a paper baler.
    The Department does not believe that its revision of the scope of 
HO 12 required a new legislative authorization through the enactment of 
the Compactor and Baler Act. The Department's authority with regard to 
all of the Hazardous Occupations Orders is based on long-standing FLSA 
provisions. However, we note that the proposed expansion of HO 12 to 
include machines used for materials in addition to paper products is, 
in fact, supported by the definitions of both balers and compactors 
contained in the ANSI Standards which Congress adopted in the Compactor 
and Baler Act. Standard Z245.5-1990, for balers, identifies the 
materials which may be processed by the machines: ``Primary materials 
includ[ing] natural and synthetic fibers and their by-products;'' 
``Waste paper (newsprint, corrugated containers, and the like), trim 
scrap, mill broke, metals (other than ferrous scrap), and textiles* * 
*'' Standard Z245.2-1992, for compactors, identifies the ``refuse'' 
which may be processed: ``Any type of solid waste (except human 
wastes), including garbage, rubbish, ashes, incinerator residues, 
street cleanings, plant trimmings, and residential, commercial, and 
industrial solid wastes, including recyclable materials.'' Further, the 
Department takes the position that the lack of reports from employers 
pursuant to the Compactor and Baler Act is not a factor in this 
revision of HO 12; the Department's enforcement experience and the data 
provided by NIOSH are ample information as to the ``particular 
hazards'' of these machines. We note, however, that the one report 
submitted by an employer pursuant to the Act involved an incident in 
which a 17-year-old had both his legs amputated in a baler machine at a 
recycling center. At the time of his injury, the machine was crushing 
cardboard, but the machine was the only baler at the center and, 
therefore, was also used for processing other materials, including 
plastic.
    Accordingly, the Secretary has determined that occupations 
involving the loading, operating and unloading of scrap paper balers 
and paper box compactors that process other materials in addition to 
paper are particularly hazardous for minors between 16 and 18 years of 
age. The proposed modification of HO 12 is included in the Final Rule.
    The Department notes that after the issuance of this Final Rule, 
there will still be one class of balers and compactors that falls 
outside of the scope of HO 12--those machines that process everything 
and anything but paper products. These machines share similar designs 
and operating procedures with those compactors and balers that process 
only paper products or process other materials in addition to paper 
products. The Secretary has not made a determination that occupations 
involving the loading, operating and unloading of balers and compactors 
that do not process paper are particularly hazardous to the health and 
well-being of youths between 16 and 18 years of age. The Department 
will continue to review this matter and may consider future rulemaking 
to further revise HO 12.
    In addition, two minor editorial modifications to the existing 
regulation have been made in the Final Rule. The word ``also'' in the 
last sentence of section 570.63(b)(2) (ii) which is part of the 
definition of the term paper products machine was moved to avoid any 
confusion over what types of machines are subject to the HO. The word 
``of'' in section 570.63(b) (3) that defines the term scrap paper baler 
has been replaced with the word ``or'' to comport with the language in 
the ANSI standard.
    Proposal to amend the regulations in part 579 concerning civil 
money penalties. In the 1999 NPRM, the Department proposed to amend the 
regulations in sections 579.1 and 579.5 to implement the Compactor and 
Baler Act's explicit authorization for civil money penalties not to 
exceed $10,000 for each employee who was the subject of a violation of 
new subsection 13(c)(5) of the FLSA. No comments were received on this 
proposal. After publication of the 1999 NPRM, but prior to the 
publication of this Final Rule, the Department published a different 
Final Rule in accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended by the Debt Collection Improvement 
Act of 1996 (66 FR 63501, December 7, 2001). That regulatory action not 
only increased the maximum amount of the civil money penalty that may 
be assessed under the FLSA for a child labor violation to $11,000, but 
also implemented the Compactor and Baler Act's authorization for civil 
money penalties. As the Compactor and Baler Act's authorization for 
civil money penalties has already been incorporated into section 579.5, 
that proposed change need not be included in this Final Rule. The 
corresponding proposed changes to section 579.1, however, are included 
in this Final Rule.
    The Final Rule includes both the Federal Civil Penalties Inflation 
Adjustment Act change in the maximum amount of the penalty and the 
change specified in the Proposed Rule.

F. Work in Roofing Occupations (HO 16) (29 CFR 570.67)

    Hazardous Occupations Order No. 16 covers ``occupations in roofing 
operations.'' It bans all occupations in roofing, but not all work on 
roofs. Roofing operations, as defined by the regulation, include most 
roofing activities and related occupations whether performed at 
elevations or at ground level. Not included are other tasks performed 
on or near roofs such as the installation, repair and maintenance of 
roofing sheathing, television and microwave antennas, air conditioning 
equipment, and gutters and downspouts.
    The Department has received inquiries questioning why employees 
under 18 years of age may perform any work on a roof. Available data, 
such as that provided by NIOSH and the Massachusetts State Department 
of Health, indicates that working at heights is a major contributor to 
injuries and deaths of young workers.
    The Department's 1994 Advance Notice of Proposed Rulemaking (59 FR 
25167) raised the issue of minors working at heights. The ANPRM 
requested comments regarding a ban on all work performed by minors on 
roofs. The ANPRM also requested information as to whether such a 
prohibition should be a generic restriction or one limited to a 
particular industry or industries. Finally, the ANPRM sought 
information regarding exemptions from HO 16 for apprentices and student 
learners.
    The Department received a number of comments on this issue, the 
vast majority of which supported the prohibition of roofing work and 
all work

[[Page 75398]]

on a roof. Many supported a complete prohibition against minors working 
above a certain elevation, often specified as 6 to 10 feet. The 
comments came from a variety of sources, including industry 
organizations, child advocates, and State and Federal agencies.
    The single ANPRM commenter not in favor of prohibiting all work on 
a roof was the Associated Builders and Contractors, Inc. (ABC), which 
opposed a ban on 16- and 17-year-olds working at heights. ABC commented 
that a ban would jeopardize valuable career-advancing opportunities and 
that proper supervision, safety instructions, and training are 
sufficient to reduce or alleviate any heightened risk of injury without 
sacrificing the benefit of work experience.
    After considering all of the information obtained in response to 
the ANPRM, the Department proposed to amend HO 16 to expand the ban 
from all roofing occupations to include all work performed on or about 
a roof. This ban would include, but not be limited to, occupations on 
or in close proximity to roofs such as the installation, repair, and 
maintenance of gutters and downspouts, installation of sheathing, roof 
trusses or roof bases, television antennas, air conditioners, exhaust 
and ventilating equipment, heating equipment, and similar appliances 
attached to roofs. The Department also proposed that the exemption for 
apprentices and student-learners employed under the conditions 
prescribed in 29 CFR 570.50(b) and (c) would continue to apply under HO 
16. The Department stated its view that the additional supervision and 
training required by the exemption, coupled with the limited exposures 
provided by the exemption, will help to reduce safety risks to 16- and 
17-year-olds working on roofs.
    Four comments were received concerning this proposal.
    NIOSH supported broadening the scope of HO 16, as proposed. NIOSH 
reported that the roofer occupation is among the occupations at highest 
risk of fatal work-related injury among workers of all ages. NIOSH 
stated that work on and around roofs is associated with falls from 
heights and contact with electrical energy, and that these two causes 
of injury together accounted for 18% of work-related injury deaths of 
16- and 17-year-olds in the 1980's. Further, NIOSH reported that 
hazards are associated with workers using roofs as a means of access or 
support for other work at heights. As an example of such hazards, NIOSH 
discussed the death of a 17-year-old window washer who plunged 15 
floors to his death due to the failure of the rigging he had attached 
to the roof of the building.
    ABC--which had been the only ANPRM commenter that did not favor 
prohibiting all work on a roof--commented that it believed its previous 
concerns had been substantially addressed through the proposed 
regulation's preservation of the exceptions for apprentices and 
student-learners.
    The NCLC and the CLC opposed the proposal as not having gone far 
enough. These commenters recommended that the regulation should 
prohibit minors working at elevations ``in any and every capacity'' 
whether on roofs, hanging out windows, or working on ladders, 
scaffolds, or other elevated surfaces. The CLC suggested that the 
prohibition should apply to work at elevations above 6 feet.
    The Department has carefully considered the comments and available 
data, as well as our own enforcement experience. Based on this 
information, the Department has concluded that the dangers cited in the 
report supporting the promulgation of HO 16 still persist for youths 
working not only in roofing occupations but also on or about roofs. The 
main danger for such youths is from falls which may occur in any work 
performed on or about a roof. This danger was demonstrated by three 
recent incidents investigated by the Wage and Hour Administrator. Two 
minors (one in Pennsylvania and one in Alabama) fell to their deaths 
while employed in the installation of roofing trusses (part of building 
construction, but not a roofing occupation under the current 
regulation). A third minor, 16 years of age, died in July of 2002 in 
Arizona after falling from a roof while assisting in the maintenance of 
an air conditioning unit (again, work on a roof but not a roofing 
occupation under the current regulation). The danger of falls was also 
demonstrated in the incident cited by NIOSH: death of a window washer 
who worked on the roof of the building to attach and then enter the 
rigging which failed and caused his fall. Additional dangers in work on 
or about a roof include exposure to electricity, as discussed by NIOSH 
and as demonstrated in a case recently investigated by the Wage and 
Hour Administrator in which a 17-year-old was killed when the pipes he 
was hoisting to a roof (for assembly there into clothing racks) came 
into contact with overhead power lines.
    The Department notes that the regulatory phrase on or about a roof 
is not limited to circumstances where the minor employee is standing or 
working on the roof itself. The prohibition extends to standing or 
working on a ladder or scaffold at or near the roof, working on the 
installation of roof trusses or joists which will support the roof, as 
well as working from or being transported to or from the roof in 
mechanical devices such as hoists. Thus, for example, a minor is 
prohibited from working on a scaffold (as well as on the roof itself) 
to install roof flashing or gutters. To avoid the possibility of 
confusion as to the scope of this prohibition, the proposed definition 
of the term on or about a roof has been modified in the Final Rule, to 
clarify that the term includes work ``upon or in close proximity to a 
roof'' and to clarify that the installation of trusses or joists is 
included in the ``construction of the base of roofs'' within the 
meaning of this definition.
    The Department has carefully considered the views of commenters who 
suggested that the regulation should ban all work at an elevation, such 
as at a height of six feet. While we recognize that there may be some 
risk of accidents whenever workers are performing tasks above ground 
level, we have concluded, based on available data, that all such work 
by minors cannot be declared to be particularly hazardous. Therefore, 
we believe that such an across-the-board prohibition would be 
unwarranted, at the present time, and would deny minors many safe and 
promising employment opportunities such as library assistants climbing 
low ladders to retrieve or replace books, or retail stock clerks 
retrieving or restoring merchandise to shelving, or lifeguards mounting 
their stands at poolside. This matter may be further addressed in a 
future rule making, if appropriate.
    The Department has concluded that occupations involving working on 
or about roofs, as well as all occupations in roofing operations, are 
particularly hazardous for minors between 16 and 18 years of age, and 
accordingly adopts the proposal as a Final Rule with the modifications 
discussed above.

G. Miscellaneous Matters

    The Department has also made minor, nonsubstantive, changes to the 
regulations that are not discussed above. The 1999 NPRM proposed that 
the section headings contained in Subparts B and C of 29 CFR Part 570 
and in 29 CFR Part 579 be presented as questions. It was believed such 
a format would more clearly identify the contents of each section. Upon 
further review, the Department has determined that headings consisting 
of a few words, or a short phrase, will be more useful to

[[Page 75399]]

the reader. Accordingly, the question format has not been adopted and 
the section headings will now consist of a few words or a short phrase. 
Also, as mentioned earlier, the 1999 NPRM proposed to revise 29 CFR 
Part 579.5 to incorporate the civil money penalty provisions of the 
Compactor and Baler Act. This revision was accomplished by a separate 
Final Rule published by the Department (66 FR 63501, December 7, 2001) 
and therefore does not need to be included in this Final Rule. 
Furthermore, the Department has concluded that four numbered 
subsections of the existing regulation on civil money penalties are 
obsolete--three ``reserved'' (Sec. Sec.  579.6-.8) and one dealing with 
the implementation of the1990 FLSA amendment which increased the child 
labor civil money penalty to $10,000 (Sec.  579.9). The Final Rule 
removes these subsections from the regulation. In addition, the 
Department is also revising 29 CFR Part 579.3(a)(5) to remove a no 
longer appropriate reference to 29 CFR Part 545. Part 545, which was 
titled Homeworkers in Industries in Puerto Rico, was removed by the 
Department in 1990 as a result of the 1989 amendments to the FLSA (55 
FR 12114, March 30, 1990). Finally, in keeping with current guidance 
provided by the Federal Register, we have restructured the definitions 
in 29 CFR 570.63 and 570.67 to reflect an alphabetical sequence.

III. Changes to Procedural Regulations (29 CFR Part 580)

    The Department has determined that the procedural regulations--
dealing with administrative hearings and appeals of civil money 
penalties--require updating to make it clear that the administrative 
procedures are a prerequisite to judicial review and to identify the 
Department's Administrative Review Board as the entity to which appeals 
from Administrative Law Judge decisions are taken. The Final Rule makes 
the necessary changes in Part 580 procedural regulations. Because these 
revisions pertain to rules of agency procedure or practice, notice of 
proposed rulemaking and public comment procedures are not required for 
these revisions pursuant to Section 553(b)(3)(A) of the Administrative 
Procedure Act, 5 U.S.C. 553(b)(3)(A). Therefore, these procedural 
amendments are being adopted as a final rule without prior notice and 
comment.

IV. Paperwork Reduction Act

Federal Certificate of Age

    Title: Form WH-14, Application for Federal Certificate of Age.
    Summary: Section 3(l) of the Fair Labor Standards Act (FLSA), 29 
U.S.C. 203(l), provides, in part, that an employer may protect against 
unwitting employment of ``oppressive child labor'' (as defined in 
section 3(l)) by having on file a certificate issued pursuant to DOL 
regulations, certifying that the named person meets the FLSA minimum 
age requirements for employment.
    Section 11(c) of the FLSA, 29 U.S.C. 211(c), requires that all 
employers covered by the Act make, keep and preserve records of wages, 
hours and other conditions and practices of employment with respect to 
their employees. The employer is to maintain the records for such 
period of time and make such reports as prescribed by regulations 
issued by the Secretary of Labor.
    Regulations, at 29 CFR Part 570, subpart B, set forth the 
requirements for obtaining certificates of age from the Department. The 
regulations provide that State-issued age, employment or working 
certificates, which substantially meet the Federal regulatory 
requirements for certificates of age, are an acceptable alternative to 
obtaining a Federal certificate of age. The regulations contain a list 
of States that may issue such acceptable certificates. Since age 
certificates are issued by most States, these are widely used as proof 
of age for FLSA child labor purposes.
    Federal certificates of age are issued by the Department upon 
request by the youth and the prospective employer. Form WH-14 is the 
DOL application form. As a practical matter, it is used in those States 
where no State certificates are issued or State certificates do not 
meet the Federal regulatory requirements. The Wage and Hour Division 
reviews each WH-14 application and the accompanying proof of age, which 
is identified in the regulation as sufficient to establish the young 
applicant's age and thus to achieve the intended purpose of the 
statutory provision (i.e., to afford the employer an affirmative 
defense against unwitting violations of the child labor provisions). As 
appropriate, a Federal certificate of age is issued and forwarded to 
the employer (if the youth is under 18 years of age) or to the youth 
(if he/she is 18 or 19 years of age). The supporting evidence of age is 
returned to the applicant(s). The 18- or 19-year-old presents the 
certificate to his/her employer upon entering employment.
    The employer is required to keep the certificate on file for the 
duration of the youth's employment, in order to achieve the intended 
purpose of the FLSA provision (i.e., to protect the employer in 
situations where compliance with the child labor standards is 
questioned). The estimated average employment period is 6 months. When 
a youth under 18 years of age leaves employment, the employer was 
directed, prior to this revision of the regulation, to return the 
certificate to the office that issued it, except that a certificate for 
employment in agriculture might be given to the youth; any subsequent 
certificate of age requested for that youth could be issued without 
additional proof of age. A certificate of age issued for a youth 18 or 
19 years of age was to be given by the employer to the youth upon his/
her leaving employment.
    Need: In August 1998, the Office of Management and Budget (OMB), in 
its review and approval of the Form WH-14 under the Paperwork Reduction 
Act, approved this information collection (OMB No. 1215-0083). OMB's 
approval was contingent upon DOL's agreement to eliminate the 
requirement for an employer to return the certificate to the issuing 
official in certain circumstances. The Department, as agreed with OMB, 
has revised the regulation at Sec.  570.6(b)(1) to direct employers to 
give to each employee, upon termination of employment, any Federal age 
certificate issued in his/her name. This would occur regardless of the 
age of the employee and regardless of the type of employment (i.e., 
agriculture or nonagriculture). This regulatory provision will enable 
young workers to provide future employer(s) with a properly issued age 
certificate without having to make another application to a government 
official. The Department has also revised the statement at the end of 
Sec.  570.6(b)(2) to reflect the new OMB control number.
    Respondents and frequency of response: It is estimated that 10 such 
WH-14 applications will be submitted annually.
    Estimated total annual burden: It is estimated that each such 
application will take approximately ten minutes to complete for a total 
annual burden of one and two-thirds hours (10 applications x 10 minutes 
per application = 1.667 hours). The filing of a Federal Certificate of 
Age is estimated to take one-half minute per document for a total 
annual burden of .083 hours (10 Federal Certificates of Age x .5 
minutes = .083 hours).
    Total Annual Reporting and Recordkeeping Burden = 1.75 Hours.

[[Page 75400]]

    Employees and employers of any of a wide variety of businesses, 
from small farms or retail stores to large manufacturing plants, may 
request Federal certificates of age. Absent specific wage data 
regarding applicants, respondent costs are estimated utilizing the 
average hourly rate of non-supervisory workers on non-farm payrolls of 
$15.38 for 2003 (Monthly Labor Review, U.S. Department of Labor, Bureau 
of Labor Statistics). Total annual respondent costs are estimated at 
$26.92 ($15.38 x 1.75 hours).
    Total estimated annual postage and envelope costs for transmitting 
these applications are $4.00 (10 reports x $.37 postage + $.03 per 
envelope).
    Total Annual Respondent Costs for FORM WH-14, Application for 
Federal Certificated of Age--$30.92 ($26.92 + $4.00).
    No comments were received from the public regarding this burden. 
Two comments were received on the substantive aspects of the regulatory 
proposal concerning age certificates and these are discussed earlier in 
this document.
    No changes have been made in this Final Rule which affect the 
information collection and recordkeeping requirements and estimated 
burdens previously submitted to OMB and discussed in the proposed rule.

V. Executive Order 12866

    This rule is being treated as a ``significant regulatory action'' 
within the meaning of Executive Order 12866, because of its importance 
to the public and the Department's priorities. Therefore, the Office of 
Management and Budget has reviewed the rule. However, because this rule 
is not ``economically significant'' as defined in section 3(f)(1) of EO 
12866, it does not require a full economic impact analysis under 
section 6(a)(3)(C) of the Order. In addition, this rule imposes no new 
information collection, recordkeeping, or reporting requirements 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et 
seq.).
    It is well established that several characteristics of youth place 
adolescent workers at increased risk of injury and death. Lack of 
experience in the work place and in assessing risks, and developmental 
factors--physical, cognitive, and psychological--all contribute to the 
higher rates of occupational injuries and deaths experienced by young 
workers. The Census of Fatal Occupational Injuries, U.S. Department of 
Labor, Bureau of Labor Statistics, reported that during the years of 
1992-1997, 15-year-olds actually experience an occupational fatality 
rate per 100,000 fulltime equivalents that is greater than the average 
for all workers. A NIOSH report also showed that the fatality rate for 
adolescents aged 16 and 17 was 5.1 per 100,000 full-time equivalent 
workers for the 10-year period 1980-89 [Castillo et al. 1994], while 
the rate for adults aged 18 and older was 6.1. As NIOSH stated, 
``[t]his relatively small difference in rates is cause for concern 
because youths under age 18 are employed less frequently in especially 
hazardous jobs.'' Special Hazard Review: Child Labor Research Needs. 
Recommendations from the NIOSH Child Labor Working Team, Ch. 2, August 
1997. NIOSH also estimates that youth work injuries exceed 200,000 each 
year, and of that number, 77,000 are serious enough to warrant 
treatment in hospital emergency rooms. The NIOSH statistics show that, 
despite the fact that workers aged 15 through 17 are generally 
restricted from performing in hazardous occupations such as mining, 
motor-vehicle driving, logging, sawmilling and construction, they have 
a higher rate of injuries requiring emergency room treatment than any 
other age group except 18- and 19-year-olds (who are not restricted 
from performing such work). NIOSH Recommendations to the U. S. 
Department of Labor for Changes to Hazardous Orders, p. 8, May 2002. 
The economic and social costs associated with the deaths and serious 
injuries of young workers are substantial.
    The Department considers the issuance of this rule as an important 
and necessary step in its ongoing review of the criteria for 
permissible child labor employment, a review which strives to balance 
the potential benefits of transitional, staged employment opportunities 
for youth with the necessary protections for their education, health 
and safety. Because youth often overcome the effects of those 
characteristics that initially place them at increased risk of injury 
and death in the workplace only through the maturation process, it is 
believed that requiring older workers to perform those tasks that 
present greater risks to younger workers actually eliminates injuries 
and deaths `` rather than delaying them or transferring them to the 
older workers.
    This rule revises the child labor regulations in response to two 
statutory amendments enacted by the Congress that altered two of the 
child labor hazardous occupation orders: HO 12, affecting activities 
involving certain scrap paper balers and paper box compactors; and HO 
2, affecting the operation of motor vehicles. The economic impact of 
these statutory provisions is expected to be minimal. The Department 
believes that only a few minors employed in such occupations would be 
affected by these revisions. In addition, any costs that might result 
from using older employees to perform the prohibited tasks would be 
more than offset by reduced health and productivity costs resulting 
from accidents and injuries to minors on the job. The additional 
changes are also expected to have little or no direct cost impact. The 
changes affecting the types of cooking and related food preparation 
activities that 14- and 15-year olds may perform in food service 
establishments (Reg. 3 Occupations) are primarily clarifications of 
existing provisions. Changes to HO 16 to prohibit youth under age 18 
from performing all work on roofs and an update of definitions for the 
term ``explosives'' in HO 1 that prohibits minors working where 
``explosives'' are made or stored are expected to affect few minors. A 
change in the regulation on government-issued certificates of age 
intended to reduce paperwork when a minor's employment ends would 
reduce the cost impact of the existing regulation.
    In addition, the information required to be disclosed or posted on 
machines covered by the Baler and Compactor Act does not impose new 
burdens under the Paperwork Reduction Act because the information to be 
disclosed is originally supplied by the Federal government under the 
statute and these regulations (see 5 CFR 1320.3(c)(2)). The Department 
believes that any new costs incurred by employers to comply with the 
notice requirements would be de minimis. The Department estimates that 
the largest group of employers that will qualify for and take advantage 
of this limited exemption are grocery stores and food service 
establishments, of which only approximately 20% of the grocery stores 
(3,395) and 1% of the eating and drinking establishments (2,003) are 
covered by the FLSA, have balers or compactors which meet the ANSI 
standards named in the Compactor and Baler Act, and employ 16- and 17-
year-old minors who they wish to utilize to load the balers or 
compactors, for a total of 5,398 affected employers.
    Compliance with the notice requirements can be achieved by 
purchasing or creating a notice with all required information and 
affixing it to the baler or compactor. Once the notice is affixed and 
assuming all the equipment continues to meet the required ANSI 
Standard, the requirement is permanently satisfied and need only be 
repeated if the notice

[[Page 75401]]

is damaged or destroyed. Some employers may purchase the required 
notice. Some employers may create their own notice. Some employers have 
only one baler or compactor; others have several, possibly at multiple 
locations. Considering these various situations, we estimate that it 
will take an average of 4 minutes per employer to satisfy the notice 
requirement for a total, one-time burden of 360 hours. Absent specific 
wage data regarding the employees who will satisfy these notice 
requirements, respondent costs are estimated utilizing the average 
hourly rate of nonsupervisory workers of $10.04 in the retail trade for 
2002 (Monthly Labor Review, U.S. Department of Labor, Bureau of Labor 
Statistics). The total additional costs associated with the notice 
requirement are estimated at $3,614.40 ($10.04 x 360 hours).
    The Department also believes that this rule will not reduce the 
overall number of safe, positive and legal employment opportunities 
available to young workers. The rule overall modifies certain existing 
restrictions under two of the HOs and Reg. 3 occupations, expands 
restrictions under one HO, reduces paperwork burden involving age 
certificates, and makes other technical, clarifying changes. Although a 
small number of employers may be required to hire an older worker to 
perform the prohibited tasks, we believe that any resulting costs 
directly incurred would be minimal. Rules that limit permissible job 
activities for working youth to those that are safe do not, by 
themselves, impose significant added costs on employers, in our view. 
In fact, ensuring that permissible job opportunities for working youth 
are safe and healthy and not detrimental to their education, as 
required by the statute, produces many positive benefits in addition to 
fewer occupational injuries and deaths, including reduced health and 
productivity costs that employers may otherwise incur because of higher 
accident and injury rates to young and inexperienced workers. In any 
event, the direct, incremental costs imposed by this rule are expected 
to be minimal. Collectively, they will not have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy or its individual sectors, productivity, jobs, the 
environment, public health or safety, or State, local, or tribal 
governments or communities. Therefore, this rule is not ``economically 
significant'' and no regulatory impact analysis has been prepared.

VI. Small Business Regulatory Enforcement Fairness Act

    The Department has similarly concluded that this rule is not a 
``major rule'' requiring approval by the Congress under the Small 
Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et 
seq.). It will not likely result in (1) an annual effect on the economy 
of $100 million or more; (2) a major increase in costs or prices for 
consumers, individual industries, Federal, State or local government 
agencies, or geographic regions; or (3) significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of U.S.-based enterprises to compete with foreign-based 
enterprises in domestic or export markets.

VII. Regulatory Flexibility Act and Executive Order 13272

    This rule is not expected to have a significant economic impact on 
a substantial number of small entities. Two provisions (driving and 
paper balers) are specifically required by statutory amendments enacted 
by Congress. It is anticipated that the other provisions would have 
little or no cost impact on any small entities. The amendment to the 
provisions concerning the circumstances when 14- and 15-year-olds are 
permitted to cook is primarily a clarification of the existing 
provision. We believe that the prohibition against work on a roof and 
the revision to the paper baler and box compactor provisions would 
affect few minors, and therefore few small businesses. Although a small 
number of employers would be required to use an older employee to 
perform the prohibited tasks, we believe that any resulting costs 
directly incurred would be minimal. Indeed, we believe that the child 
labor regulations, by fostering safer work environments for working 
youth, would reduce health and productivity costs to employers, 
including covered small businesses, resulting from accidents and 
injuries to minors on the job. Thus, given the nature of the changes 
proposed by the rule, and for the reasons discussed above, we do not 
believe the rule will have a significant economic impact on a 
substantial number of small entities. The Department has certified to 
this effect to the Chief Counsel for Advocacy of the U.S. Small 
Business Administration. Therefore, no Regulatory Flexibility Analysis 
is required.

VIII. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private 
sector, ``...(other than to the extent that such regulations 
incorporate requirements specifically set forth in law).'' For purposes 
of the Unfunded Mandates Reform Act, and as noted above, this rule does 
not include any Federal mandate that may result in increased annual 
expenditures in excess of $100 million by State, local or tribal 
governments in the aggregate, or by the private sector. Moreover, two 
of the changes constitute ``regulations [that] incorporate requirements 
specifically set forth in law'' (i.e., amendments to HO 2 and HO 12).

IX. Effects on Families

    This rule has been assessed under section 654 of the Treasury and 
General Government Appropriations Act, 1999, for its effect on family 
well-being and the undersigned hereby certifies that the rule will not 
adversely affect the well-being of families.

X. Executive Order 13045, Protection of Children

    Executive Order No. 13045, dated April 23, 1997 (62 FR 19885), 
applies to any rule that (1) is determined to be ``economically 
significant'' as defined in Executive Order No. 12866, and (2) concerns 
an environmental health or safety risk that the promulgating agency has 
reason to believe may have a disproportionate effect on children. This 
action is not subject to Executive Order No. 13045 because it is not 
economically significant as defined in Executive Order No. 12866. In 
addition, although this rule impacts the youth employment provisions of 
the FLSA and the employment of adolescents and young adults, it does 
not impact the environmental health or safety risks of children.

XI. Executive Order 13132, Federalism

    The Department has reviewed this rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' The rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

[[Page 75402]]

XII. Executive Order 13175, Indian Tribal Governments

    This rule was reviewed under the terms of E.O. 13175 and determined 
not to have ``tribal implications.'' The rule does not have 
``substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and the Indian tribes.'' As a result, no tribal summary 
impact statement has been prepared.

XIII. Executive Order 12630, Constitutionally Protected Property Rights

    This rule is not subject to E.O. 12630 because it does not involve 
implementation of a policy ``that has takings implications'' or that 
could impose limitations on private property use.

XIV. Executive Order 12988, Civil Justice Reform Analysis

    This final rule was drafted and reviewed in accordance with E.O. 
12988 and will not unduly burden the Federal court system. The rule 
was: (1) Reviewed to eliminate drafting errors and ambiguities; (2) 
written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct, and to promote burden reduction.

XV. Executive Order 13211, Energy Supply

    This rule is not subject to E.O. 13211. It will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

XVI. Environmental Impact Assessment

    The Department has reviewed this rule in accordance with the 
requirements of the National Environmental Policy Act (NEPA) of 1969 
942 U.S.C. 1500) and the Department's NEPA procedures (29 CFR part 11). 
The rule will not have a significant impact on the quality of the human 
environment, and, thus, the Department has not conducted an 
environmental assessment or an environmental impact statement.

List of Subjects

29 CFR Part 570

    Child labor, Child labor occupations, Employment, Government, 
Incorporation by reference, Intergovernmental relations, 
Investigations, Labor, Law enforcement, Minimum age.

29 CFR Part 579

    Child labor, Law enforcement, Penalties.

29 CFR Part 580

    Administrative practice and procedure, Child labor, Employment, 
Labor, Law enforcement, Penalties.

    Signed at Washington, DC on the 7th day of December, 2004.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Alfred B. Robinson, Jr.,
Acting Administrator, Wage and Hour Division.

0
For the reasons set forth above, title 29, parts 570, 579, and 580, of 
the Code of Federal Regulations are amended as set forth below.

PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF 
INTERPRETATION

Subpart B--[Amended]

0
1.-2. The authority citation for part 570 Subpart B is revised to read 
as follows:

    Authority: 29 U.S.C. 203(l), 211, 212.

0
3. In Sec.  570.5, the section heading is revised to read as follows:


Sec.  570.5  Certificates of age and their effect.

0
4. In Sec.  570.6, the section heading, paragraph (b)(1) and the 
parenthetical statement following paragraph (b)(2) are revised to read 
as follows:


Sec.  570.6  Contents and disposition of certificates of age.

* * * * *
    (b)(1) We will send a certificate of age for a minor under 18 years 
of age to the prospective employer of the minor. That employer must 
keep the certificate on file at the minor's workplace. When the minor 
terminates employment, the employer must give the certificate to the 
minor. The minor may then present the previously issued certificate to 
future employers as proof of age as described in Sec.  570.5.
    (2) * * *

    (The information collection requirements contained in paragraph 
(a) were approved by the Office of Management and Budget under 
control number 1215-0083.)


0
5. In Sec.  570.7, the section heading is revised to read as follows:


Sec.  570.7  Documentary evidence required for issuance of a 
certificate of age.

0
6. In Sec.  570.8, the section heading is revised to read as follows:


Sec.  570.8  Issuance of a Federal certificate of age.

0
7. In Sec.  570.9, the section heading is revised to read as follows:


Sec.  570.9  States in which State certificates of age are accepted.

0
8. In Sec.  570.10, the section heading is revised to read as follows:


Sec.  570.10  Rules for certificates of age in the State of Alaska and 
the Territory of Guam.

0
9. In Sec.  570.11, the section heading is revised to read as follows:


Sec.  570.11  Continued acceptability of certificates of age.

0
10. In Sec.  570.12, the section heading is revised to read as follows:


Sec.  570.12  Revoked certificates of age.

0
11. In Sec.  570.25, the section heading is revised to read as follows:


Sec.  570.25  Effect on laws other than the Federal child labor 
standards.

0
12. In Sec.  570.27, the section heading is revised to read as follows:


Sec.  570.27  Revision of subpart B.

Subpart C--[Amended]

0
13. The authority citation for part 570 Subpart C is revised to read as 
follows:

    Authority: 29 U.S.C. 203(l), 212.


0
14. In Sec.  570.31, the section heading is revised to read as follows:


Sec.  570.31  Secretary's determinations concerning the employment of 
minors 14 and 15 years of age.

0
15. In Sec.  570.32, the section heading is revised to read as follows:


Sec.  570.32  Effect of subpart C.

0
16. In Sec.  570.33, the section heading is revised to read as follows:


Sec.  570.33  Prohibited occupations for minors 14 and 15 years of age.

0
17. In Sec.  570.34, the section heading and paragraphs (a)(7) and 
(b)(5) are revised to read as follows:


Sec.  570.34  Occupations minors 14 and 15 years of age are permitted 
to perform in retail, food service, and gasoline service 
establishments.

    (a) * * *
    (7) Kitchen work and other work involved in preparing and serving 
food and beverages, including operating machines and devices used in 
performing such work. Examples of permitted machines and devices 
include, but are not limited to, dishwashers, toasters, dumbwaiters, 
popcorn poppers, milk shake blenders, coffee grinders, automatic coffee

[[Page 75403]]

machines, devices used to maintain the temperature of prepared foods 
(such as warmers, steam tables, and heat lamps), and microwave ovens 
that are used only to warm prepared food and do not have the capacity 
to warm above 140 [deg]F. Minors are permitted to clean kitchen 
equipment (not otherwise prohibited), remove oil or grease filters, 
pour oil or grease through filters, and move receptacles containing hot 
grease or hot oil, but only when the equipment, surfaces, containers 
and liquids do not exceed a temperature of 100 [deg]F;
* * * * *
    (b) * * *
    (5) Baking and cooking are prohibited except:
    (i) Cooking is permitted with electric or gas grilles which does 
not involve cooking over an open flame (Note: this provision does not 
authorize cooking with equipment such as rotisseries, broilers, 
pressurized equipment including fryolators, and cooking devices that 
operate at extremely high temperatures such as ``Neico broilers''); and
    (ii) Cooking is permitted with deep fryers that are equipped with 
and utilize a device which automatically lowers the baskets into the 
hot oil or grease and automatically raises the baskets from the hot oil 
or grease;
* * * * *

0
18. In Sec.  570.35, the section heading is revised to read as follows:


Sec.  570.35  Hours of work and conditions of employment permitted for 
minors 14 and 15 years of age.

0
19. In Sec.  570.35a, the section heading is revised to read as 
follows:


Sec.  570.35a  Work experience and career exploration program.

0
20. In Sec.  570.36, the section heading is revised to read as follows:


Sec.  570.36  Effect of a certificate of age under this subpart.

0
21. In Sec.  570.37, the section heading is revised to read as follows:


Sec.  570.37  Effect of this subpart on other laws.

0
22. In Sec.  570.38, the section heading is revised to read as follows:


Sec.  570.38  Revision of subpart C.

Subpart E--[Amended]

0
23. The authority citation for part 570 subpart E is revised to read as 
follows:

    Authority: 29 U.S.C. 203(l), 212, 213(c).

0
24. In Sec.  570.51, paragraph (b) (2) is revised to read as follows:


Sec.  570.51  Occupations in or about plants or establishments 
manufacturing or storing explosives or articles containing explosive 
components (Order 1).

* * * * *
    (b) * * *
    (2) The terms explosives and articles containing explosive 
components mean and include ammunition, black powder, blasting caps, 
fireworks, high explosives, primers, smokeless powder, and explosives 
and explosive materials as defined in 18 U.S.C. 841(c)-(f) and the 
implementing regulations at 27 CFR part 555. The terms include any 
chemical compound, mixture, or device, the primary or common purpose of 
which is to function by explosion, as well as all goods identified in 
the most recent list of explosive materials published by the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives, Department of Justice. This 
list is not intended to be all-inclusive and is updated and published 
annually in the Federal Register pursuant to 18 U.S.C. 841(d). A copy 
of the most recent version of the list may be found through the Bureau 
of Alcohol, Tobacco, Firearms, and Explosives' Web site at http://www.atf.gov.
* * * * *

0
25. In Sec.  570.52, paragraph (b) is revised and new paragraphs (c)(5) 
and (c)(6) are added to read as follows:


Sec.  570.52  Occupations of motor-vehicle driver and outside helper 
(Order 2).

* * * * *
    (b) Exemption--Incidental and occasional driving by 17-year-olds. 
Minors who are at least 17 years of age may drive automobiles and 
trucks on public roadways when all the following criteria are met:
    (1) The automobile or truck does not exceed 6,000 pounds gross 
vehicle weight, and the vehicle is equipped with a seat belt or similar 
restraining device for the driver and for any passengers and the 
employer has instructed the employee that such belts or other devices 
must be used;
    (2) The driving is restricted to daylight hours;
    (3) The minor holds a State license valid for the type of driving 
involved in the job performed and has no records of any moving 
violations at the time of hire;
    (4) The minor has successfully completed a State-approved driver 
education course;
    (5) The driving does not involve: the towing of vehicles; route 
deliveries or route sales; the transportation for hire of property, 
goods, or passengers; urgent, time-sensitive deliveries; or the 
transporting at any one time of more than three passengers, including 
the employees of the employer;
    (6) The driving performed by the minor does not involve more than 
two trips away from the primary place of employment in any single day 
for the purpose of delivering goods of the minor's employer to a 
customer (except urgent, time-sensitive deliveries which are completely 
banned in paragraph (b)(5) of this section;
    (7) The driving performed by the minor does not involve more than 
two trips away from the primary place of employment in any single day 
for the purpose of transporting passengers (other than the employees of 
the employer);
    (8) The driving takes place within a thirty (30) mile radius of the 
minor's place of employment; and,
    (9) The driving is only occasional and incidental to the employee's 
employment.
    (c) * * *
    (5) The term occasional and incidental means no more than one-third 
of an employee's worktime in any workday and no more than 20 percent of 
an employee's worktime in any workweek.
    (6) The term urgent, time-sensitive deliveries means trips which, 
because of such factors as customer satisfaction, the rapid 
deterioration of the quality or change in temperature of the product, 
and/or economic incentives, are subject to time-lines, schedules, and/
or turn-around times which might impel the driver to hurry in the 
completion of the delivery. Prohibited trips would include, but are not 
limited to, the delivery of pizzas and prepared foods to the customer; 
the delivery of materials under a deadline (such as deposits to a bank 
at closing); and the shuttling of passengers to and from transportation 
depots to meet transport schedules. Urgent, time-sensitive deliveries 
would not depend on the delivery's points of origin and termination, 
and would include the delivery of people and things to the employer's 
place of business as well as from that business to some other location.

0
26. In Sec.  570.63, the section heading and paragraphs (a)(1)(i), (b) 
and (c) are revised to read as follows:


Sec.  570.63  Occupations involved in the operation of paper-products 
machines, scrap paper balers, and paper box compactors (Order 12).

    (a) * * *
    (1) * * *
    (i) Arm-type wire stitcher or stapler, circular or band saw, corner 
cutter or mitering machine, corrugating and single-or-double facing 
machine,

[[Page 75404]]

envelope die-cutting press, guillotine paper cutter or shear, 
horizontal bar scorer, laminating or combining machine, sheeting 
machine, scrap paper baler, paper box compactor, or vertical slotter.
* * * * *
    (b) Definitions.
    Applicable ANSI Standard means the American National Standard 
Institute's Standard ANSI Z245.5-1990 (``American National Standard for 
Refuse Collection, Processing, and Disposal--Baling Equipment--Safety 
Requirements'') for scrap paper balers or the American National 
Standard Institute's Standard ANSI Z245.2-1992 (``American National 
Standard for Refuse Collection, Processing, and Disposal Equipment--
Stationary Compactors--Safety Requirements'') for paper box compactors. 
Additional applicable standards are the American National Standard 
Institute's Standard ANSI Z245.5-1997 (``American National Standard for 
Equipment Technology and Operations for Wastes and Recyclable 
Materials--Baling Equipment--Safety Requirements'') for scrap paper 
balers or the American National Standard Institute's Standard ANSI 
Z245.2-1997 (``American National Standard for Equipment Technology and 
Operations for Wastes and Recyclable Materials--Stationary Compactors--
Safety Requirements'') for paper box compactors, which the Secretary 
has certified to be at least as protective of the safety of minors as 
Standard ANSI Z245.5-1990 for scrap paper balers or ANSI Z245.2-1992 
for paper box compactors. The ANSI standards for scrap paper balers and 
paper box compactors govern the manufacture and modification of the 
equipment, the operation and maintenance of the equipment, and employee 
training. These ANSI standards are incorporated by reference in this 
paragraph and have the same force and effect as other standards in this 
part. Only the mandatory provisions (i.e., provisions containing the 
word ``shall'' or other mandatory language) of these standards are 
adopted as standards under this part. These standards are incorporated 
by reference as they exist on the date of the approval; if any changes 
are made in these standards which the Secretary finds to be as 
protective of the safety of minors as the current standards, the 
Secretary will publish a Notice of the change of standards in the 
Federal Register. These incorporations by reference were approved by 
the Director of the Federal Register in accordance with 5 U.S.C. 552(a) 
and 1 CFR part 51. Copies of these standards are available for purchase 
from the American National Standards Institute (ANSI), 23 West 43rd 
St., Fourth Floor, New York, NY, 10036. In addition, these standards 
are available for inspection at the National Archives and Records 
Administration (NARA) and at the Occupational Safety and Health 
Administration's Docket Office, Room N2625, U.S. Department of Labor, 
200 Constitution Avenue, NW., Washington, DC, 20210, or any of its 
regional offices. For information on the availability of this material 
at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    Operating or assisting to operate means all work which involves 
starting or stopping a machine covered by this section, placing 
materials into or removing materials from a machine, including clearing 
a machine of jammed paper or cardboard, or any other work directly 
involved in operating the machine. The term does not include the 
stacking of materials by an employee in an area nearby or adjacent to 
the machine where such employee does not place the materials into the 
machine.
    Paper box compactor means a powered machine that remains stationary 
during operation, used to compact refuse, including paper boxes, into a 
detachable or integral container or into a transfer vehicle.
    Paper products machine means:
    (1) All power-driven machines used in--(i) Remanufacturing or 
converting paper or pulp into a finished product, including preparing 
such materials for recycling; or
    (ii) Preparing such materials for disposal.
    (2) The term applies to such machines whether they are used in 
establishments that manufacture converted paper or pulp products, or in 
any other type of manufacturing or nonmanufacturing establishment. The 
term also applies to those machines which, in addition to paper 
products, process other material for disposal.
    Scrap paper baler means a powered machine used to compress paper 
and possibly other solid waste, with or without binding, to a density 
or form that will support handling and transportation as a material 
unit without requiring a disposable or reusable container.
    (c) Exemptions. (1) Sixteen- and 17-year-olds minors may load 
materials into, but not operate or unload, those scrap paper balers and 
paper box compactors that are safe for 16- and 17-year-old employees to 
load and cannot be operated while being loaded. For the purpose of this 
exemption, a scrap paper baler or a paper box compactor is considered 
to be safe for 16- and 17-year-old to load only if all of the following 
conditions are met:
    (i) The scrap paper baler or paper box compactor meets the 
applicable ANSI standard (the employer must initially determine if the 
equipment meets the applicable ANSI standard, and the Administrator or 
his/her designee may make a determination when conducting an 
investigation of the employer);
    (ii) The scrap paper baler or paper box compactor includes an on-
off switch incorporating a key-lock or other system and the control of 
the system is maintained in the custody of employees who are 18 years 
of age or older;
    (iii) The on-off switch of the scrap paper baler or paper box 
compactor is maintained in an off position when the machine is not in 
operation; and
    (iv) The employer posts a notice on the scrap paper baler or paper 
box compactor (in a prominent position and easily visible to any person 
loading, operating, or unloading the machine) that includes and conveys 
all of the following information:
    (A) That the scrap paper baler or compactor meets the industry 
safety standard applicable to the machine, as specified in paragraph 
(b)(5) of this section. The notice shall completely identify the 
appropriate ANSI standard.
    (B) That sixteen- and 17-year-old employees may only load the scrap 
paper baler or paper box compactor.
    (C) That no employee under the age of 18 may operate or unload the 
scrap paper baler or paper box compactor.
    (2) This section shall not apply to the employment of apprentices 
or student-learners under the conditions prescribed in Sec.  570.50 (b) 
and (c).

0
27. In Sec.  570.67 the section heading and paragraphs (a) and (b) are 
revised to read as follows:


Sec.  570.67  Occupations in roofing operations and on or about a roof 
(Order 16).

    (a) Finding and declaration of fact. All occupations in roofing 
operations and all occupations on or about a roof are particularly 
hazardous for the employment of minors between 16 and 18 years of age 
or detrimental to their health.
    (b) Definitions.
    On or about a roof includes all work performed upon or in close 
proximity to a roof, including carpentry and metal work, alterations, 
additions, maintenance and repair, including painting and coating of 
existing roofs; the construction of the sheathing or base of roofs 
(wood or metal), including roof

[[Page 75405]]

trusses or joists; gutter and downspout work; the installation and 
servicing of television and communication equipment such as cable and 
satellite dishes; the installation and servicing of heating, 
ventilation and air conditioning equipment or similar appliances 
attached to roofs; and any similar work that is required to be 
performed on or about roofs.
    Roofing operations means all work performed in connection with the 
installation of roofs, including related metal work such as flashing, 
and applying weatherproofing materials and substances (such as 
waterproof membranes, tar, slag or pitch, asphalt prepared paper, tile, 
composite roofing materials, slate, metal, translucent materials, and 
shingles of asbestos, asphalt, wood or other materials) to roofs of 
buildings or other structures. The term also includes all jobs on the 
ground related to roofing operations such as roofing laborer, roofing 
helper, materials handler and tending a tar heater.
* * * * *

PART 579--CHILD LABOR VIOLATIONS--CIVIL MONEY PENALTIES

0
28.-29. The authority citation for part 579 is revised to read as 
follows:

    Authority: 29 U.S.C. 203(l), 211, 212, 213(c), 216; Reorg. Plan 
No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 Stat. 
72, 76; Secretary of Labor's Order No. 4-2001, 66 FR 29656; 104 
Stat. 890 (28 U.S.C. 2461 note), as amended by 110 Stat. 1321-373 
and 112 Stat. 3293.


0
30. In Sec.  579.1, the section heading and paragraphs (a) introductory 
text, (a)(1), (a)(6) and (c) are revised to read as follows:


Sec.  579.1  Purpose and scope.

    (a) Section 16(e), added to the Fair Labor Standards Act of 1938, 
as amended, by the Fair Labor Standards Amendments of 1974, and as 
further amended by the Fair Labor Standards Amendments of 1989, the 
Omnibus Budget Reconciliation Act of 1990, and the Compactors and 
Balers Safety Standards Modernization Act of 1996, provides that--
    (1) Any person who violates the provisions of section 12 relating 
to child labor, section 13(c)(5), or any regulation issued under those 
sections shall be subject to a civil penalty of not to exceed $11,000 
for each employee who was the subject of such a violation.
* * * * *
    (6) Except for civil money penalties collected for violations of 
sections 12 and 13(c)(5), sums collected as penalties pursuant to this 
section shall be applied toward reimbursement of the costs of 
determining the violations and assessing and collecting such penalties 
in accordance with the provision of section 2 of an Act entitled ``An 
Act to authorize the Department of Labor to make special statistical 
studies upon payment of the cost thereof, and for other purposes'' (29 
U.S.C. 9a).
* * * * *
    (c) This part explains our procedures for issuing a notice of civil 
penalty to an employer that has violated section 12 or section 13(c)(5) 
of the Act, or any regulation issued under those sections; describes 
the types of violations for which we may impose a penalty and the 
factors we will consider in assessing the amount of the penalty; 
outlines the procedure for a person charged with violations to file an 
exception to the determination that the violations occurred; and 
summarizes the methods we will follow for collecting and recovering the 
penalty.

0
31. In Sec.  579.3, the section heading and paragraph (a)(5) are 
revised to read as follows:


Sec.  579.3  Violations for which child labor civil money penalties may 
be assessed.

    (a) * * *
    (5) The failure by an employer employing any minor for whom records 
must be kept under any provision of part 516 of this title to maintain 
and preserve, as required by such provision, such records concerning 
the date of the minor's birth and concerning the proof of the minor's 
age as specified therein; and
* * * * *

0
32. In Sec.  579.5, the section heading is revised to read as follows:


Sec.  579.5  Determining the amount of the penalty and assessing the 
penalty.


Sec. Sec.  579.6 through 579.8  [Removed]

0
33. Sections 579.6 through 579.8 are removed.

PART 580--CIVIL MONEY PENALTIES--PROCEDURES FOR ASSESSING AND 
CONTESTING PENALTIES

0
34.-35. The authority citation for part 580 is revised to read as 
follows:

    Authority: 29 U.S.C. 9a, 203, 209, 211, 212, 213(c), 216; Reorg. 
Plan No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 
Stat. 72, 76; Secretary of Labor's Order No. 4-2001, 66 FR 29656; 5 
U.S.C. 500, 503, 551, 559; 103 Stat. 938.


0
36. Section 580.5 is revised to read as follows:


Sec.  580.5  Finality of notice.

    If the person charged with violations does not, within 15 days 
after receipt of the notice, take exception to the determination that 
the violation or violations for which the penalty is imposed occurred, 
the administrative determination by the Administrator of the amount of 
such penalty shall be deemed final and not subject to administrative or 
judicial review. Upon the determination becoming final in such a 
manner, collection and recovery of the penalty shall be instituted 
pursuant to Sec.  580.18.

0
37. In Sec.  580.6, paragraph (a) is revised to read as follows:


Sec.  580.6  Exception to determination of penalty and request for 
hearing.

    (a) Any person desiring to take exception to the determination of 
penalty, or to seek judicial review, shall request an administrative 
hearing pursuant to this part. The exception shall be in writing to the 
official who issued the determination at the Wage and Hour Division 
address appearing on the determination notice, and must be received no 
later than 15 days after the date of receipt of the notice referred to 
in Sec.  580.3. No additional time shall be added where service of the 
determination of penalties or of the exception thereto is made by mail. 
If such a request for an administrative hearing is timely filed, the 
Administrator's determination shall be inoperative unless and until the 
case is dismissed or the Administrative Law Judge issues a decision 
affirming the determination.
* * * * *

0
38. Section 580.13 is revised to read as follows:


Sec.  580.13  Procedures for appeals to the Administrative Review 
Board.

    (a) Any party desiring review of a decision of the Administrative 
Law Judge, including judicial review, must file a petition for review 
with the Department's Administrative Review Board (Board). To be 
effective, such petition must be received by the Board within 30 days 
of the date of the decision of the Administrative Law Judge. Copies of 
the appeal shall be served on all parties and on the Chief 
Administrative Law Judge. If such a petition for review is timely 
filed, the decision of the Administrative Law Judge shall be 
inoperative unless and until the Board dismisses the appeal or issues a 
decision affirming the decision of the Administrative Law Judge.
    (b) All documents submitted to the Board shall be filed with the 
Administrative Review Board, Room S-

[[Page 75406]]

4309, U.S. Department of Labor, Washington, DC 20210. An original and 
two copies of all documents must be filed.
    (c) Documents are not deemed filed with the Board until actually 
received by the Board, either on or before the due date. No additional 
time shall be added where service of a document requiring action within 
a prescribed time was made by mail.
    (d) A copy of each document filed with the Board shall be served 
upon all other parties involved in the proceeding. Such service shall 
be by personal delivery or by mail. Service by mail is deemed effected 
at the time of mailing to the last known address of the party.


Sec.  580.14  [Removed and Reserved]

0
39. Section 580.14 is removed and reserved.

0
40. Section 580.16 is revised to read as follows:


Sec.  580.16  Final decision of the Administrative Review Board.

    The Board's final decision shall be served upon all parties and the 
Chief Administrative Law Judge, in person or by mail to the last known 
address.

0
41. In Sec.  580.18, paragraph (a) is revised to read as follows:


Sec.  580.18  Collection and recovery of penalty.

    (a) When the determination of the amount of any civil money penalty 
provided for in this part becomes final under Sec.  580.5 in accordance 
with the administrative assessment thereof, or pursuant to the decision 
and order of an Administrative Law Judge in an administrative 
proceeding as provided in Sec.  580.12, or the decision of the Board 
pursuant to Sec.  580.16, the amount of the penalty as thus determined 
is immediately due and payable to the U.S. Department of Labor. The 
person against whom such penalty has been assessed or imposed shall 
promptly remit the amount thereof, as finally determined. The payment 
shall be by certified check or by money order, made payable to the 
order of the Wage and Hour Division, and shall be delivered or mailed 
to the District Office of the Wage and Hour Division which issued and 
served the original notice of the penalty.
* * * * *
[FR Doc. 04-27182 Filed 12-15-04; 8:45 am]
BILLING CODE 4510-27-P