655 15TH ST, NW, SUITE 700 WASHINGTON, DC 20005 TELEPHONE: 202/452-8444 FAX: 202/429-4519

January 31, 2000

Mr. John R. Fraser
Deputy Administrator
Wage and Hour Division
Employment and Standards Administration
U.S. Department of Labor
Attn: Child Labor and Special Employment Team
Room S-3510
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Re: Comments on Child Labor Regulations, Orders and Statements of Interpretation Child Labor Violations-Civil Money Penalties Notice of Proposed Rulemaking

Dear Mr. Fraser,

The Food Marketing Institute (FMI) appreciates the opportunity to submit the following comments in response to the Department of Labor's (DoL's) proposed amendments to Parts 570 and 579 of the Child Labor Regulations. 64 Fed. Reg. 67130 (November 30, 1999). We are particularly interested in the amendments that are intended to implement Public Law 104-174 regarding the use of paper balers and compactors by teenagers. Please consider the following comments favorably and include them in the formal record of the proceeding.

FMI is a non-profit association that conducts programs in research, education, industry relations and public affairs on behalf of its 1,500 members and their subsidiaries. Our membership includes food retailers and wholesalers, as well as their customers, in the United States and around the world. FMI's domestic member companies operate approximately 21,000 retail food stores with a combined annual sales volume of $220 billion, which accounts for more than half of all grocery store sales in the United States. FMI's retail membership is composed of large multi-store chains, small regional firms, and independent supermarkets. Our international membership includes 200 members from 60 countries.

As discussed more fully below, FMI and its members have actively promoted improved safety practices for the use of paper balers and compactors in retail food stores. Shortly after the enactment of Public Law 104-174, FMI prepared a special report to explain the law and the obligations that it imposed on retailers, as well as labels that have been used throughout the industry to caution employees about the operation of balers and compactors. As private industry acted several years ago to develop labeling that fully and accurately reflects the law, the proscriptive labeling that DoL has proposed is unnecessary.

Moreover, we object to DoL's proposal to expand the scope of the regulation to cover machinery used to bale or compact non-paper products. Public Law 104-174 does not authorize expanding the regulation, nor has the Agency provided a reasonable basis within the proposal to support the proposed expansion. Indeed, given the proven safety of the balers and compactors for paper - only one injury was reported during the two year reporting period - the Agency has no basis to find that this equipment is "particularly hazardous for minors," regardless of whether the equipment is used for paper or other materials.

Finally, DoL has attempted to place a heavier burden on employers to demonstrate compliance with the ANSI standards than Public Law 104-174 would require. We recommend that DoL clarify the final rule to acknowledge that an employer may determine that equipment meets the applicable ANSI standard by obtaining certification in this regard from the equipment manufacturer.

A. Background

Section 570.63, "Occupations involved in the operation of paper-products machines," also known as Hazardous Occupation Order 12 (H.O. 12), was promulgated in 1954 in light of the dangers associated with the operation of power-driven paper products machinery in operation at the time. H.O. 12 specifically prohibits minors from operating power-driven paper products machinery, including scrap-paper balers. Compactors were added to the prohibition via an amendment in the Wage & Hour's Field Operations Handbook in 1993.

FMI's interest in DoL's implementation and enforcement of Section 570.63 was prompted several years ago following numerous complaints from our member companies about large fines they had received from Wage & Hour inspectors for alleged violations of H.O. 12 in cases in which teenage employees had been allowed to load modern paper balers. These machines feature a series of safety devices that make it extremely difficult for an injury to occur, yet our member companies were facing substantial fines. Despite repeated inquiries from FMI, as well as several from Congress, DoL provided no data or scientific evidence to indicate that loading paper balers and compactors presented any risk to teenagers. Although DoL identified three discrete incidents of injuries, the Department was unable to advise whether these cases involved older equipment or equipment that met current ANSI safety standards, or whether the injury occurred during equipment loading or during equipment operation or unloading. See House Report No. 104-278, reprinted in 1996 U.S. Code Cong. & Admin. News 1327.

Despite the absence of data to support the continued need for the regulation, the Department refused to amend H.O. 12 to reflect advances in modern technology and continued to levy hefty fines against retailers. Accordingly, FMI urged Congress to craft a legislative solution; the result was the enactment of Public Law 104-174 in 1996. Passage of the statute was the result of extensive consultation among FMI, the agency, bipartisan members of Congress, and other interested groups, including the United Food and Commercial Workers Union.

Public Law 104-174 outlines the specific conditions that must be met before 16- and 17-year olds are allowed to load the equipment, including the requirement that the equipment meet the standards adopted by the American National Standards Institute (ANSI). The law is very clear; it is, therefore, unnecessary for the Department of Labor to deviate in any way from the text of P.L. 104-174 or to add any new limitations on the machinery of interest in order to implement the statute.

A key feature of the statute is the requirement that employers provide DoL with information on any deaths or injuries caused by paper balers or compactors. FMI specifically requested the inclusion of a reporting requirement in the legislation to address the inadequate information DoL had on the subject. The data gathered as a result of the reporting requirement indicate that only a single injury was reported during the two-year period required by the statute. 64 Fed. Reg. at 67138. DoL has not provided any information on the injury itself, so it is not clear whether modern or older equipment was being used, or at what stage the injury occurred, e.g., loading, operation or unloading.

B. Proscriptive Machine Labeling Regulation Is Unnecessary

Proposed Section 570.63(c)(1)(D) appears to require employers to post a notice on scrap paper balers or paper box compactors that states as follows:

The scrap paper baler or compactor meets the industry safety standard applicable to the machine (Standard ANSI Z245.5-1990 for scrap paper balers and Standard ANSI Z245.2-1992 for paper box compactors).
Sixteen- and 17-year old employees may only load the scrap paper baler or paper box compactor.
Any employee under the age of 18 may not operate or unload the scrap paper baler or paper box compactor.

Although we recognize that DoL has simply copied the language directly from the statute, FMI opposes the proposal because it is unnecessarily lengthy and proscriptive. Long warnings generally are not read or comprehended by the public and, therefore, they are usually ineffective. Moreover, and as discussed more fully below, given the innovation in this area by the private sector, a proscriptive regulation will result in unnecessary cost and confusion.

Specifically, immediately upon enactment of Public Law 104-174, FMI developed bright stickers with concise verbiage and dramatic graphics for employers to post on their machines to advise employees clearly about the extent of their permitted interaction with the machinery. We developed these stickers in close consultation with ANSI experts to ensure that the stickers were consistent with industry safety standards and that the stickers would effectively grab the attention of employees approaching or intending to use the machines. The yellow "caution" stickers were developed for ANSI-compliant machines; in addition, a white "warning" label was developed for use on machines that are not ANSI-compliant or for workplaces in which the employer has decided not to allow minor teenagers to load, operate, or unload balers and compactors, despite the enactment of P.L. 104-174.¹ Copies of the stickers are enclosed for your reference.

To promote greater workplace safety and to enhance FMI member company compliance with the statute, FMI has promoted these stickers among our member companies for the past three years. Indeed, FMI has distributed nearly 3,000 stickers to grocery store owners throughout the country and they are now in common use.

If the language proposed in Section 570.63(c)(1)(D) remains in the final regulation, the stickers currently in place would need to be redesigned and replaced on all machines throughout the country. This will create a tremendous amount of confusion and would most likely lead to employers suddenly finding themselves out of compliance with the regulation when they have already complied with the statute. It would be ironic if DoL decided three years after passage of the statute to micromanage an issue that private industry has already fully addressed. As no benefit will be derived from requiring employers to replace the warning stickers now in use with the lengthy verbiage DoL proposes, we strongly urge the Department to replace the proscriptive language in proposed Section 570.63(c)(1)(D) with the requirement that the employer post a notice stating the conditions under which teenagers may use the equipment. The regulation should also include the following as an example of an acceptable notice:

C. DoL Has Provided No Basis To Expand H.O. 12 To Include Machinery Used To Process Non-Paper Products

The instant proposal would amend Section 570.63(b) by amending the definition for "paper products machine" and by adding definitions for the terms "scrap-paper baler" and "paper box compactor." Proposed 29 C.F.R. § 570.63(b)(2), (3), (4). The proposed definitional amendments are intended to expand the scope of the regulation beyond the paper processing machinery that formed the basis for the original regulation to include machinery that processes paper and other materials. Specifically, the term scrap-paper baler would be broadly defined as follows:

…a powered machine used to compress paper and possibly other solid waste, with or without binding, to a density of form that will support handling and transportation as a material unit without requiring a disposable or reusable container.

…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.

DoL has no basis to expand the scope of the regulation to include machinery used to process non-paper products. Public Law 104-174, which the proposal is intended to implement, addresses only machinery used for paper products; nowhere in the legislative history or the statute does Congress suggest that the machinery at issue includes equipment used to process non-paper products. Thus, the authorizing statute does not provide an adequate basis for the Department's proposed expansion.

In the absence of legislative authority, the Department attempts to justify the expansion in order "to prevent injuries to minors" because, DoL states, machines used to process non-paper products "are particularly hazardous for minors between 16 and 18 years of age." 64 Fed. Reg. at 67139. However, the Department offers absolutely no evidence to support its broad conclusion. No data whatsoever are provided on injuries occuring as a result of teenagers loading materials used to process non-paper products. Thus, DoL has provided no support for the assertion that the machinery when used for non-paper products is "particularly hazardous," or even "hazardous," for teenagers to load. Conclusory statements alone cannot provide a lawful basis for a regulation.

The Department has long failed to prove a substantial rate of injury from modern baling machines, even during Congressional review of the Department's implementation of H.O. 12. The only reason that concrete statistics are now available is because Congress explicitly mandated that such injuries be reported to the Department. As stated above, only one such injury was reported to the Department in two years and that incident, presumably, involved paper products. Thus, DoL does not provide any data relevant to hazards associated with paper balers and compactors used for non-paper products. If the Department believes that machinery used for non-paper products or to process both paper and non-paper products" is particularly hazardous" for teenagers to load, a separate rulemaking must be conducted with data to support the Agency's proposal.

D. DoL Must Not Shift Burden To Employers

Obviously, before an employer can permit a 16- or 17-year old to load a paper baler or compactor, the employer will need to ensure that all statutory and regulatory prerequisites are met. However, the employer should be able to establish that the equipment meets the applicable standard by obtaining such assurance from the equipment manufacturer and following the appropriate maintenance procedures. Most retail employers that use paper balers and compactors have not been trained on the fine points of the ANSI standards and, therefore, they should not be required to make an "initial determination" themselves. Moreover, a reasonable assurance from the manufacturer coupled with maintenance records should likewise be accepted by the Administrator and his/her designees as evidence that the equipment meets the necessary standard. No further recordkeeping should be required.

We appreciate the opportunity to provide you with our comments on the Department of Labor's proposed implementation of Public Law 104-174. Please feel free to contact me if I may provide further information or answer any questions.

Sincerely,

George Green
Vice President
General Counsel

¹ The ANSI experts were exacting in their choice of language, colors and graphics. For example, they advised that the words "caution" and "warning" are terms of art and that they must be accompanied by particular background colors and symbols.