Child Labor Regulations, Orders and Statements of Interpretation, 19328-19337 [E7-7052]

Download as PDF 19328 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules 29 CFR Part 570 Docket: For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at http:// www.regulations.gov. RIN 1215–AB44 FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF LABOR Wage and Hour Division Child Labor Regulations, Orders and Statements of Interpretation Wage and Hour Division, Employment Standards Administration, Labor. ACTION: Advance notice of proposed rulemaking and request for comments. pwalker on PROD1PC71 with PROPOSALS2 AGENCY: 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. VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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://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. PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 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-yearolds are known as Child Labor Regulation No. 3 (Reg. 3) and are contained in subpart C of part 570 (29 CFR 570.31–.38). Reg. 3 limits the hours and times of day that such minors may work and identifies occupations that are either permitted or prohibited for such minors. Under Reg. 3, 14- and 15-yearolds 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 17year-old apprentices and studentlearners under particular conditions to perform work otherwise prohibited to that age group. The terms and E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules conditions for employing such apprentices and student-learners are detailed in § 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) VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 and an ANPRM (59 FR 25167). The NPRM proposed to exempt 14- and 15year-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-yearolds 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, PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 19329 but does not allow such youth to operate or assist in operating powerdriven 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 E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 19330 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules 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 VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 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 E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules 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 VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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, § 570.55), HO 8 (Occupations involved in the operations of powerdriven metal forming, punching, and shearing machines, § 570.59), HO 10 (Occupations in the operation of powerdriven meat processing machines and occupations involving slaughtering, meat packing or processing, or rendering, § 570.61), HO 12 (Occupations involved in the operation of paper-products machines, scrap paper balers, and paper box compactors, § 570.63), HO 14 (Occupations involved in the operations of circular saws, band saws, and guillotine shears, § 570.65), HO 16 (Occupations in roofing operations and on or about a roof, § 570.67), and HO 17 (Occupations in excavation operations, § 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 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 19331 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 § 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 E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 19332 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules 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 studentlearner 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 onthe-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 VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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/studentlearner. 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 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 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 paperproducts machines, scrap paper balers, and paper box compactors). The Report recommended that the Department revise the exemptions for studentlearners and apprentices in HO 10 (Occupations in the operation of powerdriven 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 studentlearners 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, overprotect, 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 § 570.50(b)(4) that extends this limited exemption to apprenticeship programs that, although not registered with the BAT or a state agency E:\FR\FM\17APP2.SGM 17APP2 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules pwalker on PROD1PC71 with PROPOSALS2 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-yearolds in the operation of power-driven wood-working machines wherever located. The term power-driven woodworking machines is defined in § 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 powerdriven metal forming, punching, and shearing machines) is quite different from that contained in HO 5, largely because of the limited scope of HO 8. VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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 metalworking 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 17year-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, PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 19333 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 powerdriven 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 E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 19334 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules 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 powerdriven 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 VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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 17year-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, powerdriven 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 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 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 dialpainting 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 E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules (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 VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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 17year-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 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 19335 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 17year-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- E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 19336 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules driven woodworking machines) prohibits 16- and 17-year-olds from operating, including setting up, adjusting, repairing, oiling, and cleaning, all fixed or portable powerdriven 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 powerdriven 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 powerdriven 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 17year-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-yearolds 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 § 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 VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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 17year-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 17year-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- PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 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 powerdriven 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 16and 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 E:\FR\FM\17APP2.SGM 17APP2 pwalker on PROD1PC71 with PROPOSALS2 Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / Proposed Rules 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 VerDate Aug<31>2005 20:13 Apr 16, 2007 Jkt 211001 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 16and 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 17year-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 § 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 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 19337 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 DEPARTMENT OF LABOR Wage and Hour Division 29 CFR Part 570 RIN 1215–AB57 Child Labor Regulations, Orders and Statements of Interpretation Wage and Hour Division, Employment Standards Administration, Labor. ACTION: Notice of proposed rulemaking and request for comments. AGENCY: SUMMARY: The Department of Labor (Department or DOL) is proposing to revise the child labor regulations in order to implement an amendment to the Fair Labor Standards Act’s child labor provisions, contained in the Department of Labor Appropriations Act, 2004 (Pub. L. 108–199), which authorizes under specified conditions the employment of certain youth between the ages of 14 and 18 years inside and outside of places of business that use machinery to process wood products. The Department is proposing to revise Child Labor Regulation No. 3, subpart C of 29 CFR part 570, which governs the employment of 14- and 15-year-olds in nonagricultural occupations by revising the lists of occupations and industries E:\FR\FM\17APP2.SGM 17APP2

Agencies

[Federal Register Volume 72, Number 73 (Tuesday, April 17, 2007)]
[Proposed Rules]
[Pages 19328-19337]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-7052]



[[Page 19327]]

-----------------------------------------------------------------------

Part III





Department of Labor





-----------------------------------------------------------------------



Wage and Hour Division



-----------------------------------------------------------------------



29 CFR Part 570



Child Labor Regulations, Orders and Statements of Interpretation; 
Proposed Rules

Federal Register / Vol. 72, No. 73 / Tuesday, April 17, 2007 / 
Proposed Rules

[[Page 19328]]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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://
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

[[Page 19331]]

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 mil