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

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.

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:

http://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

http://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

http://www.regulations.gov

or to submit them by mail early. For additional information on submitting comments and the rulemaking process, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document.

Docket:

For access to the docket to read background documents or comments received, go to the Federal eRulemaking Portal at

http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Arthur M. Kerschner, Jr., 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:

http://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

http://www.regulations.gov

Web site. You may also access this document via the Department's Web site at

http://www.dol.gov/federalregister.

To comment electronically on Federal rulemakings, go to the Federal eRulemaking Portal at

http://www.regulations.gov,

which will allow you to find, review, and submit comments on Federal documents that are open for comment and published in the

Federal Register

. Please identify all comments submitted in electronic form by the RIN docket number (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

http://www.regulations.gov,

or submit them by mail early to ensure timely receipt prior to the close of the comment period. Submit one copy of your comments by only one method.

II. Background

The 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

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 § 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

http://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

http://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

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

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, § 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 (§ 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

structures, pruning trees, picking fruit,

etc.

) at a height of over 20 feet (§ 570.71(a)(6)).

(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

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 (§ 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 (§ 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

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

§ 570.72(a)), Federal Extension Service Programs (

see

§ 570.72(b)), or vocational agricultural training programs (

see

§ 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 § 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 (

http://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 § 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

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

§ 570.72(b)) or as vocational agricultural students (

see

§ 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 § 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

occupations orders available to 16- and 17-year-olds (

see

§ 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

http://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

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, § 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

http://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 § 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 § 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

http://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

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

http://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 http://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

http://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

http://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

http://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

http://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

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

http://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, §§ 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. 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

Marshall

v.

Jerrico, Inc.,

446 U.S. 238, 244 (1980), because Congress, having found injunctive relief “to be an inadequate or insufficiently flexible remedy for violations of the law,” amended the FLSA accordingly.

The Department published proposed rules in the

Federal Register

on December 26, 1974 that created the original parts 579 and 580 of Title 29 (

see

39 FR 44702). Final Rules governing the child labor civil money penalty assessment process were published in the

Federal Register

on June 18, 1975 (

see

40 FR 25792) and became effective on July 18, 1975.

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

child labor violation to $11,000, which it did effective January 7, 2002 (

see

66 FR 63501, December 7, 2001). Third, Congress enacted the Genetic Information Nondiscrimination Act of 2008 (GINA) (Pub. L. 110-233, 122 Stat. 881), which amended FLSA section 16(e) to incorporate into the statute the $11,000 maximum penalty per violation that the Department had administratively adopted in 2002. GINA also allows for a civil money penalty of up to $50,000 for each child labor violation that causes the death or serious injury of any employee under the age of 18, and provides that such penalty may be doubled—up to $100,000—when that violation is determined to be repeated or willful.

When the FLSA was first amended to authorize the assessment of civil money penalties for violations of the Act's child labor provisions in 1974, the Department developed the Child Labor Civil Money Penalty Report (Form WH-266) as a tool for managers to use when determining the initial amount of child labor civil money penalties that could be assessed an employer for violations. This “grid-like” document took into consideration both the statutory and regulatory factors contained in § 579.5 that WHD is required to take into account when making assessments. After manually completing the grid, the WHD manager making the assessment conducted a final review of the initial assessment and, if necessary, using his or her discretion, adjusted the initial assessment amount to ensure it comported with both the FLSA and the applicable regulations.

The WH-266 became a part of the investigation file and employers were able to review the document during the administrative procedure authorized by part 580. The WH-266 became an important element of the assessment process that helped to ensure WHD's child labor civil money penalty assessments comported with both the FLSA and the applicable regulations, and it was recognized as such by administrative law judges, the Department's Administrative Review Board (ARB), and Federal courts. For example when affirming a decision of the Department's ARB a Federal district court stated, “[l]ike the ARB, the Court finds that Form WH-266 incorporates the mandatory regulatory factors into its penalty schedule, and consequently is appropriately utilized to calculate penalties for child labor violations.”

Thirsty's, Inc.

v.

United States Department of Labor,

576 F. Supp. 2d 431, 436-37 (S.D. Tex. 1999).

WHD discontinued the manual completion of the WH-266 in 1999 when it implemented a new electronic information management system. Since that implementation, the WHD investigator enters the violation data and investigation findings into the system and the supervising manager then uses the system to generate a condensed version of the WH-266. Thus, WHD continues to apply the principles and mandatory mitigating and/or aggravating factors to determine appropriate amounts of child labor civil money penalties during the assessment process. The initial civil money penalty amounts generated by the “old” grid and the new computerized format are identical, and they comport with the requirements of the FLSA and the applicable regulations.

Except for the incorporation of increases in the maximum amounts of civil money penalties WHD was authorized to assess as directed by Congress, and the migration from the manual completion of the WH-266 to an electronic platform, the process WHD uses to determine the amount of the penalties has not varied since 1974. Enactment of GINA, effective May 21, 2008, impacted the assessment of child labor civil money penalties in several ways. First, as noted above, it incorporated into the statute the $11,000 maximum penalty per violation that the Department administratively adopted in 2002. Secondly, GINA allows for a significantly higher civil money penalty for each child labor violation that caused the death or serious injury of any employee under the age of 18, and such penalty may be doubled when that violation is determined to be repeated or willful.

GINA also, for the first time, authorizes the assessment of a civil penalty for a child labor violation that caused the death or serious injury of any employee under 18 years of age—even when the minor who was killed or seriously injured was not the minor whose employment was in violation of the FLSA (29 U.S.C. 216(e)(1)(A)(ii)). For example, if a 16-year-old was illegally employed to drive a truck in violation of Hazardous Occupations Order No. 2 (§ 570.52) (

Occupation of motor-vehicle driver and outside helper

), and was involved in an accident that resulted in the death of his 17-year-old co-worker who was riding in the vehicle as a passenger at that time, WHD could assess a child labor civil money penalty under GINA because the violation involving the employment of the 16-year-old caused the death of an employee under the age of 18. That penalty could be as high as $50,000, and could be doubled, up to $100,000, if WHD determined the violation was repeated or willful. The Department incorporated the statutory provisions of GINA into parts 570 and 579 via a Final Rule published on May 20, 2010 (

see

75 FR 28444).

Shortly after the enactment of GINA, the WHD amended its child labor civil money penalty process to accommodate GINA. Civil money penalty assessments have been made under this new process for over two years. On January 20, 2010, WHD issued Field Assistance Bulletin (FAB) 2010-1,

Assessment of Child Labor Civil Money Penalties,

to advise the public of WHD's child labor civil money assessment process. This document, which is available on WHD's Web site, at

http://www.dol.gov/whd/FieldBulletins/index.htm,

describes the criteria used by the WHD's electronic information management system and the assessing official to determine the amount of the civil money penalty.

III. Proposed Regulatory Revisions—General

As discussed in Section IV, the Department is proposing the creation of two new nonagricultural hazardous occupations orders:

Occupations in farm-product raw materials wholesale trade industries (HO 18)

and

The use of electronic devices, including communication devices, while operating power-driven equipment (HO 19).

The Department is also proposing to revise § 570.2(b) to clarify the Department's regulations. Section 570.2(b), as currently written, notes that a minor 12 or 13 years of age may be employed in agriculture to perform nonhazardous work outside of school hours with the written consent of his or her parent or person standing in place of the parent, or may work on a farm where the parent or such person is also employed. That section also states that a minor under 12 years of age may be employed with the consent of a parent or person standing in place of a parent on a farm where all employees are exempt from the minimum wage provisions by virtue of FLSA section 13(a)(6)(A). The Department has always interpreted the term

consent,

as it applies to all hired farm workers under the age of 14 years, to mean

written consent.

This interpretation is supported by § 579.3(b)(3)(ii)(A) and (4)(ii) which, when listing the violations for which child labor civil money penalties may be assessed, requires that the parental consent for all hired farm workers under 14 years of age be in writing. In order to provide clarification, the Department proposes to revise § 570.2(b) by changing

consent

to

written consent.

In addition, the proposal changes the cross-reference

from Subpart E-1 to Subpart F, as discussed below.

The Department is proposing to redesignate the current Subpart E-1—Occupations in Agriculture Particularly Hazardous for the Employment of Children Below the Age of 16—as Subpart F, which is currently

reserved.

The Department is also proposing to redesignate and revise all three sections of the current Subpart E-1: § 570.70, which addresses the purpose and scope of the subpart; § 570.71, which contains the current Ag H.O.s; and § 570.72, which contains the existing exemptions that permit certain 14- and 15-year-old hired farm workers to perform certain otherwise prohibited work. Because the Department proposes to place the section addressing exemptions from the Ag H.O.s before the actual Ag H.O.s, as is done in Subpart E of 29 CFR part 570 dealing with the nonagricultural hazardous occupations orders, the revisions to § 570.72 will be discussed before § 570.71. As all the Ag H.O.s share the identical regulatory inception and history which was discussed earlier in this preamble, the Department will not repeat that history when discussing the proposed revisions to the individual Ag H.O.s. In addition, the Department proposes to number each of the Ag H.O.s in a manner similar to the system used for the nonagricultural hazardous occupations orders.

The Department is also proposing to revise § 570.123 of Subpart G—

General Statements of Interpretation of the Child Labor Provisions of the Fair Labor Standards Act of 1938, as Amended,

to incorporate the changes to the agricultural child labor provisions since the last revision of that subpart.

Finally, the Department is including in this proposed rulemaking revisions to part 579,

Child labor violations—civil money penalties,

to provide additional transparency to its child labor civil money penalty assessment process by incorporating the most significant provisions of the Wage and Hour Division's Field Assistance Bulletin 2010-1.

IV. Proposed Regulatory Revisions—Nonagricultural Hazardous Occupations Orders—29 CFR Part 570

A. Farm-Product Raw Materials Wholesale Trade Industries

The NIOSH Report recommends that the Department establish a new nonagricultural HO prohibiting the employment of youth under 18 years of age in the farm-product raw materials wholesale trade industry, Standard Industrial Code (SIC) 515 (

see

Report, page 112). NIOSH notes that “[w]orkers in the farm-product raw materials industry have high rates of work-related fatalities. Work in this industry presents a wide range of hazards, including grain entrapments, rail and vehicle accidents, and contact with large animals. Many of the hazardous activities in this industry are equivalent to tasks currently prohibited for youth working in other industry sectors such as agricultural production” (

see

Report, page 112). NIOSH does not recommend that the Department provide exemptions from this proposed HO for student-learners or apprentices because of the diversity of hazards in these industries.

The farm-product raw materials wholesale trade industry classification (SIC 515) is quite broad and contains three subdivisions or sub-classifications. SIC 5153,

Grain and Field Beans,

covers establishments primarily engaged in the buying and/or marketing of grain (such as corn, wheat, oats, barley, and unpolished rice); dry beans; soy beans, and other inedible beans. Also included in SIC 5153 are country grain elevators primarily engaged in buying or receiving grain from farmers, as well as terminal elevators and other merchants marketing grain.

SIC 5154,

Livestock,

covers establishments primarily engaged in buying and/or marketing cattle, hogs, sheep, and goats. Also included in SIC 5154 are establishments that operate livestock auction markets.

SIC 5159,

Farm-Product Raw Materials, Not Elsewhere Classified,

involves establishments primarily engaged in buying and/or marketing farm products, not contained in the other two sub-classifications.

Not included in SIC 515 are establishments primarily engaged in the wholesale distribution of field and garden seeds, milk, or live poultry.

Since the publication of the NIOSH Report, the Bureau of Labor Statistics (BLS) has shifted away from using Standard Industrial Codes and now uses North American Industry Classification System (NAICS) industry identifiers. Because the SIC and NAICS industry groupings may differ somewhat, comparing industry injury and fatality data compiled using SICs with that using the NAICS is sometimes problematic and often requires explanation.

The NIOSH Report notes (

see

Report, page 112) that the farm-product raw materials wholesale trade industry classification (SIC 515) had a lifetime risk of fatal occupational injuries of 5.7 per 1,000 full-time workers for the years 1990-1991. In its publication entitled

Fatal Injuries to Civilian Workers in the United States, 1980-1995

(available at

http://www.cdc.gov/niosh/docs/2001-129/pdfs/ntof2fbc.pdf

), NIOSH reports that the national incidence rate (per 100,000 workers) of traumatic occupational fatalities in this industry classification was 4.6 in 1990 and 4.5 in 1991. NIOSH also states that the Census of Fatal Occupational Injuries (CFOI) identified 86 fatalities among workers of all ages in the farm-product raw materials industry classification for the years 1992-1997, with an industry fatality rate of 17.5 per 100,000 workers (

see

NIOSH Report, page 112). CFOI reports that the farm-product raw material merchant wholesalers industry—NAICS industry 4245—experienced 14 deaths in 2005, 12 deaths in both 2006 and 2007, and 10 deaths in 2008 (data available at

http://www.bls.gov/iif/oshcfoil.htm

). The most common fatality events for this industry, as noted in the NIOSH Report (

see

Report, page 112), were being caught in or crushed by collapsing materials, most often grain or beans, and highway accidents, usually involving tractor trailers. In a paper presented to the Department on February 10, 2011, Bill Field, Ed.D, and Steve Riedel of Purdue University advised that there were no less than 51 separate grain entrapments in 2010 with 51% of the cases resulting in death. This is the highest number of cases ever recorded in a single year. Six of the incidents (12% of the total) involved youth under the age of 16 (

see

Field B, Riedel S, [2011]. 2010 Summary of Grain Entrapments in the United States available at

http://www.regulations.gov,

docket number WHD-2011-0001). The number of occupational fatalities that occurred in cattle feed lots or feed yards (NAICS industry 112112), as reported by CFOI, was also quite large—totaling 18 for the years 2006-2009 (data available at

http://www.bls.gov/iif/oshcfoi1.htm

).

Workers in the farm-product raw materials wholesale trade industry (SIC 515) also experienced a high level of nonfatal injuries and illnesses requiring days away from work—NIOSH reported an estimated 2,320 of these injuries in 1997 (

see

NIOSH Report, page 112). BLS reports that this industry, as NAICS industry 4245, experienced an incidence of injury and illness rate of 6.4 per 100 full-time workers in 2008. The national rate for all private industry that year was only 3.9 (

see

Incidence rates—detailed industry level—2008 available at

http//www.bls.gov/iif/oshwc/osh/os/ostb2071

).

Livestock auctions are an integral part of NAICS 4245, along with grain elevators and other wholesalers of farm-product raw materials. The NIOSH Report specifically recommended that

youth not be employed in livestock auction operations, noting the hazards associated with contact with large animals.

NIOSH reports that, similar to farmers and farm workers, “workers in the wholesale trade of farm-product raw materials, such as grains and livestock, are exposed to a variety of organic and inorganic dusts and substances associated with adverse health effects. Grain dust may contain many substances, including vegetable products, insect fragments, animal dander, bird and rodent feces, pesticides, microorganisms, endotoxins, and pollens. The most serious respiratory effects associated with grain handling include farmer's hypersensitivity pneumonitis (farmer's lung), silo filler's disease [], organic dust toxic syndrome, and other inflammatory and asthma-like respiratory disorders” (

see

NIOSH Report, pages 112-113).

NIOSH also references a review of worker's compensation data in Washington State that found the wholesale trade industry in farm product raw materials to have one of the ten highest incidence rates of occupational skin disorders (

see

NIOSH Report, page 113). NIOSH notes “[o]ther hazards to workers in this industry include exposures to pesticides. Pesticides, in addition to being used on grain in the field, are also applied to harvested grain during storage and transport. Dust generated by abradement from grain handling operations is composed primarily of the outer layer of the grain kernels, where pesticides have been applied. Grain dust has been shown to have a higher concentration of pesticide residue than is found in bulk grain []. Pesticide exposure is associated with acute and long-term health risks, and developing adolescents may have increased risk of adverse health outcomes” (

Id.

).

The injury rates for workers in beef cattle ranching and farming, which includes feedlots (NAICS industry 112112), was reported by BLS to be 9.4 per 100 full-time workers in 2006, 8.7 per 100 full-time workers in 2007, and 7.2 per 100 full-time workers in 2008 (data available at

http://www.bls.gov/iif/oshsum.htm#08Summary%20Tables

). These incidence rates are almost twice the national average for all private industry during the sample years. The 2008 injury rate for workers in

support activities for transportation

(NAICS 4889), which includes stockyards primarily involved with the transportation of animals and not the fattening of animals, was 8.9 per 100 full-time workers (data available at

http://www.bls.gov/iif/oshsum.htm#08Summary%20Tables

). This rate is, again, more than twice the national private industry rate of 3.9 per 100 full-time workers.

The enforcement experience of the Department's WHD is consistent with the fatality and injury data discussed above. In 2010, WHD investigated the death of a 14-year-old and a 19-year-old who were employed by a grain elevator enterprise in Illinois. The youth, who were working inside of a large bin used to store corn, died when they were engulfed by corn. In 2009, the WHD investigated an employer that operates large grain elevators in Colorado after the death of a 17-year-old who was engulfed in grain. Since 2000, the WHD has investigated at least 13 such establishments, and several of these investigations were initiated because of the death or injury of a working minor. Investigations of youth employed by feed lots and animal auctions have also been conducted.

The Department most recently has investigated the serious injury of a 15-year-old female who was pressed against a metal corral by a stampeding calf. The minor was employed to herd livestock in and out of pens in preparation for sale and/or transport. The young worker, who was knocked down and then stomped by hooves, suffered a life-threatening laceration of her liver, broken ribs, a cracked femur, and a crushed bile duct. Complications arising from her injuries prolonged her hospital stay to over five weeks. The injured minor's employment by the livestock auction was already prohibited by CL Reg. 3,—which applies to the nonagricultural employment of 14- and 15-year-olds—because such employment is not specifically permitted by the regulations (

see

§ 570.32) and because it involved the transportation of property by rail, highway, air, water, pipeline, or other means (

see

§ 570.33(n)(1)). The Department, in this NPRM, is proposing to extend these same protections to minors who are 16 or 17 years of age.

WHD's enforcement experience has been that the workforces at many farm-product raw materials wholesale trade industry establishments tend to be small, often seasonal, and therefore, the nature of the work does not encourage specialization of tasks. The few workers at each establishment tend to do all the tasks. This is especially true for livestock auction establishments as reflected in the Census Bureau findings that NAICS Code 42452 (Livestock Merchant Wholesalers) is composed of only 1,100 establishments with approximately 7,841 employees (

see

U.S. Census Bureau Industry Statistics Sampler available at:

http://www.census.gov/econ/census02/data/industry/E424520.HTM

).

With an average workforce of less than 8 workers per establishment, workers in this industry—other than auctioneers and managers—must by necessity perform a variety of tasks. Such tasks include unloading livestock from all types of transportation media, penning the livestock, overseeing the safety of the livestock, separating the livestock for presentation, handling the livestock, loading the livestock onto transportation media. In addition to the obvious risks livestock auction employees face, issues arise from working with and around horses, fork lifts, exposures to biohazards, and increased incidences of sprains/strains and overexertion. As NIOSH noted for all industry segments contained in SIC 515 (

see

NIOSH Report, page 112), livestock auctions combine aspects of two of the most dangerous industries for youth employment—agriculture and transportation.

The fact that employees of this industry routinely perform a variety of tasks is also evidenced by the number and types of child labor violations that the WHD has documented at grain elevators, feed lots, and animal auctions. WHD has found minors employed within the farm-products raw materials wholesale trade industry working on or in proximity to roofs (in violation of HO 16); operating several types of power-driven woodworking machines (in violation of HO 5); operating several types of power-driven hoisting apparatus, such as forklifts, manlifts, skid loaders, and back hoes (in violation of HO 7); and driving automobiles, trucks, and tractor-trailers (in violation of HO 2). In addition, youth under the age of 16 have routinely been found in these establishments performing work that is prohibited by the occupation standards of Child Labor Regulation No. 3.

The Department is proposing the creation of a new § 570.69 entitled

Occupations in farm-product raw materials wholesale trade industries (Order 18).

This proposed HO would prohibit the employment of 16- and 17-year-olds in all occupations in farm-product raw materials wholesale trade industries, and because so many of the occupational injuries and deaths associated with the farm-product raw materials wholesale trade industries are truck and/or transportation related (

see

NIOSH Report, page 112), the Department proposes to define these industries quite broadly.

The term

all occupations in farm-product raw materials wholesale trade

industries

would include all work performed in conjunction with the storing, marketing, and transporting of farm-product raw materials listed in Standard Industrial Codes 5153, 5154 and 5159. The term would include, but not be limited to, occupations performed at such establishments as country grain elevators, grain elevators, grain bins, silos, feed lots, feed yards, stockyards, livestock exchanges, and livestock auctions. The term would not include work performed in packing sheds where employees clean, sort, weigh, package and ship fruits and vegetables for farmers, sales work that does not involve handling or coming in contact with farm-product raw materials, or work performed solely within offices.

It is important to note that in those rare instances when the farm-products raw material trades wholesale industry establishments are

agricultural

in nature—such as when the feed lot or the grain elevator is operated on a farm by a farmer and handles only livestock or grain produced by that farmer—the young employees of those establishments would generally be subject to the agricultural child labor provisions contained in FLSA sections 13(c)(1) and (2) and the agricultural hazardous occupations orders.

The Department is not proposing an exemption from this HO for student-learners or apprentices.

B. The Use of Electronic Devices, Including Communication Devices, While Operating Power-Driven Machinery

The Department is aware of the growing concern among safety and health experts; Federal, state and local governments; representatives of the insurance industry; parents; and youth advocates over the increased use of wireless electronic communication devices by individuals while operating motor vehicles and other power-driven equipment. The National Safety Council estimates that 28% of all motor vehicle crashes—1.6 million crashes per year—can be attributed to cell phone talking and/or texting while driving (

see http://www.nsc.org/safety_road/Distracted_Driving/Pages/distracted_driving.aspx

). The Insurance Institute for Highway Safety notes that “[l]aboratory, simulator, and test-track experiments have shown that talking on a cell phone reduces a driver's reaction time, thus increasing crash risk” (

see

Cellphone Use While Driving and Attributable Crash Risk, available at

http://www.iihs.org

). The U.S. Department of Transportation (DOT) has reported that “the younger, inexperienced drivers under 20 years old have the highest proportion of distraction-related fatal crashes” (

see http://www.distraction.gov/stats-and-facts

).

Many states are addressing the issue of

distracted driving.

DOT, citing data from the National Council of State Legislatures, reports that as of September 21, 2010, at least 30 states have enacted laws that ban texting while driving, and 26 of those states consider such offenses to be

primary

offenses—actions of sufficient gravity to merit law enforcement intervention (

see http://www.tvworldwide.com/events/rita/100921

).

Although much attention is focused on the use of cell phones while driving automobiles under the banner of

distracted driving,

the problem is much larger, encompassing other types of electronic devices and other power-driven machines. The Department believes that employees, and especially young employees, face similar dangers to their health and well-being when using electronic devices, including communication devices, while operating or assisting in the operation of certain power-driven machinery that is not generally within the classification of

motor vehicle.

Such power-driven equipment as woodworking machines; hoisting machines such as forklifts, backhoes, manlifts, cranes, and work assist platforms; metal forming, punching, and shearing machines; machine tools; and highway construction and excavation equipment all require a level of concentration and continuous safety consciousness that could be compromised by the use of an electronic device. The Department's concerns are echoed in two recent documents issued by warehouse and distribution center trade associations. In an April 2, 2010 press release issued by the Distribution Center entitled

Is It Time for a No-Cell Phones Rule for Warehouse Forklift Drivers? Safety Expert Says, “Yes”,

distracted forklift drivers are called a distribution center “accident waiting to happen” (

see http://www.distributiongroup.com/press040110.php

). In addition, Joseph Hrinik notes in an April 29, 2008 newsletter issued by ForkliftAction that the common problems associated with using a cell phone while driving—reduced tactile dexterity and driver distraction—are even greater hazards in the “forklift environment” (

see http://www.forkliftaction.com/news/forklifts_news_international/MaterialsHandling_5558.aspx

).

In addition, workers of all ages are at risk when they drive motor vehicles or operate power-driven equipment when using earphones or earbuds to listen to electronic devices. In an article entitled

Dangers of Driving with Earphones

(available at

http://ezinearticles.com/?Dangers-of-Driving-With-Earphones&id=4886075

), Denise M. McClelland notes that “driving any vehicle, using earphones, presents many risks, and is illegal in most states. The most obvious reason this is dangerous is that you cannot hear what is happening around you. With headphones on, it becomes very hard to hear emergency vehicles, and other cars that honk to alert you of a pedestrian, another vehicle or potential hazards.” The Department believes that it is equally important that young workers not wear headphones or earbuds to listen to electronic devices when operating power-driven equipment in order to be aware of their surroundings and maintain an appropriate level of safety consciousness.

The Department is proposing to revise § 570.70 and create a new nonagricultural HO entitled

The use of electronic devices, including communication devices, while operating power-driven equipment (Order 19).

To accommodate this new nonagricultural HO, the Department is proposing to redesignate §§ 570.70-.72 as §§ 570.97-.99 and reserve §§ 570.71-.96. The Department, as discussed later in this preamble, is also proposing similar revisions to the agricultural hazardous occupations orders.

This proposal would prohibit the use of electronic devices, including communication devices, while operating or assisting to operate power-driven equipment. The term

use of electronic devices, including communication devices,

would include, but not be limited to, such things as talking, listening, or participating in a conversation electronically; using or accessing the Internet; sending or receiving messages or updates such as text messages, electronic mail messages, instant messages, “chats,” “status updates,” or “tweets;” playing electronic games; entering data into a navigational device or global positioning system (GPS); performing any administrative functions; or using any applications offered by the communication devices. The Department does not intend to prohibit listening to music or other recorded information on a one-way, non-interactive device such as a radio or iPod

TM

as long as the device is being operated “hands free” without headphones or earbuds. The proposal would not prohibit a minor from glancing at or listening to a navigational device or GPS that is secured in a

commercially designed holder affixed to the vehicle, provided that the destination and route are programmed into the device or GPS either before driving or when the vehicle is parked. In addition, the Department does not intend to prohibit the use of a cell phone or other device to call 911 in emergencies; nor does it wish to discourage young workers from using appropriate hearing protection when required by the nature of the job and/or Federal or state occupational safety and health rules or regulations.

The term

power-driven equipment

would include any equipment operated by a power source other than human power, that is designed for: (1) The movement or transportation of people, goods, or materials; (2) the cutting, shaping, forming, surfacing, nailing, stapling, stitching, fastening, punching, or otherwise assembling, pressing, or printing of materials; or (3) excavation or demolition operations.

The term

operating power-driven equipment

would include such duties as supervising or controlling the operation of such machines; setting up, adjusting, repairing, oiling, or cleaning the machine; starting and stopping the machine; placing materials into or removing them from the machine; or any other functions directly involved with the operation of the machine. In the case of power-driven equipment used for the moving or transporting of people, goods, or materials, it would not matter if the equipment is operated on public or private property.

Operating power-driven equipment

would not include periods of time when the machine is not being powered (when it is turned off), and in the case of a motor vehicle, is parked.

The Department is not proposing an exemption from this nonagricultural HO for student-learners or apprentices.

V. Proposed Regulatory Revisions—Agricultural Hazardous Occupations Orders—29 CFR Part 570

A. Purpose and Scope (29 CFR 570.70)

As discussed above, the Department is proposing to revise and redesignate the current §§ 570.70, 570.71, and 570.72 as §§ 570.97, 570.98, and 570.99, respectively. It also proposes to create, and mark as

reserved,

§§ 570.71 through and including § 570.96. The Department is proposing to change the title of paragraph (b) of the current § 570.70, which is currently

Exception,

to

Parental Exception

in order to more accurately reflect the content of that paragraph. In subparagraph (c) of that section, the Department proposes to revise the definitions of the terms

agriculture

and

employer

to reflect statutory amendments to the FLSA enacted after the Ag H.O.s were published.

In the proposed definition of

agriculture,

which is taken from section 3(f) of the FLSA, the phrase “section 15(g) of the Agricultural Marketing Act” would be replaced by “section 1141j(f) of [U.S.C.] Title 12”, which is the current citation to the Agricultural Marketing Act's definition of “agriculture” as codified in the United States Code. In the definition of

employer,

the Department proposes to revise the definition to include public agencies in accordance with the Fair Labor Standards Act Amendments of 1966, as reflected in section 3(d) of the Act. That definition is proposed to read as follows: “

Employer

includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of an officer or agent of such labor organization.”

B. Exemptions From the Agricultural Hazardous Occupations Orders (29 CFR 570.72)

As discussed earlier, when the Ag H.O.s were originally adopted as an Interim Order in 1967, the Interim Order contained an exemption for 14- and 15-year-old student-learners who were enrolled in a bona fide cooperative vocational program in agriculture. In 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. In 1969, the Interim Order was again amended to permit 14- and 15-year-old vocational-agricultural students to operate tractors and certain machinery after completing training in the safe use of such equipment. These three programs were incorporated into the Final Order issued by the Department on January 7, 1970 (

see

35 FR 221) and have remained unchanged for over forty years. It is important to note that children who are employed on a farm owned or operated by their parents are statutorily exempt from the agricultural hazardous occupations orders and may operate a tractor on a farm owned or operated by their parents without having to meet the requirements of any of the above-mentioned exemptions. The revisions the Department is proposing in this NPRM do not change that statutory exemption in any way.

Questions regarding the appropriateness and effectiveness of these exemption programs have been raised since their inception. Section 570.72(d), part of the original regulation issued in 1970, continues to state: “The provisions of paragraphs (a), (b), and (c) of this section will be reviewed and reevaluated before January 1, 1972. In addition, determinations will be made as to whether the use of protective frames, crush resistant cabs, and other personal protective devices should be made a condition of these exemptions.” Such a review, though never completed, is as important and relevant today as it was in 1970.

Changes in the agricultural industry over the last four decades—including such things as the size, ownership, labor needs, and available labor pools of farms; agricultural machinery and processes; the types and uses of fertilizers and pesticides; the development of agri-tourism; and the improvement in the reporting of occupational injuries and deaths—have fueled interest in these exemption programs from parties both inside and outside of the government.

Many individuals and organizations have questioned whether it is prudent to allow 14- and 15-year-old hired farm workers—youth who academically are normally in eighth or ninth grade—to perform tasks that present so many hazards to adult workers of every age and experience level. Among these are the Association of Farmworker Opportunity Programs (

see

letter of March 25, 2003 from David Strauss, Executive Director, available at

http://www.regulations.gov,

docket number WHD-2011-0001) and The National Farm Medicine Center (

see

Proposed Changes in the Hazardous Occupations Orders in Agriculture, National Farm Medicine Center [2003], available at

http://www.regulations.gov,

docket number WHD-2011-0001). They note that much farm machinery is very large and powerful, and that all of it is designed for adult operators. Youth as young as 14 and 15 years of age often have not completed the adolescent growth spurt, placing them at additional risk when they operate or assist in the operation of such machinery or attempt to perform tasks that present ergonomic challenges to their age group. Approximately one-third of all deaths to young agricultural workers can be attributed to tractors, and in about one-half of the cases, the tractor overturned on the youth. BLS Report on the Youth Labor Force [2000], p. 60. Further, involvement with machinery and

vehicles each account for 38% of the deaths of 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

http://ja,haworthpress.com

). Helen Murphy, writing in 2007 as the outreach and education director at the University of Washington Pacific Northwest Agricultural Health and Safety Center, notes that annually, more that 100 children who live on, work on, or visit farms, are killed on U.S. farms, with tractors being responsible for 41 percent of the accidental farm deaths of children under 15 years of age (

see

Tractor Safety Advice Saves Lives, available at

http://depts.washington.edu/trsafety/files/P1_Tractor_Advice_Murphy.pdf

).

The FLSA does not permit such young workers—14 and 15 years of age—to perform hazardous work with power-driven machinery in nonagricultural employment, and the similar exemptions from the nonagricultural hazardous orders do not apply to anyone under 16 years of age, even if the youth is the child of the employer. In fact, section 13(c)(6) of the FLSA, enacted by Congress in 1998, prohibits any youth under the age of 17 employed in nonagricultural work from driving trucks or automobiles on a public road, and puts strict restrictions on the conditions and amounts of time that 17-year-olds may drive. There are no exemptions from the driving restrictions placed on minors below the age of 17 in nonagricultural employment—and that includes youth who are employed by their parents.

In 2003, the National Farm Medicine Center of Marshfield, Wisconsin, in its comments on the recommendations of the NIOSH Report, advised the Department that no exemptions for hired youth operating tractors should be allowed. “The current 4-H and vocational agriculture tractor and machinery certification programs have not been subjected to sufficient evaluations to confirm their effectiveness in preparing youth to safely operate tractors. Furthermore, state-by-state variability in certification administration makes it inappropriate to base Federal exemptions on this certification” (

see

Position Statement: Proposed Changes in the Hazardous Occupations Orders in Agriculture, National Farm Medicine Center [2003], available at

http://www.regulations.gov,

docket number WHD-2011-0001).

Questions have also been raised as to whether 14- and 15-year-old hired farm workers in general are capable of possessing and practicing the continuous level of safety awareness that is necessary in such a dangerous occupational environment as agriculture. Many studies have noted that young workers are not “little adults” but human beings at their own unique stage of development. It is well established that several characteristics of youth place adolescent workers at increased risk of injury and death. Lack of experience in the workplace and in assessing risks, and developmental factors—physical, cognitive, and psychological—all contribute to the higher rates of occupational injuries and deaths experienced by young workers. Many of the physical and cognitive limitations of young workers cannot be overcome by training or supervision.

See

Sudhinaraset, M., Blum, R., [2010]. The Unique Developmental Considerations of Youth-Related Work Injuries, International Journal of Environmental Health; 16-216-22.

See also

NIOSH Alert

Preventing Deaths, Injuries, and Illnesses of Young Workers,

available at

http://www.cdc.gov/niosh/docs/2003-128/2003128.htm;

NIOSH Report, page 6; Casey B, Getz S, Galvan A, [2007]. The Adolescent Brain, available online at

http://www.sciencedirect.com.

These risks associated with employment are heightened when the youth are working in agriculture because the work itself is more dangerous and the ages of permissible employment are so much lower than in nonagricultural employment. For example, there is no minimum age established for employment on small farms not subject to the minimum wage requirements of the Fair Labor Standards Act (

see

29 U.S.C. 213(c)(1)).

A study of the effectiveness of tractor certification found that many youth who completed the training in Indiana self-reported that while they felt the training did make them safer operators, they also reported engaging in a number of risky behaviors including not wearing seat belts with roll-over protection structure (ROPS)-equipped tractors and allowing extra riders (

see

Carrabba Jr. JJ, Talbert BA, Field WE, Tormoehlen R [2001]. Effectiveness of the Indiana 4-H Tractor Program: Alumni Perceptions.

Journal of Agricultural Education,

vol. 42, Issue 3). Another study found that some youth working in agriculture, even after acquiring increased safety knowledge, still were dangerous risk takers (

see

Westaby JD, Lee BC [2003]. Antecedents of injury among youth in agricultural settings: A longitudinal examination of safety consciousness, dangerous risk taking, and safety knowledge.

Journal of Safety Research,

34 [2003] 227-240).

In its Report, NIOSH notes that “[t]he effectiveness of these tractor safety training programs has not been adequately evaluated nationwide” (

see

Report, page 70). NIOSH does state that the Carrabba study in Indiana to determine the impact of 4-H tractor safety programs on the behavior and attitudes of young tractor operators found that participants demonstrated a greater level of confidence in operating tractors, and that the program appears to have a positive influence on the safe operating procedures of participants. However, as noted above, the Carrabba study also found that, despite the youths' feelings of confidence, they continued to engage in risky behaviors such as allowing extra riders. NIOSH also mentioned a study in Wisconsin that found that youth who had completed a training program reported an increase in usage of tractors equipped with roll-over protection structures (

see

NIOSH Report, page 71). These few studies demonstrate the need for a much closer and more thorough examination of the effectiveness of tractor safety training for children. In light of the fatality and injury data demonstrating the hazardous nature of working on tractors and other power-driven equipment, until such information is available, the Department must reconsider whether it is consistent with the Secretary's statutory mandate to allow certain 14- and 15-year-olds to operate tractors based on the efficacy of such training.

The Department is concerned that the training and skill sets that youth must complete in order to receive certification under the limited exemptions contained in § 570.72(b) and (c)—which allow 14- and 15-year-old hired farm workers to operate tractors and several types of farm implements and have not been modified since their creation in 1971—are not sufficiently extensive and thorough to ensure the safety of young hired farm workers. The Federal Extension Service tractor certification requirements, as detailed in § 570.72(b)(1), call for only a ten-hour training program, which includes the completion of “units” that are no longer available. Upon completion of these “units” the minor need only pass a written examination and demonstrate his or her ability to operate a tractor safely with a two-wheeled trailed implement on a course “similar to one of the 4-H Tractor Operator's Contest Courses.” Under the regulations at § 570.72(b)(2), the youth need only complete an additional ten hours of course work, pass a written examination on tractor and farm machinery safety,

and demonstrate his or her ability to operate a tractor with a two wheeled trailed implement, again, on a course similar to one used in 4-H Contests, in order to qualify for exemption with regard to other farm machinery. Neither program requires any ongoing or periodic supplemental training or instruction. This may be problematic for many reasons, but especially because of the extremely wide variety of sizes, ages, operation protocols, and types of farm equipment and tractors used on American farms. The Department is concerned that twenty hours of classroom training is insufficient to provide a young hired farm worker with the skills and knowledge he or she would need to safely operate the diverse range of agricultural tractors and equipment in use on today's farms. The Department notes that most state graduated motor vehicle driver licensing programs require considerably more training and operating experience—some as much as 96 hours—and that such training is for youth who are at least 16 years of age and only operating a single piece of equipment (

see

Insurance Institute for Highway Safety

Licensing Systems for Young Drivers

available at

http://www.iihs.org/laws/graduatedlicenseIntro.aspx; see also http://www.mva.maryland.gov/Driver-Safety/Young/safety.htm).

Similar requirements and problems exist in regards to the vocational agricultural training exemption, the requirements of which are contained in § 570.72(c).

The Department is also concerned that there has been almost no monitoring by any government agency to ensure the integrity and effectiveness of these certification programs. In an evaluation of the Wisconsin certification process, the authors note that “the evaluation and monitoring of these programs for effectiveness has been nearly nonexistent” (

see

Schuler RT, Skjolaas CA, Purschwitz MA, Wilkinson TL [1994]. Wisconsin youth tractor and machinery certification programs evaluation.

ASAE Paper No. 94-5503.

St. Joseph, MI.). The 2001 article on the Indiana 4-H Tractor Program (

see

Carrabba Jr. JJ,

et al.

) also noted that “a review of the literature did not uncover any research that has specifically evaluated the effectiveness of the 4-H Tractor Program, as a safety intervention, at either a state or national level.” The Department believes it would not be consistent with the Secretary's mandate to allow certain 14- and 15-year-olds to operate tractors and farm equipment until the evidence demonstrates that such youth are not at risk and can perform all the associated tasks safely. The Department asks for comment regarding any data or studies relating to the efficacy of these programs and their impact on the ability of 14- and 15-year-olds to operate tractors and farm equipment safely and to perform the associated tasks safely.

In addition, because the actual certification occurs at the local level, the content and quality of the training is often determined by the instructor who conducts the training (

see

Carrabba Jr. JJ,

et al.

). The written examinations are not standardized and large differences have been noted in what constitutes a passing grade. Differences also exist in how youth actually perform the required practical demonstration of safe tractor and machinery operation as well as how their performances are evaluated. The Department has also uncovered at least one instance in which youth were issued certificates without receiving the proper training or completing the required testing.

Finally, the Department is aware of concerns that the certification programs may not be reaching young farm workers who need such training to legally be employed in work that would otherwise be prohibited by certain of the Ag H.O.s. Certification programs are not available in many areas of this country because of the lack of such things as interest, need, qualified and available instructors, and resources. A 2006 article reported that extrapolating from 4-H records and Ohio census data, fewer than 1% of the youth in Ohio who were operating tractors or other hazardous machinery had participated in tractor certification training (

see

Heaney JR, Wilkins III CA, Dellinger W, McGonigle H, Elliot M, Bean TL, Jepsen SD [2006]. Protecting Young Workers in Agriculture: Participation in Tractor Certification Training.

Journal of Agricultural Safety and Health.

12(3): 181-190). Another study notes that, nationally, the 4-H Tractor program has been one of the smallest 4-H education programs, with less than 21,500 participants enrolled in 1997 (

see

Carrabba, Jr., JJ, Talbert, BA, Field, WE, Tormoehlen, R [2001]. Effectiveness of the Indiana 4-H Tractor Program: Alumni Perceptions.

Journal of Agricultural Education.

42: 11).

The Department is requesting comments as to whether 14- and 15-year-old hired farm workers are capable of absorbing, and implementing on a continuous basis, the knowledge necessary to ensure their safety and the safety of others while performing tasks otherwise prohibited by the Ag H.O.s. Therefore it is asking for public comment as to whether the child labor provisions should permit any hired farm worker under the age of 16 years to operate or assist in the operation of agricultural tractors or agricultural implements.

But if such youth are capable of mastering the skills necessary for safe tractor and implement operation, it would seem that the training that delivers this knowledge must be extensive, thorough, and have immediate relevance to the tasks the youths will be performing once the training is completed. Given the diversity and seasonality of so many farm activities, it would seem that such training would have greater continuous impact if it were ongoing throughout the youth's employment rather than limited to a single demonstration of a single specific task, such as driving a tractor, which may be completed even before the youth is 14 years of age and eligible for employment.

Accordingly, the Department is proposing to remove the exemption for 14- and 15-year-old hired farm workers who have received certification under the auspices of the Federal Extension Services contained at § 570.72(b). It also proposes to remove the exemption for 14- and 15-year-old hired farm workers who have received vocational agricultural training contained at § 570.72(c). The revocation of these two exemptions is intended to place immediate limitations on the employment of 14- and 15-year-old hired farm workers, even if they had completed their certification prior to the effective date of any final rule implementing this proposal, since the exemptions would no longer exist. Such youth could only continue to perform work prohibited by the Ag H.O.s if they were employed by a parent on a farm owned or operated by that parent in accordance with the parental exemption, or as a student-learner employed under the provisions of the proposed § 570.98(b).

In order to foster the continuous and thorough training it believes is necessary to protect young hired farm workers, the Department proposes to both retain and revise the student-learner exemption currently located at § 570.72(a), and move it to a proposed § 570.98(b). Under the Department's proposal, a student-learner must be enrolled in an ongoing vocational education training program in agriculture operated by a state or local educational authority, or in a substantially similar program conducted by a private school. It is the Department's position that the 14- or 15-year-old student-learner must be properly enrolled and participating in the vocational education training

program throughout his or her agricultural employment in order to take advantage of this exemption. Such a program could not be completed prior to the youth's sixteenth birthday and satisfy the conditions of this exemption.

In order to ensure the student-learner has obtained sufficient safety training and practical knowledge before he or she is permitted to be employed as a hired farm worker performing otherwise prohibited work under this exemption, the student-learner must first successfully complete at least 90 hours of systematic school instruction in agricultural education at or above the eighth grade level. It is important to note that not having the prerequisite 90 hours of systematic school instruction in agricultural education would not preclude the employment of a 14- or 15-year-old as a hired farm worker, but it would prohibit that youth from performing any work prohibited by an Ag H.O.

The Department believes that 90 hours is equivalent to an academic semester and that the curriculum would include a combination of classroom, virtual, and hands-on training appropriate to prepare the youth for agriculture as a vocation. It is anticipated that school systems in areas of high demand for agricultural vocational training would provide such vocational training as a part of the school's curriculum, at no cost to the student, or in the case of a private school, no additional cost to the student. The Department welcomes comments from school boards and school systems on the extent to which such training is already included in their curriculum, the extent to which existing agricultural vocational training programs would need to be modified to meet the requirement and whether an academic semester is an appropriate period given the maturity level of the youth in general.

In addition, when employed as a hired farm worker performing otherwise prohibited work under the exemption, the proposal provides that the student-learner must be employed under a written agreement which provides that: (1) The work of the student-learner in the occupations declared particularly hazardous is incidental to his or her training; (2) the work will be intermittent, for short periods of time, and under the direct and close supervision of a qualified and experienced adult who is at least 18 years of age; (3) safety instruction shall be given by the school and correlated by the employer with on-the-job training; and (4) that a schedule of organized and progressive work processes to be performed on the job has been prepared and implemented. Such written agreement shall contain the name of the student-learner and be signed by the employer, the parent or guardian of the student-learner, and a person authorized to represent the educational authority. Copies of the signed written agreement shall be kept on file by both the educational authority or school and by the employer before the student-learner may be employed to perform work that would otherwise be prohibited by this subpart.

The Department is also proposing to limit the types of otherwise prohibited work which bona fide student-learners may perform under the authority of the exemption. Currently, such student-learners may be employed to perform work otherwise prohibited by § 570.71(a)(1) through (a)(6) (the first six Ag H.O.s). This proposal would limit the student-learner to the first two Ag H.O.s as revised by this NPRM. The application of the student-learner exemption to each of those revised Ag H.O.s will be discussed in those sections of this preamble dealing with each of those Ag H.O.s.

Despite proposing to remove the limited certification exemptions for hired farm workers, the Department believes such training programs provide important training and safety development opportunities to the young farm workers who are the children of and employed by those who own and/or operate farms. These programs may be the only formal training in such skills that these youth ever receive, as they are exempt from the Federal Ag H.O.s by virtue of the parental exemption contained in FLSA section 13(c)(2). These programs also can continue to provide important training to youth who are not student-learners but who wish to seek employment as hired farm workers and will be able to legally operate such equipment, under current law, once they reach their sixteenth birthday.

The Department is aware that the USDA's National Institute of Food and Agriculture (NIFA), formerly the Cooperative State Research, Education and Extension Service (CSREES), shares many of its concerns and has been working diligently over the last several years to implement changes to the certification process to ensure that young agriculture workers can obtain meaningful and effective safety training. Through its Youth Farm Safety Education Certification Program (formerly Hazardous Occupations Safety Training for Agriculture (HOSTA)), NIFA has funded programs in such areas as identifying the skill-sets needed by youth for non-parental farm employment; developing a curriculum for the training; exploring various media for delivering such training; creating a model for the development, implementation, and evaluation of an administrative management system for certification; and management of instructor selection, training, and authentication. The Department appreciates the achievements of NIFA and will continue to work with that agency to assist in its efforts.

C. Operating a Tractor of Over 20 PTO Horsepower, or Connecting or Disconnecting an Implement or any of its Parts to or From Such a Tractor (29 CFR 570.71(a)(1))

The NIOSH Report recommends that the Department retain this Ag H.O., but broaden it to remove the 20 power take-off (PTO) horsepower threshold (

see

page 67). NIOSH also recommends that when a 14- or 15-year-old hired farm worker qualifies for an exemption under the current § 570.72, the tractors operated by such youth must be equipped with rollover protection structures (ROPS) and seat belts, and that the use of seat belts be mandated. In addition, NIOSH recommends that the prohibition against riding on a tractor as a passenger or helper, currently contained in § 570.71(a)(7), not be changed but moved to this Ag H.O. (currently § 570.71(a)(1)).

NIOSH notes that tractor-related incidents are the most common type of agricultural fatality in the U.S., and that tractor roll-overs are the most common event among those fatalities (

see

NIOSH Report, page 67). NIOSH states that available data sources frequently do not include enough detail to determine the horsepower of tractors or PTOs involved in fatal and non-fatal injuries and that available data do not support the notion that a tractor's horsepower (whether engine or PTO) is related to risk of injury. Finally, NIOSH expresses concern that since PTO horsepower differs from tractor engine horsepower, employers, supervisors, young employees, and WHD inspectors may not be able to easily determine the PTO horsepower, making compliance difficult to attain and document (

Id.

).

The data regarding the effectiveness of ROPS in reducing tractor-related deaths and fatalities are compelling. The National Farm Medicine Center, in its review of the NIOSH Report, advised the Department that “indisputable published evidence demonstrates that ROPS and seat belts prevent fatalities and serious injuries. Under no circumstances should a minor operate a tractor without a ROPS and a seat belt” (

see

Position Statement: Proposed

Changes in the Hazardous Occupations Orders in Agriculture. National Farm Medicine Center, [2003], available at

http://www.regulations.gov,

docket number WHD-2011-0001). NIOSH reports that “[r]ollover protective structures have been identified as the best means of preventing deaths from overturns.” NIOSH (

see

Report, page 71) also reports that “[a] study in Sweden, which has implemented regulations requiring ROPS on all tractors, has shown a 92% reduction in tractor rollover fatalities following the intervention. The United States has a tractor rollover lost-life rate 24 times higher than Sweden” (internal citations omitted).

ROPS were first marketed on new tractors in the United States in 1965 (

see

Iowa State University Fact Sheet Pm-1265d:

Use Tractors with ROPS to Save Lives.

April 1992, available at

http://www.regulations.gov,

docket number WHD-2011-0001). In 1985, tractor manufacturers adopted a voluntary standard that required all new factory tractors to be equipped with ROPS. The ROPS may be part of the cab structure and may not be visible, but the protection will be there if the ROPS has been properly manufactured and installed (

Id.

). However, tractors have long operational lives and some older tractors cannot be easily retrofitted to meet current safety standards. It is extremely important that tractor retrofits for ROPS be properly performed or safety will be compromised. This is because “[a] homemade bar attached to the tractor axle, or simple sun shades, cannot protect the operator if the tractor overturns. Farm operators should not add their own rollover protection devices to tractors manufactured without ROPS. Without proper design and testing, homemade devices offer a false sense of security that can be more dangerous than operating a tractor without ROPS” (

Id.

). The Marshfield Clinic Research Foundation supported these findings when it noted that “[d]ue to the dynamic forces which act upon a ROPS during a tractor rollover, it is imperative that a ROPS be properly designed, manufactured and installed. Proper materials and mounting hardware, as well as engineering design, are necessary to ensure safe performance. A ROPS is not something to be fabricated in the farm shop” (

see

A Guide to Agricultural Tractor Rollover Protective Structures, Marshfield Clinic Research Foundation, 2009, available at

http://www.marshfieldclinic.org/nfmc/default.aspx?page=nfmc_rops_guide

).

The NIOSH Report (

see

page 82) also recommends that the prohibition against youth riding on a tractor as a passenger or helper currently contained in § 570.71(a)(7) be retained and relocated to § 570.71(a)(1). NIOSH notes (

see

Report, page 85) that of the 1,421 tractor-related fatalities to agricultural production workers identified by CFOI for 1992-1997, 12 of the victims were clearly riding as passengers. Nonfatal injuries to youth riding on tractors as passengers have also been reported; in 1998, an estimated 417 injuries were incurred by youth under age 16 while riding as a passenger on a farm tractor (

see

NIOSH Report, pages 85-86). The WHD has conducted investigations of the deaths of young workers riding on tractors. For instance, WHD investigated the death of a 12-year-old in Texas in 2005 who was run over by the tractor upon which he was riding as a passenger. The tractor, which was pulling a shredder, was being driven by a 14-year-old. In addition, in 2002, WHD investigated the death of a 15-year-old on a cotton farm in Mississippi who was killed when he attempted to jump onto a moving tractor being driven by another worker. The minor fell and was run over by the tractor.

The National Farm Medicine Center, in its comments to the Department on the NIOSH Report, also recommended that minors should be required to have a valid motor-vehicle license to operate tractors and other farm machinery on public roads, noting “the paucity of evidence that a child younger than 16 years has the skills and maturity to operate a tractor on a public road, when that same individual is not permitted to drive an automobile on a public road” (available at

http://www.regulations.gov,

docket number WHD-2011-0001).

The Department proposes to adopt all three of these NIOSH recommendations, with some modifications. The Department also proposes to adopt the recommendation made by the National Farm Medicine Center concerning the licensing of drivers of tractors and other farm machinery on public roads. The Department proposes to revise (existing) § 570.71(a)(1) and (7) and create a new § 570.99(b)(1) entitled

Occupations involving the operation of agricultural tractors (Ag H.O. 1).

The proposed Ag H.O. 1 would prohibit operating and assisting in the operation of an agricultural tractor, with certain limited exceptions for student-learners.

Operating

includes tending, setting up, adjusting, moving, cleaning, oiling, or repairing the tractor; riding on an agricultural tractor as a passenger or helper; or connecting or disconnecting an implement or any of its parts to or from such a tractor.

Operating

would also include starting, stopping, or any other activity involving physical contact associated with the operation or maintenance of the tractor.

The Department proposes to define the term

agricultural tractor

to reflect the types of tractors in use on farms today. The proposed definition, which is the same definition used by OSHA in 29 CFR 1928.51, states that an

agricultural

tractor

shall mean a wheeled or track vehicle which is designed to furnish the power to pull, carry, propel, or drive implements that are designed for agriculture. The term would include all such equipment, regardless of the date it was manufactured or the amount of engine horsepower, although we also request comment on the use of an alternative to the eliminated 20 PTO threshold, such as a 2,000 pound weight restriction. The term

agricultural tractor

also includes

low profile tractors.

A

low profile tractor

means a wheeled tractor that possesses the following characteristics: (1) The front wheel spacing is equal to the rear wheel spacing, as measured from the centerline of each right wheel to the centerline of the corresponding left wheel; (2) the clearance from the bottom of the tractor chassis to the ground does not exceed 18 inches; (3) the highest point of the hood does not exceed 60 inches; and (4) the tractor is designed so that the operator straddles the transmission when seated. However, the term

low profile tractor

shall not include self-propelled implements, nor shall it include garden-type tractors, lawn tractors, or riding mowers designed primarily for lawn mowing and lawn maintenance—all of which are subject to the provisions of (proposed) § 570.99(b)(2) (Ag H.O. 2) that is discussed later in this preamble.

The Department proposes to allow a partial exemption to Ag H.O. 1 for bona fide student-learners as defined in (proposed) § 570.98(b) to operate certain agricultural tractors under certain conditions, but only if all of the following seven criteria are met:

1. Every agricultural tractor operated by a student-learner must be equipped with both a roll-over protection structure (ROPS) and a seat belt. The tractor operation, the ROPS, and the seat belt must meet the requirements of the U.S. Department of Labor's Occupational Safety and Health Administration's (OSHA) standard at 29 CFR 1928.51 established for roll-over protection structures for tractors used in agricultural operations, and the seat belt must be used. These requirements apply to all agricultural tractors operated by a student-learner, even if the tractor is specifically excluded from the requirements by the OSHA standard because of size or date of manufacture.

The Department is aware that this proposal will prevent student-learners from operating certain low-profile tractors, such as those used in green houses and orchards, because such equipment may not be suitable for ROPS retrofitting. The Department believes this prohibition is necessary to protect young farm workers.

By requiring compliance with the OSHA standard, the Department intends to ensure that the operation of the tractor and the ROPS and seat belt—whether factory installed or retrofitted—conform to appropriate safety standards. This standard is widely accepted by industry and easily accessible via OSHA offices and the Internet at

http://www.OSHA.gov.

By going beyond the OSHA standard and requiring ROPS and seatbelts on equipment exempted by that standard when applied to adults, the Department is providing young hired farm workers with the additional safety protection their youth and inexperience demand. It is important to note that the Department's proposal does not require farmers who may otherwise fall outside of OSHA authority to submit to OSHA authority; nor does it require agricultural employers to retrofit tractors with ROPS and seat belts that meet OSHA standards. The provisions of this proposal are relevant only if the employer wishes to employ a 14- or 15-year-old student-learner to operate a tractor or assist in the operation of a tractor. In accordance with its established procedures, WHD may solicit the help of OSHA and/or consult with OSHA when determining an employer's compliance with this provision.

2. When implements, as defined in the proposed § 570.99(b)(2), are being used, both the operation of the implements and the implements themselves must meet the requirements of OSHA's standard at 29 CFR 1928.57 established to prevent hazards associated with moving machinery parts of farm field equipment, farmstead equipment, and cotton gins used in any agricultural operation. As with the operation of tractors discussed above, the Department believes that relying on the OSHA standard for the safe operation of implements and farm field equipment is essential in order to provide safer working environments for all hired farm workers, especially youth. Also, as discussed above, the Department's proposal does not require farmers who may otherwise fall outside of OSHA authority to submit to OSHA authority; nor does it require agricultural employers to retrofit or modify any farm implements to meet OSHA standards. The provisions of this proposal arise only if the employer wishes to employ a 14- or 15-year-old student-learner to operate or assist in the operation of a farm implement. When determining an employer's compliance with this provision, WHD may solicit the help of OSHA and/or consult with OSHA.

3. The employer must have instructed the student-learner in the use of the seat belt and the student-learner must actually use the seat belt at all times while operating the tractor.

4. The student-learner must have successfully completed his or her school's classroom portion of the educational unit on the safe operation of tractors, and if he or she is connecting, operating, and/or disconnecting an implement to the tractor, the student-learner must have also successfully completed his or her school's classroom portion of the educational unit addressing the safe operation of the particular implement being connected, operated, or disconnected by the student. WHD would determine compliance with this provision by reviewing the written agreement between the employer, the school, and the parent or guardian of the student-learner and by consultation with the school, the student-learner, and/or the parent or guardian of the student-learner.

5. If the student-learner operates the tractor on a public road or highway, he or she must hold a state motor vehicle license valid for the class of vehicle being operated. The Department proposes to define the term

public road or highway

in § 570.99(b)(1)(i) to mean a road or way established and adopted (or accepted as a dedication) by the proper authorities for the use of the general public, and over which every person has a right to pass and to use for all purposes of travel or transportation to which it is adapted and devoted. It does not matter whether the road or highway has been constructed at public or private expense. WHD would determine compliance with this provision by consultation with the state motor vehicle licensing authority, the student-learner, and/or the parent or guardian of the student-learner.

6. The student-learner must not operate any tractor upon which a passenger or helper is riding other than a single passenger over the age of 18 years who is engaged in training the student-learner in the safe operation of the tractor. Such passenger must be seated in a proper seat that is fitted with a seat belt that meets the requirements of the U.S. Department of Labor's Occupational Safety and Health Administration's (OSHA) standard at 29 CFR 1928.51 established for roll-over protection structures for tractors used in agricultural operations, and the seat belt must be used. The student-learner may not ride on any tractor as a passenger or helper, even if the tractor is equipped with a seat for a passenger.

7. The employer has instructed the student-learner that the use of electronic devices, including communication devices, while operating the tractor or implement is prohibited and the student-learner in fact does not use any electronic device while operating the tractor or implement. The term

use of electronic devices, including communication devices,

would include, but not be limited to, such things as talking, listening, or participating in a conversation electronically; using or accessing the Internet; sending or receiving messages or updates such as text messages, electronic mail messages, instant messages, “chats,” “status updates,” or “tweets;” playing electronic games; entering data into a navigational device or global positioning system (GPS); performing any administrative functions; or using any applications offered by the communication devices. The Department does not intend to prohibit listening to music or other recorded information on a one-way device such as a radio or iPod

TM

as long as the device is being operated “hands free” without headphones or earbuds. The proposal would not prohibit a minor from glancing at or listening to a navigational device or GPS that is secured in a commercially designed holder affixed to the vehicle, provided that the destination and route are programmed into the device or GPS either before the tractor or implement is operated or when the tractor or implement is stopped and in park. The proposal similarly does not prohibit youth from glancing at or listening to other similar electronic devices on the vehicle, such as those that monitor moisture or chemical application monitors, provided that the entering of data or other functions are programmed into the device before the tractor or implement is operated, or when it is stopped and in park. In addition, the Department does not intend to prohibit the use of a cell phone or other device to call 911 in emergencies; nor does it wish to discourage young workers from using appropriate hearing protection when required by the nature of the job and/or Federal or state occupational safety and health rules or regulations. This proposal is in keeping with the proposal made for the nonagricultural

employment of youth earlier in this preamble.

The Department notes that many organizations dedicated to keeping agricultural workers of all ages safe have adopted positions that support many of the electronic device safety provisions that are proposed in this NPRM.

See Toolbox Talks

issued by the Office of Occupational Health and Safety, University of Minnesota available at

http://www.ohs.umn.edu/prod/groups/ahc/@pub/@ahc/@ohs/documents/asset/ahc_asset_265063.pdf; see also

Farmsafe issued by Farm Safety Association Inc. and available at

http://www.farmsafety.ca/farmsafe/vol28-no2.pdf;

and

Tractor Safety and Operation Basics,

an Environmental Health and Safety Fact Sheet issued by the Washington State University and available at

http://www.ehs.wsu.edu/Factsheeets/FAQTractorSafety.html.

D. Operating or Assisting To Operate (Including Starting, Stopping, Adjusting, Feeding, or any Other Activity Involving Physical Contact Associated With the Operation) Several Named Pieces of Power-Driven Machinery (29 CFR 570.71(a)(2), 29 CFR 570.71(a)(3) and 29 CFR 570.71(a)(7))

The current agricultural provisions contained in § 570.71(a)(2) and (3) prohibit youth under 16 years of age from operating certain named pieces of agricultural machinery. Section 570.71(a)(2) specifically bans the operation of the following farm machinery: 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, power-post hole digger, power post driver, and nonwalking type rotary tiller. Section 570.71(a)(2)(ii) also prohibits youth from operating or assisting in operating the unloading mechanism of a nongravity-type self-unloading wagon or trailer.

The operation of the following farm machinery is specifically prohibited by § 570.71(a)(3): trencher or earthmoving equipment; fork lift; potato combine; and power-driven circular, band, or chain saws.

The current § 570.71(a)(7) permits hired farm workers under the age of 16 years of age to drive a bus, truck, or automobile when not transporting passengers. NIOSH reports that transportation-related deaths, largely highway incidents, were the most frequently recorded cause of occupational deaths among all youth for the period of 1998 through 2007. “Transportation events included incidents involving all forms of transportation and powered industrial equipment when the incident resulted in an injury from a collision, loss of vehicle control, sudden vehicle stop, or a pedestrian/worker being struck by a vehicle. Highway incidents occurred on public roadways, shoulders, or surrounding areas (excluding incidents off the highway/street or on industrial, commercial, or farm premises or parking lots.)” (

see

Occupational Injuries and Deaths Among Younger Workers—United States, 1998-2007, available at

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5915a2.htm

). Congress, in 1998, enacted the Drive for Teen Employment Act, Public Law 105-334, which generally prohibits youth under 17 years of age from performing any driving when employed in nonagricultural jobs and substantially limits the times and types of driving that 17-year-olds may perform. The current provision at § 570.71(a)(7) not only places young workers at risk by allowing hired farm workers under the age of 16 to drive motor vehicles, but as the NIOSH Report notes, is inconsistent with many state motor vehicle licensing laws (

see

NIOSH Report, page 85).

The segregation of the named equipment into either § 570.71(a)(2) or § 570.71(a)(3) by the Department was intentional. The agricultural child labor provisions permit 14- and 15-year-olds who have met the requirements of the Federal Extension Service exemption contained in § 570.72(b) or the vocational agriculture training requirements of § 570.72(c) to, under specific guidelines, operate equipment named in § 570.71(a)(2) but not that equipment named in § 570.71(a)(3). These lists, as the NIOSH Report notes (

see

page 73), fail to mention several classes of power-driven machines, and under the structure of the Ag H.O.s, their absence generally means hired farm workers of any age could legally, but perhaps not safely, operate and assist to operate that equipment.

In its Report, NIOSH states that work with machinery in agriculture is associated with high numbers of occupational deaths among adults and youth. The current Ag H.O.s “list specific types of machinery, which are prohibited; this is problematic due to the continuing introduction of new types of machinery in agricultural production.” NIOSH therefore recommends that the Department combine § 570.71(a)(2) and § 570.71(a)(3), and expand their prohibitions to cover machines by their general functions rather than their specific names (

see

Report, page 72). For example, the equipment would be listed as harvesting and threshing machinery; mowing machinery; plowing, planting, and fertilizing machinery; other agricultural and garden machinery; excavating machinery, loaders; wood processing machinery, such as wood chippers and debarkers; sawing machinery, including chain saws; powered conveyors; and mobile equipment, including forklifts.

NIOSH asserts that combining the two HOs into one inclusive machinery HO based on the function performed by the machine would allow more effective tracking of injuries and comprehensive coverage of new types of machinery that may come onto the market. NIOSH also notes that “those machines which 14- and 15-year-olds may be certified to operate under the current HO 2 result in more deaths annually than those listed in HO 3 for which certification is unavailable” (

see

NIOSH Report, page 72).

The Department was also advised by an Extension Safety Specialist who is on the faculty of the College of Agricultural Sciences of Penn State University, in his comments on the NIOSH Report, that in order to reduce injuries to young hired farm workers resulting from falls and machine functions, such youth should be prohibited from riding as passengers on all farm machines being moved on public roads (

see

Comments on NIOSH Recommendations for Changes to the Federal Child Labor Regulations. Dennis J. Murphy, Ph.D., CSP, March 19, 2003, available at

http://www.regulations.gov,

docket number WHD-2011-0001).

NIOSH also states (

see

Report, page 73) that there are a number of types of machines—such as plowing machinery, cultivating machinery, spreaders, front-end loaders and bulldozers—that have contributed to a substantial number of deaths in agriculture, but which do not appear to be encompassed under the existing hazardous occupations orders.

The Department notes that many types of machinery that 14- and 15-year-old hired farm workers may legally operate—either because there is no Ag H.O. prohibiting the operation of the machinery or the operation of such machinery falls under the exemptions contained in § 570.72—generally may not be operated by youth under 18 years of age if employed in nonagricultural occupations. For example, § 570.33(f) prevents minors under 16 years of age from employment as motor vehicle operators or helpers. This prohibition would include cars, trucks, buses, motorcycles, all terrain vehicles, and scooters. Section § 570.52 (HO 2) prohibits youth under 18 years of age from operating tractors and buses on public roads, and it allows 17-year-olds to drive automobiles and trucks on

public roads only under very limited conditions and for very short periods of time. HO 4 (§ 570.54), HO 5 (§ 570.55), and HO 14 (§ 570.65) prohibit youth under 18 years of age from operating power-driven chain saws, and HO 5 also prevents such youth from operating most power-driven woodworking machines. HO 7 (§ 570.58) prohibits workers under 18 years of age from operating power-driven hoisting apparatus, including derricks, cranes, hoists, manlifts, and high-lift trucks, including fork lifts and front-end loaders. HO 8 (§ 570.59) generally prohibits youth under 18 from occupations involved with operating power-driven metal forming, punching, and shearing machines.

In addition, the child labor provisions addressing the employment of 14- and 15-year-olds in nonagricultural occupations—Child Labor Regulations No. 3 (CL Reg. 3) (

see

29 CFR 570.31-.37)—have, for many years, contained additional restrictions on the types of work and machinery that such youth may operate. The nonagricultural child labor provisions have generally prohibited youth under 16 years of age from operating, tending, setting up, adjusting, cleaning, oiling, or repairing any power-driven machinery, including motor vehicles but excluding office machines, vacuum cleaners, and floor waxers (

see

§ 570.33(e) and § 570.33(f)). This provision was implemented because of the high number of injuries experienced by young workers when they operate, assist in the operation of, or clean such machines.

The child labor provisions for nonagricultural employment also prohibit minors under 16 years from operating or assisting in the operation of all hoisting apparatus and conveyors—whether the hoists or conveyors are manually operated, operated by gravity, or power-driven (

see

29 CFR 570.33(c) and (k)). Certain hand-operated winches and hoists can handle loads of several tons—up to 12 tons for some hoists—placing young workers who operate such equipment at great risks. Likewise, gravity-operated conveyors, such as conveyors consisting of a series of horizontal rollers upon which materials glide, can accommodate items of considerable size and weight. Young workers charged with loading, monitoring, and unloading such equipment are exposed to greater risks than adults from strains and falling items.

These prohibitions of CL Reg. 3 have served youth employed in nonagricultural occupations well over the last seventy years and their positive impact on young worker safety was recently reaffirmed in a Final Rule issued by the Department on May 20, 2010 (

see

75 FR 28404).

The current agricultural provisions contained in § 570.71(a)(2) and § 570.71(a)(3) do not contain such a complete ban on the operation of power-driven machinery, but rather prohibit youth under 16 years of age from operating only certain named pieces of agricultural machinery. There are numerous other examples where stricter safety standards have been applied to the employment of youth in nonagricultural occupations than those applied to their younger peers employed in agriculture. Injury and fatality data, as well as the Department's own enforcement experience, do not support continuation of these different standards. For instance, in 2008 WHD investigated the death of a 15-year-old farm worker in Idaho who was killed when he was thrown from the bucket of a front-end loader in which he was riding. A similar tragedy occurred in 2006 involving a 9-year-old farm worker who died when he fell out of the bucket of a piece of farm equipment upon which he and another child were riding. The equipment, which was being used to help clear stones from a field, was being operated by a 16-year-old.

The WHD has also investigated injuries involving the use of conveyors and feed grinders. In 2007, WHD investigated the injury of a 9-year-old in Mississippi whose shirt became entangled in a conveyor belt. The minor was employed to clean eggs and place them into cartons. In 2005, the WHD investigated the death of 14-year-old in New York who became entangled in a silo unloader (conveyor-belt). WHD also investigated the death of a 14-year-old farm worker in Ohio who was killed while loading bales into a feed grinder. The minor either slipped or fell into the grinder and died instantly. In 2004, WHD investigated the serious injury of a 15-year-old in South Dakota who lost his right arm, up to his shoulder, when his coat became caught in the rotating shaft of a grain auger.

The Department appreciates the NIOSH recommendations regarding the classification of equipment by function, but believes that adopting general restrictions on the operation of power-driven machinery consistent with those applied to nonagricultural employment, along with revising the student-learner exemption to permit the limited and supervised operation of certain power-driven equipment after proper training has been received, would more adequately protect young hired farm workers.

Accordingly, the Department is proposing to revise and combine § 570.71(a)(2), § 570.71(a)(3), and § 570.71(a)(7) by creating a new § 570.99(b)(2) entitled

Occupations involving the operation of power-driven equipment, other than agricultural tractors (Ag H.O. 2).

This Ag H.O. will prohibit operating and assisting in the operation of power-driven equipment and contain a limited exemption for student-learners as defined in the proposed § 570.98. The term

operating

includes the tending, setting up, adjusting, moving, cleaning, oiling, repairing, feeding or offloading (whether directly or by conveyor) of the equipment; riding on the equipment as a passenger or helper; or connecting or disconnecting an implement or any of its parts to or from such equipment.

Operating

would also include starting, stopping, or any other activity involving physical contact associated with the operation or maintenance of the equipment.

The Department proposes to define the term

power-driven equipment

to include all machines, equipment, implements, vehicles, and/or devices operated by any power source other than human hand or foot power, except for office machines and agricultural

tractors

as defined in (proposed) § 570.99(b)(1)(i). The term includes lawn and garden type tractors, and all power-driven lawn mowers that are used for yard mowing and maintenance in agriculture.

1

Garden and lawn tractors are small, light and simple tractors designed for use in home gardens or on lawns. Such equipment is usually designed primarily for cutting grass, being fitted with horizontal rotary cutting decks. Lawn and garden tractors are generally more sturdily built than riding mowers, with stronger frames, axles and transmissions rated for ground-engaging applications. The engines are generally a 1- or 2-cylinder gasoline engine. Front-engined tractor layout machines designed primarily for cutting grass and light towing are called lawn tractors; and heavier duty tractors of the same overall size, often shaft driven, are called garden tractors. The

term

implements

includes, but is not limited to, items used in agricultural occupations such as farm field equipment and farmstead equipment.

Farm field equipment

means tractors or implements, including self-propelled implements, or any combination thereof used in agricultural operations.

Farmstead equipment

means agricultural equipment normally used in a stationary manner. This includes, but is not limited to, materials handling equipment and accessories for such equipment whether or not the equipment is an integral part of a building.

1

Child Labor Regulation No. 3, Subpart C of 29 CFR part 570, has prohibited 14- and 15-year-olds employed in nonagricultural industries from operating most power-driven equipment, including lawn and garden type tractors, all power-driven mowers that are used for yard mowing and maintenance, golf carts, and all-terrain vehicles, for almost fifty years. The Department notes that neither the existing prohibition for youth employed in nonagricultural employment nor the proposed prohibition for youth employed in agricultural employment extends to the use of such equipment for recreational or entrepreneurial purposes, such as the youth who uses his family's lawnmower to mow the neighbor's lawn.

The Department's broad proposal to prohibit hired farm workers under the age of 16 from operating or tending any power-driven machinery or equipment comports with the child labor standards long applicable to nonagricultural employment. Equipment operated by any source of energy, such as wind, electricity, fossil fuels, batteries, animals, or water, would all be considered “power-driven” under this Ag H.O., as would any farm implement powered or pulled by an animal, a tractor, or other power-driven equipment. The Department also proposes to accept the recommendation that would prohibit all hired farm workers under 16 years of age, including student-workers, from riding as a passenger on any power-driven machinery being moved on a public road, other than certain motor vehicles under specific conditions as discussed later in this preamble.

The Department has always considered the moving of equipment named in § 570.71(a)(3) to be an activity prohibited by the Ag H.O. even when the machine is not “powered,” as when farm workers move a grain auger that has been powered-down from one location to another. Such work has been considered to be “contact associated with the operation” of such equipment. In 2005, the Department investigated the death of a youth in Montana who w

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