Child Labor Regulations, Orders and Statements of Interpretation;
Proposed Rules
[04/17/2007]
Volume 72, Number 73, Page 19327-19337
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Part III
Department of Labor
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Wage and Hour Division
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29 CFR Part 570
Child Labor Regulations, Orders and Statements of Interpretation;
Proposed Rules
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DEPARTMENT OF LABOR
Wage and Hour Division
29 CFR Part 570
RIN 1215-AB44
Child Labor Regulations, Orders and Statements of Interpretation
AGENCY: Wage and Hour Division, Employment Standards Administration,
Labor.
ACTION: Advance notice of proposed rulemaking and request for comments.
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SUMMARY: The Department of Labor (Department or DOL) is considering
proposing revisions to the child labor regulations issued pursuant to
the Fair Labor Standards Act (FLSA), 29 CFR part 570, which set forth
the criteria for the permissible employment of minors under 18 years of
age. In particular, subpart E of these regulations is under review.
Subpart E identifies occupations deemed particularly hazardous for or
detrimental to the health or well-being of employees under 18 years of
age. This advance notice of proposed rulemaking seeks the views of the
public on the need for changes to these regulations.
DATES: Comments must be received on or before July 16, 2007.
ADDRESSES: You may submit comments, identified by RIN 1215-AB44, by
either one of the following methods:
Electronic comments, through the Federal eRulemaking
Portal: http://www.regulations.gov. Follow the instructions for
submitting comments.
Mail: Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Room S-3502, 200 Constitution
Avenue, NW., Washington, DC 20210.
Instructions: Please submit one copy of your comments by only one
method. All submissions received must include the agency name and
Regulatory Information Number (RIN) identified above for this advance
notice of proposed rulemaking. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided. Because we continue to experience delays in
receiving mail in the Washington, DC area, commenters are strongly
encouraged to transmit their comments electronically via the Federal
eRulemaking Portal at http://www.regulations.gov or to submit them by
mail early. For additional information on submitting comments and the
rulemaking process, see the ``Public Participation'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov
.
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 advance notice of proposed rulemaking 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
(877) 889-5627 to obtain information or request materials in
alternative formats.
Questions of interpretation and/or enforcement of 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
(866) 4US-WAGE ((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. Electronic Access and Filing Comments
Public Participation: This advance notice of proposed rulemaking is
available through the Federal Register and the http://www.regulations.gov
Web site. You may also access this document via the
WHD home page at http://www.wagehour.dol.gov To comment electronically on federal rulemakings, go to the Federal eRulemaking Portal at http://.
http://www.regulations.gov, which will allow you to find, review, and submit
comments on federal documents that are open for comment and published
in the Federal Register. Please identify all comments submitted in
electronic form by the RIN docket number (1215-AB44). Because of delays
in receiving mail in the Washington, DC area, commenters should
transmit their comments electronically via the Federal eRulemaking
Portal at http://www.regulations.gov, or submit them by mail early to
ensure timely receipt prior to the close of the comment period. Submit
one copy of your comments by only one method.
II. Background
The child labor provisions of the Fair Labor Standards Act (FLSA)
establish a minimum age of 16 years for employment in nonagricultural
occupations, but the Secretary of Labor is authorized to provide by
regulation for 14- and 15-year-olds to work in suitable occupations
other than manufacturing or mining, and during periods and under
conditions that will not interfere with their schooling or health and
well-being. The FLSA provisions permit 16- and 17-year-olds to work in
the nonagricultural sector without hours or time limitations, except in
certain occupations found and declared by the Secretary to be
particularly hazardous, or detrimental to the health or well-being of
such workers.
The regulations for 14- and 15-year-olds are known as Child Labor
Regulation No. 3 (Reg. 3) and are contained in subpart C of part 570
(29 CFR 570.31-.38). Reg. 3 limits the hours and times of day that such
minors may work and identifies occupations that are either permitted or
prohibited for such minors. Under Reg. 3, 14- and 15-year-olds may work
in certain occupations in retail, food service, and gasoline service
establishments, but are not permitted 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 on either an industry
basis, specifying the occupations in a particular industry that are
prohibited, or an occupational basis, irrespective of the industry in
which the work is performed. The seventeen HOs were adopted
individually during the period of 1939 through 1963. Some of the HOs,
specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited
exemptions that permit the employment of 16- and 17-year-old
apprentices and student-learners under particular conditions to perform
work otherwise prohibited to that age group. The terms and
[[Page 19329]]
conditions for employing such apprentices and student-learners are
detailed in Sec. 570.50(b) and (c).
Because of changes in the workplace, the introduction of new
processes and technologies, the emergence of new types of businesses
where young workers may find employment opportunities, the existence of
differing federal and state standards, and divergent views on how best
to correlate school and work experiences, the Department has long been
reviewing the criteria for permissible child labor employment. In this
review, the Department published a Notice of Proposed Rulemaking (NPRM)
in 1982, a Final Rule in 1991, both an Advance Notice of Proposed
Rulemaking (ANPRM) and an NPRM in 1994, a Final Rule in 1995, an NPRM
in 1999, and a Final Rule in 2004.
On July 16, 1982, an NPRM 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 NPRM generated considerable public interest,
mostly relating to 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.
The Department continued to receive suggestions from the public
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, and
published an NPRM in October 1990, proposing changes to three HOs (55
FR 42612). In December 1991, the Department promulgated a Final Rule
that revised the three HOs (56 FR 58626).
The Department continued to review the child labor regulations and
on May 13, 1994, in an effort to accumulate data concerning all aspects
of the provisions, published both an NPRM (59 FR 25164) and an ANPRM
(59 FR 25167). 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.
Congress has amended the child labor provisions of the FLSA three
times since 1996. The Compactors and Balers Safety Standards
Modernization Act, Pub. L. 104-174 (Compactor and Baler Act), was
signed into law on August 6, 1996. This legislation added 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 when certain requirements are met. The Drive for Teen
Employment Act, Pub. L. 105-334, was signed into law on October 31,
1998. This legislation added 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 of Labor Appropriations Act, 2004, Pub. L. 108-
199, amended the FLSA by creating a limited exemption from the youth
employment provisions for minors 14 to 18 years of age who are excused
from compulsory school attendance beyond the eighth grade. The
exemption, contained in section 13(c)(7) of the FLSA, allows eligible
youth, under specific conditions, to be employed inside and outside of
places of business that use machinery to process wood products, but
does not allow such youth to operate or assist in operating power-
driven woodworking machines. This exemption overrides the FLSA's
formerly complete prohibition on the employment of 14- and 15-year-olds
in manufacturing occupations contained in section 3(l).
The Department published an NPRM in the Federal Register on
November 30, 1999 (64 FR 67130), inviting comments on revisions of
regulations to implement the 1996 and 1998 amendments and to update
certain regulatory standards. The Compactor and Baler Act affected 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 affected 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. A Final Rule, addressing the above issues
and implementing procedural changes dealing with administrative
hearings and appeals of child labor civil money penalties, was issued
on December 16, 2004 (69 FR 75382).
In 1998, the Department provided funds to NIOSH to conduct a
comprehensive review of the scientific literature and available data in
order to assess current workplace hazards and the adequacy of the
current youth employment HOs to address them. This study was
commissioned to provide the Secretary with another tool to use in her
ongoing review of the youth employment provisions, and of the hazardous
occupations orders in particular. The report, entitled National
Institute for Occupational Safety and Health Recommendations to the
U.S. Department of Labor for Changes to Hazardous Orders (hereinafter
referred to as the NIOSH Report or the Report), was issued in July of
2002. The Report, which makes 35 recommendations concerning the
existing nonagricultural HOs and recommends the creation of 17 new HOs,
also incorporated the comments NIOSH submitted in
[[Page 19330]]
response to the 1999 NPRM. The report is available for review on the
Department's YouthRules! Web site at http://www.youthrules.dol.gov/resources.htm
.
The Department recognizes NIOSH's extensive research efforts in
compiling and reviewing this data. However, it has cautioned readers
about reaching conclusions and expecting revisions to the existing HOs
based solely on the information in the Report. In the Report, NIOSH
itself recognized the confines of its methodology and included
appropriate caveats about limitations in available data and gaps in
research. Of those limitations, the following are worth noting. The
NIOSH Report recommendations are driven by information on high-risk
activities for all workers, not just patterns of fatalities and serious
injuries among young workers. There is little occupational injury,
illness, and fatality data available regarding minors less than 16
years of age. In addition, such data for youth 16 and 17 years of age
tend to be mixed with that of older workers whose employment is not
subject to the youth employment provisions of the FLSA. Also, available
occupational injury, illness, fatality, and employment data on the
specific operations in the specific industries covered by the NIOSH
Report recommendations tend to be combined with data on other
operations and/or industries. In some cases, this may result in a
diminution of the risk by including less risky operations and
industries in the employment estimates. In other cases, the risk may be
exaggerated by including more dangerous operations/industries in the
injury, illness, or fatality estimates.
In addition, as NIOSH was tasked with examining issues within the
framework of the current HOs only, the Report did not consider the
extent to which fatalities occur despite existing HOs, Occupational
Safety and Health Administration (OSHA) standards, or state laws
prohibiting the activity. If fatalities result from recognized illegal
activities, such as working with fireworks or a power-driven circular
saw, the best strategy for preventing future injuries may not be to
revise the regulations but to increase compliance with existing laws
through public awareness initiatives, targeted compliance assistance
efforts, and stepped-up enforcement activities. The Report also did not
consider potential approaches for decreasing workplace injuries that
provide an alternative to a complete ban on employment, such as safety
training, increased supervision, the use of effective personal
protective equipment, and strict adherence to recognized safe working
practices.
Though cognizant of the limitations of the Report, the Department
places great value on the information provided by NIOSH. Since
receiving the Report, the Department has conducted 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 of employment
opportunities for youth with the necessary and appropriate safety
protections. The 2004 Final Rule addressed six of the recommendations.
As an adjunct to its review of these issues the Department
contracted with a private consulting firm, SiloSmashers, Inc., to
construct a model that, using quantitative analysis, would help
determine the costs and benefits associated with implementing, or not
implementing, each of the Report's recommendations. The SiloSmashers
report, Determination of the Costs and Benefits of Implementing NIOSH
Recommendations Relating to Child Labor Hazardous Orders, was completed
in November 2004 and covers 34 of the NIOSH HO recommendations in
agricultural and nonagricultural occupations, as well as several
occupations or activities not presently addressed by an existing HO.
The methodology used by SiloSmashers was to compare the direct
costs and benefits of implementing or revising an HO, as recommended by
NIOSH, with the costs and benefits of not implementing or revising the
HO based on the NIOSH recommendations. Each SiloSmashers analysis was
conducted on a mutually exclusive basis to yield a net present value
(NPV). SiloSmashers defines NPV as ``the discounted dollar value of an
investment across the expected planning horizon. As a dollar figure,
NPV is presented at the full value level for each implementation
approach (implementing versus not implementing) as well as at the
incremental approach (the difference between implementing versus not
implementing). As a comparison tool and under the incremental approach,
the higher the NPV, the higher the expected value of implementation.''
The NPVs reported by SiloSmashers for each of the NIOSH recommendations
addressing the current nonagricultural HOs range from a negative
$9,537,000 to a positive $113,556,000.
Although the SiloSmashers report includes both a quantitative
analysis and a qualitative analysis of each NIOSH recommendation, the
Department is concerned that some readers might try to rank each
recommendation solely on the basis of the quantitative results (i.e.,
on the basis of the NPVs) listed in the HO Comprehensive Summary. This
simplistic ranking would not be appropriate due to several constraints
inherent in the methodology adopted by SiloSmashers, especially the
lack of reliable and pertinent data.
In addition, not only was the methodology used by SiloSmashers to
generate the NPVs subject to the same data limitations faced by NIOSH
regarding the employment, fatality, and injury rates of young workers,
but it also raises additional concerns. First, if SiloSmashers were
unable to identify any minors who were fatally injured while performing
work that was the subject of the NIOSH recommendation being examined,
even if many adult workers were killed while performing that exact same
work, the analysis would reflect that implementation of the
recommendation would have no benefit in reducing occupational hazards
to youth. Such an assumption is contrary to the Department's long-held
position that work which is dangerous for adults is inherently
dangerous for youth. For example, because SiloSmashers found no deaths
of youth resulting from the operation of chainsaws, it concluded that
implementation of the NIOSH recommendation to expand HO 14 to prohibit
the operation of chainsaws on all materials, and not just on wood and
wood products as currently prohibited by HOs 4 and 5, would have no
impact on the number of occupational fatalities suffered by 16- and 17-
year-olds. The Department strongly disagrees with this conclusion.
NIOSH based its recommendation on data that demonstrate that chainsaws
continue to be the source of substantial numbers of fatalities as well
as nonfatal injuries which may be unusually severe. Accordingly, the
Department believes that the operation of chainsaws is inherently
dangerous for young workers, regardless of the lack of youth-specific
injury and fatality data. The Department agrees with NIOSH that the
prudent course of action is to prohibit the use of chainsaws by all
workers under the age of 18.
Secondly, when youth fatalities were identified, the values the
SiloSmashers report placed on the lives saved and injuries prevented
under the various NIOSH Report recommendations are based on estimates
published in economic literature that are based on adult populations.
Applying those estimates to children may result in an underestimate of
the risk to children
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because the susceptibility of a developing child's body to illness,
injury, or death will most likely differ from that of the fully
developed body of an adult. These differences are important in any such
analysis, as society tends to place a higher value on the lives of
children compared to adults. By their very nature, child labor laws are
intended to protect children from situations that are permissible for
adults. Thus, even without some of the other data limitations discussed
above, the estimates presented in the SiloSmashers report consistently
understate the benefits of implementing the NIOSH recommendations.
Because of the data limitations and flaws in methodology, the
Department does not consider the individual analysis prepared by
SiloSmashers to be influential for rulemaking purposes.
It was the Department's intention that the SiloSmashers analysis
would help in identifying and defining the scope of each recommendation
and provide additional information to consider after the decision was
made to implement or not to implement a particular recommendation. This
is in keeping with the ultimate recommendation made in the SiloSmashers
report that the Department consider both quantitative and qualitative
factors, as well as other internal and external factors-such as budget
constraints, priorities established by the Department or
Administration, additional stakeholder input, etc.-when determining
which NIOSH Report recommendations to implement. The entire report
provided to the Department by SiloSmashers can be viewed on the
Internet at http://www.youthrules.dol.gov/clri/Final_Report.pdf.
As mentioned, the NIOSH Report made 35 recommendations concerning
the existing nonagricultural HOs. The Department addressed six of those
recommendations in the 2004 Final Rule. The Department has decided
that, in an NPRM being published concurrently with this ANPRM, it will
address 25 of the remaining 29 Report recommendations dealing with
existing nonagricultural hazardous occupations orders. The Department
believes there is sufficient data to support implementing its
proposals. In an attempt to acquire additional data in order to address
the remaining nonagricultural NIOSH recommendations, as well as pursue
items not explored in the NIOSH Report, the Department is publishing
this ANPRM.
The NIOSH Report also makes 11 recommendations that impact the
current agricultural HOs as well as 17 recommendations that urge the
creation of new HOs. The Department, in this ANPRM, is requesting
public comment on the feasibility of one of those recommendations
regarding the creation of an HO that would prohibit the employment of
youth in construction occupations. The Department is continuing to
review the remaining recommendations, but for administrative reasons
excluded them from its consideration of the NIOSH proposals covered in
this phase to keep the size and scope manageable. Their absence from
this current round of rulemaking is not an indication that the
Department believes them to be of less importance or that they will not
be given the same level of consideration as the recommendations
addressing the current nonagricultural HOs.
III. Topics Upon Which Information Is Being Sought
The Department is publishing this ANPRM to obtain information,
data, and feedback from the public with respect to the matters set out
below.
A. Student-Learner and Apprentice Exemptions to the Hazardous
Occupations Orders
Seven of the 17 current nonagricultural HOs contain exemptions
permitting the employment of 16- and 17-year-old student-learners and
apprentices in otherwise prohibited work under specific conditions. The
HOs that permit such employment are HO 5 (Occupations involved in the
operation of power-driven woodworking machines, Sec. 570.55), HO 8
(Occupations involved in the operations of power-driven metal forming,
punching, and shearing machines, Sec. 570.59), HO 10 (Occupations in
the operation of power-driven meat processing machines and occupations
involving slaughtering, meat packing or processing, or rendering, Sec.
570.61), HO 12 (Occupations involved in the operation of paper-products
machines, scrap paper balers, and paper box compactors, Sec. 570.63),
HO 14 (Occupations involved in the operations of circular saws, band
saws, and guillotine shears, Sec. 570.65), HO 16 (Occupations in
roofing operations and on or about a roof, Sec. 570.67), and HO 17
(Occupations in excavation operations, Sec. 570.68).
Discussions on whether to allow exemptions from certain HOs for
apprenticeships began in the early 1940s after the enactment of the
first five HOs. It was agreed that a blanket exemption for
apprentices--one that would apply to every HO--was not appropriate.
Representatives of the Children's Bureau, which at that time was the
agency responsible for the promulgation of the HOs, postulated that if
the basic characteristics of a particular occupation were hazardous,
and the work of a hazardous nature was relatively continuous, such work
would remain hazardous for youth even if enrolled in an apprenticeship
program. On the other hand, if the craft for which the apprentice is
being trained is basically nonhazardous, but requires the occasional
performance of hazardous work to complete the training, an exemption
for apprentices might be feasible under certain circumstances. No
guidelines were provided regarding just how much hazardous work should
be allowed before the occupation became too hazardous to warrant an
exemption for apprentices. However, the Children's Bureau did note that
circumstances that would allow the creation of such an exemption would
include the adoption of safeguards guaranteeing proper supervision of
the work of the apprentice by an instructor or other qualified person.
Similar discussions concerning the appropriateness of exemptions for
student-learners soon followed. HO 5 was amended on November 13, 1941
to include an exemption for apprentices and again amended on September
26, 1947, to accommodate student-learners. The remaining HOs that
currently contain similar exemptions, starting with HO 8 issued on
January 12, 1950, contained these exemptions as of the dates of their
promulgation. The committees that were convened by the Department to
study whether to create HOs for particular industries or occupations,
pursuant to the provisions of former subpart D of 29 CFR part 570, made
their own determinations regarding the inclusion or omission of
student-learner and apprentice exemptions. It is not evident that these
committees followed the general guidance provided by the Children's
Bureau when considering student-learner and apprenticeship exemptions.
Subpart D was deleted in 1995 as the procedural requirements for
creating and amending the HOs (rulemaking) were largely superseded by
the Administrative Procedure Act (see 60 FR 19336).
Although the actual exemptions for student-learners and apprentices
are contained within each specific HO, the definitions and general
requirements relating to these exemptions are detailed in Sec. 570.50.
Section 570.50(b) states that an apprentice exemption from an HO shall
apply only when (1) the apprentice is employed in a craft recognized as
an apprenticable trade; (2) the work of the apprentice in the
occupations declared
[[Page 19332]]
particularly hazardous is incidental to his or her training; (3) such
work is intermittent and for short periods of time and is under the
direct and close supervision of a journeyman as a necessary part of
such apprentice training; and (4) the apprentice is registered by the
Bureau of Apprenticeship and Training of the United States Department
of Labor as employed in accordance with the standards established by
that Bureau, or is registered by a state agency as employed in
accordance with the standards of the state apprenticeship agency
recognized by the Bureau of Apprenticeship and Training, or is employed
under a written apprenticeship agreement and conditions which are found
by the Secretary of Labor to conform substantially with such federal or
state standards.
Section 570.50(c) states that student-learner exemptions shall
apply when: (1) The student-learner is enrolled in a course of study
and training in a cooperative vocational training program under a
recognized state or local educational authority or in a course of study
in a substantially similar program conducted by a private school; and
(2) such student-learner is employed under a written agreement that
provides (i) that the work of the student-learner in the occupations
declared particularly hazardous shall be incidental to his or her
training; (ii) that such work shall be intermittent and for short
periods of time, and under the direct and close supervision of a
qualified and experienced person; (iii) that safety instructions shall
be given by the school and correlated by the employer with on-the-job
training; and (iv) that a schedule of organized and progressive work
processes to be performed on the job shall have been prepared. Each
such written agreement shall contain the name of the student-learner,
and shall be signed by the employer and the school coordinator or
principal.
Although the regulations do not provide definitions of the terms
intermittent and short periods of time, the Department interprets those
terms to mean that the duties assigned the minor may not be such that
he or she is constantly operating the prohibited machinery during the
work shift, but only doing so as part of the training experience.
Therefore, an apprentice or student-learner may not be the principal
operator of prohibited machinery (see Child Labor Bulletin 101, Youth
Employment Provisions for Nonagricultural Occupations under the Fair
Labor Standards Act). He or she must work under the close supervision
of a fully qualified and experienced adult, such as a journey-level
worker. Further, this would preclude an apprentice or student-learner
from being a production worker, responsible for spending a significant
portion of the workday operating prohibited machinery or performing
prohibited tasks. The Department considers the continuous performance
of otherwise prohibited work that exceeds one hour a day to be more
than intermittent and more than for short periods of time. The
Department also considers the performance of otherwise prohibited work
that totals more than 20% of the student-learner's work shift to be
more than for short periods of time.
The regulations do not define the term direct and close
supervision. The Department's interpretation of direct and close
supervision as it applies to apprentices and student-learners is based
on guidance originally provided by the Bureau of Apprenticeship and
Training (BAT) within the Department of Labor's Employment and Training
Administration's Office of Apprenticeship and Training, Employer and
Labor Services. BAT establishes ratios governing the number of
journeymen and apprentices that may be employed on the job site in
order to ensure worker safety and that the apprentices receive both
proper training and supervision. BAT has advised that the most widely
used ratio is one apprentice for the first journey-level worker on-site
and one apprentice for every three additional journey-level workers
thereafter. The Department considers the requirement of direct and
close supervision to be met when there is one journey-level worker or
experienced adult working with the first apprentice/student-learner on-
site, and at least three journey-level workers or experienced adults
working alongside each additional apprentice/student-learner. More
information about this issue is included in the Department's
publication Youth Employment Provisions for Non-Agricultural
Occupations under the Fair Labor Standards Act, CL Bulletin 101. Of
course, the requirement for direct and close supervision applies only
during the periods when the apprentice/student-learner is actually
performing work that would otherwise be prohibited by the HO.
The NIOSH Report made several recommendations concerning the
application of the student-learner and apprentice exemptions to
specific HOs. The Report recommended that the Department retain the
exemptions in HO 5 (Occupations involved in the operation of power-
driven woodworking machines), HO 8 (Occupations involved in the
operations of power-driven metal forming, punching, and shearing
machines), and HO 12 (Occupations involved in the operation of paper-
products machines, scrap paper balers, and paper box compactors). The
Report recommended that the Department revise the exemptions for
student-learners and apprentices in HO 10 (Occupations in the operation
of power-driven meat-processing machines and occupations involving
slaughtering, meat packing or processing, or rendering) so that they
would apply only to the operation of power-driven meat-processing
machines in retail, wholesale, and service industries-not in meat
products manufacturing industries. Finally, the Report recommended that
the Department remove the student-learner and apprentice exemptions
contained in HO 16 (Work in roofing occupations and on or about a roof)
and HO 17 (Occupations in excavating operations).
The Department does not believe the Report provided sufficient
rationales for these individual recommendations to warrant
implementation and is seeking additional information from the public.
In order to address the recommendations made by the Report, and to
provide guidance for considering student-learner and apprentice
exemptions for any future HOs that may be proposed, the Department is
seeking public comment on establishing criteria as to when an exemption
for student-learners and apprentices is appropriate. Such criteria, of
course, must be consistent with the established national policy of
balancing the benefits of employment opportunities for youth with the
necessary and appropriate safety protections. Information is also being
sought regarding whether the current limitations on the amount of
hazardous work that may be performed by an apprentice or student-
learner, as well as the degree of required supervision, adequately
protect, over-protect, or insufficiently protect the health and safety
of young workers. The Department is also especially interested in
receiving information about the roles apprenticeship and student-
learner programs play in helping youth (1) acquire and practice good
occupational safety and health work practices, (2) properly assess
workplace risks, and (3) reduce occupational injuries and deaths.
Finally, the Department is questioning whether it should retain the
provision in Sec. 570.50(b)(4) that extends this limited exemption to
apprenticeship programs that, although not registered with the BAT or a
state agency
[[Page 19333]]
recognized by BAT, conform substantially with the federal or state
standards.
B. Power-Driven Woodworking Machines, Power-Driven Metal Processing
Machines and Power-Driven Paper Processing Machines
The Department is seeking information from the public regarding the
scope of several HOs that deal with the operation of power-driven
machinery by youth in the workplace. As previously mentioned, the HOs
were promulgated independently of one another at various times between
1939 and 1963. Several of the HOs apply to entire industries or
processes, e.g., HO 3 bans most work in coal mining, HO 4 bans most
work in logging and sawmilling, and HO 17 bans most work in excavation
operations. Other HOs prohibit youth from operating certain equipment
regardless of the industry in which the youth may be employed. For
example, HO 5 (Occupations involved in the operation of power-driven
woodworking machines) prohibits the covered employment of 16- and 17-
year-olds in the operation of power-driven wood-working machines
wherever located. The term power-driven wood-working machines is
defined in Sec. 570.55(b)(1) as meaning all fixed or portable machines
or tools driven by power and used or designed for cutting, shaping,
forming, surfacing, nailing, stapling, wire stitching, fastening, or
otherwise assembling, pressing, or printing wood or veneer. This
definition does not list or name specific types of machines, but
encompasses any machine-past, current, or future-that is designed to
perform or actually performs the functions of cutting, shaping,
forming, surfacing, nailing, stapling, wire stitching, fastening, or
otherwise assembling, pressing, or printing wood or veneer. Under this
definition, a band saw designed by the manufacturer to cut wood or
veneer, but never used to cut wood or veneer, would still be prohibited
under HO 5. This is true even if the machine were used to cut paper,
metal, foam rubber, or bakery products such as sheet cake. Likewise, HO
5 would prohibit a band saw designed to cut metal and equipped with a
blade designed exclusively for use on metal when used to cut wood or
veneer.
Another example would be that the definition of prohibited
machinery contained in HO 8 (Occupations involved in the operations of
power-driven metal forming, punching, and shearing machines) is quite
different from that contained in HO 5, largely because of the limited
scope of HO 8. HO 8 prohibits 16- and 17-year-olds from being employed
in the occupations of operator or helper on power-driven metal forming,
punching, and shearing machines. Section 570.59(a)(1) states that
prohibited machines are: (1) All rolling machines, such as beading,
straightening, corrugating, flanging, or bending rolls, and hot or cold
rolling mills; (2) all pressing or punching machines, such as punch
presses except those provided with full automatic feed and ejection and
with a fixed barrier guard to prevent the hands or fingers of the
operator from entering the area between the dies; power presses; and
plate punches; (3) all bending machines, such as apron brakes and press
brakes; (4) all hammering machines, such as drop hammers and power
hammers; and (5) all shearing machines, such as guillotine or squaring
shears, alligator shears, and rotary shears.
Section 570.59(b)(3) defines the term forming, punching, and
shearing machines to mean power-driven metal-working machines, other
than machine tools, that change the shape of or cut metal by means of
tools, such as dies, rolls, or knives that are mounted on rams,
plungers, or other moving parts. This exclusion from HO 8 of machine
tools used on metal permits 16- and 17-year-olds to operate a large
number of machines that HO 5 would prohibit if the same machines were
used on wood or veneer, or were designed to be used on wood or veneer.
The Department excluded machine tools from the prohibitions of HO 8
because the frequency of injuries due to machine tools was low compared
to the frequency of injuries due to forming, punching, and shearing
machines, even though the total number of injuries due to machine tools
was still quite large due to the number of machine tools in use. In a
1951 publication entitled Machine Tools and their Hazards, Bulletin
Number 129, the Department also noted that the severity of injuries due
to machine tools was also lower than the severity of injuries due to
forming, punching, and shearing machines.
The NIOSH Report reflects that occupational fatality and injury
data regarding the operation of machine tools has changed since the
Department promulgated HO 8. NIOSH notes that the Census of Fatal
Occupational Injuries (CFOI) identified 31 fatalities between 1992 and
1997 associated with metal forming, punching, and shearing machine
operations-machines prohibited by HO 8. There were an additional 58
fatalities during the same period associated with the operation of
machine tools, including presses, metalworking lathes, and machines
used for grinding and polishing. In addition NIOSH notes that injuries
requiring at least 1 day away from work have also been associated with
machine tools: 1,733 injuries with 7 median days away from work for
bending, rolling, and shaping machines; 2,322 injuries with 4 median
days away from work for grinding and polishing machines; and 4,183
injuries with 7 median days away from work for presses.
In 1951, the Department, in a publication entitled Machine Tools
and Their Hazards, cited the following definition of machine tools
provided by the National Machine Tool Builders' Association: ``Machine
tools are power-driven complete metal-working machines, not portable by
hand, having one or more tool- or work-holding devices, and used for
progressively removing metal in the form of chips.'' Grinding, honing,
and lapping machines are included in this classification, although the
chips removed can be seen only under the microscope. Machine tools can
range in size from small bench machines, such as a jeweler's lathe, to
huge machines weighing 50 tons or more. The regulations do not provide
a list of permitted machine tools, but the Department has for many
years published the following list of common machine tools in its Child
Labor Bulletin 101 (Youth Employment Provisions for Nonagricultural
Occupations under the Fair Labor Standards Act): (1) Milling Function
Machines: horizontal milling machines, vertical milling machines,
universal milling machines, planer-type milling machines, gear hobbing
machines, profilers, and routers; (2) Turning Function Machines: engine
lathes, turret lathes, hollow spindle lathes, automatic lathes, and
automatic screw machines; (3) Planing Function Machines: planers,
shapers, slotters, broaches, keycasters, and hack saws; (4) Grinding
Function Machines: grinders, abrasive wheels, abrasive belts, abrasive
disks, abrasive points, polishing wheels, buffing wheels, stroppers,
and lapping machines; and (5) Boring Function Machines: vertical boring
mills, horizontal boring mills, jig borers, pedestal drills, radial
drills, gang drills, upright drills, drill presses, centering machines,
reamers, and honers.
As a different example, unlike HOs 5 and 8, HO 14 (Occupations
involved in the operations of circular saws, band saws, and guillotine
shears), specifically names three types of machines and then prohibits
their operation by workers under 18 years of age regardless of the
materials being processed. Section 570.65(b)(4) defines a circular saw
to
[[Page 19334]]
mean a machine equipped with a thin steel disc having a continuous
serious of notches or teeth on the periphery, mounted on shafting, and
used for sawing materials. Section 570.65(b)(5) defines a band saw to
mean a machine equipped with an endless steel band having a continuous
series of notches or teeth, running over wheels or pulleys, and used
for sawing materials. Section 570.65(b)(6) defines a guillotine shear
to mean a machine equipped with a moveable blade operated vertically
and used to shear materials. Because these definitions use the all-
encompassing term ``materials,'' the application of HO 14 is not
limited by the nature of the items being sawed or sheared. Therefore, a
band saw used for sawing beef bones or meat and prohibited by HO 10
(Occupations in the operation of power-driven meat-processing machines
and occupations involving slaughtering, meat packing or processing, or
rendering), a band saw used for sawing cake and prohibited by HO 11
(Occupations involved in the operation of bakery machines), and a band
saw used for sawing paper and prohibited by HO 12 (Occupations involved
in the operation of paper-products machines, scrap paper balers, and
paper box compactors) would all be concurrently prohibited by HO 14.
The Department, in an NPRM being published in conjunction with and on
the same day as this ANPRM, is proposing to expand the prohibitions of
HO 14 to include the operation of power-driven chain saws, wood
chippers, and reciprocating saws.
In its Report, NIOSH makes several recommendations concerning HOs
that involve power-driven machines. The Report recommends that the
Department expand HO 5 to include similar power-driven machines used to
operate on materials other than wood and expand HO 8 to include the
several types of machine tools that are not currently prohibited.
Alternatively, the Report recommends that the Department revise HOs 5,
8, and 12 by merging them into a single or multiple HOs that address
the function of the machine (i.e., cutting, shaping, forming, grinding,
etc.) rather than the material being processed. The rationale for these
recommendations is that metal, woodworking, and special material
machinery are associated with substantial numbers of worker deaths and
injuries. In addition, many of the hazards inherent in woodworking
machines are found in machines that process other materials.
The Department is seeking information about the appropriateness and
feasibility of adopting the Report recommendations detailed above
concerning the expansion of HO 5 and HO 8. Information concerning
whether 16- and 17-year-olds can safely operate metal-working machine
tools--which are currently permitted by HO 8--is of particular
interest. In addition, the Department is requesting comments on whether
consideration should be given to the recommendation to ban certain
power-driven machines based on their functions rather than the
materials they are used to process. Could such a recommendation be
implemented without encompassing in its blanket prohibitions equipment
that 16- and 17-year-old workers could, under proper circumstances,
safely operate? Such equipment might include, for example, power-driven
countertop bagel slicers that meet the current definition of circular
saws under HO 14, power-driven trimmers and shears used in landscaping,
and computer-controlled lasers that are used to cut, with exacting
precision, everything from textiles and metal to decorative mats used
in the framing of artwork.
C. Occupational Radiation Exposures
HO 6 (Exposure to radioactive substances and to ionizing
radiations) prohibits the employment of workers between the ages of 16
and 18 to perform any work in any workroom in which (1) radium is
stored or used in the manufacture of self-luminous compound; (2) self-
luminous compound is made, processed, or packaged; (3) self-luminous
compound is stored, used, or worked upon; (4) incandescent mantles are
made from fabric and solutions containing thorium salts, or are
processed or packaged; and (5) other radioactive substances are present
in the air in average concentrations exceeding 10 percent of the
maximum permissible concentrations in the air recommended for
occupational exposure by the National Committee on Radiation
Protection, as set forth in the 40-hour week column of table one of the
National Bureau of Standards Handbook No. 69 entitled ``Maximum
Permissible Body Burdens and Maximum Permissible Concentrations of
Radionuclides in Air and in Water for Occupational Exposure'' issued
June 5, 1959. In addition, HO 6 prohibits the employment of such minors
in any other work that involves exposure to ionizing radiations in
excess of 0.5 rem per year.
HO 6 became effective on May 1, 1942 and was amended in 1949, 1957,
and 1961. The study leading to the HO was initiated because a number of
cases of radium poisoning, most of which resulted in death, were
reported after the First World War. Many of these poisonings were of
young women, and in a number of instances exposure began before the age
of 18 years. The study reported that there were four principal
industrial processes in which radioactive substances were found at that
time: (1) The self-luminous dial-painting industry, which included the
manufacture of self-luminous compound (containing radium or other
radioactive material), and its application to watch, clock, and
instrument dials and hands, and to other objects such as buttons or
electric light fixtures; (2) the incandescent-mantel industry, which
involved the impregnation of rayon with solutions of thorium nitrate
and subsequent processing in the course of which radioactive emanation
escaped into the air (incandescent mantles are mantles for gas,
gasoline, or kerosene lamps that provide a brilliant white light
because of the property of incandescence upon heating); (3) industrial
radiography, in which radium was used for the production of radiographs
by means of which imperfections in heavy castings could be detected;
and (4) the refining of radium and mesothorium from radioactive ores
and sands.
Although the original investigation did not cover the use of radium
for medical purposes, HO 6 was amended in 1957 to include a prohibition
regarding exposure to ionizing radiation and radiations emitted from
sealed sources of radioactive materials such as reactors, accelerators,
and X-ray machines, and to set permissible limits for exposure to
radioactivity for minors under age 18. HO 6 defines ionizing radiation
to mean alpha and beta particles, electrons, protons, neutrons, gamma
and X-ray, and all other radiations that produce ionizations directly
or indirectly, but does not include electromagnetic radiations other
than gamma and X-ray.
HO 6 was amended in 1961 to bring the standards in line with
changes reflected in Handbook No. 69 of the Bureau of Standards and
with recommendations from the Federal Radiation Council. Although the
provisions of the 1961 amendment are still contained in HO 6, many
things have changed. In 1988, the National Bureau of Standards became
the National Institute of Standards and Technology. Handbook 69,
published by the National Bureau of Standards, was withdrawn and
superseded by Report No. 022--Maximum Permissible Body Burdens and
Maximum Permissible Concentrations of Radionuclides in Air and in Water
for Occupational Exposure published by the National Council on
Radiation Protection and Measurements
[[Page 19335]]
(NCRP). The NCRP, conceived in 1929 as The Advisory Committee on X-Ray
and Radium Protection, was chartered by Congress in 1964. The mission
of the NCRP includes the collection, analysis, development, and
dissemination in the public interest of information and recommendations
about protection against radiation and about radiation measurements.
NIOSH recommends in its Report that HO 6 be revised to reflect
current risks to youth for occupational radiation exposures. Although
employment opportunities in the self-luminous compound industries have
mostly disappeared for all workers, NIOSH notes that youth are
increasingly working in such settings as medical or veterinary offices
where they may be exposed to ionizing radiation while assisting in
diagnostic radiologic procedures. Equipment emitting ionizing radiation
is also used in the security screening industry at such locations as
airports, train and bus depots, and cargo loading docks. This industry
has received widespread attention and has grown rapidly both in size as
well as in technological innovation following the events of September
11, 2001.
NIOSH reports that ``risks of occupational exposures to ionizing
radiation in youth stem from concerns about increased susceptibility
for cell damage associated with adolescent growth and development, as
well as concern about increased likelihood for disease development with
exposures at an earlier age.'' The Report also notes that evidence for
increased susceptibility of youth to ionizing radiation has prompted
the OSHA and the U.S. Nuclear Regulatory Commission to set the maximum
permissible exposure for youth at 10% of the permissible level for
adults (0.5 rem per year and 0.3 rem per quarter).
The Report recommends that the prohibitions of HO 6 be revised to
include the following wording: ``Working with any machine that
generates ionizing radiation, including assisting in diagnostic or
therapeutic radiology procedures involving radiation.'' The Report
recommends that no apprentice or student-learner exemption be created
because of the increased risk for youth and research showing that
radiographic equipment and procedures frequently do not meet national
standards.
The Department is seeking information from the public regarding the
feasibility of adopting the NIOSH recommendation. Should a prohibition
be adopted that does not specify a maximum permissible annual exposure
such as the 0.5 rem per year currently contained in the HO? If a
maximum permissible exposure should be specified for young workers,
what level of exposure is appropriate? In addition, the Department is
interested in documenting the existence of safeguards employers and
employees can utilize to ensure exposures to ionizing radiation are
kept to permissible levels.
D. Petroleum and Natural Gas Extraction
HO 9 (Occupations in connection with mining, other than coal)
generally prohibits the employment of 16- and 17-year-olds in
occupations in connection with mining, other than coal mining. HO 3
specifically bans the employment of such minors in coal mining
occupations.
Section 570.60(b) defines the term all occupations in connection
with mining, other than coal, to mean all work performed underground in
mines and quarries; on the surface at underground mines and underground
quarries; in or about open-cut mines, open quarries, clay pits, and
sand and gravel operations; at or about placer mining operations; at or
about dredging operations for clay, sand or gravel; at or about bore-
hole mining operations; in or about all metal mills, washer plants, or
grinding mills reducing the bulk of the extracted minerals; and at or
about any other crushing, grinding, screening, sizing, washing or
cleaning operations performed upon the extracted minerals except where
such operations are performed as a part of a manufacturing process. The
term does not include work performed in subsequent manufacturing or
processing operations, such as work performed in smelters, electro-
metallurgical plants, refineries, reduction plants, cement mills,
plants where quarried stone is cut, sanded and further processed, or
plants manufacturing clay glass or ceramic products. Nor does the term
include work performed in connection with coal mining, in petroleum
production, in natural-gas production, or in dredging operations that
are not part of a mining operation, such as dredging for construction
or navigation purposes.
The NIOSH Report recommends that the Department expand the
prohibitions of HO 9 to include all work performed in connection with
petroleum and natural gas extraction because that industry suffers a
high rate of occupational fatalities and large numbers of serious
injuries. NIOSH reports that the 1992-1997 fatality rate for oil and
gas extraction--25.8 per 100,000 workers--was nearly five times the
fatality rate among workers in all industries. Between 1980 and 1989,
the National Traumatic Occupational Fatality Surveillance System
identified 10 fatalities of workers under age 18 in the oil and gas
extraction sector, although no additional fatalities were reported
through the date of the Report. In addition, the Survey of Occupational
Injuries and Illnesses reflects that in 1997, the median number of days
away from work due to injury or illness in this sector was 13, almost
three times the median number of days reported for all workers.
The Department is seeking information from the public regarding the
feasibility of implementing the Report's recommendation to expand the
prohibitions of HO 9 to include all work in connection with petroleum
and natural gas extraction. Are minors currently employed in this
industry and, if so, what occupations do they perform? If the
recommendation were adopted, how extensive should the prohibition be?
Should the prohibition be industry-wide and cover the refining of
petroleum and the processing of natural gas? Are there some activities
within the industry that 16- and 17-year-olds may safely perform? If
so, what are they? In keeping with the information discussed in Item A
of this ANPRM, if HO 9 were expanded to prohibit work in petroleum and
natural gas extraction would an exemption for student-learners and
apprentices be appropriate for such work?
E. Occupations in Construction
Although Reg. 3 bans the employment of 14- and 15-year-olds in
almost all construction occupations and does not permit such youth to
work on construction sites, there is no such blanket prohibition
regarding the employment of 16- and 17-year-olds. Several HOs, however,
contain prohibitions that limit the tasks and types of work that minors
may perform in the construction industry.
HO 1 (Occupations in or about plants or establishments
manufacturing or storing explosives or articles containing explosive
compounds), among other things, generally prohibits the employment of
16- and 17-year-olds in occupations in or about any non-retail
establishment where explosives or materials containing explosive
compounds are stored. This same HO also prohibits the employment of
such minors in all occupations involved in the manufacturing,
transporting, or handling of primers and all occupations involved in
the loading, inspecting, packing, shipping, and storage of blasting
caps. HO 5 (Occupations involved in the operation of power-
[[Page 19336]]
driven woodworking machines) prohibits 16- and 17-year-olds from
operating, including setting up, adjusting, repairing, oiling, and
cleaning, all fixed or portable power-driven machines or tools used or
designed for cutting, shaping, forming, surfacing, nailing, stapling,
wire stitching, fastening, or otherwise assembling, pressing, or
printing wood or veneer. HO 7 (Occupations involved in the operation of
power-driven hoisting apparatus) generally prevents these same minors
from being employed to operate elevators, cranes, derricks, hoists, and
high-lift trucks, including forklifts and bobcat loaders. HO 7 also
prohibits such minors from assisting in the operation of cranes,
derricks, or hoists performed by crane hookers, crane chasers, hookers-
on, riggers, riggers helpers, and similar occupations. The use and
operation of elevators, which are often used in the construction of
high-rise structures, are also prohibited by HO 7. HO 8 (Occupations
involved in the operation of power-driven metal forming, punching, and
shearing machines) prohibits the employment of 16- and 17-year-olds in
occupations involving the operation or the assisting in the operation
of power-driven metal rolling, pressing, punching, bending, hammering,
and shearing machines. HO 14 (Occupations involved in the operations of
circular saws, band saws, and guillotine shears) prohibits the
employment of 16- and 17-year-olds as operators or helpers on circular
saws, band saws, and guillotine shears. The prohibitions of this HO
apply regardless of the material being processed (wood, metal, plastic,
foam rubber, etc.) and extend to the tasks of setting up, adjusting,
repairing, oiling, and cleaning the named equipment.
HO 15 (Occupations involved in wrecking, demolition, and
shipbreaking operations) prohibits 16- and 17-year-olds from performing
all work, including clean-up and salvage work, performed at the site of
the total or partial razing, demolishing, or dismantling of a building,
bridge, steeple, tower, chimney, other structure, ship, or other
vessel. HO 16 (Occupations in roofing operations and on or about a
roof) prohibits the employment of 16- and 17-year-olds in all roofing
operations. Roofing operations, as defined in Sec. 570.67(b), means
all work performed in connection with the installation of roofs,
including metal work such as flashing, and applying weatherproofing
materials and substances 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. HO 16 was revised in 2004 (69 FR 57404) to also prohibit
16- and 17-year-olds from performing any work on or about a roof. The
term 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 trusses or joists; gutter and downspout
work; the installation and servicing of television and communication
equipment such as cable and satellite dishes; installing and servicing
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. HO 17 (Occupations in excavation
operations) generally prohibits the employment of 16- and 17-year-olds
in excavating, working in, or backfilling trenches; excavating for
buildings or other structures; working within tunnels prior to the
completion of all driving and shoring operations; and working within
shafts prior to the completion of all sinking and shoring operations.
HOs 5, 8, 14, 16, and 17 contain exemptions that, under specified
terms and conditions, permit bona-fide student-learners and apprentices
to perform otherwise prohibited tasks. In addition, HO 4 (Logging
occupations and occupations in the operation of any sawmill, lath mill,
shingle mill, or cooperage stock mill), which generally prohibits the
employment of 16- and 17-year-olds in any occupations within the
logging and sawmill industries, does permit such youth to work in the
construction, operation, repair, or maintenance of living and
administrative quarters of logging camps. This same HO permits 16- and
17-year-olds to work in the repair or maintenance of roads, railroads,
and flumes-work that could possibly fall within a definition of
construction. In addition, HO 9 (Occupations in connection with mining,
other than coal), which generally prohibits the employment of 16- and
17-year-olds in mining operations, does permit such youth to work in
repair maintenance shops not located underground, maintain living
quarters, repair and maintain roads, and build and maintain sections of
railroad tracks under specified conditions. The construction activities
permitted by HO 4 and HO 9 may be performed by 16- and 17-year-olds
only when the tasks do not violate the provisions of any other HO. For
example, although HO 4 would allow a 16-year-old to be employed to
construct the living quarters of a logging camp, such a minor could not
operate a power-driven circular saw to cut lumber because such work is
prohibited by both HO 5 and HO 14. That same youth could not help with
the installation or repair of the roof of such living quarters because
such work is prohibited by HO 16.
NIOSH recommends that the Department establish a new HO prohibiting
the employment of 16- and 17-year-olds in all work in construction
occupations as defined by Bureau of Census occupations codes 553-599,
866, and 869 as those codes existed prior to 2000. NIOSH recommends
that a student-learner and apprentice exemption not be incorporated
into the new HO.
The occupations that NIOSH recommends be prohibited by the new HO
are brickmasons; stonemasons; tile setters (hard and soft); carpet
installers; carpenters; drywall installers; electricians; electrical
power installers and repairers; painters (construction and
maintenance); paperhangers; plasterers; plumbers; pipefitters;
steamfitters; concrete and terrazzo finishers; glaziers; insulation
workers; paving, surfacing and tamping equipment operators; roofers;
sheetmetal duct installers; structural metal workers; construction
workers not elsewhere classified; helpers, construction trades; and
construction laborers. NIOSH also recommends that supervisors and
apprentices associated with the occupations listed above be included
within the scope of the new HO's prohibitions. The NIOSH Report makes
additional recommendations regarding the creation of other new HOs that
would affect youth employment in construction. These include HOs that
would prohibit the employment of 16- and 17-year-olds to work at
heights of more than six feet; operate heavy machinery including
earthmoving equipment used in excavation, landscaping operations, and
road construction and maintenance; welding; and work requiring the use
of respiratory protection.
The rationale for creating a new HO that would prohibit the
employment of 16- and 17-year-olds in construction operations is that
workers in many of the construction trades have extremely high rates of
occupational injury fatalities and sustain large numbers of nonfatal
injuries, many of a severe nature. NIOSH notes that despite a number of
existing HOs that address
[[Page 19337]]
specific types of hazardous construction, as discussed above,
construction work accounts for a substantial number of young worker
deaths. In addition, the Report states that construction work is also
associated with adverse health effects from exposure to hazardous
substances and from musculoskeletal disorders. According to NIOSH, some
construction occupations that have relatively low fatal injury rates
are associated with exposure to other agents that may have long-term
health effects. Examples provided include the exposure to asbestos
among insulation workers, the exposure to lead and solvents among
painters, and the exposure to silica among plasterers and drywall
installers. NIOSH also states that because construction sites
frequently include hazards outside the control of individual workers or
contractors, an apprentice and student-learner exemption is not
recommended.
The Department is aware that the construction industry has for many
years provided both temporary and career exploration employment
opportunities for many youth. The Department's Bureau of Labor
Statistics (BLS) reports that in 2004 there were approximately 286,000
youth between the ages of 16 and 19 employed in the construction
industry. In addition, the construction industry has traditionally been
one of the higher-paying industries in the U.S., with average hourly
earnings of $20.40 reported by BLS in October 2006.
The construction industry has many components, including
residential, building (non-residential), highway, and heavy sectors. In
addition, demolition, maintenance, repair, and redecorating work often
fall within the general classification of construction. Before the
Department can address the Report recommendations concerning
construction occupations, it is requesting information from the public
regarding the appropriateness and feasibility of implementing such a
comprehensive and industry-wide prohibition. Can 16- and 17-year-olds,
under specific conditions, be safely employed in certain sectors of the
construction industry? If so, under what conditions?
The Department is also interested in obtaining information about
existing strategies that make certain construction jobs safe for minors
to perform. Can apprenticeship and student-learner programs be designed
and delivered to better protect young workers and keep them safe on the
job? If so, should the written standards or requirements of student-
learner and apprenticeship programs addressing construction occupations
have a greater emphasis on safety training than similar programs
covering other industries?
F. Hydraulic Grease Racks
HO 7 (Occupations involved in the operation of power-driven
hoisting apparatus) generally prohibits 16- and 17-year-olds from
employment in occupations that involve the work of: (1) Operating an
elevator, crane, derrick, hoist, or high-lift truck, except that such
youth may operate unattended automatic operation passenger elevators
and electric or air operated hoists not exceeding one ton capacity; (2)
riding on a manlift or on a freight elevator, except a freight elevator
operated by an assigned operator; and (3) assisting in the operation of
a crane, derrick, or hoist performed by crane hookers, crane chasers,
hookers-on, riggers, rigger helpers, and like occupations.
Over the years, the Department has received inquiries as to whether
HO 7 would permit the employment of 16- and 17-year-olds to operate
hydraulic grease racks--apparatus usually found in gasoline service
stations and automobile repair shops and used to raise and to lower
vehicles from ground level for servicing the vehicles. The Department
has been consistent in its response to such inquires; because the
original study that led to the promulgation of HO 7 did not include the
operation of such grease racks, HO 7 does not prohibit the operation of
such equipment. Although correct, this position does not take into
consideration whether such grease racks can be safely operated by 16-
and 17-year-olds. Reg. 3, which details the occupations 14- and 15-
year-olds may and may not perform, specifically prohibits such youth
from the operation or tending of any hoisting apparatus (see Sec.
570.33(b)).
Accordingly, the Department is seeking information from the public
as to whether such grease racks can be safely operated by 16- and 17-
year-olds. Is the safe operation of such equipment affected by the size
and lifting capacities of such equipment? In keeping with Item A of
this ANPRM, if the operation of such grease racks should be prohibited,
would a student-learner or apprenticeship exemption be warranted?
G. General
In soliciting comments on the above aspects of the child labor
regulations, the Department is specifically interested in data,
reports, cost-benefit analyses, studies, and other documentation
addressing the positions taken or otherwise relating to the
Department's objective to develop updated, realistic health and safety
standards for today's young workers that are consistent with the
established national policy of balancing the benefits of employment
opportunities for youth with the necessary and appropriate safety
protections.
This document was prepared under the direction and control of Paul
DeCamp, Administrator, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor.
List of Subjects in 29 CFR Part 570
Child labor, Child labor occupations, Employment, Government,
Intergovernmental relations, Investigations, Labor, Law enforcement,
Minimum age.
Signed at Washington, DC, on this 10th day of April, 2007.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Paul DeCamp,
Administrator, Wage and Hour Division.
[FR Doc. E7-7052 Filed 4-16-07; 8:45 am]
BILLING CODE 4510-27-P
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