Expanding Employment, Training, and Apprenticeship Opportunities for 16- and 17-Year-Olds in Health Care Occupations Under the Fair Labor Standards Act, 48737-48748 [2018-20996]

Agencies

• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 83, Number 188 (Thursday, September 27, 2018)]
[Proposed Rules]
[Pages 48737-48748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20996]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 570

RIN 1235-AA22


Expanding Employment, Training, and Apprenticeship Opportunities 
for 16- and 17-Year-Olds in Health Care Occupations Under the Fair 
Labor Standards Act

AGENCY: Wage and Hour Division, Department of Labor.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Department of Labor (Department) is proposing this rule to 
enhance employment, training, and

[[Page 48738]]

apprenticeship opportunities for 16- and 17-year-olds in health care 
occupations in the United States while maintaining worker safety. The 
changes proposed in this rule also respond to the concerns of a 
bipartisan, bicameral group of congressional lawmakers. The youth-
employment provisions of the Fair Labor Standards Act (FLSA) ensure 
that when youth work, the work is safe and does not jeopardize their 
health, well-being, or education. Pursuant to those provisions, 16- and 
17-year-old employees generally cannot work in a nonagricultural 
occupation governed by any of the Department's Hazardous Occupations 
Orders (HOs). HO 7 prohibits youth from working in occupations 
involving the operation of a power-driven patient lift. Patient lifts, 
however, substantially differ in form and function from the other 
equipment that the HO governs, including forklifts, backhoes, cranes, 
and other heavy industrial equipment. Additionally, patient lifts are 
safer for workers than the alternative method of manually lifting 
patients. In response to significant public input and bipartisan, 
bicameral requests from Members of Congress, the Department proposes to 
remove the operation of power-driven patient lifts from the list of 
activities that HO 7 prohibits. This proposal, if finalized, would 
increase the participation of young workers in health care occupations 
and enhance their future career skills and their earning potential, 
without reducing worker safety.

DATES: Submit written comments on or before November 26, 2018.

ADDRESSES: You may submit comments, identified by Regulatory 
Information Number (RIN) 1235-AA22, by either of the following methods: 
Electronic Comments: Submit comments through the Federal eRulemaking 
Portal at https://www.regulations.gov. Follow the instructions for 
submitting comments. Mail: Address written submissions to Division of 
Regulations, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, 
Washington, DC 20210. Instructions: Please submit only one copy of your 
comments by only one method. All submissions must include the agency 
name and RIN, identified above, for this rulemaking. Please be advised 
that comments received will become a matter of public record and will 
be posted without change to https://www.regulations.gov, including any 
personal information provided. All comments must be received by 11:59 
p.m. on the date indicated for consideration in this rulemaking. 
Commenters should transmit comments early to ensure timely receipt 
prior to the close of the comment period, as the Department continues 
to experience delays in the receipt of mail. For additional information 
on submitting comments and the rulemaking process, see the ``Public 
Participation'' heading of the supplementary information section of 
this document. For questions concerning the interpretation and 
enforcement of labor standards related to the FLSA, individuals may 
contact the Wage and Hour Division (WHD) local district offices (see 
contact information below). Docket: For access to the docket to read 
background documents or comments, go to the Federal eRulemaking Portal 
at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Melissa Smith, Division of 
Regulations, Legislation, and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW, 
Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll-
free number). Copies of this proposed rule may be obtained in 
alternative formats (Large Print, Braille, Audio Tape or Disc), upon 
request, by calling (202) 693-0406 (this is not a toll-free number). 
TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information 
or request materials in alternative formats. Questions of 
interpretation and/or enforcement of the agency's regulations may be 
directed to the nearest WHD district office. Locate the nearest office 
by calling WHD'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 WHD's 
website for a nationwide listing of WHD district and area offices at 
https://www.dol.gov/whd/america2.htm.
    Electronic Access and Filing Comments: This proposed rule and 
supporting documents are available through the Federal Register and the 
https://www.regulations.gov website. You may also access this document 
via WHD's website at https://www.dol.gov/whd/. To comment electronically 
on Federal rulemakings, go to the Federal eRulemaking Portal at https://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. You must identify all comments submitted by 
including ``RIN 1235-AA22'' in your submission. Commenters should 
transmit comments early to ensure timely receipt prior to the close of 
the comment period (11:59 p.m. on the date identified above in the 
DATES section); comments received after the comment period closes will 
not be considered. Submit only one copy of your comments by only one 
method. Please be advised that all comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided.

SUPPLEMENTARY INFORMATION: 

I. Executive Summary

    The youth-employment provisions of the FLSA ensure that when youth 
work, the work is safe and does not jeopardize their health, well-
being, or education.\1\ Pursuant to those provisions, 16- and 17-year-
old employees generally cannot work in a nonagricultural occupation 
governed by any of the Department's HOs. As relevant to this proposal, 
HO 7 prohibits 16- and 17-year-old employees from working in 
occupations involving the operation of a power-driven hoisting 
apparatus.\2\ The Department originally issued HO 7 in 1946. It 
primarily covers devices used in industrial contexts, such as 
forklifts, backhoes, and cranes--which, as discussed below, differ both 
in form and function from patient lifts. When originally enacted, HO 7 
contained an exemption for electric or air-operated hoists not 
exceeding a one-ton capacity. HO 7 therefore did not encompass power-
driven patient lifts used to transport patients and residents in 
medical settings such as hospitals, nursing homes, and long-term care 
facilities. In 2010, however, the Department amended HO 7 to, in part, 
eliminate the longstanding exemption for electric or air-operated 
hoists not exceeding a one-ton capacity. As a result, HO 7 now 
encompasses power-driven patient lifts. Power-driven patient lifts, 
however, are far less dangerous to workers than the alternative of 
manual patient lifting, which causes a significant number of worker 
injuries. Power-driven patient lifts are different in form and function 
from the other kinds of machines listed in HO 7. Typically speaking, 
power-driven patient lifts do not have nearly the same size, power, 
mass, speed, or complexity as many of those other machines; they are 
used in health care rather than industrial facilities; and from 2012 to 
2016 only 1 worker fatality was attributed to a patient hoist or 
lifting harness, in comparison to 930 worker fatalities associated with 
cranes, overhead hoists, bucket or basket hoists, manlifts, and 
forklifts.
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    \1\ See generally 29 U.S.C. 203(l), 212, 213(c).
    \2\ 29 CFR 570.58(a).
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    After the 2010 expansion of HO 7, numerous stakeholders asked the 
Department to reconsider the HO's

[[Page 48739]]

inclusion of patient lifts because, among other things, it severely 
restricts employment opportunities for 16- and 17-year-olds in the 
health care industry and the alternative of manually lifting patients 
is more dangerous to workers than the use of powered lifts. Those 
stakeholders voicing concerns and requesting changes to HO 7 included 
multiple members of the Senate and House of Representatives from both 
political parties. In response to this public input, the Department 
issued a nonenforcement policy in 2011, specifying that it would not 
assert a violation of HO 7 when a trained 16- or 17-year-old, under 
certain specified conditions, assists a trained adult in the operation 
of patient lifts. The Department, however, has continued to hear 
concerns from the public and a bipartisan group of legislators that 16- 
and 17-year-olds' inability to independently operate such devices 
decreases their employment and training opportunities in health care 
occupations; often necessitates those who work in such occupations to 
manually lift patients--a practice that is more dangerous than using a 
patient lift; and, in some cases, hinders health care providers' 
ability to care for patients due to a lack of staff available to timely 
move patients. Given these and other considerations outlined below, the 
Department is proposing to enhance employment, training, and 
apprenticeship opportunities for 16- and 17-year-olds in health care by 
excluding power-driven patient lifts from the scope of HO 7.
    This proposed rule is expected to be an Executive Order (E.O.) 
13771 deregulatory action. Details on the estimated cost savings of 
this proposed rule can be found in the rule's economic analysis.

II. Need for Rulemaking

    An important task in health care occupations, particularly in 
facilities that care for the elderly and disabled, is the safe handling 
and moving of patients. Without patient lifts, health care personnel 
sometimes manually lift patients who cannot transport themselves. Such 
practices can lead to musculoskeletal disorders, such as muscle strains 
and lower back injuries, among manual lifters. Among health care 
occupations, 40 percent of injuries resulting in days away from work 
are caused by overexertion or bodily reaction, which includes motions 
such as lifting, bending, or reaching--motions related to patient 
handling.\3\ In contrast, the use of mechanical lifting equipment, such 
as powered patient lifts or hoists, has been shown to reduce exposure 
to manual lifting injuries by up to 95 percent.\4\ Because powered 
patient lifts significantly reduce the risk of musculoskeletal 
disorders compared to manual lifting, many facilities encourage or 
require their use. Since 2010, however, HO 7 has prohibited 16- and 17-
year-old youth from operating power-driven patient lifts.\5\
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    \3\ Bureau of Labor Statistics, Nonfatal cases involving days 
away from work: Selected characteristics (2011 forward), https://data.bls.gov/PDQWeb/cs.
    \4\ U.S. Dep't of Labor, Occupational Safety & Health Admin., 
Safe Patient Handling: Preventing Musculoskeletal Disorders in 
Nursing Homes, https://www.osha.gov/Publications/OSHA3708.pdf.
    \5\ 29 CFR 570.58(b).
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    After hearing significant concerns about the application of HO 7 to 
power-driven patient lifts from members of the public and a bipartisan 
group of elected officials, the Department issued a non-enforcement 
policy in 2011 that applies when trained 16- and 17-year-olds, under 
specified conditions, assist a trained adult in the operation of 
patient lifts.\6\ The nonenforcement policy, however, does not permit 
these youth to operate patient lifts independently. The Department has 
received correspondence and other feedback that this continued 
prohibition adversely affects the ability of youth to receive 
employment and training opportunities in health care professions, 
encourages youth who work in health care to engage in unsafe manual 
lifting, and hampers health care providers' ability to promptly and 
safely assist patients. The authors of this correspondence have also 
stated that, in their experience, 16- and 17-year-olds are capable of 
operating patient lifts safely.
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    \6\ See U.S. Dep't of Labor, Wage & Hour Div., Field Assistance 
Bulletin 2011-3, July 13, 2011, https://www.dol.gov/whd/FieldBulletins/fab2011_3.pdf; see also Field Operations Handbook 
(FOH) 33h07(e)(5), https://www.dol.gov/whd/FOH/FOH_Ch33.pdf.
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    This information, as well as other information discussed below, 
suggests that the operation of power-driven patient lifts may not be 
particularly hazardous to youth employed in health care occupations or 
detrimental to their health or well-being. The Department, therefore, 
proposes to exclude the operation of power-driven patient lifts from 
the list of prohibited devices under HO 7. The Department seeks public 
comment on this proposal, and, specifically, whether the operation of 
power-driven patient lifts is particularly hazardous to 16- and 17-
year-olds or is otherwise detrimental to their health or well-being.
    The Department expects that, if adopted in a final rule, the 
proposed amendment to HO 7 will encourage the creation of more 
employment, apprenticeship, and other training opportunities in health 
care by removing a regulatory restriction that bars 16- and 17-year-
olds from operating power-driven patient lifts, a foundational job duty 
in the health care industry. The Department recognizes the importance 
of providing young people with opportunities to safely train and work 
in rewarding and meaningful health care careers. The Department also 
recognizes that regulatory restrictions on youth operating power-driven 
patient lifts may unnecessarily impede training and employment 
opportunities for youth interested in pursuing careers in this fast-
growing field.
    Early employment and training opportunities can teach 16- and 17-
year-olds workplace safety, responsibility, organization, and time 
management. These opportunities can also help them establish good work 
habits, gain valuable experience, expand their networks, and achieve 
financial stability. Research confirms the many advantages of working 
during high school--especially for low-income youth--including higher 
employment rates, higher wages in later years, and a lower probability 
of dropping out of high school.\7\ Part-time work during high school 
correlates with more schooling and work after high school graduation, 
and also correlates with the receipt of a college degree.\8\
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    \7\ Marta Tienda and Avner Ahituv, Ethnic Differences in School 
Departure: Does Youth Employment Promote or Undermine Educational 
Achievement? Kalamazoo, Michigan: Upjohn Institute (1996), https://research.upjohn.org/up_bookchapters/564/ (last visited on 26 April 
2018).
    \8\ Staff, J., & Mortimer, J.T. (2007). Educational and Work 
Strategies from Adolescence to Early Adulthood: Consequences for 
Educational Attainment. Social Forces; a Scientific Medium of Social 
Study and Interpretation, 85(3), 1169-1194, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1858630/ (last visited on 26 
April 2018).
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    Opportunities for youth employment can be particularly helpful in 
reducing the number of youth who become disconnected from school or 
work. A 2012 study found that each young person who ``disconnects'' 
from school or work costs the economy an estimated $704,020 over their 
lifetime due to lost earnings, lower economic growth, lower tax 
revenues, and higher government spending.\9\ Many young people lose 
their connection to school and work at ages 16 and 17, when high-school 
dropout and unemployment rates are highest. Early employment and 
training opportunities can benefit these youth

[[Page 48740]]

and improve their future employment prospects. In a survey commissioned 
by the Bill and Melinda Gates Foundation, for example, 81 percent of 
high school dropouts surveyed reported that having real-world 
experiences that connected school with work would have helped keep them 
in school.\10\ One such program, Career Academies, was shown to 
increase earnings by 11 percent for as many as eight years after high 
school.\11\
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    \9\  Clive Belfield, Henry M. Levin, & Rachel Rosen, The 
Economic Value of Opportunity Youth (2012), at 2, https://www.civicenterprises.net/MediaLibrary/Docs/econ_value_opportunity_youth.pdf.
    \10\ John M. Bridgeland, John J. DiIulio, Jr., and Karen Burke 
Morison, The silent epidemic: Perspectives of high school dropouts 
(2006), at 13, https://files.eric.ed.gov/fulltext/ED513444.pdf.
    \11\ Harry Holzer, Workforce Training: What Works? Who Benefits? 
Wisconsin Family Impact Seminars, 2014, https://www.purdue.edu/hhs/hdfs/fii/wp-content/uploads/2015/07/s_wifis28c02.pdf (last visited 
on April 26, 2018).
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    Consistent with the President's E.O. on expanding apprenticeships 
in the United States,\12\ the Department is interested in promoting 
workforce training program models in health care that offer safe and 
impactful apprenticeship opportunities. Apprenticeships in high-growth, 
emerging sectors, such as health care, can yield significant benefits. 
Research has found, for example, that apprenticeships can lead to 
better workplace performance, higher wages, reduced worker turnover, 
and portable occupational credentials. The average starting wage for 
apprentices is $15.00 per hour, and wages increase as apprentices gain 
skills and knowledge.\13\ A study of a cross-section of apprenticeships 
by Mathematica Policy Research found that participants who participated 
in an apprenticeship program earned, on average, nearly $100,000 more 
over their careers than nonparticipants did. For those apprentices who 
completed their program, the average earnings premium was more than 
$240,000.\14\
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    \12\ E.O. 13801 of June 15, 2017, Expanding Apprenticeships in 
America, 82 FR 28229 (Jun. 15, 2017).
    \13\ U.S. Dep't of Labor, ApprenticeshipUSA Toolkit, Frequently 
Asked Questions, https://www.dol.gov/apprenticeship/toolkit/toolkitfaq.htm#2b.
    \14\ Debbie Reed, Albert Yung-Hsu Liu, Rebecca Kleinman, 
Annalisa Mastri, Davin Reed, Samina Sattar, and Jessica Ziegler, An 
Effectiveness Assessment and Cost-Benefit Analysis of Registered 
Apprenticeship in 10 States, Mathematica Policy Research (July 
2012), at xiv, https://wdr.doleta.gov/research/FullText_Documents/etaop_2012_10.pdf.
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    The need for safe employment, apprenticeship, and training 
opportunities for youth is particularly acute in health care, which is 
among the fastest growing industries in the United States.\15\ The 
Bureau of Labor Statistics (BLS) projects that numerous professions in 
health care will grow either faster or much faster than the national 
average growth rates in the next decade.\16\ There are already 
approximately 1 million job openings in health care and social 
assistance.\17\ According to a National Federation of Independent 
Business poll of its members, the top two reasons that employers did 
not hire applicants were lack of experience and lack of job-specific/
occupational skills.\18\ This further underscores the need for early 
employment, training, and apprenticeship opportunities--which help 
close the skills gap between the skills employers seek and the skills 
job seekers currently have. Removing unnecessary barriers to entry for 
youth in health care will give them more opportunities to gain those 
critical skills. Many jobs in health care, such as certified nursing 
assistant (CNA) positions, present excellent entry-level positions for 
young workers, including teens still in high school who seek to begin a 
career in health care. There are also numerous apprenticeable 
occupations in health care, such as certified nurse aide, home health 
aide, rehabilitative aide, licensed practical nurse, and CNA.\19\ To 
help ensure that those who need care can receive it from workers who 
are skilled, qualified, and familiar with continuing advances in 
technology and service delivery, federal regulations should encourage, 
and not unnecessarily hinder, opportunities for younger workers to 
pursue careers in health care.
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    \15\ Projected annual growth for health care and social 
assistance is 1.9% through 2026. Bureau of Labor Statistics, 
Employment Projections: Employment by major industry sector, https://www.bls.gov/emp/ep_table_201.htm.
    \16\ See Bureau of Labor Statistics, Occupational Outlook 
Handbook, https://www.bls.gov/ooh/healthcare/home-health-aides-and-personal-care-aides.htm (home care and personal care aides projected 
to grow 41 percent); https://www.bls.gov/ooh/healthcare/licensed-practical-and-licensed-vocational-nurses.htm (licensed practical 
nurses and licensed vocational nurses projected to grow 12 percent); 
https://www.bls.gov/ooh/healthcare/medical-assistants.htm (medical 
assistants projected to grow 29 percent); https://www.bls.gov/ooh/healthcare/nursing-assistants.htm (nursing assistants projected to 
grow 11 percent); https://www.bls.gov/ooh/healthcare/physical-therapist-assistants-and-aides.htm (physical therapist assistants 
and aides projected to grow 30 percent); https://www.bls.gov/ooh/healthcare/occupational-therapists.htm (occupational therapists 
projected to grow 24 percent); https://www.bls.gov/ooh/healthcare/physical-therapists.htm (physical therapists projected to grow 28 
percent); https://www.bls.gov/ooh/healthcare/occupational-therapy-assistants-and-aides.htm (occupational therapy assistants and aides 
projected to grow 28 percent).
    \17\ Bureau of Labor Statistics, Table A. Job openings, hires, 
and total separations by industry, seasonally adjusted, https://www.bls.gov/news.release/jolts.a.htm (last visited May 7, 2018).
    \18\ Nat'l Fed. Of Independent Business, Filling the Role, 
https://www.nfib.com/assets/nfib_fillingtherole3-1.pdf.
    \19\ For a full list of apprenticeable occupations, see https://www.doleta.gov/OA/occupations.cfm.
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III. Background

    The youth employment provisions of the FLSA, which Congress enacted 
in 1938, ensure that when young people work, the work is safe and does 
not jeopardize their health, well-being, or educational opportunities. 
The FLSA distinguishes between youth employed in agricultural work and 
youth employed in nonagricultural work. FLSA section 203(l) establishes 
a minimum age of 16 years for nonagricultural employment and prohibits 
16- and 17-year-olds from working in any occupation that the Secretary 
of Labor (the Secretary) has found to be particularly hazardous or 
detrimental to their health or well-being. Under this authority, the 
Secretary has issued 17 HOs for nonagricultural employment.
    HO 7, originally issued on July 16, 1946, prohibits 16- and 17-
year-old employees from working in occupations involving a power-driven 
hoisting apparatus.\20\ It prohibits 16- and 17-year-old employees from 
``operating, tending, riding upon, working from, repairing, servicing, 
or disassembling an elevator, crane, derrick, hoist, or high-lift 
truck, except operating or riding inside an unattended automatic 
operation passenger elevator.'' \21\ It also prohibits such employees 
from ``operating, tending, riding upon, working from, repairing, 
servicing, or disassembling a manlift or freight elevator, except 16- 
and 17-year-olds may ride upon a freight elevator operated by an 
assigned operator.'' \22\ For purposes of these prohibitions, 
``[t]ending such equipment includes assisting in the hoisting tasks 
being performed by the equipment.'' \23\ The 1946 study that supported 
these prohibitions concluded that operating hoisting apparatus is 
``inherently dangerous because it involves complicated mechanical 
equipment and because of the ever-present danger of falling or being 
struck by falling material should the load be dropped.'' \24\
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    \20\ 29 CFR 570.58(a).
    \21\ Id.
    \22\ Id. Sec.  570.58(a)(2).
    \23\ Id. Sec. Sec.  570.58(a)(1), (2).
    \24\ See U.S. Dep't of Labor, Div. of Labor Standards, 
Occupational Hazards to Young Workers, Report No. 7, The Operation 
of Hoisting Apparatus, at 6 (1946) (Report No. 7).
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    Until 2010, HO 7 did not prohibit 16- and 17-year olds from 
operating power-driven patient lifts. The study that supported HO 7 did 
not address patient lifts, but it did conclude that electric or air-
operated hoists with a capacity of

[[Page 48741]]

one ton or less were ``much less dangerous to operate than larger 
hoists,'' were used for light work, and were simple to operate.\25\ The 
Department accordingly included an exemption in HO 7 for electric or 
air-operated hoists with a capacity of one ton or less, and patient 
lifts fall within that category. Thus, between 1946 and 2010, HO 7 did 
not prohibit the operation of patient lifts.
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    \25\ Id. at 13. HO 7 was amended on August 31, 1955 to include 
riding on a manlift. 20 FR 6386.
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    On May 20, 2010, the Department issued a final rule amending 
several HOs, including HO 7.\26\ The amendment to HO 7, among other 
things, eliminated the exemption for hoists with a capacity of one ton 
or less.\27\ This decision was informed, in part, by a statement in a 
2002 report from the National Institute for Occupational Safety and 
Health (NIOSH) that ``[a] hoisted load weighing less than one ton has 
the potential to cause injury or death as a result of falling, or being 
improperly rigged or handled.'' \28\ The 2010 Final Rule also expanded 
HO 7 to prohibit repairing, servicing, disassembling, and assisting in 
the operation of the machines.\29\
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    \26\ 75 FR 28404 (May 20, 2010) (2010 Final Rule).
    \27\ 75 FR at 28433-34. In addition, the 2010 Final Rule amended 
HO 7 to prohibit youth from riding on any part of a forklift as a 
passenger (including the forks); to prohibit work from truck-mounted 
bucket or basket hoists; and to include operating or tending aerial 
platforms (e.g. scissor lifts) in the definition of manlift. It also 
revised the definition of ``high-lift truck'' to incorporate a 
longstanding enforcement position that industrial trucks such as 
skid loaders, skid-steer loaders, and Bobcat loaders fall within 
that definition.
    \28\ 75 FR at 28433; NIOSH, National Institute for Occupational 
Safety & Health (NIOSH) Recommendations to the U.S. Department of 
Labor for Changes to Hazardous Orders (May 3, 2002), at 36, https://www.cdc.gov/niosh/docs/nioshrecsdolhaz/pdfs/dol-recomm.pdf (NIOSH 
Report). The NIOSH Report was issued after the Department had 
commissioned NIOSH in 1998 to conduct a comprehensive review of 
literature and data related to workplace hazards and to assess the 
adequacy of existing child labor protections in preventing them.
    \29\ 75 FR at 28433-34.
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    In July 2010, the Department released Fact Sheet 52, which 
explained that the amended HO 7 barred 16- and 17-year-olds from 
operating or assisting in the operation of power-driven hoists designed 
to lift and move patients. The Department thereafter received a number 
of inquiries from a bipartisan group of legislators regarding this 
matter. The inquiries raised a number of concerns, including 
businesses' need to meet critical staff shortages at health care 
facilities, particularly in rural areas, through 16- and 17-year-old 
trainees; the continued success of nursing aide education programs; the 
future careers of youth in health care; the need for staff to use 
power-driven patient lifts; and the safety of workers and health care 
facility residents. For example, then-Congressman Michael Michaud (D-
ME) noted that many facilities have adopted ``zero-lift policies'' that 
prohibit the lifting of patients without safe assistance. As a result 
of the regulatory change, however, young CNAs' only method to assist a 
patient may be the unsafe practice of manually lifting the patient. 
Similarly, a letter from then-Senator Herb Kohl (D-WI), Senator Amy 
Klobuchar (D-MN), then-Senator Mike Johanns (R-NE), and then-Senator 
Kent Conrad (D-ND) asserted that the Department's restrictions were 
``discouraging long-term care facilities from employing and training 
minors at the very point in time that this employment sector needs to 
grow rapidly in order to accommodate the needs of our now rapidly-aging 
population'' and ``hampering youth employment programs for high school 
students, and those health care facilities that wish to employ them.'' 
They also asserted that power-driven patient lifts are safe for both 
residents and workers, including 16- and 17-year-old workers. For 
example, Senators Kohl, Klobuchar, Johanns, and Conrad stated that 
power-driven patient lifts are ``extremely safe'' because they ``move 
quite slowly, and have multiple safety and failsafe features.'' 
Likewise, a letter from then-Congressman Earl Pomeroy (D-ND) stated 
that ``according to the North Dakota Workforce Safety and Insurance 
(WSI) Department, not one 16- or 17-year-old worker has been found to 
be injured by using an electronic patient lift.''
    The Department also heard from interested stakeholders, 
particularly health care providers and their representatives. By way of 
example, a March 2011 statement by the American Health Care Association 
and the National Center for Assisted Living noted that some community 
colleges and apprenticeship programs had ceased accepting 16- and 17-
year-olds into their programs as a result of the regulatory change, 
imperiling the supply of health care workers in nursing homes. 
Similarly, several small nursing facilities in North Dakota that 
employed 16- and 17-year-old CNAs expressed concern that the regulatory 
change may prevent them from employing these individuals as CNAs--which 
would both create staff shortages and discourage youth from pursuing 
careers in health care--and may encourage 16- and 17-year-old CNAs to 
engage in unsafe manual lifting. Some facilities stated that they 
instituted procedures in which an adult would be summoned to operate a 
power-driven patient lift when needed. According to these facilities, 
such procedures not only caused delays and made patients feel that they 
were unduly burdening staff, but also deprived 16- and 17-year-olds of 
valuable work experience. Like the legislators, these stakeholders also 
asserted that power-driven patient lifts were safe for workers, 
including 16- and 17-year-old workers, to operate. A letter from the 
Healthcare Education Industry Partnership Council noted that staff 
using or assisting with lifts, regardless of age, are trained on how to 
safely operate patient lifts, and receive such training both as part of 
their nursing assistant curriculum and when hired by health care 
providers. Another letter from a health care provider stated that the 
facility had never had an employee injured using power-driven patient 
lifts, but had countless employees injured from failing to use such 
equipment.
    In October 2010, the Department asked NIOSH for assistance to 
determine when 16- and 17-year-old employees could safely operate or 
assist in the operation of power-driven patient lifts.\30\ In March 
2011, NIOSH opined that 16- and 17-year-olds could only perform these 
tasks safely when assisting an experienced caregiver.\31\ NIOSH did not 
express any specific concerns about the actual operation of the 
equipment. Rather, it cited the force necessary to place slings under 
patients and to push a lift loaded with a patient. NIOSH also stated 
that adolescent workers often underestimate dangers associated with 
hazardous tasks and concluded that specific training alone is 
insufficient to protect young workers in this context. NIOSH also 
agreed that manually lifting patients is far more likely to result in 
lower back injuries than using a power-driven patient lift, and 
recommended that WHD consider regulations prohibiting youth under 18 
from manually lifting patients.\32\
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    \30\ See Letter by WHD Deputy Administrator Nancy Leppink to 
NIOSH Director John Howard, Oct. 21, 2010.
    \31\ See NIOSH Assessment of Risks for 16- and 17-Year Old 
Workers Using Power-Driven Patient Lift Devices, https://www.dol.gov/whd/CL/NIOSH_PatientLifts.pdf (``NIOSH 2011 Report''), 
at 10-11.
    \32\ The Department has considered NIOSH's report and discusses 
it, at pp. 11, 13-14, and 17-18. As discussed below, the Department 
believes that it is important to separately consider the potential 
risks and benefits to youth using power-driven patient lifts because 
of the distinctions between patient lifts and the other covered 
equipment in HO 7.
---------------------------------------------------------------------------

    The Department issued a Field Assistance Bulletin (FAB) on July 13, 
2011, establishing a nonenforcement policy when, under specified 
conditions, trained 16- and 17-year-olds assist a trained adult in the 
operation of

[[Page 48742]]

power-driven patient lifts/hoists.\33\ In the FAB, the Department 
stated that it would not ``assert child labor violations involving 16- 
and 17-year-olds who assist a trained adult worker . . . in the 
operation of floor-based vertical powered patient/resident lift 
devices, ceiling-mounted vertical powered patient/resident lift 
devices, and powered sit-to-stand patient/resident lift devices 
(lifting devices)'' when the youth worker met specific training 
requirements, was not injured in the process, did not make ``hands on'' 
physical contact with the patient during the lifting or transferring 
process, and, among other things, received necessary documentation in 
advance.
---------------------------------------------------------------------------

    \33\ See U.S. Dep't of Labor, Wage & Hour Div., Field Assistance 
Bulletin 2011-3, July 13, 2011, https://www.dol.gov/whd/FieldBulletins/fab2011_3.pdf; see also FOH 33h07(e)(5), https://www.dol.gov/whd/FOH/FOH_Ch33.pdf.
---------------------------------------------------------------------------

    Nonetheless, stakeholders and legislators have continued to voice 
concerns about the strict limitations that HO 7 and the nonenforcement 
policy place on 16- and 17-year-olds' ability to operate power-driven 
patient lifts. In general, these stakeholders and legislators have 
argued that the current limits on the use of power-driven patient lifts 
are both unnecessary and far too restrictive. They have argued, for 
instance, that power-driven patient lifts are safer than manual 
lifting; that the demand for workers in health care can often exceed 
supply; that the restrictions resulting from the 2010 Final Rule and 
the 2011 FAB prevent health care facilities from recruiting sufficient 
employees; and that these restrictions deprive 16- and 17-year-olds of 
valuable training opportunities.
    These commenters have argued that HO 7 and the 2011 FAB 
unnecessarily restrict programs that train high school students to 
become nursing assistants and allow them to apprentice in medical 
settings such as nursing homes and long-term care facilities. They 
further argue that the 16- and 17-year-old students in these programs 
are trained in the operation of power-driven patient lifts and 
therefore can operate the lifts safely. For example, letters in 2017 
from Senator Tammy Baldwin (D-WI), Representative Ron Kind (D-WI), and 
Senator Ron Johnson (R-WI) cited an organization that enables students 
in Wisconsin to take college-level nursing courses, receive CNA 
certifications, and work as apprentices with employers. Highlighting 
the difficulties such programs have faced, a 2012 survey of vocational 
schools by the Massachusetts Department of Public Health's Teens at 
Work Project indicated that nearly 60 percent of respondents said that 
employers had commented about increased burdens due to restrictions on 
teens' use of power-driven patient lifts, and that 23 percent of 
respondents reported that students had to change jobs as a result of 
the revised HO 7.\34\ Survey respondents further indicated that the 
restrictions made it more difficult to place students participating in 
cooperative education job programs in health care. Notably, some 
students performed more manual lifting. And even when employers were 
willing and able to adjust the job duties of youth to comply with the 
FAB, such adjustments were often extremely time- and resource-
consuming.\35\
---------------------------------------------------------------------------

    \34\ Mass. Dep't of Public Health, Occupational Health 
Surveillance Program, Federal Child Labor Law Hazardous Occupations 
Order No. 7 (HO7) and Power-driven Patient Lift Assist Devices: 
Revisions to the Law, at 2.
    \35\ Id.
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IV. Review of Proposed Changes

    The Department has regularly reviewed and revised the criteria for 
permissible youth employment to address amendments to the FLSA, 
improvements in workplace safety, the introduction of new processes and 
technologies, the emergence of new types of businesses in which young 
workers may find employment opportunities, the existence of differing 
federal and state standards, divergent views on how best to correlate 
school and work experiences, and changing needs of employers and 
businesses in the economy.\36\ Consistent with these principles, and 
based on the information provided by stakeholders and available data, 
the Department is considering whether the operation of power-driven 
patient lifts is indeed particularly hazardous to youth employed in the 
health care occupations or detrimental to their health or well-being. 
This Notice of Proposed Rulemaking proposes to exclude power-driven 
patient lifts from the list of devices covered under HO 7 and asks for 
comment on that proposal.
---------------------------------------------------------------------------

    \36\ In addition to the proposals herein, the Department is 
consulting with NIOSH to determine what other updates to the HOs, if 
any, are appropriate to expand employment, apprenticeship, and 
training opportunities while maintaining worker protections.
---------------------------------------------------------------------------

    As explained above, the Department has received numerous letters, 
including from health care providers and a bipartisan group of Members 
of Congress, requesting that the Department reconsider its policies 
with respect to patient lifts to address industry needs and to promote 
learning opportunities and safety for youth workers. These letters 
contained useful information in support of their arguments, including 
indications that the restrictions stemming from HO 7 interfere with 
facilities' ability to care for patients, potentially encourage 16- and 
17-year-olds to engage in less safe manual lifting, and hinder the 
employment of 16- and 17-year-olds in health care.
    Although they fit within the technical definition of devices 
covered by HO 7, power-driven patient lifts differ in significant ways 
from the other devices addressed by that HO. For example, power-driven 
patient lifts are used in settings far different from the industrial 
settings in which most of the other devices addressed by that HO are 
used (and for which HO 7 was principally promulgated).\37\ Moreover, 
data from BLS shows that from 2012 through 2016, only one worker 
fatality was attributed to patient hoists or lifting harnesses. By 
contrast, during this same period, 221 worker fatalities were 
associated with cranes, 10 were associated with overhead hoists, 200 
were associated with bucket or basket hoists, 35 were associated with 
manlifts, and 464 were associated with forklifts.\38\ BLS data also 
shows that, during the same period, the annual median days lost 
associated with injuries caused by patient lifts ranged from 5 to 10, 
compared to 5 to 41 for manlift injuries; 14 to 21 for forklift 
injuries, 4 to 23 for overhead hoist injuries, 8 to 27 for bucket or 
basket hoist injuries, and 14 to 34 for crane injuries.\39\ Put simply, 
a power-driven patient lift is different, both in form and function, 
from a forklift, backhoe, crane, and the numerous other industrial 
devices mentioned in HO 7. The Department believes that it is important 
to separately consider the potential risks and benefits to youth using 
this equipment because patient lifts differ so significantly from the 
other covered equipment in HO 7.
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    \37\ Highlighting the industrial nature of the devices that HO 7 
was intended to prohibit 16- and 17-year-olds from operating, the 
appendix to the 1946 report supporting HO 7 includes a table showing 
that injuries in one state caused by hoisting apparatus were 
concentrated primarily in manufacturing, construction, mining and 
quarrying, and trade, with only 5.8 percent of such injuries 
occurring in ``service industries.'' Report No. 7, Appendix II, 
Table I (1946).
    \38\ See Bureau of Labor Statistics, Census of Fatal 
Occupational Injuries (2011 forward), https://data.bls.gov/PDQWeb/fw.
    \39\ See Bureau of Labor Statistics, Nonfatal cases involving 
days away from work: Selected characteristics (2011 forward), 
https://data.bls.gov/PDQWeb/cs.
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    Use of power-driven patient lifts also has important benefits for 
worker safety. In particular, as NIOSH recognized in its 2011 report, 
power-driven patient lifts have significantly reduced the risk of

[[Page 48743]]

lower back injuries to workers, which is much more prevalent when 
caregivers use their own physical strength to transfer patients 
manually.\40\ DOL's Occupational Safety and Health Administration 
(OSHA) has also recommended that manual lifting of nursing home 
residents ``be minimized in all cases and eliminated when feasible.'' 
\41\ Thus, while the operation of power-driven patient lifts is not 
risk-free, these devices ultimately improve worker safety. Given that 
power-driven patient lifts are widely regarded as safer for the worker 
than manual lifting, the Department believes that it is incongruous for 
16- and 17-year-olds to be prohibited from independently operating 
power-driven patient lifts but permitted to manually lift patients 
without any restrictions (since manual lifting of patients is not 
prohibited by any HO). Such a framework creates incentives that are 
inconsistent with worker and patient safety.
---------------------------------------------------------------------------

    \40\ NIOSH 2011 Report at 2.
    \41\ OSHA, Ergonomics for the Prevention of Musculoskeletal 
Disorders, Guidelines for Nursing Homes (OSHA 3182-3R-2009), at 9, 
https://www.osha.gov/ergonomics/guidelines/nursinghome/final_nh_guidelines.pdf.
---------------------------------------------------------------------------

    Additionally, best practices developed by OSHA and other government 
agencies can help mitigate the risks associated with power-driven 
patient lifts. NIOSH informed WHD that research has demonstrated that 
``comprehensive safe patient handling and movement programs that 
incorporate power-driven patient lifts have made an enormous difference 
in reducing musculoskeletal disorders among health care workers in the 
United States.'' \42\ The Department believes that adhering to such 
best practices, rather than a blanket prohibition on the independent 
operation of power-driven patient lifts, may be the best way to ensure 
that 16- and 17-year-old workers can operate these devices safely. For 
example, guidance developed in part by the Veterans Health 
Administration and Department of Defense provides recommendations for 
the circumstances under which one, two, or three or more caregivers are 
appropriate to operate a lift.\43\ Generally, this guidance recommends 
that two to three caregivers are appropriate when lifting or 
transferring a patient who cannot bear weight, cannot offer assistance, 
or is uncooperative, but that under certain circumstances, only one 
caregiver is needed for a patient who can bear at least partial weight 
and is cooperative. OSHA's guidelines for nursing homes concur with 
these recommendations.\44\ Additional guidance for employers who are 
considering engaging 16- and 17-year-olds in the operation of power-
driven patient lifts is available through NIOSH.\45\
---------------------------------------------------------------------------

    \42\ Letter by NIOSH Director John Howard to WHD Deputy 
Administrator Nancy Leppink, Mar. 11, 2011, https://www.dol.gov/whd/CL/NIOSH_CoverLetter.pdf.
    \43\ See Patient Safety Center of Inquiry (Tampa, FL), Veterans 
Health Administration and Department of Defense, Patient Care 
Ergonomics Resource Guide: Safe Patient Handling and Movement, at 
73-78, https://osha.oregon.gov/edu/grants/train/Documents/va-patient-care-ergonomics-resource-guide-part-1-rev-8-2005.pdf.
    \44\ OSHA Ergonomics for the Prevention of Musculoskeletal 
Disorders, Guidelines for Nursing Homes, at 13, 15-16.
    \45\ CDC/NIOSH, Safe Patient Handling and Mobility (SPHM), 
https://www.cdc.gov/niosh/topics/safepatient/default.html.
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    Finally, requirements under other federal and state statutes and 
regulations may help ensure that 16- and 17-year-olds can operate 
power-driven patient lifts safely. For example, regulations under the 
Federal Nursing Home Reform Act, part of the Omnibus Budget 
Reconciliation Act of 1987, require that nurses' aides in nursing 
facilities or skilled nursing facilities complete a competency 
evaluation and receive at least 75 hours of training, including at 
least 16 hours of supervised practical or clinical training, under the 
supervision of a registered nurse who has at least two years of nursing 
experience.\46\ ``Transfers, positioning, and turning'' are required 
parts of the training.\47\ Over half of states require more training 
hours than this federal minimum, and 13 states require at least 120 
training hours.\48\ Many states require that CNAs learn about 
transitioning or moving a patient using power-driven patient lifts as 
part of their curriculum.
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    \46\ 42 CFR 483.152, 483.154.
    \47\ 42 CFR 483.152(b)(3)(viii).
    \48\ PHI (Paraprofessional Health Care Institute), Nursing 
Assistant Training Requirements by State, https://phinational.org/advocacy/nurse-aide-training-requirements-state-2016/.
---------------------------------------------------------------------------

    In light of these considerations, the Department proposes to remove 
the operation of power-driven patient lifts from HO 7. The Department 
welcomes comments on this proposal. The proposed rule defines ``patient 
lift'' as a power-driven device, either fixed or mobile, used to lift 
and transport a patient or resident (such as of a medical care, 
nursing, long-term care, or assisted living facility) in the horizontal 
or other required position from one place to another, as from a bed to 
a bath, including any straps and a sling used to support the patient. 
This definition derives from two definitions of patient lifts in U.S. 
Food and Drug Administration regulations on medical devices, 21 CFR 
880.5500 and 880.5510. The Department welcomes comments on whether the 
Department's proposed definition is appropriate or, if not, how the 
proposed definition should be revised. In addition, the Department 
proposes minor conforming and technical edits to existing paragraph 
570.58(c).

V. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its attendant regulations, 5 CFR part 1320, require the Department 
to consider the agency's need for its information collections, their 
practical utility, the impact of paperwork and other information 
collection burdens imposed on the public, and how to minimize those 
burdens. The PRA typically requires an agency to provide notice and 
seek public comments on any proposed collection of information 
contained in a proposed rule.\49\
---------------------------------------------------------------------------

    \49\ See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8.
---------------------------------------------------------------------------

    This NPRM does not contain a collection of information subject to 
OMB approval under the Paperwork Reduction Act. The Department welcomes 
comments on this determination.

VI. Analysis Conducted in Accordance With E.O. 12866, Regulatory 
Planning and Review, and E.O. 13563, Improved Regulation and Regulatory 
Review

A. Introduction

    Under E.O. 12866, OMB's Office of Information and Regulatory 
Affairs determines whether a regulatory action is significant and, 
therefore, subject to the requirements of the E.O. and OMB review.\50\ 
Section 3(f) of E.O. 12866 defines a ``significant regulatory action'' 
as an action that is likely to result in a rule that: (1) Has an annual 
effect on the economy of $100 million or more, or adversely affects in 
a material way a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local or 
tribal governments or communities (also referred to as economically 
significant); (2) creates serious inconsistency or otherwise interferes 
with an action taken or planned by another agency; (3) materially 
alters the budgetary impacts of entitlement grants, user fees, or loan 
programs, or the rights and obligations of recipients thereof; or (4) 
raises novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the E.O. OIRA 
has determined that this proposed rule is not significant under section 
3(f) of E.O. 12866.
---------------------------------------------------------------------------

    \50\ 58 FR 51735 (Sept. 30, 1993).

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[[Page 48744]]

    E.O. 13563 directs agencies to propose or adopt a regulation only 
upon a reasoned determination that its benefits justify its costs; that 
it is tailored to impose the least burden on society, consistent with 
achieving the regulatory objectives; and that, in choosing among 
alternative regulatory approaches, the agency has selected the 
approaches that maximize net benefits. E.O. 13563 recognizes that some 
benefits are difficult to quantify and provides that, where appropriate 
and permitted by law, agencies may consider and discuss qualitatively 
values that are difficult or impossible to quantify, including equity, 
human dignity, fairness, and distributive impacts.

B. Economic Analysis

1. Overview of Proposed Changes
    In this NPRM, the Department proposes to remove the operation of 
power-driven patient lifts from the list of HO-governed activities. 
This analysis assumes that federal regulations would govern all 
entities. The Department does not herein interpret any state laws or 
regulations that may have greater restrictions on the type of work that 
16- and 17-year-olds are allowed to perform, or the hours they are 
allowed to work. As a result, this analysis may overestimate the number 
of workers and employers affected by the NPRM. The Department seeks 
public comment regarding state and local regulations and laws governing 
16- and 17-year-olds, and how they differ from these federal 
regulations.
2. Increased Earnings for 16- and 17-Year-Olds Who Become Employed
    The proposal to remove the operation of power-driven patient lifts 
from the list of HO-governed activities is expected to expand 
employment opportunities in the health care sector for 16- and 17-year-
olds. The total universe of 16- and 17-year-olds who could enter these 
new jobs is the number who are unemployed (that is, jobless, looking 
for a job, and available for work). Unlike for the general adult 
population, the Department assumes that 16- and 17-year-olds who are 
not looking for work--and are, therefore, not in the labor force--are 
focused on school and would not choose to move into the labor force 
even if additional employment opportunities became available. According 
to annual average data from BLS, which includes individuals who are not 
working but who have looked for a job in the past month, there were 
347,000 unemployed 16- and 17-year-olds in 2017.\51\
---------------------------------------------------------------------------

    \51\ BLS Current Population Survey, Annual Averages, Employment 
status of the civilian noninstitutional population by age, sex, and 
race. https://www.bls.gov/cps/cpsaat03.htm.
---------------------------------------------------------------------------

    If 16- and 17-year-olds are no longer prohibited from independently 
operating power-driven patient lifts, employers may be more likely to 
hire youth for health care occupations that use these lifts. In the 
Department's analysis, home health care services (NAICS 6216), 
hospitals (NAICS 622), and nursing and residential care facilities 
(NAICS 623) are summed to estimate the portion of the health care 
industry that relies the most on the use of patient lifts. Going 
forward in this economic analysis, discussions involving health care 
calculations refer to these industries, which together constituted 6.7 
percent of total employment in the United States in 2017.\52\
---------------------------------------------------------------------------

    \52\ BLS Current Employment Statistics Databases, annual average 
employment, 2017, Series IDs CEU0000000001, CEU6562160001, 
CEU6562200001, and CEU6562300001. www.bls.gov/ces/data.htm.
---------------------------------------------------------------------------

    To determine the number of new 16- and 17-year-old workers that the 
amendment to HO 7 would add to the economy, it is necessary to estimate 
the share of unemployed teens who could gain employment in these health 
care industries. The Department used the employment share discussed 
above (6.7 percent) and multiplied it by the total number of unemployed 
teens (347,000) to calculate a proxy for the share of 16- and 17-year-
olds who would choose to work in health care given the opportunity. The 
Department estimates that the change to HO 7 could potentially add up 
to 23,249 new workers to these industries. The Department seeks public 
comments regarding the estimated number of 16- and 17-year-olds who 
would gain employment as a result of the changes proposed in this NPRM.
    To quantify the wages that these new workers would earn, the 
Department used the average hourly pay rate for 16- and 17-year-olds in 
health care. BLS data show that, on average, 16- and 17-year-olds in 
the health care and social assistance industry earned $9.60 per hour in 
2017.\53\
---------------------------------------------------------------------------

    \53\ BLS Current Population Survey, results generated through 
DataFerrett (https://dataferrett.census.gov/) using PTERNH10 for 
hourly earnings, PRTAGE for age, and PRIMIND1 for industry.
---------------------------------------------------------------------------

    BLS data show that, on average, 16- and 17-year-olds work 18.2 
hours per week.\54\ In addition, data show that 60 percent of 16- and 
17-year olds work 26 or fewer weeks out of the year, with almost 40 
percent working less than 14 weeks.\55\ Therefore, the Department 
assumes that 16- and 17-year-olds work, on average, 20 weeks per year. 
If a 16- or 17-year-old works 18.2 hours per week for 20 weeks per year 
and earns $9.60 per hour, his or her average annual earnings would be 
$3,494. Multiplying this annual wage by the estimated 23,249 potential 
new workers in health care yields a total annual wage impact of 
$81,241,306 at either a 3 or 7 percent discount rate.
---------------------------------------------------------------------------

    \54\ BLS Current Population Survey, Average Hours at Work in 
Nonagricultural Industries, 16 to 17 years. https://www.bls.gov/cps/cpsaat22.htm.
    \55\ BLS Current Population Survey, unpublished table: Work 
Experience of the Population by Extent of Employment in 2016, Sex, 
Race, Hispanic or Latino ethnicity, and Age, March 2017.
---------------------------------------------------------------------------

3. Benefits
    In association with the earnings that 16- and 17-year-olds would 
receive through employment in the health care industry, there are many 
unquantifiable benefits. As discussed earlier, research has shown that 
working as a teen correlates with better attachment to the workforce 
over a person's entire career. By working or participating in an 
apprenticeship program, 16- and 17-year-olds receive training and 
develop skills for in-demand jobs. For example, employment in the 
health care and social assistance sector is projected to add nearly 4 
million jobs by 2026, about one-third of all new jobs, creating high 
demand for skilled workers in this field.\56\
---------------------------------------------------------------------------

    \56\ BLS Employment Projections, https://www.bls.gov/news.release/ecopro.nr0.htm.
---------------------------------------------------------------------------

    The availability of 16- and 17-year-olds to perform these 
activities would also benefit society in other ways. For example, if 
the Department adopts the proposal to remove the operation of power-
driven patient lifts from HO 7, these youth workers may be permitted to 
independently operate a patient lift, so adult employees could work 
more efficiently, resulting in higher workplace productivity. 
Additionally, increased earnings for youth, both currently and over 
their future career, would enable workers to contribute more in the 
form of income taxes and decrease their reliance on social welfare 
programs given their steadier employment and income.
4. Regulatory Familiarization Costs
    Regulatory familiarization costs represent direct costs to 
businesses associated with reviewing the new regulation. To calculate 
the cost associated with reviewing the rule, the Department first 
estimated the number of establishments that would review the rule. The 
Department used

[[Page 48745]]

establishment data from the Quarterly Census of Employment and Wages 
for the three relevant health care industries. The 2016 annual average 
number of establishments in Home Health Care Services (NAICS 6216) was 
34,090, the number of establishments in Hospitals (NAICS 622) was 
12,754, and the number of establishments in Nursing and Residential 
Care Facilities (NAICS 623) was 80,252, totaling 127,096 establishments 
in the three relevant health care industries.
    Next, the Department estimated the time it would take for an 
establishment to review the rule. The Department estimates that it 
would take approximately 15 minutes for a health care establishment to 
review the provisions related to removing the operation of power-driven 
patient lifts from the list of HO-governed activities.
    Then, the Department estimated the hourly compensation of the 
employees who would likely review the rule. The Department assumes that 
a Human Resources Manager (SOC 11-3121) would review the rule. The mean 
hourly wage of Human Resources Managers is $59.38.\57\ The Department 
adjusted this wage rate to reflect fringe benefits such as health 
insurance and retirement benefits, as well as overhead costs such as 
rent, utilities, and office equipment. The Department used a fringe 
benefits rate of 46 percent \58\ and an overhead rate of 17 
percent,\59\ resulting in a fully loaded hourly compensation rate for 
Human Resources Managers of $96.79 (= $59.38 + ($59.38 x 46%) + ($59.38 
x 17%)).
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    \57\ BLS, Occupational Employment Statistics, Occupational 
Employment and Wages, May 2017, 11-3121 Human Resources Managers, 
https://www.bls.gov/oes/current/oes113121.htm.
    \58\ BLS, Employer Costs for Employee Compensation, https://www.bls.gov/ncs/data.htm. Wages and salaries averaged $24.26 per 
hour worked in 2017, while benefit costs averaged $11.26, which is a 
benefits rate of 46%.
    \59\ Cody Rice, U.S. Environmental Protection Agency (June 10, 
2002), ``Wage Rates for Economic Analyses of the Toxics Release 
Inventory Program,'' at 4. https://www.regulations.gov/document?D=EPA-HQ-OPPT-2014-0650-0005.
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    Therefore, regulatory familiarization costs in Year 1 for 
establishments in the pertinent health care sectors are estimated to be 
$3,075,386 (= 127,096 establishments x 15 minutes x $96.79), which 
amounts to a 10-year annualized cost of $350,028 at a discount rate of 
3 percent (which is $2.75 per establishment) or $409,220 at a discount 
rate of 7 percent (which is $3.22 per establishment). The Department 
seeks public comments regarding the estimated number of establishments 
that would review the rule, the estimated time to review the rule, and 
whether a Human Resources Manager would be the most likely staff member 
to review the rule.
[GRAPHIC] [TIFF OMITTED] TP27SE18.000

5. Additional Costs
    If the Department adopts this proposed rule without change, health 
care employers would likely increase the number of employment, 
apprenticeship, and training opportunities for 16- and 17-year-olds.
    One potential cost to employers that seek to hire 16- and 17-year-
olds in health care occupations through apprenticeship or other 
training program models is the cost of the training programs 
themselves. For example, apprenticeship programs vary significantly in 
length--from one to six years--and in cost. A 2016 study by the 
Department of Commerce found that the most expensive program in their 
sample cost $250,000 per apprentice, while the least expensive cost 
less than $25,000. The study found that apprentices' compensation costs 
over the duration of the program were the major cost for all companies. 
Other important costs included program start-up, tuition and 
educational materials, mentors' time, and overhead.
    The proposed rule, however, would not impose these costs on 
employers; rather, the above-described costs would only result from 
employers' voluntary employment decisions as a result of the proposed 
rule, such as the decision to employ additional apprentices.
    In addition to the potential costs and benefits to employers, the 
potential costs to youth should be considered. Although power-driven 
patient lifts are widely regarded as safer for workers than manual 
lifting, worker injuries have nonetheless been attributed to the use of 
patient lifts. But while the operation of power-driven patient lifts is 
not risk-free, these devices do improve worker safety. As discussed, 
power-driven patient lifts have significantly reduced the risk to 
workers of musculoskeletal disorders, which can be caused by manually 
lifting patients. The Department seeks comments and additional data on 
the potential risks or safety improvements associated with additional 
apprenticeship and employment opportunities for 16- and 17-year-olds in 
health care.
6. Summary of Costs
    Table 2 summarizes the total quantifiable costs.

[[Page 48746]]

[GRAPHIC] [TIFF OMITTED] TP27SE18.001

C. Analysis of Regulatory Alternatives

    In developing this NPRM, the Department considered one regulatory 
alternative that would be less restrictive than what is currently 
proposed and one that would be more restrictive. For the option that 
would be less restrictive, the Department considered creating an 
exemption in HO 7 for all hoists with a capacity of two tons or less. 
But without additional information concerning the safety and potential 
risks associated with the various hoisting apparatuses that such an 
exemption would affect, the Department has decided to limit the scope 
of this proposed rule to address the operation of power-driven patient 
lifts only.
    For a more restrictive alternative, the Department considered 
codifying into the regulations the restrictions and conditions in its 
2011 nonenforcement policy concerning power-driven patient lifts. To 
encourage more employers to hire 16- and 17-year-olds in health care-
related jobs and to allow youth to safely obtain the training and 
skills they need for these in-demand careers, however, the Department 
decided to propose eliminating power-driven patient hoists from the 
list of prohibited devices in HO 7. The Department believes that the 
current proposal would increase youth employment and participation in 
these fields, while also keeping these workers safe.

D. Initial Regulatory Flexibility Analysis

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq. (as amended), the Department examined the regulatory requirements 
of the proposed rule to determine whether they would have a significant 
economic impact on a substantial number of small entities. As indicated 
in Section VI.B, Economic Analysis, the annualized burden is estimated 
to be $3.22 per establishment. At the firm level, each firm in Home 
Health Care Services (NAICS 6216), Hospitals (NAICS 622), and Nursing 
and Residential Care Facilities (NAICS 623) has on average 1.94 
establishments,\60\ so the number of firms is estimated to be 65,624. 
Table 3 shows the estimated number of firms in the three health care 
subsectors, as well as the annualized cost per firm.
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    \60\ Census Bureau, Statistics of U.S. Businesses, 2015.
    [GRAPHIC] [TIFF OMITTED] TP27SE18.002
    
    Table 4 provides the annualized cost per firm as a percentage of 
revenue by firm size in the health care and social assistance industry. 
As the table shows, the annualized burden as a percent of the smallest 
employer's revenue would be far less than 1 percent. Accordingly, the 
Department certifies that the proposed rule would not have a 
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significant economic impact on a substantial number of small entities.

BILLING CODE 9110-04-P

[[Page 48747]]

[GRAPHIC] [TIFF OMITTED] TP27SE18.003

BILLING CODE 9110-04-C

E. Unfunded Mandates Reform Act Analysis

    The Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532, 
requires that agencies prepare a written statement, which includes an 
assessment of anticipated costs and benefits, before proposing any 
Federal mandate that may result in excess of $100 million (adjusted 
annually for inflation) in expenditures in any one year by state, 
local, and tribal governments in the aggregate, or by the private 
sector. This rulemaking is not expected to result in such expenditures 
by state, local, or tribal governments. While this rulemaking would 
affect employers in the private sector, it is not expected to result in 
expenditures greater than $100 million in any one year. Please see 
Section B for an assessment of anticipated costs and benefits to the 
private sector.

F. E.O. 13132, Federalism

    The Department has (1) reviewed this proposed rule in accordance 
with E.O. 13132 regarding federalism and (2) determined that it does 
not have federalism implications. The proposed rule would not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

G. E.O. 13175, Indian Tribal Governments

    This proposed rule would not have substantial direct effects on one 
or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

H. Effects on Families

    The undersigned hereby certifies that the proposed rule would not 
adversely affect the well-being of families, as discussed under section 
654 of the Treasury and General Government Appropriations Act, 1999.

I. E.O. 13045, Protection of Children

    E.O. 13045, dated April 21, 1997 (62 FR 19885), applies to any rule 
that (1) is determined to be ``economically significant'' as defined in 
E.O. 12866, and (2) concerns an environmental health or safety risk 
that the promulgating agency has reason to believe may have a 
disproportionate effect on children. This proposal is not subject to 
E.O. 13045 because it is not economically significant as defined in 
E.O. 12866.

List of Subjects in 29 CFR Part 570

    Administrative practice and procedure, Agriculture, Child labor, 
Intergovernmental relations, Occupational safety and health, Reporting 
and recordkeeping requirements.

[[Page 48748]]

VII. Proposed Regulatory Changes

    For the reasons set forth in the preamble, the Department of Labor 
proposes to amend part 570 of title 29 of the Code of Federal 
Regulations as follows:

PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF 
INTERPRETATION

Subpart E--Occupations Particularly Hazardous for the Employment of 
Minors Between 16 and 18 Years of Age or Detrimental to Their 
Health or Well-Being

0
1. The authority citation for Subpart E continues to read as follows:

    Authority: 29 U.S.C. 203(l), 212, 213(c).


Sec.  570.58  [Amended]

0
2. In Sec.  570.58, add in alphabetical order a definition for 
``patient lift'' paragraph (b) and revise paragraph (c) to read as 
follows:


Sec.  570.58  Occupations involved in the operation of power-driven 
hoisting apparatus (Order 7).

* * * * *
    (b) * * *
    Patient lift is a power-driven device, either fixed or mobile, used 
to lift and transport a patient or resident (such as of a medical care, 
nursing, long-term care, or assisted living facility) in the horizontal 
or other required position from one place to another, as from a bed to 
a bath, including any straps and a sling used to support the patient or 
resident.
    (c) Exceptions. (1) Automatic elevators and automatic signal 
elevators. (i) This section shall not prohibit the operation of an 
automatic elevator and an automatic signal operation elevator provided 
that the exposed portion of the car interior (exclusive of vents and 
other necessary small openings), the car door, and the hoistway doors 
are constructed of solid surfaces without any opening through which a 
part of the body may extend; all hoistway openings at floor level have 
doors which are interlocked with the car door so as to prevent the car 
from starting until all such doors are closed and locked; the elevator 
(other than hydraulic elevators) is equipped with a device which will 
stop and hold the car in case of overspeed or if the cable slackens or 
breaks; and the elevator is equipped with upper and lower travel limit 
devices which will normally bring the car to rest at either terminal 
and a final limit switch which will prevent the movement in either 
direction and will open in case of excessive over travel by the car.
    (ii) For the purpose of this exception, the term ``automatic 
elevator'' shall mean a passenger elevator, a freight elevator, or a 
combination passenger-freight elevator, the operation of which is 
controlled by pushbuttons in such a manner that the starting, going to 
the landing selected, leveling and holding, and the opening and closing 
of the car and hoistway doors are entirely automatic.
    (iii) For the purpose of this exception, the term ``automatic 
signal operation elevator'' shall mean an elevator which is started in 
response to the operation of a switch (such as a lever or pushbutton) 
in the car which when operated by the operator actuates a starting 
device that automatically closes the car and hoistway doors--from this 
point on, the movement of the car to the landing selected, leveling and 
holding when it gets there, and the opening of the car and hoistway 
doors are entirely automatic.
    (2) Patient lifts. This section shall not prohibit the work of 
operating or assisting in the operation of patient lifts, as defined in 
this section.

    Signed at Washington, DC, this 21st day of September 2018.
Bryan L. Jarrett,
Acting Administrator, Wage and Hour Division.
[FR Doc. 2018-20996 Filed 9-26-18; 8:45 am]
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