Daily Rules, Proposed Rules, and Notices of the Federal Government
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.
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:
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.
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
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 § 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
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
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,
Both the NIOSH Report and the SiloSmashers analysis are available for review on the Department's
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
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.
The Fair Labor Standards Act (FLSA), 29 U.S.C. 201
FLSA section 3(l) defines the term
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 (
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
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” (
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,
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 (
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
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, § 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 (
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
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
The Department published a final rule in the
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 (§ 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 (§ 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 (§ 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) (§ 570.71(a)(4)).
(5) Felling, bucking, skidding, loading, or unloading timber with butt diameter of more than six inches (§ 570.71(a)(5)).
(6) Working from a ladder or scaffold (painting, repairing, or building
(7) Driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper (§ 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 (§ 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
(10) Handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord (§ 570.71(a)(10)).
(11) Transporting, transferring, or applying anhydrous ammonia (§ 570.71(a)(11)).
Section 570.71(b) states that in applying machinery, equipment, or facility terms used in § 570.71(1), the Wage and Hour Division (WHD) will be guided by the definitions contained in the current edition of
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 (
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 § 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 § 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 § 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 (
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
Vocational agriculture training students who are at least 14 years of age and have successfully completed one or more training programs specified in § 570.72(c)(1) or (c)(2) may, under certain conditions, perform work otherwise prohibited by § 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 § 570.72(c) must first obtain and retain a copy of the
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 (
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 § 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 § 570.72(a), the exemptions created for 14- and 15-year-old farm workers through the Federal Extension Service (§ 570.72(b)) and those who have received vocational agriculture training (§ 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
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 (
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 (
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
The 1974 FLSA amendments also amended section 13(c) to permit the employment of the following
The Fair Labor Standards Amendments of 1977, Public Law 95-151, § 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 (
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 (
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 (
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 § 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
Although there is some disagreement as to the numbers of hired farm workers
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 (
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 (
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 (
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 (
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
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 (
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 (
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 (
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
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, §§ 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.
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. 216, to provide for the imposition of civil money penalties for violations of the child labor provisions. The amendments provided that “[a]ny person who violates the provisions of section 12, relating to child labor, or any regulations issued under that section, shall be subject to a civil money penalty not to exceed $1,000 for each such violation. In determining the amount of such penalty, the appropriateness of such penalty to the size of the business of the person charged and the gravity of the violation shall be considered.” This process of assessing civil money penalties is the same whether the youth is employed by an agricultural employer or a nonagricultural employer.
Prior to the enactment of these provisions, the Secretary enforced the child labor provisions primarily through actions for injunctive relief and criminal sanctions. Child labor civil money penalties were implemented, as reported by the Supreme Court in
The Department published proposed rules in the
Part 579 describes the violations for which civil money penalties may be imposed, establishes rules for the issuance of notices of penalty assessments, delineates the factors to be considered by the Secretary or the Secretary's authorized representative in determining the amount of the penalty, and outlines the methods provided by the Act for collection of the civil money penalties after their final determination. In addition to the statutory requirements regarding the size of the business of the person charged and the gravity of the violation, part 579 also lists other related factors that WHD shall consider when determining the amount of the civil money penalty and assessing that penalty.
These other factors, which are detailed in § 579.5(d), include: The investigation history of the person charged and the degree of willfulness involved in the violation; whether the violation is de minimis; whether the person so charged has given credible assurance of future compliance; whether the person so charged had no previous history of child labor violations; whether the violations themselves involved intentional or heedless exposure of any minor to any obvious hazard or detriment to the child's health or well-being; whether the violations were inadvertent; and whether a civil penalty under the circumstances is necessary to achieve the objectives of the FLSA. The Department is not proposing to change any of the above regulatory considerations.
Part 580 sets forth the rules of practice governing administrative proceedings to be conducted when exceptions to notices of penalty are filed. These proceedings, as required by the Act, afford an opportunity for hearing in accordance with section 554 of Title 5, United States Code, before an administrative law judge. This part remains in effect today, although it has been updated over the years to incorporate the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges established by the Secretary of Labor at 29 CFR part 18, and to accommodate the administrative processing of civil money penalties assessed because of repeated and/or willful violations of FLSA sections 6 and 7. As noted above, the Department's procedures for assessing and processing child labor civil money penalties have also remained the same regardless of whether the violations occurred in agricultural or nonagricultural employment.
Congress has authorized increases in the maximum amounts of child labor civil money penalties that may be assessed under the FLSA three times. The Omnibus Budget Reconciliation Act of 1990, Public Law 101-508, § 3103, increased the amount of the maximum civil money penalty that may be assessed for each child labor violation from $1,000 to $10,000. The Department applied the $10,000 maximum penalty to assessments for violations that occurred after November 5, 1990. Second, the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), authorized the Department to increase the maximum civil money penalty that may be assessed for each