75382 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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.

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 governmentissued 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-yearold 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-yearolds 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 

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

75384 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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-yearold was to be given to the worker. The 

Department proposed to revise 

§ 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 employmentrelated 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 § 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 

§ 570.34(a)(7), however, 14- and 15-yearolds 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 °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). 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 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 wellbeing 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 °F. The proposal 

would, thus, prohibit 14- and 15-yearolds 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 °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 °F, 

and to use, dispense, and serve food 

from warmers, steam tables, and other 

warming devices (even if the 

temperatures exceed 140 °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 powerdriven 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.

75386 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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 contraryindicating 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 °F; 

permitting such minors to use, dispense, 

and serve food from warmers, steam 

tables, and other warming devices (even 

if the temperatures exceed 140 °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 °F. 

NIOSH did not oppose minors 

performing the named tasks, but did 

object to establishing 140 °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 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 75387

these clean-up tasks to be exposed to a 

temperature sufficient to cause firstdegree 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 °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 quickservice 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 °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 °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-theboard 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-yearolds 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-yearold 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 

75388 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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 °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 °F, the temperature at which a 

minor would be exposed to a firstdegree 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 °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 °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 °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 °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 °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 °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 °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 

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

75390 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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’’

(§ 570.52(b)(1)). 

HO 2 provides a limited exemption 

(§ 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 emergencytype 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 onthe-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; 

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

75392 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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-yearolds, 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-yearold 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 onthe-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 (§ 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 (§ 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 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 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 powerdriven 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 paperproducts 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 longestablished 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-yearold 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-yearold 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 (§ 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 

75394 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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 thenexisting 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 ANSIS245.5–1990, 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-

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

75396 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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 longstanding 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 wellbeing.’’ 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 

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

75398 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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 careeradvancing 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 studentlearners. 

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 

Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 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’’ (§§ 579.6–.8) and one 

dealing with the implementation of 

the1990 FLSA amendment which 

increased the child labor civil money 

penalty to $10,000 (§ 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-yearold 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 

§ 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 § 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 × 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 × .5 

minutes = .083 hours). 

Total Annual Reporting and 

Recordkeeping Burden = 1.75 Hours. 

75400 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

Employees and employers of any of a 

wide variety of businesses, from small 

farms or retail stores to large 

manufacturing plants, may request 

Federal certificates of age. Absent 

specific wage data regarding applicants, 

respondent costs are estimated utilizing 

the average hourly rate of nonsupervisory workers on 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 × 1.75 hours). 

Total estimated annual postage and 

envelope costs for transmitting these 

applications are $4.00 (10 reports × $.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-yearolds (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 

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

75402 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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.

■ 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]

■ 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.

■ 3. In § 570.5, the section heading is 

revised to read as follows:

§ 570.5 Certificates of age and their effect.

■ 4. In § 570.6, the section heading, 

paragraph (b)(1) and the parenthetical 

statement following paragraph (b)(2) are 

revised to read as follows:

§ 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 § 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.)

■ 5. In § 570.7, the section heading is 

revised to read as follows:

§ 570.7 Documentary evidence required 

for issuance of a certificate of age.

■ 6. In § 570.8, the section heading is 

revised to read as follows:

§ 570.8 Issuance of a Federal certificate of 

age.

■ 7. In § 570.9, the section heading is 

revised to read as follows:

§ 570.9 States in which State certificates of 

age are accepted.

■ 8. In § 570.10, the section heading is 

revised to read as follows:

§ 570.10 Rules for certificates of age in the 

State of Alaska and the Territory of Guam.

■ 9. In § 570.11, the section heading is 

revised to read as follows:

§ 570.11 Continued acceptability of 

certificates of age.

■ 10. In § 570.12, the section heading is 

revised to read as follows:

§ 570.12 Revoked certificates of age.

■ 11. In § 570.25, the section heading is 

revised to read as follows:

§ 570.25 Effect on laws other than the 

Federal child labor standards.

■ 12. In § 570.27, the section heading is 

revised to read as follows:

§ 570.27 Revision of subpart B.

Subpart C—[Amended]

■ 13. The authority citation for part 570 

Subpart C is revised to read as follows:

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

■ 14. In § 570.31, the section heading is 

revised to read as follows:

§ 570.31 Secretary’s determinations 

concerning the employment of minors 14 

and 15 years of age.

■ 15. In § 570.32, the section heading is 

revised to read as follows:

§ 570.32 Effect of subpart C.

■ 16. In § 570.33, the section heading is 

revised to read as follows:

§ 570.33 Prohibited occupations for 

minors 14 and 15 years of age.

■ 17. In § 570.34, the section heading 

and paragraphs (a)(7) and (b)(5) are 

revised to read as follows:

§ 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 

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

* * * * *

■ 18. In § 570.35, the section heading is 

revised to read as follows:

§ 570.35 Hours of work and conditions of 

employment permitted for minors 14 and 15 

years of age.

■ 19. In § 570.35a, the section heading is 

revised to read as follows:

§ 570.35a Work experience and career 

exploration program.

■ 20. In § 570.36, the section heading is 

revised to read as follows:

§ 570.36 Effect of a certificate of age under 

this subpart.

■ 21. In § 570.37, the section heading is 

revised to read as follows:

§ 570.37 Effect of this subpart on other 

laws.

■ 22. In § 570.38, the section heading is 

revised to read as follows:

§ 570.38 Revision of subpart C.

Subpart E—[Amended]

■ 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).

■ 24. In § 570.51, paragraph (b) (2) is 

revised to read as follows:

§ 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.

* * * * *

■ 25. In § 570.52, paragraph (b) is revised 

and new paragraphs (c)(5) and (c)(6) are 

added to read as follows:

§ 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 onethird 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 turnaround 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.

■ 26. In § 570.63, the section heading 

and paragraphs (a)(1)(i), (b) and (c) are 

revised to read as follows:

§ 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, 

75404 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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 studentlearners under the conditions prescribed 

in § 570.50 (b) and (c).

■ 27. In § 570.67 the section heading and 

paragraphs (a) and (b) are revised to read 

as follows:

§ 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 

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

■ 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.

■ 30. In § 579.1, the section heading and 

paragraphs (a) introductory text, (a)(1), 

(a)(6) and (c) are revised to read as 

follows:

§ 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.

■ 31. In § 579.3, the section heading and 

paragraph (a)(5) are revised to read as 

follows:

§ 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

* * * * *

■ 32. In § 579.5, the section heading is 

revised to read as follows:

§ 579.5 Determining the amount of the 

penalty and assessing the penalty.

§§ 579.6 through 579.8 [Removed]

■ 33. Sections 579.6 through 579.8 are 

removed.

PART 580—CIVIL MONEY 

PENALTIES—PROCEDURES FOR 

ASSESSING AND CONTESTING 

PENALTIES

■ 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.

■ 36. Section 580.5 is revised to read as 

follows:

§ 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 § 580.18.

■ 37. In § 580.6, paragraph (a) is revised 

to read as follows:

§ 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 § 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.

* * * * *

■ 38. Section 580.13 is revised to read as 

follows:

§ 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–

75406 Federal Register / Vol. 69, No. 241 / Thursday, December 16, 2004 / Rules and Regulations 

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.

§ 580.14 [Removed and Reserved]

■ 39. Section 580.14 is removed and 

reserved.

■ 40. Section 580.16 is revised to read as 

follows:

§ 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.

■ 41. In § 580.18, paragraph (a) is revised 

to read as follows:

§ 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 § 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 § 580.12, or the decision of the Board 

pursuant to § 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