[House Report 104-278]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 104-278
_______________________________________________________________________
AUTHORITY FOR 16 AND 17 YEAR OLDS TO LOAD MATERIALS INTO BALERS AND
COMPACTORS
_______________________________________________________________________
October 17, 1995.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodling, from the Committee on Economic and Educational
Opportunities, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 1114]
[Including cost estimate of the Congressional Budget Office]
The Committee on Economic and Educational Opportunities, to
whom was referred the bill (H.R. 1114) to authorize minors who
are under the child labor provisions of the Fair Labor
Standards Act of 1938 and who are under 18 years of age to load
materials into balers and compacters that meet appropriate
American National Standards Institute design safety standards,
having considered the same, report favorably thereon with an
amendment and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. AUTHORITY FOR 16 AND 17 YEAR OLDS TO LOAD MATERIALS INTO
BALERS AND COMPACTORS.
In the administration of the child labor provisions of the Fair Labor
Standards Act of 1938, individuals who are 16 and 17 years of age shall
be permitted to load materials into cardboard balers and compactors
that are safe for the 16 and 17 year olds loading the equipment and
which cannot operate while being loaded. For purposes of this section,
such balers and compactors shall be considered safe for 16 and 17 year
olds loading such equipment if they are in compliance with the most
current safety standard established by the American National Standards
Institute.
explanation of amendments
The provisions of the substitute text are explained in this
report.
purpose
The purpose of H.R. 1114, as amended, is to permit 16 and
17 year olds to load materials into cardboard balers and
compactors that are (1) safe and (2) cannot operate while being
loaded. Such balers and compactors shall be considered safe if
they are in compliance with the most current safety standards
for such equipment established by the American National
Standards Institute.
committee action
H.R. 1114 was introduced by Representative Thomas Ewing on
March 2, 1995. The Subcommittee on Workforce Protections held a
hearing on H.R. 1114 on July 11, 1995. Testimony was received
from the Honorable Thomas W. Ewing, Member of Congress; the
Honorable Larry Combest, Member of Congress; Ms. Virginia L.
Lutz, Safety Supervisor, Lowes Food Stores, Inc.; and Ms. Judy
Golodner, President, National Consumers League.
On July 20, 1995, the Committee on Economic and Educational
Opportunities approved H.R. 1114, as amended, on a voice vote,
and by a vote of 21-13, ordered the bill favorably reported.
Committee Statement and Views
Background
Hazardous Occupation Order Number 12
Section 12 of the Fair Labor Standards Act prohibits the
use of ``oppressive'' child labor. In implementing that
provision, the Secretary of Labor has determined that certain
occupations are ``particularly hazardous for the employment of
minors between 16 and 18 years of age or detrimental to their
health or well-being,'' (29 CFR Part 570, Subpart E) and
therefore prohibited or limited minors of ages 16 and 17 from
employment in those occupations. The occupations so limited or
prohibited are described in a series of Hazardous Occupation
Orders.
Hazardous Occupation Order Number 12 (HO 12) was adopted in
1954. HO 12 prohibits persons under 18 years of age from
``operating or assisting to operate'' certain ``power driven
paper product machines.'' Among the several paper product
machines listed in HO 12 (most of which pertain to the
production of paper) are ``scrap paper balers''.
When HO 12 was written in 1954, the term ``scrap paper
baler'' referred to a machine with a large horizontal ram and
an unprotected opening that was fed scrap paper for baling. The
open charge box of the baler presented an obvious hazard. The
1954 Department of Labor report entitled Occupational Hazards
to Young Workers, Report No. 12, The Operation of Paper
Products Machines states: ``it would be possible for a person's
arm to be caught by the descending plunger should someone else
operate the control mechanism while paper was being manually
placed in the baler.''
In December, 1991, the Department of Labor issued two
changes to HO 12. First, the Department ruled that HO 12
applied to all power-driven machinery used to convert paper
into waste paper, and thereby ``clarified'' that modern paper
balers and compactors are covered by HO 12, just as were the
earlier ``scrap paper balers.'' Second, the Department extended
the prohibition on minors ``operating or assisting to operate''
such machinery to include ``placing or removing materials into
or from the machine''. Thus, under the new rules, it is illegal
for minors to throw cardboard boxes into nonoperating machines,
even those with modern safety designs which prevent the machine
from operating while being loaded.
The Department of Labor made these changes to HO 12 despite
the fact that the Department admits that it did not have
information on whether the paper balers involved in accidental
injuries met modern safety standards.1 The Department of
Labor now makes no distinction between safe or unsafe
equipment. It simply prohibits all minors from loading any
paper into any compactor or baler.
\1\ Department of Labor response to the request for research on the
topic of paper balers from the House Committee on Appropriations. June
21, 1994.
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Safety standards for modern paper balers and compactors.
As described above, the HO 12 was written when scrap paper
balers included little in the way of safety precautions. Since
1954, however, a number of design changes and additional safety
devices have been added to most newly manufactured paper balers
and compactors to avoid accidental operation and injury. The
most rigorous and comprehensive set of safety requirements used
by industry are those which have been developed by the American
National Standard Institute.
The American National Standards Institute (ANSI) is a
national organization which coordinates the development of
voluntary, consensus standards in a wide range of areas,
including product and worker safety. ANSI standards have been
used by Congress as expressions of the best available
technology in the safety area. For example, the Occupational
Safety and Health Act of 1970 directed the Department of Labor
to adopt the then-existing ANSI standards, rather than delay
any activity until the agency promulgated occupational safety
and health standards. (Section 6 (a) of the Occupational Safety
and Health Act, 29 U.S.C. Sec.655 (a)).
The first ANSI safety standard for paper balers was issued
in 1982. The baler standard was revised in 1990 (ANSI Z245.5)
and is currently undergoing a thorough review by the committee
charged with this standard. A revised standard is expected to
be issued later this year. Similarly, the ANSI standard for
stationary compactors (ANSI Z245.2) was most recently revised
in 1992.
Unlike the 1954-era ``scrap paper balers'' which were the
subject of HO 12 and which lacked any significant safety
design, equipment meeting the current ANSI standards must
conform to all of the following specifications:
The ram shall not move unless the bale chamber door is
fully closed and latched; the ram shall stop or return to the
rest position if the closure chamber is opened more than one-
half inch during the compression stroke;
The loading chamber closure shall completely cover the
chamber before the ram can be activated;
A mechanical or electrical interlock to prevent operator
access to the top of the baler ram during its upward motion;
Access covers, doors and protective shields which are
secured by a lockable device;
Protective shields that cover parts of the drive mechanism
which could cause injury to the operator;
Controls which are conspicuously labeled and start buttons
that are recessed to prevent inadvertent activation;
Stop buttons that are red and easily distinguishable from
all other controls and are not recessed;
A power disconnecting means that can be locked in the off
position;
An emergency means of stopping and controlling the movement
of the ram;
An emergency stop button at the tying device; and
Platforms with guardrails and slip resistant floors;
Of particular importance is that current ANSI standards
require that the design of paper balers and compactors include
a safety gate over the loading chamber opening, which prevents
the operation of the baling machine when the gate is open.
Sections 5.2.2 and 5.2.2.1 of the 1990 ANSI standard for Paper
Balers states ``A loading chamber shall be provided. The
loading chamber closure shall completely cover the loading
chamber before the ram can be activated into its compression
stroke and must remain in place until the completion of the
compression stroke.'' In addition, Section 7.2 of the 1992 ANSI
standard for paper compactors states ``All charging hopper
access doors on automatic cycling compactor installations shall
have an interlock system that prevents cycling motion while the
access door(s) is open.''
In short, paper balers and compactors meeting current ANSI
standards cannot operate while being loaded. Analogy has been
made to the microwave ovens that most people today have in
their homes: when the door (or gate) is open, the machine will
not operate.
Effect of HO 12
The effect of HO 12, when applied to modern paper balers
and compactors, has been penalties and increased costs for
employers and reduced job opportunities for teenage workers but
with no demonstrated increase in safety. In testimony before
the committee, Ms. Virginia Lutz, Safety Supervisor for Lowes
Foods, described the effects of HO 12 this way:
HO 12 has created real disruptions in the supermarket
industry. The enforcement steps by the Labor Department and the
many citations and fines have made supermarket operators shy
away from hiring teenagers. It's just not worth the risk of
exposure.
Why would allowing teens only to load cardboard balers and
compactors make a difference to us? Because it is the younger
associates in stores who generally have the jobs of cleaning up
and stocking shelves, and it is duplicative and inefficient to
have the empty boxes carried to the baler by these employees,
only to be put on the floor to await another employee who is
permitted to toss them into the baler without fear of
government fine. And very often, because the backrooms where
the baler is usually located are small, the clutter of boxes
can itself become a hazard, and in fact is then often an OSHA
housekeeping violation.
But on top of this, it just does not make sense to prohibit
a 16 or 17 year old from tossing a cardboard box into a machine
that is obviously dormant--shut off. It sits there, silent,
looking like a glorified trash bin. The point is, to reasonable
people, the rule makes no sense at all, and they are prone to
their good judgment and common sense letting them toss the box
into the baler.
Of course, no matter how firm a policy a store has against
this, no matter how many times a teenager is told not to toss
boxes into the baler or compactor, the owner of the store will
still be cited by the Wage and Hour Division.
Despite the fact that there is no evidence of injuries
caused in the loading of modern paper balers and compactors,
and despite the fact that modern paper balers and compactors
have been designed so as to prevent their operation during the
loading process, the Department of Labor has failed to take
action to change HO 12. In 1994, the Committee on
Appropriations requested that the Department of Labor
``reexamine hazardous occupation order number 12 as it applies
to the use of cardboard baler machines'' (House Report 103-533,
page 17).
In response, the Department of Labor said it lacked
sufficient information that modern paper balers were safe -
while at the same time admitting that the Department had no
information in showing that modern balers were unsafe or had
been involved in any of the reported accidental injuries. The
Department also reported that it planned to begin rule making
to evaluate changes to HO 12, including issuing a Notice of
Proposed Rulemakeing (NPRM) by May, 1995. However, no NPRM has
been issued by the Department.
In a letter to the Chairman of the Committee opposing H.R.
1114, the Secretary of Labor relies upon on 1994 report on
paper balers by the National Institute on Occupational Safety
and Health (NIOSH). The NIOSH study consisted of observing five
paper baler machines in the Pittsburgh, Pennsylvania area.
According to NIOSH, four of the five machines did not meet ANSI
standards. The study concluded that ``of the five machines
evaluated, we found only one to be safe'' ``Review of
Safeguarding technology used on paper balers,'' 5/4/95). The
one machine found safe by NIOSH was also the only one of the
five that met the current ANSI standard. Of course, that one
paper baler found safe by NIOSH would also be the only one of
the five which minors would be permitted to load under this
legislation.
Legislative remedy
The purpose of H.R. 1114, as amended, is to amend the child
labor provisions of the Fair Labor Standards Act (FLSA) in
order to permit 16 and 17 year olds to load materials into
paper balers and compactors which (1) cannot operate while
being loaded, and (2) are safe. Such balers and compactors are
considered safe if they are in compliance with the most current
safety standards established by the American National Standards
Institute (ANSI).
It should be noted that H.R. 1114, as amended, does not
permit 16 and 17 year olds to operate or unload paper balers or
compactors. These activities are still forbidden under the
child labor provisions of the FLSA under HO 12.
After the Department of Labor clarification to HO 12 in
December of 1991, the Department began retroactively enforcing
HO 12 regarding paper balers and compactors. Rather than
focusing on whether the paper balers and compactors were safe
for purposes of loading by teenagers, the Department focused on
strict enforcement of the rule, resulting in substantial
penalties against employers. HO 12's strict prohibition on
loading modern paper balers and the Department of Labor's
penalties in enforcing that prohibition appear to be
unjustified by any benefit to safety.
Much of the stated concern with H.R. 1114 has to do with
the alleged difficulty of enforcement. For example, the
Department of Labor, in arguing against the legislation, said
that it is likely that less than one-half of paper balers in
use throughout the United States do not meet current ANSI
standards, and that, according to the Department, the
legislation will cause ``confusion over which balers the minors
may legally load.'' 2
\2\ July 19, 1995 Department of Labor letter from Secretary Robert
Reich to Representative William F. Goodling, Chairman, Committee on
Economic and Educational Opportunities.
---------------------------------------------------------------------------
Determining whether a paper baler or compactor meets ANSI
standards, and thus may by legally loaded by a 16 or 17 year
old, should not be difficult for either the employer or the
Department of Labor. A paper baler or compactor which has been
manufactured to the most current safety standards established
by ANSI will so indicate on the machine itself and/or in
attached operating guides or paperwork. Furthermore, if
enforcement personnel suspect for any reason that a machine
that has been designed and manufactured to meet ANSI standards
has been subsequently tampered with or not properly maintained,
the Department of Labor can simply review and examine the
machine and maintenance records to make sure that it is
functioning properly. Certainly the result of this legislation
is a situation no more difficult to enforce and far more
common-sensical than the current situation where the Department
of Labor has to ask teenagers whether they ever put a box into
an inoperable machine, rather than setting it on the floor next
to the machine.
Modern cardboard balers are designed to prevent their
operation when the loading gate is open, and many newly
manufactured balers are now incorporating a key lock system
which prevents operation unless the equipment is unlocked by
use of the key.
Some persons have expressed concern that minors, who are
not authorized to operate paper balers and compactors under
this legislation, may have access to the operating key and will
operate the machinery. They, therefore, have urged that further
restrictive language be added to the bill requiring the key to
be kept at all times in the custody of an adult and specifying
that the machine should not be operated in the presence of any
16 or 17 year old employee.
In the Committee's opinion, such restrictions are
unnecessary. Under H.R. 114, teenagers are not permitted to
operate or unload a baler, even modern balers that meet current
ANSI standards. Employers who allow a minor to use a key to
operate a baler or compactor would be in violation of the law.
Furthermore, H.R. 1114 specifies that loading of cardboard
boxes by minors is limited to only those balers and compactors
meeting current ANSI safety standards. The current ANSI safety
standard (ANSI Z245. 1990) does not require a key lock system,
though this enhanced safety feature may be required under the
next ANSI safety standard that is presently under development.
In that HO 12 does not impose any access restrictions on
the control features that make a baler operational, the
Committee believes that it would be unreasonable and
inappropriate to impose such restrictions on the most modern
balers that incorporate a key lock system. Restrictions of this
would result in micro-management of the workplace, and would
undermine the intent and principle of H.R. 1114, which is to
relieve employers of unnecessary and over reaching regulations.
Employers are responsible for insuring that employees under the
age of 18 do not operate paper balers or compactors of any kind
and where those paper balers do include a key lock system, the
Committee expects and encourages employers to take the
necessary steps to ensure that keys will be inaccessible to
teenage employees. Finally, on this issue of key accessibility,
the Committee wishes to emphasize that even if the key is in
the machine and the equipment is actually engaged, any attempt
by an employee to open the gate for loading purposes will
result in the equipment immediately shutting down and becoming
inoperable due to the ANSI safety design features.
With respect to concerns that minors should not be present
when the equipment is being operated, the Committee believes
that a legislative restriction is not justified. Under HO 12,
there is presently no such prohibition that balers and
compactors are not to be operated in the presence of teenage
employees. Additionally, no evidence or data has been presented
to the Committee showing that minors are being injured because
they were near a baler or compactor while the equipment was
being operated that would warrant this type of limitation under
H.R. 1114.
Conclusion
First and foremost, it is the view of the Committee that
the safety of minors should be safeguarded. The intent of H.R.
1114, as amended, is to permit 16 and 17 year olds to engage in
an activity that is not dangerous. In particular, H.R. 1114, as
amended, will authorize 16 and 17 year olds to load materials
into machines which (1) cannot operate while being loaded, and
(2) meet the most current safety standards established by the
American National Standards Institute (ANSI). Permitting
employers to allow teenagers to load paper balers and
compactors, if those machines meet current safety standards,
will create an additional incentive for more employers to
upgrade their paper baling equipment to meet the current safety
standards. The employers will have on to replace older
equipment with new equipment, in that they will not be
penalized if a 16 or 17 year old happens to throw paper or
boxes into the machine. As such, it is the view of the
Committee that H.R. 1114, as amended, poses no increased threat
of injury to 16 and 17 year olds.
Summary
H.R. 1114, as amended, would amend the child labor
provisions of the Fair Labor Standards Act (FLSA) to authorize
16 and 17 year olds to load materials into cardboard balers and
compactors that are (1) safe, and (2) cannot operate while
being loaded. Such balers and compactors shall be considered
safe if they are in compliance with the most current safety
standards established by the American National Standards
Institute.
section-by-section analysis
Section 1
Provides that 16 and 17 year olds are permitted to load
materials into cardboard balers and compactors that are safe,
and which cannot operate while being loaded. Such balers and
compactors shall be considered safe if they are in compliance
with the most current safety standards established by the
American National Standards Institute.
statement of oversight findings and recommendations of the committee
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives and clause 2(b)(1) of
rule X of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in the body of this report.
inflationary impact statement
In compliance with clause 2(l)(4) of rule XI of the Rules
of the House of Representatives, the Committee estimates that
the enactment into law of H.R. 1114 will have no significant
inflationary impact on prices and costs in the operation of the
national economy. It is the judgment of the Committee that the
inflationary impact of this legislation as a component of the
federal budget is negligible.
government reform and oversight
With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations form the Committee on Government Reform and
Oversight on the subject of H.R. 1114.
committee estimate
Clause 7 of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
H.R. 1114. However, clause 7(d) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 403 of the Congressional Budget Act of 1974.
application of law to legislative branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the legislative
branch. This bill in effect changes requirements under the Fair
Labor Standards Act. As Congress is covered under the relevant
FLSA requirements, this legislation would apply to Congress.
changes to existing law
There were no changes made to existing law.
unfunded mandate statement
Section 423 of the Congressional Budget & Impoundment
Control Act requires a statement of whether the provisions of
the reported bill include unfunded mandates; the bill does not
contain any unfunded mandates.
budget authority and congressional budget office cost estimate
With respect to the requirement of clause 2(l)(3)(B) of
rule XI of the House of Representatives and section 308(a) of
the Congressional Budget Act of 1974 and with respect to
requirements of clause 2(l)(3)(C) of rule XI of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for H.R. 1114 from the Director of the Congressional Budget
Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 25, 1995.
Hon. William F. Goodling,
Chairman, Committee on Economic and Educational Opportunities, House of
Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office (CBO)
has reviewed H.R. 1114, a bill to provide authority for minors
to load materials into balers and compactors, as ordered
reported by the Committee on Economic and Educational
Opportunities on July 20, 1995. CBO estimates that enactment of
H.R. 1114 would have no significant effect on the federal
budget and no impact on the budgets of state and local
governments. Because enactment of H.R. 1114 would not affect
direct spending or receipts, pay-as-you-go procedures would not
apply.
H.R. 1114 would allow minors under 18 years of age to load
materials into balers and compactors, if these machines meet
safety standards of the American National Standards Institute.
Currently, the child labor protection provisions of the Fair
Labor Standards Act restrict children from engaging in this
type of activity. Were this bill to be enacted, the Department
of Labor could enforce this new provision without any change in
its current enforcement budget.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Christina
Hawley.
Sincerely,
June E. O'Neill.
Rollcall Votes
Rollcall No. 1 (by Mr. Owens)
Amendment to require the Secretary of Labor to certify to
each House of the Congress, on or before September 30, 1996,
that there is adequate funding for FY96 for the Wage and Hour
Administration of the Department of Labor to administer the
provisions of H.R. 1114, before the bill will take effect.
Defeated by a vote of 14-17.
------------------------------------------------------------------------
Member Aye No
------------------------------------------------------------------------
Chairman Goodling........................... ............ X
Mr. Petri................................... ............ ............
Mrs. Roukema................................ ............ ............
Mr. Gunderson............................... ............ ............
Mr. Fawell.................................. ............ X
Mr. Ballenger............................... ............ X
Mr. Barrett................................. ............ X
Mr. Cunningham.............................. ............ X
Mr. Hoekstra................................ ............ X
Mr. McKeon.................................. ............ ............
Mr. Castle.................................. ............ X
Mrs. Meyers................................. ............ X
Mr. Johnson................................. ............ ............
Mr. Talent.................................. ............ X
Mr. Greenwood............................... ............ ............
Mr. Hutchinson.............................. ............ X
Mr. Knollenberg............................. ............ X
Mr. Riggs................................... ............ X
Mr. Graham.................................. ............ ............
Mr. Weldon.................................. ............ X
Mr. Funderburk.............................. ............ X
Mr. Souder.................................. ............ X
Mr. McIntosh................................ ............ X
Mr. Norwood................................. ............ X
Mr. Clay.................................... X ............
Mr. Miller.................................. ............ ............
Mr. Kildee.................................. X ............
Mr. Williams................................ ............ ............
Mr. Martinez................................ X ............
Mr. Owens................................... X ............
Mr. Sawyer.................................. X ............
Mr. Payne................................... ............ ............
Mrs. Mink................................... X ............
Mr. Andrews................................. X ............
Mr. Reed.................................... X ............
Mr. Roemer.................................. X ............
Mr. Engel................................... ............ ............
Mr. Becerra................................. X ............
Mr. Scott................................... X ............
Mr. Green................................... X ............
Ms. Woolsey................................. X ............
Mr. Romero-Barcelo.......................... X ............
Mr. Reynolds................................ ............ ............
---------------------------
Totals.................................. 14 17
------------------------------------------------------------------------
Rollcall No. 2 (by Mr. Petri)
Motion to favorably report the bill with an amendment in
the nature of a substitute to the House with the recommendation
that the bill as amended do pass. Passed by a vote of 21-13.
------------------------------------------------------------------------
Member Aye No
------------------------------------------------------------------------
Chairman Goodling........................... X ............
Mr. Petri................................... ............ ............
Mrs. Roukema................................ ............ ............
Mr. Gunderson............................... ............ ............
Mr. Fawell.................................. X ............
Mr. Ballenger............................... X ............
Mr. Barrett................................. X ............
Mr. Cunningham.............................. X ............
Mr. Hoekstra................................ X ............
Mr. McKeon.................................. X ............
Mr. Castle.................................. X ............
Mrs. Meyers................................. X ............
Mr. Johnson................................. ............ ............
Mr. Talent.................................. X ............
Mr. Greenwood............................... ............ ............
Mr. Hutchinson.............................. X ............
Mr. Knollenberg............................. X ............
Mr. Riggs................................... X ............
Mr. Graham.................................. X ............
Mr. Weldon.................................. X ............
Mr. Funderburk.............................. X ............
Mr. Souder.................................. X ............
Mr. McIntosh................................ X ............
Mr. Norwood................................. X ............
Mr. Clay.................................... ............ X
Mr. Miller.................................. ............ ............
Mr. Kildee.................................. ............ X
Mr. Williams................................ ............ ............
Mr. Martinez................................ X ............
Mr. Owens................................... ............ X
Mr. Sawyer.................................. ............ X
Mr. Payne................................... ............ X
Mrs. Mink................................... ............ X
Mr. Andrews................................. X ............
Mr. Reed.................................... ............ X
Mr. Roemer.................................. ............ X
Mr. Engel................................... ............ ............
Mr. Becerra................................. ............ X
Mr. Scott................................... ............ X
Mr. Green................................... ............ X
Ms. Woolsey................................. ............ X
Mr. Romero-Barcelo.......................... ............ X
Mr. Reynolds................................ ............ ............
---------------------------
Totals.................................. 21 13
------------------------------------------------------------------------
MINORITY VIEWS
Introduction
Proponents of H.R. 1114 contend, ``what we need less of is
a government that enforces regulations which don't enhance
worker safety but cost small business money and kill jobs. What
we need is a more common-sense approach to enforcing rules by
the federal bureaucracy.'' \1\ Oddly then, H.R. 1114 needlessly
jeopardizes the safety of working minors while imposing greater
regulatory burdens on business and government alike.
\1\ Statement of Hon. Thomas W. Ewing, ``Hearing on House
Resolutions 1114, 1225, and 1783,'' before the Subcommittee on
Workforce Protections of the Committee on Economic and Educational
Opportunities, 104th Congress, 1st Sess., (July 11, 1995).
---------------------------------------------------------------------------
H.R. 1114 provides that 16 and 17-year-old workers may load
materials into cardboard balers and compactors so long as the
equipment is safe for 16 and 17-year-olds to load and cannot be
operated while being loaded. The legislation presumes that a
baler or compactor which is maintained and operated in
compliance with the latest American National Standards
Institute (ANSI) standards applicable to such machines is
otherwise safe for 16 and 17 year olds to load. H.R. 1114 is
intended to overrule Hazardous Occupations Order Number 12 (HO
12) which, in part, precludes minors, including any worker
below age 18, from operating or assisting to operate cardboard
balers and compactors. As defined by the Department of Labor,
assisting to operate a baler or compactor includes placing
materials into or removing them from the machine.
Despite the significance of this proposal, including its
increased regulatory burden on the Department of Labor, we are
disappointed that the Republican majority chose not to afford
the Department an opportunity to testify at the single hearing
held on H.R. 1114.
H.R. 1114 Needlessly places minors at risk
Balers and compactors are large and potentially dangerous
machines. In both types of machines, material is fed into a
baling or compacting chamber and a ram or plunger--a large
steel plate--is then mechanically forced through the chamber,
compressing or compacting the material. A compactor typically
deposits the compressed material into a large bin. The bin is
then removed, emptied and returned for reuse. A baler, usually
a smaller machine than a compactor, ties or wraps the
compressed material with a steel band or wire. The bale is then
removed and disposed.
Proponents of H.R. 1114 contend that there is nothing
inherently dangerous in loading a bale or compactor so long as
the machine is otherwise inoperable at the time that the
loading occurs. We concur. The danger inherent in loading
balers or compactors is not in loading the machine, per se, but
in being in the vicinity of the machine when it is operating.
HO 12, by precluding minors from being involved in the loading,
operation, or unloading of balers or compactors, eliminates any
occupational justification for the presence of minors while the
machine is being operated.
H.R. 1114, by permitting minors to load certain balers and
compactors, provides a legal and occupational justification for
minors to otherwise be present while a baler or compactor is
being operated. The Department of Labor estimates that more
than half of the balers and compactors in use today are not in
compliance with the ANSI standards. Further, even newer
machines that are manufactured in compliance with the ANSI may
not be maintained or operated in a manner that ensures the
machine remains in compliance with the ANSI standards each and
every time it is operated. Accidents will continue to occur.
The majority is apparently prepared to risk the life and
limbs of young workers that the interlock devices required by
the ANSI regulations will work in every case to prevent injury
or death. Interlock devices are designed to ensure that
machines cannot be operated when baler or compactor loading
doors are open. Interlock devices are not fail-safe, however.
On October 5, 1994 the Occupational Safety and Health
Administration (OSHA) issued a serious violation citation to a
supermarket in Ridgewood, New Jersey. The citation was issued
in part because the store's ``baler ram continued to cooperate
when protective interlock gate remained open on or about 9/14/
94.'' On November 11, 1994, a grocery market in Haledon, New
Jersey was cited by OSHA, in part, because the ``interlock on
door of garbage compactor was not functioning''.
The inevitable consequence of increasing the instances of
proximity of minors to these machines while they are in
operation will be an increase of instances of serious injury
and death to minors. If such accidents occur while the minor is
loading the machine, the employer will have engaged in a prima
facie violation of the child labor laws, as provided in H.R.
1114. That, however, is likely to be a small consolation to the
victim, and to his or her family.
According to the Department of Labor, there were 6
fatalities involving paper baling machines between 1993 and
1995, including 2 cases where the victims fell into the
compacting area of the machine while attempting to clear jams
that occurred during the loading process. While we firmly
believe that HO 12 has served to minimize instances of injury
or death to minors, youths have been involved in accidents
involving compactors and balers despite the regulation. As
Representative Owens related at the sole hearing held on H.R.
1114:
A 16-year old lost the tip of his index finger while
operating a box compactor on June 2, 1994, in Chippewa Falls,
Wisconsin. Doctors were able, fortunately, to reattach the
finger at the hospital. May 29, 1989, a 15-year-old clerk was
loading boxes into a paper baler at the Hilltop Market in
Seattle, Washington. When he turned around to see if there were
anymore boxes to load, the safety gate came down and his arm
became stuck in the machine. He tried to reach the switch with
the other arm, but it also became caught in the machine. The
minor suffered a broken arm and wrist and permanent disability
in one arm. Finally, an 11-year-old was loading boxes in a
paper baler at the Seatown Food Corporation, Bronx, New York,
when his arm got caught in the baler and pulled his body up
against the machine and crushed him. He died as a result of
internal injuries.
The accidents cited above occurred despite a regulation
that removes any occupational incentive for minors to be
present while a baler or compactor is being operated. Our
primary concern regarding H.R. 1114 is that, by lawfully
permitting 16- and 17-year-olds to be employed loading certain
balers and compactors, the legislation encourages the presence
of minors while such machines are being operated and,
therefore, inevitably places them in harms-way. No convincing
justification has been presented to the Committee for exposing
minors to such risks.
There is certainly no evidence that groceries are dependent
upon the services of minors in order to load balers or
compactors. According to the testimony of Ms. Lutz, two-thirds
of all employees of food store employees are part-timers, of
whom one quarter are under age 18. Stated more plainly,
according to Ms. Lutz, only approximately one-sixth of all food
store employees are under 18; approximately 83 percent are 18
or older. There would seem to be no dearth of adult workers
capable of loading, operating, and unloading balers and
compactors.
Witnesses testifying in support of H.R. 1114, including
Representative Thomas W. Ewing, Representative Larry Combest,
and Ms. Lutz (representing the Food Marketing Institute) stated
that HO 12 has the effect of deterring grocery stores from
hiring teenagers and that H.R. 1114 is necessary to promote
employment opportunities for minors. Representative Ewing
stated, ``* * * I have been trying to get the Labor Department
to fix one small regulation, Hazardous Occupation Order Number
12, which is causing grocery stores to avoid hiring teenagers
because they can receive fines up to $10,000 for a single
violation. Teenagers who are looking for summer jobs today are
being turned away from grocery stores, which have traditionally
hired a lot of teens to bag groceries and stock shelves.''
Representative Combest characterized HO 12 as ``a regulatory
disincentive for hiring 16- and 17-year-old workers.'' Ms. Lutz
was more specific:
Our survey shows that HO 12 has had a significant impact on
teenage employment. HO 12 has led grocers to curtail hiring
opportunities for teenagers or to modify the scope of their
work. Among all companies, 64.7 percent said HO 12 has caused
them to take such actions.
It is alarming that two-thirds of the grocers responding to
FMI's survey said that HO 12 has a dampening effect on their
hiring teenagers. Indeed, there are some operators who have a
firm policy against hiring anyone under 18 because of the
regulatory and bureaucratic nightmare they face. This deals a
direct blow to the job opportunities for teenagers and is
especially ironic in light of the current concerns about teen
employment and in view of hundreds of millions of dollars spent
to `create' summer jobs for teens.
We note, however, that beyond the assertion there is
absolutely no evidence that HO 12 is having any impact on the
employment of minors by grocery stores. No evidence was
provided to the Committee to indicate that there has been any
diminution in the percentage of food store employees who are
under 18. Further, the contention that HO 12 is discouraging
the employment of minors is based on a seemingly ludicrous
presumption: That it is impossible to prevent 16- and 17-year-
old stock clerks from loading balers or compactors.
In fact, the standard practice in the industry is to have
stock clerks, including those under age 18, take empty cartons
to a designated stacking area. Another employee, an adult, is
then responsible for loading and operating the baler or
compactor. Thousands of stores across the country are able to
operate on such a basis without running afoul of HO 12. There
is no intrinsic reason why a 16- or 17-year-old should feel
compelled to load a baler or compactor, especially if it is
explained to the employee that not only are such duties beyond
his or her responsibilities, but that it is also unlawful for
the employee to engage in such activities.
To the extent that anyone is having difficulty complying
with HO 12 today, it would appear to be due to either a failure
to adequately explain employment restrictions and the reasons
for them to employees under age 18 or an indifference to the
requirements of HO 12. That such employers will do better under
the more onerous requirements of H.R. 1114, where 16- and 17-
year-olds are permitted to load balers and compactors only if
the machine is manufactured, maintained, and operated in full
compliance with ANSI standards, is unlikely.
H.R. 1114 Increases regulatory burdens
The second reason proffered by proponents of H.R. 1114 for
its enactment is to immunize industry from the unreasonable and
costly enforcement of HO 12 by the Department of Labor.
Ironically, H.R. 1114 will not provide the relief that the Food
Marketing Institute seeks. Whereas HO 12 imposes a
straightforward and easily understood requirement upon
employers, the requirements imposed by H.R. 1114 are, at best,
complex and easily breached. At worst, they are so imprecise
and uncertain as to make compliance impossible to determine. As
described by the bill's sponsor, Mr. Ewing, ``Teenagers would
only be allowed to load machines which meet current safety
standards set by the American National Standards Institute,
which means that teenagers would still be prohibited from
loading the outdated machines.'' (emphasis added.) Ms. Lutz, in
responding to a question from Representative Woolsey, described
the requirements of H.R. 1114 as follows, ``* * * and the
balers that do not meet the current ANSI standards would fall
under the same guidelines as currently exist for HO 12 * * *''.
Though H.R. 1114 is generally understood as permitting 16-
and 17-year-olds to load balers and compactors, in most
instances the legislation unquestionably prohibits their use.
As the majority notes, according to the best information
available to the Committee, fewer than half of the balers and
compactors in operation are in compliance with the standards.
As described by the sponsors and principal proponents of the
legislation, H.R. 1114 requires that a baler or compactor be in
complete compliance with ANSI standards before a 16- or 17-
year-old may be employed to load the machine. If the machine is
not operated and maintained in compliance with current ANSI
standards, the use of minors to load the machine ``would fall
under the same guidelines as currently exist for HO 12.'' In
other words, the employer would be subject to a fine of up to
$10,000 for any occasion in which a minor loaded a baler or
compactor that was not in compliance with ANSI standards.
H.R. 1114 effectively places employers in a more serious
catch-22 than current law. Under the legislation, an employer
may employ 16- and 17-year-olds to load balers and compactors
without fear of being fined by the Department of Labor only if
the employer is certain that its balers and compactors are in
compliance with current ANSI standards and is certain that the
Department of Labor and the courts will so concur. No employer,
including employers who own new machines that were manufactured
in compliance with ANSI standards, can safely make those
assumptions.
As the majority states, ANSI coordinates the development of
voluntary standards. Because the ANSI standards are voluntary,
they are, in some respects, broader and more proscriptive than
standards that are likely to be issued by a Government agency.
On the other hand, because legal liabilities are not directly
dependent upon the degree of compliance with a voluntary
standards, the ANSI standards are, in other respects, more
vague and less precise than those typically issued by agencies.
The ANSI standards as they relate to the modification of
machines provide an example of the complexity faced by both
those who will seek to enforce this legislation and those who
will seek to comply with it. Current ANSI standards require
that balers that have been modified since June, 1991, must have
been modified in accordance with the standard, that the
manufacturer must have been notified prior to the modification,
and that the owner of the machine must have obtained written
permission from the manufacturer to make the modification.
Assuming an investigator from the Wage and Hour Division of the
Department of Labor can recognize a machine that has been
modified in the first instance, the employer must then be able
to provide documentation demonstrating when the modification
occurred and, if appropriate, proving that prior approval for
the modification was obtained from the manufacturer. Though the
intent of the requirement is to ensure that the modification
does not adversely affect the safe operation of the machine,
compliance with the ANSI standards is dependent upon the
production of the appropriate paper documents rather than the
effect on safety of the modification, per se. Regardless of the
safety ramifications of the modification, if the appropriate
paper documents cannot be provided, the employer is in
violation of the ANSI standards and may be liable for a
potential fine of up to $10,000 for each time a minor was used
to load the machine.
The ANSI standards also require that employers provide
training to employees concerning the operation and maintenance
of balers and compactors and that employers maintain inspection
and maintenance records. The standards are silent, however, as
to what constitutes appropriate training or how long inspection
and maintenance records must be maintained. Again, the
ramification for misinterpreting the requirements of the ANSI
standards may be a $10,000 fine for each time a minor was
employed to load the machine.
H.R. 1114 also greatly increases the burdens on the
Department of Labor at a time when the ability of the
Department to meet that burden is being undermined. Rather than
making the relatively simple determination of whether a minor
has been employed to operate or assist in operating a baler or
compactor, H.R. 1114 requires that the Department also
determine whether the machine is in compliance with the complex
and confusing requirements of the ANSI standards. The fact that
this significantly more burdensome requirement is being placed
on the Department at the same time that the Department is
facing crippling cuts in its budget can only have unfortunate
consequences for the minors that H.R. 1114 purportedly is
designed to protect. Mr. Owens offered an amendment in
Committee to address this problem. The amendment provided that
before the provisions of H.R. 1114 may take effect, the
Secretary of Labor would be required to certify to each House
of Congress that there is adequate funding for the Wage and
Hour Administration of the Department of Labor to administer
H.R. 1114. The amendment was rejected 14-17 on a party-line
vote.
Finally, as the majority notes, when the Occupational
Safety and Health Act was enacted in 1970, the legislation
``directed the Department of Labor to adopt then-existing ANSI
standards, rather than delay any activity until the agency
promulgated occupational safety and health standards''
(emphasis added). The intent was to ensure that workers were
immediately afforded protection rather than delay the
imposition of health and safety standards until the Department
of Labor could implement its own standards. Many of the
standards that were incorporated imposed requirements on
employers that were later found to be unreasonable.
More importantly, in 1970, the Congress acted to require
the adoption of standards developed by private associations to
ensure immediate protection for workers while the Occupational
Safety and Health Administration (OSHA) was getting off the
ground. Ultimate regulatory authority is vested in OSHA. H.R.
1114 differs significantly in that it vests, in perpetuity, in
the ANSI authority to determine what constitutes a baler or
compactor that is safe for minors to load. In effect, the
legislation extends regulatory authority to a private
organization and repeals the extensive safeguards the Congress
has instituted to ensure that regulations are developed with
full public input and without undue or improper influence. We
note that this transfer of authority was done without affording
representatives of ANSI the opportunity to testify on the
legislation.
Conclusion
On May 5, 1995, the National Institute for Occupational
Safety and Health (NIOSH) issued a paper entitled ``Review of
Safeguarding Technology Used on Paper Balers.'' At the request
of the Administrator of the Department of Labor's Wage and Hour
Administration, NOISH reviewed ``whether minors under 18 years
of age can safely operate paper balers.'' NIOSH issued the
following recommendation:
Based on our review of surveillance data and this study of
paper baler safeguarding technology, NIOSH believes that minors
under the age of 18 cannot safely operate paper balers for the
following reasons:
First, there are paper balers in the field (both newer and
older models) that we did not consider safe because of either
the type and location of the interlock or because of a gap
allowing manual entry into the baling compartment. NIOSH
believes that additional criteria related to interlock location
(which go beyond the ANSI Z245.5 standard) need to be
considered for assessing adequate safeguarding related to paper
baler operation. In addition, it is unclear how compliance with
the existing voluntary ANSI standard for guarding could be
assessed and enforced by the Wage and Hour Division.
Second, there are other important factors needed to ensure
worker safety--namely, periodic equipment inspection and
maintenance to ensure that the safeguarding continues to
function as intended and adequate worker training and
supervision. Of particular concern are older machines. It is
not known how many old paper balers are currently in use and
how they could be retrofitted with appropriate safeguard
equipment.
Based on this NIOSH review, which demonstrates the
potential for serious injury and death, NIOSH recommends that
those parts of the current Hazardous Occupations Order (HO-12)
from the Fair Labor Standards Act that relate to minors working
at paper balers be maintained.
One of the principal purposes of our child labor laws is to
ensure that young people are not exposed to employment
conditions that pose the risk of serious injury or death. In
addition to increasing the regulatory burdens faced by
employers, H.R. 1114 needlessly subjects our Nation's young to
undue risk.
William L. Clay.
Dale E. Kildee.
Tom Sawyer.
Patsy T. Mink.
Jack Reed.
Eliot L. Engel.
Bobby Scott.
Lynn Woolsey.
Mel Reynolds.
George Miller.
Pat Williams.
Major R. Owens.
Donald M. Payne.
Xavier Becerra.
Gene Green.
Carlos Romero-Barcelo.