Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations-Civil Money Penalties, 54836-54885 [2011-21924]

Agencies

• Wage and Hour Division
• DEPARTMENT OF LABOR

[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Proposed Rules]
[Pages 54836-54885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21924]



[[Page 54835]]

Vol. 76

Friday,

No. 171

September 2, 2011

Part II





Department of Labor





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Wage and Hour Division





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29 CFR Parts 570 and 579





Child Labor Regulations, Orders and Statements of Interpretation; Child 
Labor Violations; Civil Money Penalties; Proposed Rule

Federal Register / Vol. 76 , No. 171 / Friday, September 2, 2011 / 
Proposed Rules

[[Page 54836]]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Parts 570 and 579

RIN 1235-AA06


Child Labor Regulations, Orders and Statements of Interpretation; 
Child Labor Violations--Civil Money Penalties

AGENCY: Wage and Hour Division, Labor.

ACTION: Notice of proposed rulemaking and request for comments.

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SUMMARY: The Department of Labor (Department or DOL) is proposing to 
revise the child labor regulations issued pursuant to the Fair Labor 
Standards Act, which set forth the criteria for the permissible 
employment of minors under 18 years of age in agricultural and 
nonagricultural occupations. The proposal would implement specific 
recommendations made by the National Institute for Occupational Safety 
and Health, increase parity between the agricultural and 
nonagricultural child labor provisions, and also address other areas 
that can be improved, which were identified by the Department's own 
enforcement actions. The proposed agricultural revisions would impact 
only hired farm workers and in no way compromise the statutory child 
labor parental exemption involving children working on farms owned or 
operated by their parents.
    In addition, the Department proposes to revise the exemptions which 
permit the employment of 14- and 15-year-olds to perform certain 
agricultural tasks that would otherwise be prohibited to that age group 
after they have successfully completed certain specified training. The 
Department is also proposing to update the General Statements of 
Interpretation to incorporate all the regulatory changes to the 
agricultural child labor provisions made since they were last revised.
    Finally, the Department is proposing to revise its civil money 
penalty regulations to incorporate into the regulations the processes 
the Department follows when determining both whether to assess a child 
labor civil money penalty and the amount of that penalty.

DATES: Comments are due on or before November 1, 2011.

ADDRESSES: You may submit comments, identified by RIN 1235-AA06, by 
either one of the following methods:
    Electronic comments: through the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments.
    Mail: Wage and Hour Division, 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 (Wage and 
Hour Division) and Regulatory Information Number identified above for 
this rulemaking (1235-AA06). All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
information provided. Consequently, prior to including any individual's 
personal information such as Social Security Number, home address, 
telephone number, e-mail addresses and medical data in a comment, the 
Department urges commenters carefully to consider that their 
submissions are a matter of public record and will be publicly 
accessible on the Internet. It is the commenter's responsibility to 
safeguard his or her information. 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 https://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 https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Arthur M. Kerschner, Jr., Division of 
Enforcement Policy and Procedures, Branch of Child Labor and Special 
Employment, Wage and Hour Division, 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 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 Web site for a 
nationwide listing of Wage and Hour District and Area Offices at: 
https://www.dol.gov/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

I. Electronic Access and Filing Comments

    Public Participation: This notice of proposed rulemaking is 
available through the Federal Register and the https://www.regulations.gov Web site. You may also access this document via the 
Department's Web site at https://www.dol.gov/federalregister. 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. Please identify all 
comments submitted in electronic form by the RIN docket number (1235-
AA06). Because of delays in receiving mail in the Washington, DC area, 
commenters should transmit their comments electronically via the 
Federal eRulemaking Portal at https://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 Department is committed to helping youth enjoy positive and 
challenging work experiences--both in agricultural and nonagricultural 
employment--that are so important to their development and transition 
to adulthood. The Federal child labor provisions were enacted to ensure 
that when young people work, the work is safe, age appropriate, and 
does not jeopardize their schooling. This Notice of Proposed Rulemaking 
continues the Department's tradition of encouraging compliance with the 
child labor provisions and fostering permissible and appropriate job 
opportunities for working youth that are healthy, safe, and not 
detrimental to their education.

A. Child Labor Provisions for Employment in Nonagriculture

    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

[[Page 54837]]

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 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 nonagricultural HOs were 
adopted individually during the period of 1939 through 1963. Seven of 
these 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 conditions 
for employing such apprentices and student-learners are detailed in 
Sec.  570.50(b) and (c).
    Because of changes in the workplace, improved occupational injury 
surveillance, Wage and Hour Division investigation findings, 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 balance scholastic requirements and 
work experiences, the Department has long been reviewing the criteria 
for permissible child labor employment. A detailed discussion of the 
Department's review was included in the Notice of Proposed Rulemaking 
(NPRM) published in the Federal Register on April 17, 2007 (see 72 FR 
19339). That NPRM led to a Final Rule that was published in the Federal 
Register on May 20, 2010 (see 75 FR 28404) and became effective on July 
19, 2010.
    In furtherance of that review, the Department provided funds to 
NIOSH in 1998 to conduct a comprehensive review of 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 the ongoing review of the child labor provisions, and of 
the hazardous occupations orders in particular. Its report, entitled 
National Institute for Occupational Safety and Health (NIOSH) 
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 makes 35 
recommendations concerning the existing nonagricultural HOs, makes 14 
recommendations concerning the existing agricultural hazardous 
occupations orders (Ag H.O.s), and recommends the creation of 17 new 
HOs. The Department places great value on the information and analysis 
provided by NIOSH.
    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. 
Because of the data limitations and flaws in methodology, the 
Department does not consider the individual analyses prepared by 
SiloSmashers to be influential for rulemaking purposes.
    Both the NIOSH Report and the SiloSmashers analysis are available 
for review on the Department's YouthRules! Web site at https://www.youthrules.dol.gov/resources.htm. A thorough discussion of the 
history and merits of both the NIOSH Report and the analysis prepared 
by SiloSmashers was contained in the 2007 NPRM (see 72 FR 19340-19341).
    In response to the 2002 NIOSH recommendations concerning the 
nonagricultural HOs, the Department issued a Final Rule in 2004, both a 
Notice of Proposed Rulemaking (NPRM) and an Advance Notice of Proposed 
Rulemaking (ANPRM) in 2007, and a Final Rule in 2010. Taken together, 
these documents addressed all the NIOSH recommendations for the 
existing nonagricultural HOs. Because very little substantive 
information was received, the Department withdrew the ANPRM on February 
24, 2010, and no proposed rule will result directly from that 
information collection effort. The comments submitted in response to 
the ANPRM may be reviewed at the Federal eRulemaking Portal at https://www.regulations.gov.
    In this NPRM, the Department proposes to create two new 
nonagricultural HOs, one concerning the employment of youth in certain 
facilities within farm-product raw materials wholesale trade 
industries, as recommended by NIOSH in its 2002 Report, and another 
addressing the use of electronic devices, including communication 
devices, while operating or assisting to operate certain power-driven 
equipment, including motor vehicles. As discussed later in this 
preamble, the high incidence of injuries and deaths experienced by 
workers employed in the farm-product raw materials wholesale trade 
industries, or who use electronic devices while operating or assisting 
to operate certain power-driven equipment, warrant the creation of 
these new HOs.

B. Child Labor Provisions for Employment in Agriculture

    The Fair Labor Standards Act (FLSA), 29 U.S.C. 201 et seq., since 
its enactment in 1938, has applied child labor standards to the 
employment of youth in agriculture that differ from those applied to 
youth employed in nonagricultural occupations. FLSA section 3(f) 
defines agriculture as including ``farming in all its branches and 
among other things includes the cultivation and tillage of the soil, 
dairying, the production, cultivation, growing, and harvesting of any 
agricultural or horticultural commodities (including commodities 
defined as agricultural commodities in section 1141j(g) of [U.S.C.] 
Title 12), the raising of livestock, bees, fur-bearing animals, or 
poultry, and any practices (including any forestry or lumbering 
operations) performed by a farmer or on a farm as an incident to or in 
conjunction with such farming operations, including preparation for 
market, delivery to storage or to market or to carriers for 
transportation to market.'' The Department's regulations at 29 CFR part 
780 explain the meaning of these terms, including a description of what 
constitutes primary agriculture and secondary agriculture under section 
3(f).
    FLSA section 3(l) defines the term oppressive child labor and 
establishes a minimum age of 16 years for employment, but authorizes 
the Secretary of Labor (Secretary) to provide by regulation for 14- and 
15-year-olds to work in suitable occupations other than

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manufacturing or mining during periods and under conditions that will 
not interfere with their schooling or health and well-being. The FLSA 
also permits 16- and 17-year-olds to work, 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.
    FLSA section 3(l) also provides a limited parental exemption, which 
permits a parent or a person standing in place of a parent to employ 
his or her child or child in his or her custody under the age of 16 
years in any occupation other than manufacturing, mining, or an 
occupation found by the Secretary to be particularly hazardous or 
detrimental to the health or well-being of children between the ages of 
16 and 18 years (see 29 CFR 570.126). These provisions have remained 
relatively unchanged since the adoption of the FLSA and are still 
applicable to the employment of young workers in nonagricultural 
occupations.
    The FLSA when enacted, however, also included a broad exemption 
from the child labor provisions for youth under 16 years of age 
employed in agriculture. FLSA section 13(c) originally stated that the 
child labor provisions of the Act ``shall not apply with respect to any 
employee employed in agriculture while not legally required to attend 
school.'' Under the original Act, youth of any age could be employed in 
all phases of agriculture, even hazardous work, whenever the applicable 
state compulsory school-attendance law did not require the minor to 
attend school.
    The objective of the section 13(c) exemption was to permit 
agricultural work that otherwise would have been prohibited, only so 
long as such work did not infringe upon the opportunity of children to 
obtain an education. But as Secretary of Labor Maurice J. Tobin later 
reflected in a letter to Congressman Walter Rogers dated November 7, 
1951, ``[o]ver ten years' experience with the original provisions 
proved it to be of little value in achieving this objective.''
    Under the exemption, the application of the child labor provisions 
to agricultural employment varied greatly from state to state depending 
upon the particular school attendance requirements of each state law. 
Some states actually amended their school attendance requirements to 
accommodate the staffing needs of agricultural employers. Other state 
statutes declared employment in agriculture, in and of itself, a valid 
excuse for nonattendance of school. In those states, the child labor 
provisions of the FLSA gave no protection whatsoever to children 
engaged in such work. In other states, school officials had such wide 
discretionary powers to excuse children from school that these 
officials, in practice, determined the extent of the application and 
effectiveness of the Federal child labor provisions. Other state 
school-attendance laws were applied only to the children of parents who 
were legal residents of the state. In those states, there was no 
minimum age for the employment of children of migrant workers in 
agriculture.
    Thus, under the original child labor provisions of the FLSA, 
children under 16 were assured the full opportunity to attend school 
only in those states where the school-attendance laws were so 
protective that practically all children under 16 were legally required 
to attend school for the full term.
    Congress addressed this issue in 1949 by amending the FLSA and 
narrowing the exemption contained in FLSA section 13(c) (63 Stat. 917). 
This amendment modified the exemption from the child labor requirements 
with respect to the employment of children in agriculture so that it 
applied only to periods of time that were outside of school hours for 
the school district where the children lived while so employed. The 
legislative intent of the amendment was to close the loopholes in the 
original agricultural provision and foster attendance at school.
    In addition, the legislative history indicates that Congress had 
the transient status of the children of migrant agricultural workers in 
mind when it revised the exemption. As Senator Paul Douglas of Illinois 
noted, ``[t]his provision permits children to work outside of school 
hours and during school vacations on any farm, commercial as well as 
family. But they cannot be hired out to work during school hours for 
someone who is not their parent. This not only protects the children of 
migratory laborers from excessive work, but it also encourages states 
and school districts to get more of the children in school. It thus 
removes the present discrimination against rural children by giving 
them the same freedom to attend school which is given to city 
youngsters'' (see Congressional Record, 95th Congress, page 12490, 
August 30, 1949).
    The Department recognized that the scope of permitted agricultural 
employment of minors under 16 years of age after the amendment largely 
depended upon the interpretation of the phrase ``school hours for the 
school district where such employee is living while he is so 
employed.'' The Department provided guidance, that was eventually 
incorporated into 29 CFR 570.123, that ``school hours'' must generally 
be determined by the opening and closing of the school for the district 
which the child attends or would normally attend and the daily hours it 
is in session (for example, see Secretary of Labor Maurice Tobin's 
letter of December 20, 1950 to Harold D. Cooley, Chairman of the House 
of Representatives Committee on Agriculture). It further opined that 
the phrase ``where such employee is living while he is so employed'' 
refers to the physical location where the minor lives at the time of 
the employment irrespective of whether he or she may be living there 
temporarily or permanently.
    The Department also noted that section 13(c) spoke of school hours 
``for the school district'' rather than for the individual child. Thus, 
it did not matter whether the youth was home-schooled, attended a 
private school, or, for whatever reason, did not attend any school. In 
addition, the application of the provision did not depend upon the 
individual student's requirements for attendance at school. For 
example, if an individual student was excused from his or her studies 
for a day or a part of a day by the superintendent or school board, the 
exemption would not apply for that minor if the school was in session 
during the minor's excused absence (Id.). Nor did the application of 
the exemption depend upon the availability of classroom facilities for 
an individual or group of minors. The Department determined ``school 
hours for the school district'' to be those that are maintained for the 
children in the district generally, regardless of a refusal to enroll 
specially-situated individuals, such as migrant children (see Secretary 
of Labor Maurice Tobin's letter of December 20, 1950 to Harold D. 
Cooley, Chairman of the House of Representatives Committee on 
Agriculture). This guidance provided by the Department in response to 
the 1949 amendment still applies to the employment of young workers in 
agriculture today.
    Although the 1949 amendment somewhat limited the amount of time 
hired farm worker youth could be employed, it did nothing to proscribe 
the types of dangerous or hazardous work such youth could perform when 
working outside of the hours of the local school district. The 
hazardous occupations orders (HOs) established by the Secretary 
pursuant to FLSA section 3(l) only applied to young farm workers when 
they were already employed illegally--that is, during school hours. In 
addition, the existing HOs were

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specifically designed to address hazards in nonagricultural employment 
and often had little applicability to farm work.
    In 1966, Congress again amended the FLSA and, among other things, 
authorized the Secretary to create Agricultural Hazardous Occupations 
Orders (Ag H.O.s) (Pub. L. 89-601, Sec.  203). The newly enacted FLSA 
section 13(c)(2) stated that ``[t]he provisions of section 12 relating 
to child labor shall apply to an employee below the age of sixteen 
employed in agriculture in any occupations that the Secretary of Labor 
finds and declares to be particularly hazardous for the employment of 
children below the age of sixteen, except where such employee is 
employed by his parent or by a person standing in place of his parent 
on a farm owned or operated by such parent or person.'' It is important 
to note that the amendment created a minimum age of 16 for the 
permissible performance of hazardous work in agricultural occupations, 
although 18 remained the minimum age for the performance of hazardous 
work in nonagricultural employment. This statutory difference remains 
to this day.
    The Department issued an ``interim'' Hazardous Occupations Order in 
Agriculture on November 1, 1967, which listed 16 Ag H.O.s (see 32 FR 
15479). Secretary of Labor Willard Wirtz, in his statement which 
accompanied the Order, wrote ``[i]n issuing this Order, the Labor 
Department enters a new field of regulation--safety for youth employed 
in agriculture. According to the National Safety Council figures, the 
death rate for agricultural workers is exceeded only by those for 
miners and construction workers. The agricultural revolution of the 
past thirty years has mechanized the farm and increased the use of 
chemicals. Today the farm has many, if not more, hazards than 
industry.''
    The Interim Order was effective from January 1, 1968 to January 1, 
1970. The Interim Order was prepared in consultation with farm 
organizations, farm business groups, farm safety experts, Federal and 
state government agencies, and agricultural colleges. A public hearing 
on the Order was held on May 18, 1967 and written and oral comments 
were received and reviewed.
    The Interim Order prohibited the employment of farm workers under 
16 years of age in the following activities: handling or using 
explosives or certain farm chemicals; serving as a flagman for 
aircraft; driving vehicles on public roads or driving buses; operating, 
driving, or riding farm tractors or hooking up their power accessories 
with the motor running; doing certain jobs on specified farm tilling, 
handling, harvesting, and processing equipment; operating power post-
hole diggers and post drivers; working with power-saws; engaging in 
timbering operations on trees over a 6-inch diameter; working from 
ladders or scaffolds at more than 20 feet; working in certain gas-tight 
enclosures or in silos with their top unloaders in the operating 
position; and performing any work in confined areas with stud horses, 
dairy bulls, and boars.
    The Interim Order noted that minors under 16 who were employed by a 
parent or by a person acting in place of a parent on a farm owned or 
operated by such parent or person were exempt from the Ag H.O.s. It 
also created an exemption for student-learners under the age of 16 who 
were enrolled in a bona fide cooperative vocational program in 
agriculture under certain conditions.
    On June 6, 1968, the Department modified the Interim Order to 
permit 14- and 15-year-olds to drive tractors and operate other farm 
machinery provided they completed a formal training program in the safe 
use of such equipment coordinated by the U.S. Department of 
Agriculture's Federal Extension Service and its cooperative units. The 
modification was published in the Federal Register on June 11, 1968 
(see 33 FR 8542). The Interim Order was again amended on June 27, 1969 
to permit 14- and 15-year-old vocational-agricultural students to 
operate tractors and certain other farm equipment after completing 
training in the safe use of such equipment. This exemption was 
requested by the Division of Vocational and Technical Education, Office 
of Education, U.S. Department of Health, Education, and Welfare. This 
modification was published in the Federal Register on July 4, 1969 (see 
34 FR 11263).
    During the two-year period the Interim Order was in effect, the 
Department evaluated every activity covered by each of the Ag H.O.s. To 
assist in this endeavor, the Department hired two nationally recognized 
experts in the field of agriculture safety and established an 
Agricultural Advisory Committee of approximately 50 persons 
representing industry, labor, management, government associations, and 
youth.
    As a result of its extensive review, the Department published a 
Notice of Proposed Rulemaking (NPRM) in the Federal Register on October 
9, 1969 (34 FR 15655) to amend the agricultural child labor provisions 
which, at that time, were contained in 29 CFR part 1500. Although the 
NPRM used the Interim Order as a template, it did propose certain 
changes. The major changes involved a proposed reorganization and 
recombining of the original 16 Ag H.O.s into a more coherent 
arrangement and a revision of the exemptions provided for vocational-
agriculture students and youth who received training from the Federal 
Extension Service.
    The Department published a final rule in the Federal Register on 
January 7, 1970 (35 FR 221), which became effective on February 6, 
1970. The Ag H.O.s established by that final rule have never been 
revised and are identical to the current Ag H.O.s now contained in 29 
CFR 570.71. Unlike their nonagricultural counterparts contained in 
Subpart E of 29 CFR 570, the Ag H.O.s have traditionally been 
referenced by their regulatory citation, and not by a numbering system 
such as HO 1, HO 2, etc.
    The Ag H.O.s prohibit the employment of otherwise nonexempt hired 
youth under the age of 16 years in the following agricultural 
occupations:
    (1) Operating a tractor of over 20 power take-off (PTO) horsepower, 
or connecting or disconnecting an implement or any of its parts to or 
from such a tractor (Sec.  570.71(a)(1)).
    (2) Operating or assisting to operate (including starting, 
stopping, adjusting, feeding, or any other activity involving physical 
contact associated with the operation) any of the following machines: 
corn picker, cotton picker, grain combine, hay mower, forage harvester, 
hay baler, potato digger, mobile pea viner, feed grinder, crop dryer, 
forage blower, auger conveyor, the unloading mechanism of a nongravity-
type self-unloading wagon or trailer, power post-hole digger, power 
post driver, or nonwalking type rotary tiller (Sec.  570.71(a)(2)).
    (3) Operating or assisting to operate (including starting, 
stopping, adjusting, feeding, or any other activity involving physical 
contact associated with the operation) any of the following machines: 
trencher or earthmoving equipment, fork lift, potato combine, or power-
driven circular, band, or chain saw (Sec.  570.71(a)(3)).
    (4) Working on a farm in a yard, pen, or stall occupied by a bull, 
boar, stud horse maintained for breeding purposes, sow with suckling 
pigs, or cow with newborn calf (with umbilical cord present) (Sec.  
570.71(a)(4)).
    (5) Felling, bucking, skidding, loading, or unloading timber with 
butt diameter of more than six inches (Sec.  570.71(a)(5)).
    (6) Working from a ladder or scaffold (painting, repairing, or 
building

[[Page 54840]]

structures, pruning trees, picking fruit, etc.) at a height of over 20 
feet (Sec.  570.71(a)(6)).
    (7) Driving a bus, truck, or automobile when transporting 
passengers, or riding on a tractor as a passenger or helper (Sec.  
570.71(a)(7)).
    (8) Working inside a fruit, forage, or grain storage designed to 
retain an oxygen deficient or toxic atmosphere; an upright silo within 
two weeks after silage has been added or when a top unloading device is 
in operating position; a manure pit; or a horizontal silo while 
operating a tractor for packing purposes (Sec.  570.71(a)(8)).
    (9) Handling or applying (including cleaning or decontaminating 
equipment, disposal or return of empty containers, or serving as a 
flagman for aircraft applying) agricultural chemicals classified under 
the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 
et seq.) as Category I of toxicity, identified by the word ``poison'' 
and the ``skull and crossbones'' on the label; or Category II of 
toxicity, identified by the word ``warning'' on the label (Sec.  
570.71(a)(9)).
    (10) Handling or using a blasting agent, including but not limited 
to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, 
and primer cord (Sec.  570.71(a)(10)).
    (11) Transporting, transferring, or applying anhydrous ammonia 
(Sec.  570.71(a)(11)).
    Section 570.71(b) states that in applying machinery, equipment, or 
facility terms used in Sec.  570.71(1), the Wage and Hour Division 
(WHD) will be guided by the definitions contained in the current 
edition of Agricultural Engineering, a dictionary and handbook 
(Interstate Printers and Publishers, Danville, Il). Although the 
regulations state that copies of this dictionary and handbook are 
available for examination in Regional Offices of the WHD, this document 
has been out of publication since at least 1972.
    The 1970 Final Rule also expanded and clarified the exemptions to 
the Ag H.O.s that were established by the Interim Rules. Section 570.72 
allowed certain youth to perform work otherwise prohibited by the Ag 
H.O.s when enrolled in student-learner programs (see Sec.  570.72(a)), 
Federal Extension Service Programs (see Sec.  570.72(b)), or vocational 
agricultural training programs (see Sec.  570.72(c)).
    A youth enrolled in an agricultural vocational education training 
program under a recognized state or local educational authority, or in 
a substantially similar program conducted by a private school, may 
generally perform limited work otherwise prohibited by Sec.  
570.71(a)(1)-(6) (the first six Ag H.O.s). Such student-learner must be 
employed under a written agreement which provides that the work of the 
student-learner in the occupations declared particularly hazardous is 
incidental to his or her training; that such work shall be 
intermittent, for short periods of time, and under the direct and close 
supervision of a qualified and experienced person; that safety 
instruction shall be given by the school and correlated by the employer 
with on-the-job training; and that a schedule of organized and 
progressive work processes to be performed on the job have been 
prepared. It is unknown how many youth qualify for this exemption. This 
student-learner exemption is similar to the exemption created for 16- 
and 17-year-olds by Sec.  570.50(c) that applies to certain 
nonagricultural hazardous occupations orders. Both exemptions require 
that the student-learner be enrolled in a formal course of training or 
study and that the youth be employed under a written agreement that not 
only limits his or her exposure to hazardous work but details a 
schedule of progressive training, and provides for the student-learner 
to safely acquire needed skills.
    Section 570.72(b) permits a youth who is at least 14 years of age, 
who has successfully completed specified training under the auspices of 
the 4-H, to generally perform agricultural work otherwise prohibited by 
Sec.  570.71(a)(1) and/or (a)(2), the first two Ag H.O.s, which involve 
the operation of tractors and certain farm machinery. Minors must 
document their successful completion of the training by passing both a 
written and practical exam.
    4-H reports on its Web site (https://www.4-h.org/about/youth-development-organization/) that it is a youth organization that has 
more than 6 million young people across America learning leadership, 
citizenship and life skills. 4-H is the nation's largest youth 
development organization. The 4-H community includes 3,500 staff, 
540,000 volunteers and more than 60 million alumni. 4-H operates under 
the auspices of the U.S. Department of Agriculture's (USDA) National 
Institute of Food and Agriculture (NIFA) which was formerly the 
Cooperative State Research, Education, and Extension Service (CSREES).
    Employers wishing to take advantage of the exemption made available 
for the employment of youth properly trained under the 4-H programs 
must first obtain and keep on file for each youth a copy of the 
appropriate Certificate of Training (WHD Form WH-5). The certificate 
must be signed by both the leader who conducted the training program 
and the Extension Agent of the Cooperative Extension Service.
    Vocational agriculture training students who are at least 14 years 
of age and have successfully completed one or more training programs 
specified in Sec.  570.72(c)(1) or (c)(2) may, under certain 
conditions, perform work otherwise prohibited by Sec.  570.71(a)(1) 
and/or (a)(2), the first two Ag H.O.s. Minors document their successful 
completion of the training by passing both written and practical tests 
described in the regulations. Employers wishing to take advantage of 
the exemption made available for the employment of youth who have 
successfully completed the vocational agriculture training described in 
Sec.  570.72(c) must first obtain and retain a copy of the Certificate 
of Training (WHD Form WH-5), signed by the vocational agriculture 
teacher who conducted the program.
    WHD created and disseminates the Form WH-5, but does not maintain 
statistics on the number of youth trained under the auspices of the 
Federal Extension Service (see Sec.  570.72(b)) or as vocational 
agricultural students (see Sec.  570.72(c)). The WHD is not involved in 
the actual delivery of the training, nor does it audit the quality or 
effectiveness of the training except during an investigation, and then, 
it does so on a case-by-case basis.
    The three programs by which minors may perform certain agricultural 
work otherwise prohibited by the Ag H.O.s must comport with all the 
applicable provisions of Sec.  570.72, but otherwise operate relatively 
independently of the Department. The Department's role in this process 
has been limited to the issuance of the Form WH-5, the interpretation 
of and dissemination of the regulatory requirements, and the conducting 
of investigations to determine the appropriateness of the use of the 
exemption by individual agricultural employers on a case-by-case basis.
    It is important to note that, unlike the student-learner exemption 
contained in Sec.  570.72(a), the exemptions created for 14- and 15-
year-old farm workers through the Federal Extension Service (Sec.  
570.72(b)) and those who have received vocational agriculture training 
(Sec.  570.72(c)) do not require extensive or ongoing training. These 
two exemptions require only that the youth possess a certificate that 
documents that the required training has been satisfactorily completed. 
There are no such avenues to immediate and complete exemption from the 
nonagricultural hazardous

[[Page 54841]]

occupations orders available to 16- and 17-year-olds (see Sec.  
570.50(b) and (c)).
    The same 1966 amendments to the FLSA that authorized the Secretary 
to issue the Ag H.O.s also clarified the parental exemption, addressed 
the minimum age standards for employment in agriculture, and brought 
many agricultural workers under the Act's minimum wage provisions for 
the first time. Under section 3(l) of the Act, children under the age 
of 16 who are employed by their parents or person(s) standing in place 
of their parents may be employed at any time and in any occupation 
other than manufacturing, mining, or an occupation found by the 
Secretary to be particularly hazardous for youth between the ages of 16 
and 18. Section 13(c) of the Act expanded the parental exemption as it 
applies to agricultural employment in two ways. First, the parental 
exemption in 13(c)(1)(A) applies not only to youth who are employed by 
their parents or persons standing in place thereof on a farm that is 
owned by such individuals, but to youth who are employed by their 
parents or persons standing in place thereof on farms that are operated 
by, but not owned by, those individuals. Youth who are working pursuant 
to this ``operated by'' exemption must be employed outside of school 
hours. Second, section 13(c)(2) permits youth who are employed by their 
parents or persons standing in place thereof on farms owned or operated 
by those individuals to work in occupations that have been deemed by 
the Secretary to be hazardous to the employment of children under the 
age of 16. This exemption is much broader than the parental exemption 
in nonagricultural employment where the restrictions regarding the 
employment of youth in the 17 nonagricultural hazardous occupations 
orders remain until the age of 18.
    The parental exemptions in the FLSA, which permit children to be 
employed by their parents in some otherwise prohibited occupations, 
were not predicated on the belief that the children of business owners 
and/or farmers were more physically or mentally advanced, more safety 
conscious, or in possession of more cautious work habits than their 
peers. Instead, these exemptions were granted in recognition of, and 
continue to rely upon, the concept that a parent's natural concern for 
his or her child's well-being will serve to protect the child. 
Congress, as evidenced by discussion on the floor of the House of 
Representatives (see Congressional Record, 75th Congress, page 1693, 
December 16, 1937) intended that the parental exemptions be applied 
quite narrowly, limiting their application to parents and those 
standing in place of a parent.
    Accordingly, application of the parental exemption in agriculture 
has been for over forty years limited to the employment of children 
exclusively by their parent(s) on a farm owned or operated by the 
parent(s) or person(s) standing in their place. Any other applications 
would render the parental safeguard ineffective. Only the owner or 
operator of a farm is in a position to regulate the duties of his or 
her child and provide guidance. Where the ownership or operation of the 
farm is vested in persons other than the parent, such as a business 
entity, corporation or partnership (unless wholly owned by the 
parent(s)), the child worker is responsible to persons other than, or 
in addition to, his or her parent, and his or her duties would be 
regulated by the corporation or partnership, which might not always 
have the child's best interests at heart. As Solicitor of Labor Richard 
F. Schubert advised Congressman Walter B. Jones in his letter of 
September 12, 1972, ``[e]mployment by a partnership or a corporation 
would not fulfill the [parental] exemption requirement unless the 
partnership was comprised of the child's parents only or the 
corporation was solely owned by the parent or parents.''
    The Department has, for many years, considered that a relative, 
such as a grandparent or aunt or uncle, who assumes the duties and 
responsibilities of the parent to a child regarding all matters 
relating to the child's safety, rearing, support, health, and well-
being, is a ``person standing in the place of'' the child's parent (see 
letter of Charles E. Wilson, Agricultural Safety Officer, Division of 
Youth Standards of April 7, 1971 to Mr. Floyd Wiedmeier). It does not 
matter if the assumption of the parental duties is permanent or 
temporary, such as a period of three months during the summer school 
vacation during which the youth resides with the relative (Id.). This 
enforcement position does not apply, however, in situations where the 
youth commutes to his or her relative's farm on a daily or weekend 
basis, or visits the farm for such short periods of time (usually less 
than one month) that the parental duties are not truly assumed by that 
relative. The Department also interprets the term ``parent or person 
standing in the place of the parent'' to mean a human being and not an 
institution or facility, such as a corporation, business, partnership, 
orphanage, school, church, or a farm dedicated to the rehabilitation of 
delinquent children.
    The Department interprets ``operated by'' the parent or person 
standing in the place of the parent to mean that he or she exerts 
active and direct control over the operation of the farm or ranch by 
making day-to-day decisions affecting basic income, work assignments, 
hiring and firing of employees, and exercising direct supervision of 
the farm or ranch work. A ranch manager, therefore, who meets these 
criteria could employ his or her own children under 16 years of age on 
the ranch he or she operates without regard to the agricultural 
hazardous occupations orders, even if the ranch is not owned by the 
parent or a person standing in the place of the parent, provided the 
work is outside school hours.
    It is important to note that a child who is exempt from the Ag 
H.O.s when employed on his or her parent's farm would generally lose 
that exempt status (not be exempt) when employed on a farm owned or 
operated by a neighbor or non-parental relative. This is true even if 
the youth is operating equipment owned by his or her parent.
    None of the revisions proposed in this NPRM in any way change or 
diminish the statutory child labor parental exemption in agricultural 
employment contained in FLSA section 13(c)(1). The child labor 
provisions of the FLSA, just like the Act's minimum wage and overtime 
provisions, apply only when an employment relationship exists between 
an employer and a young worker. The concept of an employment 
relationship, which is the same for agricultural and nonagricultural 
employment, is well established under the FLSA and discussed in detail 
in Chapter 10 of the WHD Field Operations Handbook (FOH), available at 
https://www.dol.gov/whd/FOH/FOH_Ch10.pdf and in 29 CFR part 776.
    The 1974 FLSA amendments also amended section 13(c) to permit the 
employment of the following young hired farm workers (the term used to 
describe youth under the age of 16 who do not fall within the parental 
exemption) to work outside of school hours in non-hazardous 
agricultural occupations: (1) One who is 14 or 15 years of age; (2) one 
who is 12 or 13 years of age and employed on the same farm as his or 
her parent or person standing in the place of his or her parent, or 
with the written consent of his or her parent or person standing in the 
place of his or her parent; and (3) one who is less than 12 years of 
age and employed with the consent of his or her parent or person 
standing in the place of his or her parent on a small farm where no 
employee is required to be paid the minimum wage because of the

[[Page 54842]]

exception provided by FLSA section 13(a)(6)(A). The Department 
interprets the term consent to mean written consent. These provisions 
remain the basic minimum age standards for agricultural employment. 
Again, it is important to note that the FLSA provides no similar ``take 
your children to work'' exemption for the children of workers employed 
in nonagricultural employment. Parents cannot waive the nonagricultural 
child labor provisions for their children unless the parent is the 
employer; and then, only certain provisions may be waived.
    The Fair Labor Standards Amendments of 1977, Public Law 95-151, 
Sec.  8, added section 13(c)(4). This section allows the Secretary of 
Labor to consider granting requests for waivers to employers that would 
permit local minors 10 and 11 years of age to be employed outside of 
school hours in the hand harvesting of short season crops under certain 
conditions. The Department issued regulations at 29 CFR part 575 
(Waiver of Child Labor Provisions for Agricultural Employment of 10 and 
11 Year Old Minors in Hand Harvesting of Short Season Crops) in 1978 
and a few waivers were actually granted in the early years. But the 
Department was enjoined from issuing such waivers in 1980 because of 
issues involving exposure, or potential exposure, to pesticides (see 
National Ass'n of Farmworkers Organizations v. Marshall, 628 F.2d 604 
(DC Cir. 1980)). Therefore, no waivers have been granted under FLSA 
section 13(c)(4) for thirty years.
    The Department is committed to ensuring that the agricultural youth 
employment provisions of the FLSA balance the benefits of employment 
opportunities with the necessary and appropriate safety protections. 
Changes in the nature, size, and technology of agricultural workplaces, 
along with the high incidences of occupational injury and death 
suffered by agricultural workers of all ages, warrant an ongoing review 
of the youth employment provisions. Before addressing the changes to 
the agricultural youth employment provisions the Department is 
proposing in this NPRM, it is important to discuss the demographics of 
the young workers impacted by the proposed changes and the occupational 
safety and health issues they confront.
    Because the parental exemption for agricultural employment is so 
broad, allowing exempt youth to perform any work at any age (except in 
manufacturing and mining) and at any time of the day, the Federal child 
labor provisions generally apply only to youth who are hired farm 
workers. Although articles and studies concerning young hired farm 
workers have been issued by many diverse groups, including the 
Department, the USDA, the Government Accountability Office (GAO), the 
National Institute for Occupational Safety and Health (NIOSH), the 
Human Rights Watch, the Farmworkers Justice Fund, Inc., and the Census 
Bureau, there is consensus that estimating the number of young hired 
farm workers is difficult because of the gaps in available data. 
Adequate data concerning younger hired farm workers does not exist.
    Some surveys, such as the Current Population Survey (CPS) conducted 
by the Bureau of Labor Statistics and Census Bureau, exclude all 
children under the age of 15. The National Agricultural Workers Survey 
(NAWS), conducted by the Department, only surveys crop production 
workers--excluding those employed in the raising and care of livestock. 
Differences in findings also result from different methods of counting 
children who live and work on their family farms.
    But it is known that the number of hired farm workers who are under 
the age of 16, and thereby subject to the prohibitions of the Ag H.O.s, 
is relatively small. The USDA's National Agricultural Statistics 
Service (NASS) reported that, in 2006, there were approximately 1.01 
million hired farm workers, which made up a third of the three million 
people employed in agriculture in the United States (see USDA, Profile 
of Hired Farmworkers, A 2008 Update, Economic Research Report Number 
60). The USDA went on to report that approximately 15.1 percent of 
those workers, which equates to about 152,500 individuals, were between 
the ages of 15 and 21 years. Of this number, only a small portion--
those under 16 years of age--would be subject to the Federal Ag H.O.s.
    The NAWS has reported similar findings which apply only to crop 
production workers. In addition, NAWS notes that the number of young 
hired crop workers relative to all hired crop workers is declining. For 
the period of 1994 through 1997, NAWS reported that 8.62 percent of all 
hired crop workers were 14 to 17 years of age; that same cohort 
constituted 3.65 percent of all hired crop workers during the period of 
2002 through 2005. Of this number, NAWS reported that only one-quarter 
were under the age of 16 (see NAWS Public Data available at https://www.doleta.gov/agworker/naws.cfm). Unpublished NAWS data reflect that 
for the period of 2006 through 2009, the percentage for the 14 to 17 
cohort had fallen to just below three percent. Using an estimated 1.8 
million hired crop workers, a figure provided by the NAWS, the data 
suggest that there were about 54,000 young workers aged 14 to 17 
working in crop production during 2006-2009 and that 13,500 were under 
the age of 16 and, thus, subject to the Ag H.O.s, some of whom could 
qualify for the limited exemptions under Sec.  570.72.
    It is important to recognize certain inherent limitations of NAWS. 
NAWS is a survey rather than a census and workers under the age of 14 
years are not interviewed in the NAWS. In addition, NAWS interviewers 
are required to obtain the employer's permission to conduct interviews. 
In recent years, the Department has reported that 65 percent of all 
growers who employed workers when they were contacted by an interviewer 
agreed to cooperate with the survey. Information on the demographic 
characteristics of workers on farms where the growers do not 
participate is not obtainable. But the data reported by NAWS 
complements that of the NIOSH Childhood Agriculture Injury Survey 
(CAIS).
    The NIOSH CAIS estimates that, in 2006, there were 14,395 youth 
under the age of 14 who were directly hired by a farm operator and, of 
that number, less than 1,800 were reported to have operated a tractor. 
This number is rather high considering that none of those youth under 
the current Federal agricultural child labor provisions could legally 
be employed to operate a tractor unless a parent owned or operated the 
farm. CAIS also estimates that in 2006, 41,476 youth 14 or 15 years of 
age were directly hired by a farm operator, and of that number, 7,565 
were reported to have operated a tractor as part of their employment. 
This latter group could legally operate certain tractors only if 
employed in compliance with the provisions of Sec.  570.72 (this 
information is unpublished data from the NIOSH 2006 Childhood 
Agricultural Injury Survey provided by NIOSH and approved by the USDA 
National Agricultural Statistics Survey on February 26, 2009, available 
at https://www.regulations.gov, docket number WHD-2011-0001). Combining 
the above two estimates, the data would indicate that there were fewer 
than 56,000 hired farm workers under the age of 16 in 2006. NIOSH notes 
that the above estimates do not include contracted farm workers and 
that they are a head count of youth who did any farm work regardless of 
the length of employment. The estimates were reported by the farm 
operator at a single point in time, which could lead to some under-
reporting.
    Although there is some disagreement as to the numbers of hired farm 
workers

[[Page 54843]]

employed in agriculture, data from a broad variety of sources shows 
that agricultural work is difficult and dangerous. The National Safety 
Council's 2009 edition of Injury Facts ranks agriculture as our 
nation's most dangerous industry with 28.6 deaths per 100,000 adult 
workers (see Injury Facts 2009 Edition available at https://www.nsc.org). The agricultural industry is broad in terms of 
occupational categories; the work is often seasonal, meaning that farm 
workers perform a wide variety of tasks depending on the production 
cycle. This wide diversity of tasks does not allow specialization among 
workers and creates special challenges when training and developing a 
safe agricultural workforce. Not surprisingly, the agriculture, 
forestry, and fishing sector, which employed less than two percent of 
the U.S. workforce, accounted for 13 percent of all fatal occupational 
injuries between 1996 and 2001 (see Loh K, Richardson S [2004]. 
Foreign-born Workers: Trends in Fatal Occupational Injuries, 1996-2001. 
Monthly Labor Review (June): 42-53, 2004). NIOSH reports on its Web 
site that in 2008, 456 farmers and farm workers died doing farm work in 
the U.S., and that every day about 243 agricultural workers suffer 
lost-work time injuries. About five percent of the injuries result in 
permanent impairment (see https://www.cdc/niosh/topics/aginjury).
    For youth, the hazards are also significant. Agriculture has the 
second highest fatality rate among young workers (aged 15 to 24) at 
21.3 per 100,000 full-time equivalents compared to 3.6 per 100,000 
across all industries (see Occupational Injuries and Deaths Among 
Younger Workers--United States, 1998-2007. Journal of the American 
Medical Association, 304(1), 33-35 (2010)).
    The Bureau of Labor Statistics (BLS) provides data on occupational 
fatalities for youth under 18 through its National Census of Fatal 
Occupational Injuries (CFOI), and on nonfatal injuries and illnesses 
requiring time off from work for recuperation through its Survey of 
Occupational Injuries and Illnesses (SOII). NIOSH estimates youth 
injuries for 14- to 17-year-olds based on the National Electronic 
Injury Surveillance System (NEISS) maintained by the Consumer Product 
Safety Commission. Using data from the CFOI, the GAO reported that 613 
youths aged 17 and under were killed at work from 1992 to 2000, and 
during each of those years, between 62 and 73 young workers died from 
injuries sustained while working (see GAO Report 98-193, Child Labor in 
Agriculture, August 1998, pp. 22-23). GAO reported that, during the 
1990s, while only about four percent of all working youth were employed 
in agriculture, they experienced over 40 percent of the youth 
occupational fatalities. GAO notes that for these data, the agriculture 
sector includes not only crop production, agricultural services, and 
livestock, but forestry and fishing as well.
    BLS further reported that agricultural workers aged 15 to 17 have a 
risk of fatality that is 4.4 times as great as the risk for the average 
15- to 17-year-old worker. Moreover, the risk of occupational fatality 
for these young agricultural workers is about the same as for adults 
aged 25 to 44 working in agriculture, despite the fact that 15-year-
olds are not permitted to perform work in any of the hazardous 
occupations (see BLS Report on the Youth Labor Force [2000], p. 60 
available at https://www.bls.gov/opub/rylf/rylfhome.htm).
    In analyzing the characteristics of youth occupational fatalities, 
approximately three-quarters of all deaths to young workers under the 
age of 15 occurred in agriculture. Where establishment size was 
reported, ninety percent of the young farm workers killed while working 
were employed by an agricultural employer with ten or fewer employees 
(see GAO Report 98-193, Child Labor in Agriculture, August 1998, pp. 
26-27). In addition, BLS found that fatalities among young people 
working in agriculture are most likely to occur among the very youngest 
workers. BLS also reports that about three-fourths of occupational 
fatalities in self-employed jobs were in agriculture and more than half 
the deaths in agriculture occurred in family businesses (see BLS Report 
on the Youth Labor Force [2000], p. 58).
    The deaths of agricultural workers, both young and adult, occurred 
primarily in crop production and often involved motor vehicles. NIOSH 
reports in its Science Blog Preventing Death and Injury in Tractor 
Overturns with Roll-Over Protective Structures, available at https://www.cdc.gov/niosh/blog/nsb010509_rops.html, that tractor overturns are 
the leading cause of occupational agricultural deaths in the United 
States. ``Between 1992 and 2005, 1,412 workers on farms died from 
tractor overturns.'' David Hard and John Myers have reported similar 
findings involving young agricultural workers, noting that machinery 
and vehicles were the primary sources of fatalities, each accounting 
for 38% of the deaths. ``However, tractors were the single largest 
source of fatalities, accounting for 42.9% of the vehicle deaths and 
17.6% of all deaths to the youngest of the young agricultural workers'' 
(see Hard D, Myers J, [2006]. Fatal Work-Related Injuries in the 
Agriculture Production Sector Among Youth in the United States, 1992-
2002. Journal of Agromedicine, Vol. 11(2), available at https://ja.haworthpress.com).
    The most common cause of occupational deaths among young 
agricultural workers, according to the BLS, was from farm machinery. 
Nationally, between 1992 and 1997, nearly a third of the deaths of 
youth in agriculture could be attributed to involvement with tractors--
in about half of these cases, the tractor overturned on the youth (see 
BLS Report on the Youth Labor Force [2000], p. 60). These statistics 
are compelling, given that Department of Labor regulations, with some 
exceptions, prohibit hired farm workers under the age of 16 from 
operating a tractor of over 20 horsepower, or connecting or 
disconnecting an implement or any of its parts to or from such a 
tractor.
    The data regarding agricultural injuries to young farm workers are 
just as bleak as those for fatalities. Farm workers experience a high 
incidence of work-related injuries and these injuries tend to be more 
severe than those suffered by nonagricultural workers. The SOII 
reported that the rate of all injuries and illnesses in agriculture in 
1997 was 8.4 per 100 workers. This rate was higher than any other 
industry except manufacturing and construction. In its study of farm 
injuries to youth, NIOSH estimated that working youth under 20 years of 
age suffered 14,590 farm injuries in 1998. Of that number, 2,127 were 
experienced by hired farm workers. NIOSH notes that the leading causes 
of these injuries were falls, off-road transportation incidents, and 
being struck by objects (see NIOSH publication 2004-172 Injuries Among 
Youths on Farms in the United States 1998, page 10, available at https://www.cdc.gov/niosh/childag/pdfs/2001154.pdf).
    In addition, the exposure of young workers to pesticides is a 
serious and widespread concern for young agricultural workers. The 
health effects of pesticides on children, as opposed to the adult 
worker population, have not been adequately studied and data is 
limited. NIOSH cites some studies that suggest children exposed to 
pesticides may suffer chronic problems relating to stamina, hand-eye 
coordination, and cognitive ability (see NIOSH Report, page 95).
    The demographics of hired farm workers under 16 years of age are 
such that they are relatively few in number, but work in an industry 
with one of the

[[Page 54844]]

highest incidences of occupational fatalities and of injuries and 
illnesses involving days away from work, according to the BLS (see 
Report on the Youth Labor Force, p. 56). Although these incidences 
exceed those of experienced young workers employed in nonagricultural 
sectors, they are significantly fewer than those experienced by their 
peers who are not hired farm workers but perform work on their 
families' farms. NIOSH, in its NIOSH Childhood Agricultural Injury 
Prevention Initiative, Progress and Proposed Future Activities [2009], 
p. 8, available at https://www.cdc.gov/niosh/review/public/145/), notes 
that ``[y]outh living on farms accounted for the most farm injuries in 
2006 (approximately 11,800 injuries), followed by visitors 
(approximately 5,600 injuries), and hired workers (approximately 1,400 
injuries).''
    As mentioned above, the Department has been conducting an ongoing 
review of the criteria for permissible child labor employment. Because 
of changes in agricultural workplaces, the high incidences of 
occupational injury and death occurring in agriculture, and the 
introduction of new processes and technologies, the review of the 
agricultural child labor provisions is of heightened importance. Part 
of this review includes a comparison of the child labor provisions 
established for agricultural employment and those established for 
nonagricultural employment. The Department believes that several of the 
prohibitions established by Child Labor Regulation No. 3 (Subpart C of 
29 CFR 570, Sec. Sec.  570.31-.37) to ensure the safe employment of 
youth 14 and 15 years of age in nonagricultural employment could 
positively impact the employment of hired farm workers of that same age 
group.
    In furtherance of that review, as discussed earlier in this 
preamble, the Department provided funds to NIOSH in 1998 to conduct a 
comprehensive review of scientific literature and available data in 
order to assess current workplace hazards and the adequacy of the 
current youth employment HOs to address them. The NIOSH Report makes 14 
recommendations concerning the existing agricultural hazardous 
occupations orders (Ag H.O.s). The Department proposes, in this NPRM, 
to address all 14 of the NIOSH recommendations concerning the Ag H.O.s. 
The Department is continuing to review all of the remaining NIOSH 
Report recommendations. 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 are not being given the same level of 
consideration as the recommendations addressed in this NPRM.

C. The Assessment of Child Labor Civil Money Penalties

    The Fair Labor Standards Amendments of 1974 (Pub. L. 93-259, 88 
Stat. 55) amended section 16 of the Fair Labor Standards Act of 1938, 
as amended, 29 U.S.C. 2