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WHD Proposed Rules

Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations--Civil Money Penalties   [9/2/2011]
[PDF]
Federal Register, Volume 76 Issue 171 (Friday, September 2, 2011)
[Federal Register Volume 76, Number 171 (Friday, September 2, 2011)]
[Proposed Rules]
[Pages 54836-54885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-21924]



[[Page 54835]]

Vol. 76

Friday,

No. 171

September 2, 2011

Part II





Department of Labor





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Wage and Hour Division





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29 CFR Parts 570 and 579





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

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

[[Page 54836]]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Parts 570 and 579

RIN 1235-AA06


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

AGENCY: Wage and Hour Division, Labor.

ACTION: Notice of proposed rulemaking and request for comments.

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

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

ADDRESSES: You may submit comments, identified by RIN 1235-AA06, by 
either one of the following methods:
    Electronic comments: through the Federal eRulemaking Portal: 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

[[Page 54837]]

suitable occupations other than manufacturing or mining, and during 
periods and under conditions that will not interfere with their 
schooling or health and well-being. The FLSA provisions permit 16- and 
17-year-olds to work in the nonagricultural sector without hours or 
time limitations, except in certain occupations found and declared by 
the Secretary to be particularly hazardous, or detrimental to the 
health or well-being of such workers.
    The regulations concerning nonagricultural hazardous occupations 
are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68). 
These Hazardous Occupations Orders (HOs) apply on either an industry 
basis, specifying the occupations in a particular industry that are 
prohibited, or an occupational basis, irrespective of the industry in 
which the work is performed. The seventeen nonagricultural HOs were 
adopted individually during the period of 1939 through 1963. Seven of 
these HOs, specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain 
limited exemptions that permit the employment of 16- and 17-year-old 
apprentices and student-learners under particular conditions to perform 
work otherwise prohibited to that age group. The terms and conditions 
for employing such apprentices and student-learners are detailed in 
Sec.  570.50(b) and (c).
    Because of changes in the workplace, improved occupational injury 
surveillance, Wage and Hour Division investigation findings, the 
introduction of new processes and technologies, the emergence of new 
types of businesses where young workers may find employment 
opportunities, the existence of differing Federal and state standards, 
and divergent views on how best to balance scholastic requirements and 
work experiences, the Department has long been reviewing the criteria 
for permissible child labor employment. A detailed discussion of the 
Department's review was included in the Notice of Proposed Rulemaking 
(NPRM) published in the Federal Register on April 17, 2007 (see 72 FR 
19339). That NPRM led to a Final Rule that was published in the Federal 
Register on May 20, 2010 (see 75 FR 28404) and became effective on July 
19, 2010.
    In furtherance of that review, the Department provided funds to 
NIOSH in 1998 to conduct a comprehensive review of scientific 
literature and available data in order to assess current workplace 
hazards and the adequacy of the current youth employment HOs to address 
them. This study was commissioned to provide the Secretary with another 
tool to use in the ongoing review of the child labor provisions, and of 
the hazardous occupations orders in particular. Its report, entitled 
National Institute for Occupational Safety and Health (NIOSH) 
Recommendations to the U.S. Department of Labor for Changes to 
Hazardous Orders (hereinafter referred to as the NIOSH Report or the 
Report), was issued in July of 2002. The Report makes 35 
recommendations concerning the existing nonagricultural HOs, makes 14 
recommendations concerning the existing agricultural hazardous 
occupations orders (Ag H.O.s), and recommends the creation of 17 new 
HOs. The Department places great value on the information and analysis 
provided by NIOSH.
    As an adjunct to its review of these issues, the Department 
contracted with a private consulting firm, SiloSmashers, Inc., to 
construct a model that, using quantitative analysis, would help 
determine the costs and benefits associated with implementing, or not 
implementing, each of the Report's recommendations. The SiloSmashers 
report, Determination of the Costs and Benefits of Implementing NIOSH 
Recommendations Relating to Child Labor Hazardous Orders, was completed 
in November 2004 and covers 34 of the NIOSH HO recommendations in 
agricultural and nonagricultural occupations, as well as several 
occupations or activities not presently addressed by an existing HO. 
Because of the data limitations and flaws in methodology, the 
Department does not consider the individual analyses prepared by 
SiloSmashers to be influential for rulemaking purposes.
    Both the NIOSH Report and the SiloSmashers analysis are available 
for review on the Department's YouthRules! Web site at 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

[[Page 54838]]

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

[[Page 54839]]

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

[[Page 54840]]

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

[[Page 54841]]

occupations orders available to 16- and 17-year-olds (see Sec.  
570.50(b) and (c)).
    The same 1966 amendments to the FLSA that authorized the Secretary 
to issue the Ag H.O.s also clarified the parental exemption, addressed 
the minimum age standards for employment in agriculture, and brought 
many agricultural workers under the Act's minimum wage provisions for 
the first time. Under section 3(l) of the Act, children under the age 
of 16 who are employed by their parents or person(s) standing in place 
of their parents may be employed at any time and in any occupation 
other than manufacturing, mining, or an occupation found by the 
Secretary to be particularly hazardous for youth between the ages of 16 
and 18. Section 13(c) of the Act expanded the parental exemption as it 
applies to agricultural employment in two ways. First, the parental 
exemption in 13(c)(1)(A) applies not only to youth who are employed by 
their parents or persons standing in place thereof on a farm that is 
owned by such individuals, but to youth who are employed by their 
parents or persons standing in place thereof on farms that are operated 
by, but not owned by, those individuals. Youth who are working pursuant 
to this ``operated by'' exemption must be employed outside of school 
hours. Second, section 13(c)(2) permits youth who are employed by their 
parents or persons standing in place thereof on farms owned or operated 
by those individuals to work in occupations that have been deemed by 
the Secretary to be hazardous to the employment of children under the 
age of 16. This exemption is much broader than the parental exemption 
in nonagricultural employment where the restrictions regarding the 
employment of youth in the 17 nonagricultural hazardous occupations 
orders remain until the age of 18.
    The parental exemptions in the FLSA, which permit children to be 
employed by their parents in some otherwise prohibited occupations, 
were not predicated on the belief that the children of business owners 
and/or farmers were more physically or mentally advanced, more safety 
conscious, or in possession of more cautious work habits than their 
peers. Instead, these exemptions were granted in recognition of, and 
continue to rely upon, the concept that a parent's natural concern for 
his or her child's well-being will serve to protect the child. 
Congress, as evidenced by discussion on the floor of the House of 
Representatives (see Congressional Record, 75th Congress, page 1693, 
December 16, 1937) intended that the parental exemptions be applied 
quite narrowly, limiting their application to parents and those 
standing in place of a parent.
    Accordingly, application of the parental exemption in agriculture 
has been for over forty years limited to the employment of children 
exclusively by their parent(s) on a farm owned or operated by the 
parent(s) or person(s) standing in their place. Any other applications 
would render the parental safeguard ineffective. Only the owner or 
operator of a farm is in a position to regulate the duties of his or 
her child and provide guidance. Where the ownership or operation of the 
farm is vested in persons other than the parent, such as a business 
entity, corporation or partnership (unless wholly owned by the 
parent(s)), the child worker is responsible to persons other than, or 
in addition to, his or her parent, and his or her duties would be 
regulated by the corporation or partnership, which might not always 
have the child's best interests at heart. As Solicitor of Labor Richard 
F. Schubert advised Congressman Walter B. Jones in his letter of 
September 12, 1972, ``[e]mployment by a partnership or a corporation 
would not fulfill the [parental] exemption requirement unless the 
partnership was comprised of the child's parents only or the 
corporation was solely owned by the parent or parents.''
    The Department has, for many years, considered that a relative, 
such as a grandparent or aunt or uncle, who assumes the duties and 
responsibilities of the parent to a child regarding all matters 
relating to the child's safety, rearing, support, health, and well-
being, is a ``person standing in the place of'' the child's parent (see 
letter of Charles E. Wilson, Agricultural Safety Officer, Division of 
Youth Standards of April 7, 1971 to Mr. Floyd Wiedmeier). It does not 
matter if the assumption of the parental duties is permanent or 
temporary, such as a period of three months during the summer school 
vacation during which the youth resides with the relative (Id.). This 
enforcement position does not apply, however, in situations where the 
youth commutes to his or her relative's farm on a daily or weekend 
basis, or visits the farm for such short periods of time (usually less 
than one month) that the parental duties are not truly assumed by that 
relative. The Department also interprets the term ``parent or person 
standing in the place of the parent'' to mean a human being and not an 
institution or facility, such as a corporation, business, partnership, 
orphanage, school, church, or a farm dedicated to the rehabilitation of 
delinquent children.
    The Department interprets ``operated by'' the parent or person 
standing in the place of the parent to mean that he or she exerts 
active and direct control over the operation of the farm or ranch by 
making day-to-day decisions affecting basic income, work assignments, 
hiring and firing of employees, and exercising direct supervision of 
the farm or ranch work. A ranch manager, therefore, who meets these 
criteria could employ his or her own children under 16 years of age on 
the ranch he or she operates without regard to the agricultural 
hazardous occupations orders, even if the ranch is not owned by the 
parent or a person standing in the place of the parent, provided the 
work is outside school hours.
    It is important to note that a child who is exempt from the Ag 
H.O.s when employed on his or her parent's farm would generally lose 
that exempt status (not be exempt) when employed on a farm owned or 
operated by a neighbor or non-parental relative. This is true even if 
the youth is operating equipment owned by his or her parent.
    None of the revisions proposed in this NPRM in any way change or 
diminish the statutory child labor parental exemption in agricultural 
employment contained in FLSA section 13(c)(1). The child labor 
provisions of the FLSA, just like the Act's minimum wage and overtime 
provisions, apply only when an employment relationship exists between 
an employer and a young worker. The concept of an employment 
relationship, which is the same for agricultural and nonagricultural 
employment, is well established under the FLSA and discussed in detail 
in Chapter 10 of the WHD Field Operations Handbook (FOH), available at 
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

[[Page 54842]]

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

[[Page 54843]]

employed in agriculture, data from a broad variety of sources shows 
that agricultural work is difficult and dangerous. The National Safety 
Council's 2009 edition of Injury Facts ranks agriculture as our 
nation's most dangerous industry with 28.6 deaths per 100,000 adult 
workers (see Injury Facts 2009 Edition available at 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

[[Page 54844]]

highest incidences of occupational fatalities and of injuries and 
illnesses involving days away from work, according to the BLS (see 
Report on the Youth Labor Force, p. 56). Although these incidences 
exceed those of experienced young workers employed in nonagricultural 
sectors, they are significantly fewer than those experienced by their 
peers who are not hired farm workers but perform work on their 
families' farms. NIOSH, in its NIOSH Childhood Agricultural Injury 
Prevention Initiative, Progress and Proposed Future Activities [2009], 
p. 8, available at 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, Sec. Sec.  570.31-.37) to ensure the safe employment of 
youth 14 and 15 years of age in nonagricultural employment could 
positively impact the employment of hired farm workers of that same age 
group.
    In furtherance of that review, as discussed earlier in this 
preamble, the Department provided funds to NIOSH in 1998 to conduct a 
comprehensive review of scientific literature and available data in 
order to assess current workplace hazards and the adequacy of the 
current youth employment HOs to address them. The NIOSH Report makes 14 
recommendations concerning the existing agricultural hazardous 
occupations orders (Ag H.O.s). The Department proposes, in this NPRM, 
to address all 14 of the NIOSH recommendations concerning the Ag H.O.s. 
The Department is continuing to review all of the remaining NIOSH 
Report recommendations. Their absence from this current round of 
rulemaking is not an indication that the Department believes them to be 
of less importance or that they are not being given the same level of 
consideration as the recommendations addressed in this NPRM.

C. The Assessment of Child Labor Civil Money Penalties

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

[[Page 54845]]

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 Sec.  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 (Sec.  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 Sec.  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 Sec.  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 
Sec.  570.2(b) by changing consent to written consent. In addition, the 
proposal changes the cross-reference

[[Page 54846]]

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: Sec.  570.70, which 
addresses the purpose and scope of the subpart; Sec.  570.71, which 
contains the current Ag H.O.s; and Sec.  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 Sec.  570.72 will be discussed before Sec.  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 Sec.  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

[[Page 54847]]

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

[[Page 54848]]

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 Sec.  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 Sec. Sec.  570.70-.72 as Sec. Sec.  570.97-.99 
and reserve Sec. Sec.  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

[[Page 54849]]

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 Sec. Sec.  570.70, 570.71, and 570.72 as 
Sec. Sec.  570.97, 570.98, and 570.99, respectively. It also proposes 
to create, and mark as reserved, Sec. Sec.  570.71 through and 
including Sec.  570.96. The Department is proposing to change the title 
of paragraph (b) of the current Sec.  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

[[Page 54850]]

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 Sec.  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 Sec.  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 Sec.  
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,

[[Page 54851]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  570.72(a), and move it to a proposed Sec.  
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

[[Page 54852]]

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 Sec.  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 
Sec.  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 Sec.  570.71(a)(7), not be changed but moved to 
this Ag H.O. (currently Sec.  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

[[Page 54853]]

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 Sec.  570.71(a)(7) be retained and relocated to Sec.  
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) 
Sec.  570.71(a)(1) and (7) and create a new Sec.  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) Sec.  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) Sec.  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.

[[Page 54854]]

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 Sec.  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 Sec.  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 iPodTM 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

[[Page 54855]]

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 Sec.  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 Sec.  570.71(a)(3): trencher or earthmoving equipment; 
fork lift; potato combine; and power-driven circular, band, or chain 
saws.
    The current Sec.  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 Sec.  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 Sec.  
570.71(a)(2) or Sec.  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 Sec.  570.72(b) or the vocational agriculture training 
requirements of Sec.  570.72(c) to, under specific guidelines, operate 
equipment named in Sec.  570.71(a)(2) but not that equipment named in 
Sec.  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 Sec.  570.71(a)(2) and Sec.  
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 
Sec.  570.72--generally may not be operated by youth under 18 years of 
age if employed in nonagricultural occupations. For example, Sec.  
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 Sec.  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

[[Page 54856]]

public roads only under very limited conditions and for very short 
periods of time. HO 4 (Sec.  570.54), HO 5 (Sec.  570.55), and HO 14 
(Sec.  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 (Sec.  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 
(Sec.  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 Sec.  
570.33(e) and Sec.  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 Sec.  570.71(a)(2) 
and Sec.  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 
Sec.  570.71(a)(2), Sec.  570.71(a)(3), and Sec.  570.71(a)(7) by 
creating a new Sec.  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 Sec.  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) Sec.  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

[[Page 54857]]

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 Sec.  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 was electrocuted while helping three 
adults move a grain auger from one grain bin to another. The auger was 
mounted on a rubber-tired chassis which was being pulled by a truck. 
The auger tipped over, came in contact with an overhead power-line, and 
the youth was electrocuted. The three adults were injured. There has 
been some confusion over the violation status of moving such equipment, 
because the machine was disconnected from its power source and was not 
``operating'' while it was being relocated. In order to remove this 
confusion and increase compliance, the Department is proposing to add 
the task of ``moving'' equipment to the list of prohibited activities 
covered by this Ag H.O.
    As with the tractor Ag H.O. proposed above, the Department is 
proposing an exemption to this Ag H.O. that would allow a bona fide 
student-learner employed in compliance with the requirements of Sec.  
570.98(b) to operate and assist in the operation of certain types of 
power-driven machinery only after he or she has successfully completed 
his or her school's classroom portion of the educational unit on the 
safe operation of that specific piece of power driven machinery. In 
addition, the student-learner would be prohibited from using electronic 
devices, including communication devices, while operating or assisting 
to operate the permitted equipment. This proposal contains prohibitions 
similar to those contained in the proposed nonagricultural HO 19 and 
the revisions proposed for Ag H.O. 1.
    Determinations as to which types of equipment present less risk to 
student-learners were based on both the NIOSH Report and stakeholder 
feedback. In addition, the power-driven machinery being operated must 
meet, and be operated in accordance with, the requirements of OSHA's 
standard at 29 CFR 1928.57, if the equipment is the type of farm 
equipment covered by that standard. The Department, as previously 
discussed, is not requiring employers to modify any existing equipment 
to meet the OSHA standard, nor is it attempting to bring otherwise 
exempt employers under OSHA's protective oversight. But if employers 
wish to take advantage of the student-learner exemption contained in 
this proposed Ag H.O., the equipment operated by the student-learner 
must comply with the OSHA standard, as must its operation. WHD would 
rely on OSHA to help it determine compliance with OSHA standards.
    The Department is also proposing that if the student-learner is 
operating the machinery on a public road or highway, as defined in 
Sec.  570.99(b)(1)(i), he or she must hold a state driver's license 
valid for the type of machinery being operated. In addition, the 
student-learner may ride as a passenger in or on the power-driven 
equipment only if all the following conditions are satisfied: (1) The 
vehicle, machinery, or implement is equipped with an approved seat for 
each minor that includes a seat belt or appropriate similar restraint 
that comports with OSHA's standard at 29 CFR 1928.51(b)(2); (2) the 
minor has been instructed to use, and actually uses, the seat belt or 
similar restraint; (3) the machinery is not being operated on a public 
road as defined in Sec.  570.99(b)(1)(i); and (4) the operator of the 
vehicle, or any vehicle pulling, moving or towing the machinery or 
implement, is at least 16 years of age and holds a state motor vehicle 
license valid for the vehicle being operated.
    The Department is proposing that a bona fide student-learner, 
employed in compliance with the provisions of Sec.  570.98(b) and the 
provisions discussed above, be permitted to operate and assist in the 
operation of only the following power-driven machines: harvesting and 
threshing machinery, including balers; grain combines; reapers; plowing 
machinery; planting machinery; spreading machinery; mowing and swathing 
machinery; power post hole diggers; power post drivers; and nonwalking 
type rotary tillers. When the machine or equipment is being powered or 
pulled by a tractor as defined in Sec.  570.99(b)(1)(i), the student-
learner must also be employed in accordance with the provisions of 
Sec.  570.99(b)(1)(ii).
    Such student-learners would not be permitted to operate or assist 
in the operation of any other power-driven machinery. The proposal 
would specifically prohibit student-learners from operating or 
assisting in the operation of many types of equipment which are already 
prohibited for youth under 18 years of age when employed in 
nonagricultural employment. The proposal would expressly prohibit 
student-learners from operating the following types of power-driven 
equipment: automobiles, buses, or trucks, including serving as an 
outside helper on such motor vehicles; all terrain vehicles, scooters, 
and motorcycles; trenching or earthmoving equipment, including back 
hoes and bulldozers; loaders, including skid steer loaders, front end 
loaders, and Bobcats; milking equipment; potato combines; hoisting 
equipment, including cranes, derricks, highlift trucks, fork lifts, 
hoists, and manlifts as defined in Sec.  570.58; woodworking machines 
as defined in Sec.  570.55; feed grinders; circular, reciprocating, 
band, and chain saws as defined in Sec.  570.65; wood chippers and 
abrasive cutting discs as defined in Sec.  570.65; metal forming, 
punching, and shearing machines as defined in Sec.  570.59; welding 
equipment; augers; auger conveyors; conveyors; irrigation equipment; 
rotary tillers, walking type; crop dryers; and the unloading mechanism 
of a nongravity-type self-unloading wagon or trailer.
    In designating the equipment that would fall within or outside of 
the student-learner exemption, the Department looked to both the 
historical composition of the agricultural and

[[Page 54858]]

nonagricultural hazardous occupations, the classifications recommended 
by NIOSH, occupational injury and fatality data, and recommendations 
from experts in the field. For example, a study of 988 worker's 
compensation claims among dairy farms in Colorado found that milking 
parlor tasks represented 48% of injuries among dairy workers and 
indicated the worker was performing a milking activity at the time of 
the injury (see Douphrate D, Rosecrance C, Stallones L, Reynolds S, 
Gilkey D [2008]. NORA Symposium 2008: Public Market for Ideas and 
Partnerships; The Use of Workers' Compensation Data to Investigate 
Livestock-Handling Injuries in Agriculture; available at http://www.cdc.gov/niosh/nora/symp08/posters/006.html). ``More specifically, 
21% involved the worker being kicked while performing a milking task 
and 10% involved the worker attaching a milking unit to a cow's udder 
when he/she was kicked'' (Id.). Another 10% of these injuries indicated 
the worker was stepped on when performing a milking task (Id.).
    Accordingly, the Department is proposing to prohibit hired farm 
workers under 16 years of age from operating or assisting in the 
operation of power-driven milking equipment because of hazards 
associated with the weight of the machines, the postures required of 
the young workers when operating such equipment, and the dangers 
associated with working so closely with large animals. The Department 
believes that this proposal NPRM will provide much needed safety 
protection for young farm workers within the confines of the current 
statutory agricultural child labor provisions while continuing to 
permit important training and employment opportunities for 14- and 15-
year-old student-learners. In addition, the revised format of Ag H.O. 
2, as proposed by the Department, also comports with the NIOSH 
recommendation to classify farm equipment by ``function.'' However, the 
Department emphasizes that the list of equipment that falls outside the 
student-learner exemption simply provides examples of the most commonly 
occurring types of prohibited equipment; the general prohibition 
against hired farm workers under the age of 16 from operating all 
power-driven equipment applies unless the requirements for the student-
learner exemption have been satisfied for a particular piece of 
equipment authorized in Sec.  570.99(b)(2)(ii)(A).
    It is not the Department's intention that this proposed Ag H.O. 
prohibit young hired farm workers from riding as passengers inside of 
all motor vehicles. The Department proposes to provide in Sec.  
570.99(b)(2)(ii)(C) that, notwithstanding the definition of operating 
in Sec.  570.99(b)(2)(i), minors under 16 years of age may ride as 
passengers in automobiles, trucks, and buses, on public roads and 
private property, provided all of the following are met: (1) Each minor 
riding as a passenger in a motor vehicle must have his or her own seat 
in the passenger compartment; (2) each seat must be equipped with a 
seat belt or similar restraining device, the employer must instruct the 
minors that such belts or other restraining device must be used while 
riding, and the minor actually uses the seat belt or other restraining 
device while riding; and (3) each driver transporting the young workers 
must hold a state driver's license valid for the type of driving 
involved and, if the driver is under the age of 18, his or her 
employment must comply with the provisions of Sec.  570.52. Section 
570.52, which is nonagricultural HO 2, Occupations of motor-vehicle 
driver and outside helper, prohibits any youth under the age of 17 from 
driving motor-vehicles on public roads. Seventeen-year-olds may perform 
limited driving of certain trucks and automobiles (but not buses) under 
very stringent conditions that govern such things as the size of the 
vehicle; the time the driving may take place; the purpose, number, 
frequency, and distances of the trips involved; whether passengers are 
being transported; and the driving record of the 17-year-old at the 
time of hire. These provisions of this proposal are similar to those 
that govern the transporting of 14- and 15-year-old workers employed in 
nonagricultural occupations (see Sec.  570.34(o)).
    The Migrant and Seasonal Agricultural Worker Protection Act (29 
U.S.C. 1801 et seq.), administered by the WHD, protects migrant and 
seasonal agricultural workers by establishing employment standards 
related to wages, housing, transportation, disclosures, and 
recordkeeping. Under MSPA, any non-exempt person who uses, or causes to 
be used, a vehicle to transport migrant or seasonal agricultural 
workers must comply with certain vehicle safety standards. Those 
standards are either the Department's standards or the Department of 
Transportation (DOT) standards incorporated by the Department into the 
MSPA regulations (see subpart D of 29 CFR part 500). These standards 
address such issues as state safety inspections; the lighting, fuel, 
exhaust, ventilation, and braking systems of the vehicles; the tires; 
the doors; the seats; the windshields and windshield wipers; and the 
safe loading of the vehicles. Although these standards protect many 
migrant and seasonal agricultural workers, MSPA exempts certain 
workers, which may include young hired farm workers, from these 
transportation safety standards. The Department is specifically seeking 
comment from the public as to whether the child labor in agricultural 
provisions discussed in this proposed rule should be revised to require 
that all vehicles used to transport young hired farm workers meet or 
exceed the vehicle safety standards imposed by MSPA, even if the 
employment of the youth is not subject to MSPA.
    Because the proposed Ag H.O. 2 addresses only power-driven 
equipment and would not prevent hired farm workers under the age of 16 
from operating non-power-driven hoists and conveyors, the Department is 
also proposing to create a new Ag H.O. at Sec.  570.99(b)(3) entitled 
Occupations involving the operation of non-power-driven hoisting 
apparatus and conveyors (Ag H.O. 3). The proposed Ag H.O. would 
prohibit hired farm workers under 16 years of age from operating and 
assisting in the operation of hoisting apparatus and conveyors that are 
not power-driven but run on human power or gravity, including manlifts 
and boatswain-chair-type devices often used in grain storage 
operations. The term operating includes the tending, setting up, 
adjusting, moving, cleaning, oiling, repairing, 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 prohibitions of this Ag H.O. would 
also prevent such minors from serving as ``safety spotters'' directing 
the operator of the hoisting apparatus or conveyor as to the proper 
operation of the equipment.

E. Working on a Farm in a Yard, Pen, or Stall Occupied by a: Bull, 
Boar, or Stud Horse Maintained for Breeding Purposes; or Sow With 
Suckling Pigs, or Cow With Newborn Calf (With Umbilical Cord Present) 
(29 CFR 570.71(a)(4))

    The NIOSH Report recommends that the Department retain this current 
Ag H.O. as written. NIOSH cites several studies that demonstrate 
animals are one of the most common sources of injuries to children on 
farms and notes that, in 1998, it estimated that 20% of all injuries to 
youth under the age of 20

[[Page 54859]]

occurring on farms were animal-related. NIOSH notes that animal-related 
farm injuries are a problem for farm workers of all ages, and that the 
dangers farm animals present are numerous. Livestock-handling injuries 
are among the most severe of agricultural injuries; they are more 
costly and result in more time off work than other causes of 
agricultural injuries (see Douphrate D, Rosecrance C, Stallones L, 
Reynolds S, Gilkey D [2008]. NORA Symposium 2008: Public Market for 
Ideas and Partnerships; The Use of Workers' Compensation Data to 
Investigate Livestock-Handling Injuries in Agriculture; available at 
http://www.cdc.gov/niosh/nora/symp08/posters/006.html). Dangerous 
situations presented by farm animals include: ``territorial protection, 
maternal instincts, social relationships, or simply an interruption of 
their normal habits'' (see NIOSH Report, page 76). NIOSH has also 
expressed concerns about the dangers farm workers face when vaccinating 
animals (see NIOSH Update: Recommendations to Prevent Unintended Self-
Injection, Other Risks from Animal Antibiotic Micotil 300[reg], May 17, 
2007, available at http://www.cdc.gov/niosh/updates/upd-05-17-07.html).
    WHD has conducted investigations involving injuries to young farm 
workers who came in contact with these animals. In 2003, WHD 
investigated the serious injury of a 14-year-old in Pennsylvania who 
was unable to work for 30 days when he was knocked down and head-butted 
by a bull maintained for breeding purposes. Also, in 2007, WHD 
investigated the serious injury of a 15-year-old farm worker in New 
York who was gored by a bull. The minor missed 45 days of work.
    In its 2003 comments on the NIOSH Report, the National Farm 
Medicine Center recommended that the language in this Ag H.O. should be 
modified to be more concise and preclude hired youth from conducting 
work with large animals with high risk of injury. The National Farm 
Medicine Center made the following three recommendations (see Position 
Statement: Proposed Changes in the Hazardous Occupations Orders in 
Agriculture. National Farm Medicine Center, March 19, 2003, available 
at http://www.regulations.gov, docket number WHD-2011-0001):
    1. Any activity with an intact (not castrated) male equine, 
porcine, or bovine older than six months should be prohibited.
    2. Youth should be prohibited from engaging, or assisting, in 
animal husbandry practices that inflict pain upon the animal and/or are 
likely to result in unpredictable animal behavior. These activities 
include, but would not be limited to, branding, breeding, dehorning, 
vaccinating, castrating, and treating sick or injured animals. Youth 
should also be precluded from handling animals with known dangerous 
behaviors.
    3. Hired youth should be prohibited from herding animals on 
horseback.
    The National Farm Medicine Center noted that past and recent data 
indicate a significant number of animal-related injuries occur to youth 
when they are involved in the activities cited in its second 
recommendation. It also reports that ``[h]orseback herding requires a 
person to monitor and anticipate the behaviors of two (large) animals 
simultaneously. No youth development data exists to suggest youth 
younger than 16 years have the cognitive ability to handle this 
responsibility.'' A study of worker's compensation data concerning 
livestock-handling injuries in Colorado found that ``[R]iding 
horseback, sorting/penning cattle and livestock handling equipment 
represented higher proportions of livestock-handling injuries among 
cattle/livestock raisers and cattle dealers'' (see Douphrate D, 
Rosecrance C, Stallones L, Reynolds S, Gilkey D [2008]. NORA Symposium 
2008: Public Market for Ideas and Partnerships; The Use of Workers' 
Compensation Data to Investigate Livestock-Handling Injuries in 
Agriculture; available at http://www.cdc.gov/niosh/nora/symp08/posters/006.html). Concerns have also been expressed to the Department about 
the dangers to young workers associated with the herding of animals 
using power-driven machinery such as all terrain vehicles (ATVs), 
trucks, and similar vehicles, and the herding of animals in confined 
spaces, such as feed lots and corrals.
    The Department agrees with the NIOSH Report that this Ag H.O. 
should be retained, and proposes to revise the Ag H.O. by incorporating 
the important and thoughtful recommendations of the National Farm 
Medicine Center.
    In addition, although poultry catching and cooping are not normally 
classified as agricultural employment and therefore generally not 
subject to the Ag H.O.s, the Department is also concerned about those 
rare instances when the catching activities would be agricultural in 
nature, such as when poultry catchers are employed solely by a farmer 
on a farm to catch and/or coop poultry raised only by that farmer.
    The Department is aware that workers who catch and coop poultry in 
lots in preparation for transportation or for market are often exposed 
to a high degree of risk. Working in the dark, with only illumination 
provided by ``red lights'' which the fowl cannot see, and in poorly 
ventilated rooms, is not uncommon. These risks are heightened when the 
workers are young. The Department has long held that the child labor 
provisions applicable to nonagricultural employment prohibit youth 
under 16 years of age from performing this dangerous work. In a 
recently issued Final Rule, the Department incorporated its enforcement 
position into the Regulations at Sec.  570.33(l) (see 75 FR 28449). In 
order to protect agricultural child poultry catchers to the same extent 
as nonagricultural poultry catchers, the Department is also proposing 
to include poultry catching and cooping on the list of prohibited 
occupations included in this Ag H.O. This prohibition would be 
applicable to the catching and cooping of all poultry, not just 
chickens.
    Accordingly, the Department proposes to revise Sec.  570.72(b)(4) 
entitled Certain occupations involving working with or around animals 
(Ag H.O. 4) and redesignate it as Sec.  570.99(b)(4). This Ag H.O. 
would prohibit working on a farm in a yard, pen, or stall occupied by 
an intact (not castrated) male equine, porcine, bovine, or bison older 
than six months, a sow with suckling pigs, or cow with newborn calf 
(with umbilical cord present); engaging or assisting in animal 
husbandry practices that inflict pain upon the animal and/or are likely 
to result in unpredictable animal behavior such as, but not limited to, 
branding, breeding, dehorning, vaccinating, castrating, and treating 
sick or injured animals; handling animals with known dangerous 
behaviors; poultry catching or cooping in preparation for slaughter or 
market; and herding animals in confined spaces such as feed lots or 
corrals, or on horseback, or using motorized vehicles such as, but not 
limited to, trucks or all terrain vehicles. The use of such vehicles 
would also be banned by the proposed Ag H.O. 2 discussed above.
    It is important to note that the Department is not proposing to 
prohibit hired farm workers from all horseback riding--only that 
horseback riding associated with the herding of animals. It is also 
important to note that the Department's proposals, as well as the 
existing child labor regulations, only apply to the employment of young 
hired farm workers while they are on the job. Riding horses and all-
terrain vehicles are popular recreational activities and the Federal 
child labor laws do not apply to such activities outside of employment.

[[Page 54860]]

    The Department does not propose that a student-learner exemption 
apply to this Ag H.O.

F. Felling, Bucking, Skidding, Loading, or Unloading Timber With Butt 
Diameter of More Than Six Inches (29 CFR 570.71(a)(5))

    The NIOSH Report recommends (see Report, page 77) that the 
Department retain this hazardous occupations order relating to timber, 
but remove the six inch diameter threshold. NIOSH states that there is 
no evidence that working with timber with a butt diameter of six inches 
or less is any safer than working with larger timber. NIOSH also notes 
that timbering work on farms exposes workers to many of the same risks 
as in logging operations, which is one of the most hazardous industries 
in the U.S. Nonagricultural HO 4, (Forest fire fighting and forest fire 
prevention occupations, timber tract occupations, forestry service 
occupations, logging occupations, and occupations in the operation of 
any sawmill, lath mill, shingle mill, or cooperage stock mill) has 
prohibited the employment of youth under 18 years in logging operations 
for seventy years regardless of the butt diameter of the trees. 
Further, NIOSH reports the dangers associated with stump removal, 
citing a 1996 study of 16 rear rollovers that resulted from improper 
hitching to farm tractors in New York. That study found that 63% of the 
overturns occurred when operators were pulling logs or removing stumps 
(see NIOSH Report, page 78). The National Farm Medicine Center, in its 
comments on the recommendations of the NIOSH Report, concurred in this 
NIOSH recommendation.
    The NIOSH Report states that the CFOI identified 97 fatalities from 
1992-1997 associated with felling, bucking, skidding, loading, or 
unloading timber among workers in agricultural production in the U.S., 
and that almost one-third of these deaths occurred while a worker was 
using a tractor to push or pull trees or stumps, causing the tractor to 
overturn (see NIOSH Report, page 78).
    The Department agrees with the NIOSH recommendation and proposes to 
modify the existing Ag H.O. to both remove the size limits and to 
prohibit all work involved in the removal of tree stumps. Thus, it 
proposes to redesignate current Sec.  570.71(a)(5) as Sec.  
570.99(b)(5) and revise it as Occupations involving timber operations 
(Ag H.O. 5). This Ag H.O. would prohibit the felling, bucking, 
skidding, loading, or unloading of timber and the removal and disposal 
of tree stumps by other than manual means. No student-learner exemption 
is being proposed for this Ag H.O. In addition, the Department requests 
comment on the approach of replacing the six-inch timber threshold with 
a lower threshold as an alternative to eliminating it.
    The term timber has been used in the existing Ag H.O., without a 
stated definition, since its adoption as part of the Interim Order in 
1967. Although the term timber often has a commercial connotation of 
trees or large sticks of wood that have been squared or are capable of 
being squared for use in construction or building, for purposes of this 
Ag H.O. timber means trees, logs, and other similar woody plants. 
However, this HO would not prohibit a hired farm youth from performing 
such tasks as carrying firewood or clearing brush.

G. Working From a Ladder or Scaffold (Painting, Repairing, or Building 
Structures, Pruning Trees, Picking Fruit, etc.) at a Height of Over 20 
Feet (29 CFR 570.71(a)(6))

    The NIOSH Report recommends (see page 79) that the current Ag H.O. 
retain the prohibitions concerning working from a ladder or scaffold 
but also be expanded to cover work on: roofs; farm structures including 
silos, grain bins, windmills, and towers; and vehicles, machines, and 
implements. NIOSH also recommends that the maximum height at which 
youth under 16 may work in these settings be reduced from twenty feet 
to six feet.
    NIOSH supports its recommendations by noting that fatality and 
injury data for the agricultural production industry show that large 
numbers of worker fatalities and injuries result from falls from 
elevation. In 1994, there were an estimated 19,008 nonfatal falls from 
elevation resulting in one-half day or more restricted activity among 
U.S. farm workers (see NIOSH Report, page 81), and the circumstances of 
these falls are much broader than those proscribed by the current Ag 
H.O. (see NIOSH Report, page 79). According to NIOSH, expanding the Ag 
H.O. to cover work on roofs, on farm structures, and on vehicles, 
machines, and implements would cover more of the work situations in 
which fatal falls have occurred. NIOSH also notes that data for all 
ages of workers suggest that permitting youth to work at heights up to 
20 feet is not sufficiently protective, as the majority of fatal falls 
among agricultural production workers for which the height of the fall 
is recorded occurred from a height of 20 feet or less (see NIOSH 
Report, page 79).
    NIOSH also reports that lowering the height threshold for youth in 
agriculture to six feet would make the Ag H.O. more consistent with the 
occupational safety standards applicable to the construction industry. 
NIOSH notes that OSHA's occupational safety and health standards 
applicable to workers of all ages require the use of fall protection 
for construction industry employees who work six feet or more above a 
lower level (see 29 CFR part 1926, subpart M). None of these standards 
currently extends to workers in agricultural production, nor do 
agricultural health and safety standards contain fall protection 
requirements of any kind.
    The Federal child labor provisions for nonagricultural occupations 
currently prohibit minors under 16 years of age from working from any 
ladders or scaffolds, regardless of their height (see Sec.  570.33(g)). 
HO 16, also only applicable to nonagricultural work, generally 
prohibits minors under 18 years of age from working in roofing 
occupations and on or about a roof (see Sec.  570.67). This HO was 
expanded to prohibit all work ``on or about a roof'' in 2004 because of 
the number of falls and/or electrocutions being experienced by young 
workers employed at heights (see 69 FR 75397).
    Section 570.33(n)(4), addressing nonagricultural employment only, 
in recognition of the traditionally high incidences of occupational 
fatalities and injuries experienced by construction workers, prohibits 
the employment of youth under 16 in any occupation connected with 
construction, including demolition and repair. Such youth may not be 
employed in the construction industry to perform any duties at any 
construction site. This prohibition encompasses all types of 
construction, including residential, building, heavy, and highway 
construction. Section 570.33(n)(3) also prohibits the employment of 
such youth under the age of 16 in occupations in connection with 
communications and public utilities. In addition, nonagricultural HO 15 
prohibits the employment of youth less than 18 years of age in wrecking 
and demolition (see Sec.  570.66), while HO 17 prohibits the employment 
of youth less than 18 years of age in most occupations involving 
excavation (see Sec.  570.68).
    The NIOSH Report also recommends that a new nonagricultural HO be 
created that would prohibit youth under 18 years of age from employment 
in the construction industry (see NIOSH Report, page 101), and the 
Department requested comments on that recommendation in an Advance 
Notice of Proposed Rulemaking (ANPRM) published in the Federal Register 
on April 17, 2007 (see 72 FR 19328). Because very little substantive

[[Page 54861]]

information was received, the Department withdrew the ANPRM on February 
24, 2010. No proposed rule will result directly from that information 
collection effort. The Department, however, has stated that the topics 
discussed in the ANPRM may be the subject of future rulemaking (see 75 
FR 28406).
    The Department reiterates its concern that the agricultural child 
labor provisions have permitted hired farm workers, as evidenced by the 
discussion above, to perform certain types of work on farms, often at 
very young ages, that are prohibited to youth under 16 years of age--
and sometimes under the age of 18 years--when performed in 
nonagricultural industries. The Department believes that such 
protections should be available to all hired youth under 16, whether 
employed in agricultural or nonagricultural occupations.
    The Department is aware that concerns were raised when the NIOSH 
Report was issued regarding the recommendation that the maximum working 
height established by this Ag H.O. be lowered from twenty feet to six 
feet (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); 
see also Comments Concerning Current Rules and Proposed Revisions 
Hazardous Orders for Agriculture. Timothy G. Prather, March 19, 2003, 
University of Tennessee Agricultural Extension Service, available at 
http://www.regulations.gov, docket number WHD-2011-0001). A major 
concern of some stakeholders was that the recommendation, as proposed 
by NIOSH, would not allow 14- and 15-year-old farm workers, employed as 
student-learners under the provisions of proposed Sec.  
570.72(b)(1)(ii), to access the operating platforms of many tractors, 
implements, and farm equipment; nor would they be permitted to operate 
such equipment because some or all of their bodies would be more than 
six feet above the ground.
    The Department finds merit in the NIOSH recommendations regarding 
maximum working heights and the types of structures and equipment from 
which hired farm workers should be permitted to work. Accordingly, the 
Department proposes to revise Sec.  570.71(a)(6) by bifurcating it into 
two new Ag H.O.s.
    The Department proposes to create a new Ag H.O. at Sec.  
570.99(b)(6) entitled Occupations involving working in construction; in 
communications; in public utilities; in wrecking and demolition; and in 
excavation (Ag H.O. 6). The Department would define wrecking and 
demolition to mean all work, including clean-up and salvage work, 
performed at the site of the total or partial razing, demolishing, or 
dismantling of a building, bridge, steeple, tower, chimney, or other 
structure including but not limited to a barn, silo, or windmill. This 
definition comports with the definition of wrecking and demolition 
contained in Sec.  570.66 (nonagricultural HO 15). The Department's 
proposal would prohibit work in excavation occupations in the same way 
such work is prohibited by Sec.  570.68 (nonagricultural HO 17) for 
youth under the age of 18 years employed in nonagricultural 
occupations. Work in all types of construction--building, residential, 
heavy, and highway--would be prohibited. Occupations in the 
construction, communications, and public utilities industries, other 
than office work, would be prohibited by this proposal in the same way 
such occupations are prohibited in nonagricultural employment (see 
Sec.  570.33(n)).
    This proposed Ag H.O. will provide the same protections to young 
hired farm workers that are afforded to minors employed in 
nonagricultural occupations. The Department has an extensive 
enforcement history of injuries and fatalities suffered by young farm 
workers performing tasks that would be prohibited by its proposal for 
hired agricultural workers under age 16. For example, in 2008, the WHD 
investigated the death of a 12-year-old in Montana who was assisting a 
15-year-old in the installation of a communications cable. The minor 
was killed while attempting to throw the cable over the loader the 
older minor was operating. In 2007, WHD investigated the death of a 
youth, who was eventually determined to be 17 years of age at the time 
of his death, who was employed to help demolish, and then reconstruct, 
a barn. The minor was crushed to death when a concrete and stone wall 
collapsed.
    The Department believes this proposal will complement and reinforce 
its proposals dealing with the operation of power-driven equipment and 
fall prevention. The Department is not proposing a limited exemption to 
this Ag H.O. for 14- and 15-year-old student-learners.
    The Department is also proposing to create a new Sec.  570.99(b)(7) 
to be entitled Occupations involving work on roofs, scaffolds, and at 
elevations greater than six feet (Ag H.O. 7). This Ag H.O. would 
prohibit working on or about a roof; from a scaffold; and at elevations 
greater than six feet above another elevation, such as, but not limited 
to, working on or from a ladder, a farm structure (including, but not 
limited to silos, towers, grain bins, and windmills), or equipment. 
This proposal not only preserves the major portions of the existing Ag 
H.O. but prohibits all work on a scaffold in light of the Department's 
proposal to prohibit all work in construction. The proposal would also 
prohibit all work on or about a roof, much like the existing HO 16 that 
addresses nonagricultural employment. The proposal would define on or 
about a roof by referencing the definition in HO 16 (see Sec.  
570.67(b)). On or about a roof as defined therein would include all 
work performed upon or in close proximity to a roof, including 
carpentry and metal work, alterations, additions, maintenance and 
repair, including painting and coating of existing roofs; the 
construction of the sheathing or base of roofs (wood or metal), 
including roof trusses or joists; gutter and downspout work; the 
installation and servicing of television and communication equipment 
such as cable and satellite dishes; the installation and servicing of 
heating, ventilation and air conditioning equipment or similar 
appliances attached to roofs; and any similar work that is required to 
be performed on or about roofs.
    In addition, the Department's proposal would prohibit hired farm 
workers under the age of 16 from performing work on or from a ladder, 
farm structure, or equipment at elevations greater than six feet. The 
Department proposes to determine when an elevation is greater than six 
feet by measuring the distance between the minor's feet and the lower 
elevation above which the minor is working.
    The Department shares the previously stated concern that a height 
limitation of six feet would prevent bona fide student-learners from 
operating certain tractors and farm equipment otherwise authorized by 
the student-learner exemptions contained in the proposed Ag H.O. 1 
(Sec.  570.99(b)(1)(ii)) and Ag H.O. 2 (Sec.  570.99(b)(2)(ii)). The 
Department believes that the requirements of those exemptions, which 
include the use of an appropriate restraining device, when coupled with 
the ongoing training the student-learner will receive from his or her 
school and employer, will provide the young hired farm worker with 
sufficient fall protection. Accordingly, the Department is proposing to 
provide an exemption to this Ag H.O. which would allow a student-
learner to operate a tractor and/

[[Page 54862]]

or to operate or ride upon power-driven equipment at an elevation 
greater than six feet when such student-learner is employed in 
compliance with all the requirements of the applicable exemption--such 
as the tractor or equipment is equipped with ROPS, when appropriate; 
that the tractor or equipment is equipped with seatbelts or similar 
restraining devices; that the student-learner is instructed to use, and 
actually uses the seat belt or similar restraining device; and that the 
equipment is operated by a licensed or otherwise qualified driver(s) 
who is at least 16. The proposed Ag H.O. 7 also would allow legally-
employed young farm workers to ride as passengers in cars, trucks, and 
buses, under certain conditions in accordance with the exemption in 
proposed Sec.  570.99(b)(2)(ii)(C). In addition, the Department 
requests comment on setting a maximum height restriction of 10 feet as 
an alternative to the maximum height restriction of six feet proposed 
in Ag H.O. 6. Also, the Department requests comment on the possibility 
of waiving the driving restrictions in Ag H.O. 2 for 14- and 15-year-
old student-learners to drive licensed vehicles in states that provide 
for licensing 14- and 15-year-olds, provided they have passed required 
tests and examinations and are in possession of a valid driver's 
license or permit which authorizes them to drive certain motorized 
vehicles.

H. 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 (29 CFR 570.71(a)(8))

    The NIOSH Report recommends (see Report, page 86) that the 
Department expand this exemption to prohibit all (emphasis in the 
original) work inside a fruit, forage, or grain storage such as a silo 
or bin. It also recommends that the Department continue to prohibit all 
work in a manure pit.
    NIOSH notes that work in silos and bins presents hazards in many 
forms, including grain engulfment, exposure to silo gas, and oxygen 
deficiency. ``Suffocation in flowing grain is the most common cause of 
death associated with grain storage structures in the U.S. Hazards 
exist either when the grain is being unloaded or loaded, or when 
workers fall into an air pocket under a crust of grain. Grain that 
flows during loading and unloading has characteristics of quicksand and 
can rapidly induce immersion. A worker can be completely submerged in 
flowing grain in less than 8 seconds'' (see NIOSH Report, page 87).
    NIOSH also reports that even though the current Ag H.O. provides 
for a two-week waiting period to protect youth from entering a storage 
facility soon after new silage has been added, toxic gases may be 
present at any time in such facilities. ``Although nitrogen dioxide 
levels are generally within a safe range after two weeks, dangerous 
amounts may remain for months if the silo has not been opened'' (see 
NIOSH Report, page 87).
    NIOSH notes that similar problems of toxic atmospheres arise from 
manure pits. ``Manure pits are fermentation plants in which raw animal 
waste undergoes anaerobic bacterial decay. Manure pits allow for easy 
cleaning of animal confinement buildings and the efficient underground 
storage of large amounts of raw manure'' (see NIOSH Report, page 87). 
However, such pits produce considerable amounts of toxic gases, 
including hydrogen sulfide, methane, ammonia and carbon dioxide. Deaths 
in manure pits can result from oxygen deficiency--the oxygen being 
replaced by toxic gases--or from the direct toxic effects of the gases 
(see NIOSH Report, page 88). NIOSH also states that the risks are 
especially heightened during the summer months--when more youth may be 
employed in agricultural occupations--because warmer, more humid 
weather accelerates the production of the toxic gases (Id.). In 2000, 
the WHD investigated the death of a 15-year-old hired farm worker who 
was suffocated when the tractor he was driving slid into a manure pit. 
The pit was about 100 feet long, 30 feet wide, and 10 to 12 feet deep.
    The NIOSH Report also notes that incidents in silos, bins, or 
manure pits often result in multiple fatalities when co-workers or 
others die during attempts to rescue initial victims. ``Often after a 
worker enters an oxygen-deficient or toxic atmosphere and collapses, 
co-workers notice the collapsed worker and enter the same atmosphere to 
attempt rescue; if they do not use proper precautions they also 
collapse'' (see NIOSH Report, page 88). Such a tragedy is the subject 
of NIOSH Fatality Assessment and Control Evaluation (FACE) Program 
Report 1989-46 (available at http://www.cdc.gov/niosh/face/In-house/full8946.html) where five individuals, including a 15-year-old, died in 
a manure pit on a Michigan dairy farm. The young worker and his uncle 
were replacing the shear pin on the manure pit's agitator shaft when 
they were overcome by the oxygen deficiency. The other three adult male 
relatives died while trying to rescue the pair.
    NIOSH reports (see Report, page 88) that between 1992 and 1997, 
CFOI identified 91 fatalities in agricultural production associated 
with entering a silo, grain bin, or manure pit. Sixty-five percent of 
the deaths were due to grain engulfment, with the rest attributable to 
asphyxiation either due to oxygen deficiency or a toxic atmosphere. 
Four of the fatal incidents resulted in multiple deaths when a co-
worker attempted a rescue. CFOI also identified eight fatalities in 
agricultural production to youth under 16 years of age that occurred in 
a silo, bin, or manure pit (see NIOSH Report, pages 88 and 89).
    Grain entrapments, unlike many other types of farm-related injuries 
and fatalities, continue to rise. Representatives of the Department of 
Agricultural and Biological Engineering of Purdue University reported 
that there were no less than 51 grain entrapments in 2010, the largest 
number ever recorded in any year (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). Of the 51 incidents, 
12% involved youth under the age of 16 (Id.).
    WHD has conducted investigations regarding youth working in 
violation of this Ag H.O. In 2007, WHD investigated the death of a 12-
year-old in New York who suffocated after falling into a grain bin. The 
grain collapsed and killed her. The WHD also investigated the death of 
a young worker who was crushed to death by soybeans while working in a 
50-foot hopper. The minor died at the site.
    The Department accepts the NIOSH recommendations and proposes to 
revise Sec.  570.71(a)(8) by creating two new Ag H.O.s: Sec.  
570.99(b)(8) entitled Occupations involving working inside any fruit, 
forage, or grain storage silo or bin (Ag H.O. 8), and Sec.  
570.99(b)(9) entitled Occupations involving working inside a manure pit 
(Ag H.O. 9). The Department is not proposing any student-learner 
exemptions for these Ag H.O.s.
    The Department is also considering whether the prohibitions of the 
proposed Ag H.O. 8 should be expanded to include other confined spaces, 
such as livestock confinement buildings with or without ventilation 
systems, and whether such work could safely be performed by student 
learners. The Department is not proposing specific regulatory language 
at this time but is asking for comments on whether it

[[Page 54863]]

should expand the proposed Ag H.O. 8 to include other types of confined 
spaces, and if so, for specific data supporting such a provision.

I. 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 (29 CFR 
570.71(a)(9))

    The NIOSH Report recommends (see Report, page 90) that this Ag. 
H.O. be revised to be consistent with the Environmental Protection 
Agency (EPA) Worker Protection Standard for pesticides. NIOSH 
recommends that the revised Ag H.O. use the following language: 
``Performing any tasks that would fall under the EPA definition of 
`pesticide handler,' in 40 CFR part 170--The Worker Protection 
Standard.'' NIOSH states that by using its suggested language, any 
future changes to the EPA standards could automatically be incorporated 
into the Ag H.O. without additional rulemaking.
    NIOSH supports its recommendation by noting that the current Ag 
H.O. only addresses exposures of farm workers under the age of 16 to 
Toxicity Category I and II pesticides, which are a concern because of 
their acute toxicity. The current Ag H.O. provides no protection 
against other chronic hazards of pesticides ``such as their potential 
neurotoxicity, reproductive toxicity, endocrine disruption, and 
carcinogenic effects'' (see NIOSH Report, page 90). The Department 
notes that Child Labor Regulation No. 3 (29 CFR 570.31-.37) already 
prohibits the nonagricultural employment of 14- and 15-year-olds to 
perform most of the tasks performed by a pesticide handler as defined 
by the EPA.
    NIOSH reports (see Report, page 92) that the most recent national 
estimates of unintentional deaths due to pesticides were in the 1970s, 
and of the 113 unintentional pesticide-related deaths in the two-year 
period 1973-1974, 11% were classified as occupational. Citing data from 
the American Association of Poison Control Centers Toxic Exposure 
Surveillance System (see Report, page 93), NIOSH notes that 86,289 
human poison exposure cases due to insecticides, pesticides, or 
rodenticides occurred in the U.S. in 1998. NIOSH also cites data from a 
study which examined pesticide poisoning among working children. A 
total of 531 children under the age of 18 years were identified to have 
acute occupational pesticide-related illness. It was estimated that 62% 
of the cases were children employed in agricultural production and 
services. Of the 81% of cases where the EPA acute Toxicity Category was 
available, 67% of the illnesses were associated with Toxicity Category 
III pesticides. Toxicity Category III pesticides are not prohibited by 
the current Ag H.O. (see NIOSH Report, page 93).
    The NIOSH Report details the effects of exposure to pesticides and 
notes that many studies report special risks for young workers. For 
instance, the National Research Council concluded ``that the toxicity 
of pesticides can potentially be influenced by the immaturity of 
biochemical and physiological functions and body composition of 
developing children and adolescents. There is age-related variation in 
susceptibility to pesticides, based on different metabolic rates and 
ability to activate, detoxify and excrete xenobiotic compounds, and 
both qualitative and quantitative differences in toxicity of pesticides 
between children and adults'' (see NIOSH Report, page 95).
    The Department agrees with the NIOSH Report and proposes to revise 
Sec.  570.71(a)(10) by replacing it with a new Sec.  570.99(b)(9) 
entitled Occupations involving the handling of pesticides (Ag H.O. 10). 
The Ag H.O. would prevent young hired farm workers from performing any 
task listed under the EPA definition of a pesticide ``handler'' 
contained in the EPA's Worker Protection Standard, codified at 40 CFR 
part 170. NIOSH's recommendation that the Ag H.O. prohibit any tasks 
that fall under the EPA Worker Protection Standard's definition of 
pesticide handler is designed to reduce the risks of pesticide-related 
illness or injury by reducing or eliminating exposure to pesticides. 
The proposed Ag H.O. would be considerably more protective than the 
current Ag H.O. The EPA Standard addresses workers' and pesticides 
handlers' occupational exposures to pesticides used in the production 
of agricultural plants on farms, or in nurseries, greenhouses, and 
forests.
    The Department will continue to work with EPA to ensure that the 
safe employment of young farm workers is properly addressed.
    The Department proposes to define the term pesticide as it is 
defined in the Federal Insecticide, Fungicide, and Rodenticide Act, 7 
U.S.C. 136(u). That statutory definition generally defines a pesticide 
as: (1) Any substance or mixture of substances intended for preventing, 
destroying, repelling, or mitigating any pest, (2) any substance or 
mixture of substances intended for use as a plant regulator, defoliant, 
or desiccant, and (3) any nitrogen stabilizer. Under the current EPA 
Worker Protection Standard at 40 CFR 170.3, the term pesticide handler 
is defined as any person, including a self-employed person, who 
performs any of the following tasks:
    (1) Mixing, loading, transferring, or applying pesticides;
    (2) Disposing of pesticides or pesticide containers;
    (3) Handling opened containers of pesticides;
    (4) Acting as a flagger;
    (5) Cleaning, adjusting, handling, or repairing the parts of 
mixing, loading, or application equipment that may contain pesticide 
residues;
    (6) Assisting with the application of pesticides;
    (7) Entering a greenhouse or other enclosed area after the 
application and before the inhalation exposure level listed in the 
labeling has been reached or one of the ventilation criteria 
established by 40 CFR 170.110(c)(3) or in the labeling has been met to 
operate ventilation equipment, to adjust or remove coverings used in 
fumigation, or to monitor air levels;
    (8) Entering a treated area outdoors after application of any soil 
fumigant to adjust or remove soil coverings such as tarpaulins;
    (9) Performing tasks as a crop advisor during any pesticide 
application, before the inhalation exposure level listed in the 
labeling has been reached or one of the ventilation criteria 
established by 40 CFR 170.110(c)(3) or in the labeling has been met, or 
during any restricted-entry interval.
    The definition of pesticide handler does not include any person who 
is only handling pesticide containers that have been emptied or cleaned 
according to pesticide product labeling instructions or, in the absence 
of such instructions, have been subjected to triple-rinsing or its 
equivalent. The Department is proposing to define pesticide handler in 
proposed Sec.  570.99(b)(9) by adopting the EPA definition in 40 CFR 
170.3.
    The Department does not propose any student-learner exemptions for 
this Ag H.O.

[[Page 54864]]

J. Handling or Using a Blasting Agent, Including but Not Limited to, 
Dynamite, Black Powder, Sensitized Ammonium Nitrate, Blasting Caps, and 
Primer Cord (29 CFR 570.71(a)(10))

    The NIOSH Report (page 96) recommends that this Ag H.O. be 
retained. NIOSH notes that explosives are used in agriculture for a 
variety of purposes, and their use increases the possibility of 
catastrophic events, such as fires and explosions. These events often 
involve multiple victims.
    The Department concurs with the NIOSH Recommendation and proposes 
to move the current Ag H.O. to Sec.  570.99(b)(11) and entitle it 
Occupations involving the handling of blasting agents (Ag H.O. 11). The 
Ag H.O. would prohibit young hired farm workers from handling or using 
a blasting agent, including but not limited to, dynamite, black powder, 
sensitized ammonium nitrate, blasting caps, and primer cord. The 
Department is not proposing to create a student-learner exemption for 
this Ag H.O.

K. Transporting, Transferring, or Applying Anhydrous Ammonia (29 CFR 
570.71(a)(11))

    NIOSH recommends (see Report, page 97) that this Ag H.O. be 
retained. NIOSH notes that anhydrous ammonia (ammonia without water) is 
an inexpensive chemical used commonly in agriculture as a fertilizer. 
It requires strict handling, operating, and maintenance procedures to 
prevent hazardous exposure.
    Any exposure to anhydrous ammonia can cause severe burns and death 
due to its powerful corrosive action on tissue. ``Inhalation of high 
concentrations causes death due to bronchoconstriction, edema, and 
inflammation of the airway walls (EPA 2000; Leduc et al. 1992; Sharp 
1965). Exposure to lower concentrations for longer periods can also be 
fatal as the gas reaches deeper parts of the lung. Chronic fibrosis of 
the lung may occur if the victim survives the initial insult. Direct 
contact with the ammonia in liquid form causes severe burns to skin and 
mucous membranes. Due to its high water solubility and alkalinity, it 
causes necrosis of the tissue and can penetrate deeply. Severe corneal 
burns may result from contact with the eyes. If contact occurs as 
anhydrous ammonia liquid escapes from a container, vaporization can 
cause freezing burns of the skin and eyes due to rapid heat loss'' (see 
NIOSH Report, page 97).
    The CFOI identified eight fatalities between 1992 and 1997 related 
to work with anhydrous ammonia. The majority of these cases were due to 
exposure to anhydrous ammonia gas. NIOSH also notes that, during 1997, 
injuries and illnesses caused by anhydrous ammonia ``[r]esulted in a 
median of 20 days away from work'' (see Report, page 97). This is 
indeed a dangerous chemical warranting national standards and 
procedures for its safe storage, transportation, and handling. As NIOSH 
notes, ``[y]outh should not be given the heavy responsibility of 
following these complex procedures which, if not followed, could be 
fatal or severely debilitating to themselves and any others nearby'' 
(see NIOSH Report, pages 97-98).
    The Department agrees with the NIOSH recommendation and proposes to 
retain the Ag H.O. as written, but rename it Occupations involving the 
transporting, transferring, or applying of anhydrous ammonia (Ag H.O. 
12), and move it to a new Sec.  570.99(b)(12). No student-learner 
exemption is proposed for this Ag H.O.

L. Employment in Tobacco Production and Curing

    The Department is proposing to create a new Ag H.O. that would 
prohibit the employment of young hired farm workers in tobacco 
production and curing in order to prevent occupational illness due to 
green tobacco sickness (GTS). GTS is acute nicotine poisoning, unique 
to tobacco production and the handling of wet tobacco. It is caused by 
the absorption of nicotine through the skin and into the bloodstream. 
This illness, which afflicts farm workers of all ages, is characterized 
by weakness, headache, dizziness, nausea, vomiting, itching, and 
rashes. Symptoms may also include abdominal cramps, prostration, 
difficulty breathing, and occasionally fluctuations in blood pressure 
or heart rate (see Arcury TA, Quandt SA. 2006. Health and social 
impacts of tobacco production. J Agromedicine. 11:71-81). Because 
nicotine poisoning through the skin is slow acting, workers may not 
begin to notice symptoms for hours after the initial exposure to wet 
tobacco. ``GTS is normally a self-limiting condition from which workers 
recover in 2 or 3 days. However, symptoms are sometimes severe enough 
to result in dehydration and the need for emergency medical care.'' 
(See Arcury TA, Quandt SA, Preisser JS, Bernert JT, Norton D, Wang J. 
2003. High levels of transdermal nicotine exposure produce green 
tobacco sickness in Latino farm workers. Nicotine Tob Res. 5:315-321). 
There is no special treatment or cure for GTS. The most important 
actions a sick farm worker can take to treat GTS are to stay hydrated 
by drinking lots of water, get adequate rest, and take anti-nausea 
drugs as needed (see North Carolina Farmworker Health Module Green 
Tobacco Sickness available at http://www.ncfhp.org/module/GTS.pdf ).
    Although GTS is not a new problem, there are few published reports 
detailing the incidence of GTS in the United States. GTS has likely 
existed as long as workers have been harvesting wet tobacco (see NIOSH 
Update, July 8, 1993, available at http://www.cdc.gov/niosh/updates/93-115.html). Increased awareness of the condition, better surveillance, 
the development of diagnostic criteria, and recognition that the 
symptoms of GTS could have caused its misdiagnosis as pesticide 
poising, may all account for the rise in the number of reported cases 
since 1990 (Id.). One study of 304 North Carolina Latino tobacco farm 
workers conducted in 2005 disclosed that 18.4% of those farm workers 
met the GTS case definition (see Arcury TA, Vallejos QM, Schulz MR, 
Feldman SR, Fleischer, AB, Verma A, Quandt SA. 2008. Green tobacco 
sickness and skin integrity among migrant Latino farm workers. Am J Ind 
Med. 51:195-203). In another study, the Centers for Disease Control and 
Prevention (CDC) reported in 1992 that the estimated crude two-month 
incidence rate of hospital-treated GTS among tobacco workers in a five-
county study area was 10 per 1,000 workers. Statewide extrapolation of 
this incidence rate among the approximately 60,000 persons who, at 
least part time, harvest tobacco annually in Kentucky, suggests as many 
as 600 persons in that state could have sought emergency department 
care for the condition in 1992. This is not an insignificant number 
(see Green Tobacco Sickness in Tobacco Harvesters--Kentucky, 1992, MMWR 
Weekly, April 9, 1993, available at http://www.cdc.glv/mmwr/preview/mmwrhtml/00020119.htm). The CDC also notes that this figure may 
underestimate the true incidence of GTS because many affected persons 
may not seek hospital treatment (Id.). A review of published reports of 
GTS in children and adolescents identified at least six studies between 
1970 and 1996 where children--some as young as seven years of age--were 
identified as having suffered from the sickness (see McKnight RH, 
Spiller HA. 2005. Public Health Reports 120:602-6).
    The potential for GTS exists throughout the tobacco production 
process. The study of Latino farm workers in North Carolina reported 
that ``[w]ork activities among the participating farm workers varied 
across the season, with planting, cultivating, and harvesting tobacco 
being dominant

[[Page 54865]]

activities in the early part of the season, topping tobacco being 
dominant in the middle season, and harvesting tobacco and barning and 
baling tobacco being dominant in the later part of the season'' (see 
Arcury TA, Vallejos QM, Schulz MR, Feldman SR, Fleischer, AB, Verma A, 
Quandt SA. 2008. Am J Ind Med 51:195-203). Two of these tasks, topping 
and harvesting, particularly raise a farm worker's risk for GTS--and in 
the United States, children often perform both tasks (see McKnight RH, 
Spiller HA. 2005. Public Health Reports 120:602-6). ```Topping' 
involves removing the flower from the growing plant to encourage 
greater root growth, leaf weight, and nicotine content at harvest. To 
`top,' workers walk through rows of tobacco plants and snap off the 
flowers by hand. As one would expect, workers have nearly constant 
contact with tobacco leaves as they perform this task'' (Id.). 
Harvesting not only requires continuous and complete contact with 
tobacco plants, but in the United States, generally occurs in late 
August or early September when the ambient temperature is high. ``The 
combination of high ambient temperatures and hard physical labor shunts 
blood to the skin to help lower body temperature. The resultant 
increase in surface blood flow also significantly increases dermal 
absorption of nicotine'' (Id.).
    GTS is preventable. Strategies to help prevent GTS include not 
working with tobacco that is wet from dew or a recent rain; staying 
hydrated; wearing protective clothing, long sleeves, long pants, shoes 
that cover the entire foot, hats, and gloves; and wearing rain gear or 
waterproof clothing. It is also important that workers change out of 
clothes immediately upon leaving the field or barn, even if the clothes 
are dry, as nicotine will remain in the clothing. Work clothes must be 
washed after each use before being worn again. Upon completion of the 
work shift, tobacco workers should shower with cool, soapy water to 
remove residue from the skin (see North Carolina Farmworker Health 
Module Green Tobacco Sickness available at http://www.ncfhp.org/module/GTS.pdf).
    McKnight and Spiller report that children may be especially 
vulnerable to being afflicted with GTS because ``[t]heir body size is 
small relative to the dose of nicotine absorbed, they lack tolerance to 
the effects of nicotine, and they lack knowledge about the risks of 
harvesting tobacco, especially after a recent rain.'' Young farm 
workers are often unable to recognize the importance of such strategies 
as hydration, wearing protective clothing, and the immediate changing 
of clothes and showering; and they may not be able to identify their 
own GTS symptoms promptly. In addition, some of the waterproof 
protective clothing farm workers are encouraged to wear when working 
with tobacco, such as plastic aprons and rainsuits, may place such 
workers at increased risk of heat stress caused by wearing impermeable 
clothing in hot weather (see NIOSH Update, July 8, 1993 available at 
http://www.cdc.gov/niosh/updates/93-115.html). In addition, many farm 
workers, especially young hired farm workers, may not have immediate 
access to the important preventative measures discussed above. 
Accordingly, the Department is proposing to create a new Ag H.O. 
entitled Occupations involving working in the production and curing of 
tobacco (Ag H.O. 13) located at a new Sec.  570.99(b)(13). This Ag H.O. 
would ban all work in the tobacco production and curing, including, but 
not limited to such activities as planting, cultivating, topping, 
harvesting, baling, barning, and curing. The Department is not 
proposing any student-learner exemption for this Ag H.O.

M. Employment in Agriculture Under Adverse Conditions

    The Department is also considering whether to create a new Ag H.O. 
that would limit the exposure of young hired farm workers to extreme 
temperatures and/or arduous conditions and is asking for comment on 
this subject. Workers of all ages are susceptible to occupational 
illness and injury when they work for prolonged periods of time in 
extreme temperatures. See, e.g., Centers for Disease Control Report on 
Heat-Related Deaths Among Crop Workers--United States, 1992-2006 
available at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5724a1.htm; see 
also National Institute for Occupational Safety and Health Report on 
Cold Stress available at http://www.cdc.gov/niosh/topics/coldstress. As 
Human Rights Watch documented in its May 2010 Report, Fields of Peril: 
Child Labor in Agriculture, pp. 54-55, agricultural work naturally 
lends itself to occupational exposure to extreme heat and cold. 
Although the FLSA limits the hours that most youth in agriculture can 
work to ``outside of school hours,'' children whose hours would 
normally be restricted when school is in session can work for unlimited 
hours over the summer months, which in most parts of the country are 
the hottest of the year.
    Heat stress is a recognized hazard for people of all ages, 
including children. Although preventative measures, such as drinking 
sufficient amounts of water and alternating work and rest periods, can 
combat occupational heat stress, it is imperative that each worker is 
able to recognize the signs and symptoms of heat-related illnesses, 
such as heat exhaustion and heat stroke (see, e.g., OSHA Fact Sheet No. 
95-16, Protecting Workers in Hot Environments available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=FACT_SHEETS&p_id=167). Unlike their older counterparts, young workers may 
not have the maturity and judgment to recognize the symptoms of heat 
stress, which can quickly become fatal (see EPA/OSHA Publication EPA-
750-b-92-001, A Guide to Heat Stress in Agriculture, May 1993, pages 1, 
21).
    Therefore, the Department is asking for comments on whether it 
should create a new Ag H.O. addressing youths' exposure to extreme 
temperatures. Such an Ag H.O. could provide that youth under the age of 
16 would not be permitted to work in agricultural occupations where the 
temperatures at which they are working exceed or drop below a certain 
temperature, factoring in such things as humidity, wind velocity, and 
the degree and duration of the physical exertion required by the work. 
It might also require that hours in direct sun be limited, if the 
temperature reaches certain thresholds for prolonged periods of time, 
and/or that workers be provided with shade, additional water supplies, 
more frequent breaks, the use of fans in shaded rest areas, or other 
options for relieving heat stress in certain circumstances. Comments 
are also requested about whether the payment of piece rates to young 
farm workers impacts their prolonged exposure to potentially harmful 
conditions. The Department seeks input from stakeholders on how best to 
protect young workers from heat-related illnesses and injury, what the 
triggers for such requirements should be, and what mechanisms the 
Department could use, such as using heat index charts or methods like 
the wet bulb globe temperature index to measure field temperatures, or 
using medical documentation of heat-related illness, to enforce such a 
provision.

N. Child Labor Exemptions Applicable to Agricultural Employment (29 CFR 
570.123)

    The Department proposes to revise this section of subpart G to 
reflect the statutory changes to the FLSA provisions dealing with child 
labor employment in agriculture that were made since the last update of 
the subpart. A similar revision of the subpart addressing 
nonagricultural

[[Page 54866]]

employment was made by the Final Rule published by the Department on 
May 20, 2010 (see 75 FR 28404).
    The Department proposes to clarify the parental exemption involving 
agricultural employment by including information about the exemption 
discussed in the Background section of this preamble. The proposal 
provides guidance as to who qualifies as a parent; what determines that 
a farm is ``operated by'' a parent; and how the Department interprets 
the extension of this parental exemption to persons standing in the 
place of a parent as well as a relative who may take temporary custody 
of a youth and stands in the place of the parent. The revision also 
notes that the parental exemption--both in terms of working during 
school hours and performing hazardous occupations normally prohibited 
by the Ag H.O.s--would not apply to the employment of a child of a 
farmer when that child is employed on a farm not owned or operated by 
his or her parent. It also addresses related situations, such as where 
the farm or its property may be owned by a closely-held corporation or 
partnership consisting of family members or other close relatives.
    The Department also proposes to incorporate the provisions of FLSA 
sections 13(c)(2) and 13(c)(1)(A) through (C) into Sec.  570.123. These 
sections were enacted after the last revision to subpart G. Section 
13(c)(2) establishes the Secretary's authority to find and declare 
certain agricultural occupations to be particularly hazardous for the 
employment of children below the age of 16 and sets the minimum ages 
for employment in agriculture. Unlike the parental exemption contained 
in section 3(l) which exempts only the employment of a youth by a 
parent or person standing in place of a parent in a business/farm 
solely owned by that parent or person, sections 13(c)(1)(A) and 
13(c)(2) expand the parental exemption to include youth who are 
employed in agriculture by a parent or person standing in place of a 
parent on a farm operated by such parent or person. The parent/operator 
of the farm must be the employer of the minor for this exemption to 
apply. Although section 13(c)(2) permits youth working for their 
parent(s) or person(s) standing in place thereof on a farm operated by 
such parent(s) or person(s) to perform hazardous work otherwise 
prohibited by the Ag H.O.s, section 13(c)(1) limits such employment to 
periods outside of school hours for the school district where the youth 
is living while so employed.
    The Department's proposal retains the current explanation of the 
term school hours for the school district where such employee is living 
while so employed. The Department is proposing to clarify that 
interpretation by defining graduating from high school as the 
successful completion of the 12th grade. This would include the 
successful completion of a high school general equivalency diploma 
(GED) program. The Department also proposes to revise its guidance 
concerning the hiring of children who have moved from one to school 
district to another. The current regulation suggests that employers not 
hire such youth prior to May 15th, the Department's proposal would 
change that to June 1st in recognition of the longer school years now 
in effect in most of the country. In addition, the proposal would 
update the acceptable evidence regarding school schedules to permit 
statements by a school official regarding dates for the beginning and 
end of the school year or school day in the particular district in 
question, or report cards or other documents which may be provided to 
the student by the school.
    Finally, the Department proposes to revise Sec.  570.123(d) to 
reflect that the agricultural hazardous occupations orders would now be 
contained in the proposed subpart F of 29 CFR part 570.

VI. Proposed Regulatory Provisions--Civil Money Penalties--29 CFR Part 
579

    The Department proposes to revise part 579 to provide additional 
transparency to its child labor civil money penalty assessment process 
by incorporating the primary provisions of Wage and Hour Division Field 
Assistance Bulletin 2010-1 (available at http://www.dol.gov/whd/FieldBulletins/fab2010_1.pdf). This proposal will increase the 
public's understanding of the child labor civil money penalty 
assessment process while preserving national consistency in its 
administration.
    The proposed revision does not change Sec.  579.1, which the 
Department revised to incorporate the provisions of GINA in the Final 
Rule published on May 20, 2010 (see 75 FR 28460-61). The Department 
proposes to revise all other sections of part 579.
    The Department proposes to revise and expand the definitions in 
Sec.  579.2 as necessitated by GINA. Definitions of the terms caused by 
a child labor violation, Child Labor Enhanced Penalty Program (CLEPP), 
CLEPP serious injury, contributed to the death or injury of a minor, 
death, de minimis, first aid, nonserious injury, repeated violations, 
serious injury (Non-CLEPP), and willful violations have been added to 
this section. The term person has been clarified to include a parent 
when he or she is the employer of his or her child and that child's 
employment is not in compliance with the provisions of part 570 and not 
otherwise exempt, such as where a parent employs a 16- or 17-year-old 
child in a nonagricultural hazardous occupation. The Department 
believes that this proposal will bring clarity to the assessment 
process.
    Section 579.3 addresses Violations for which child labor civil 
money penalties may be assessed. The Department is proposing to 
renumber the subparagraphs in Sec.  579.3(a) to reuse the previously 
``reserved'' subparagraphs (3) and (4) in Sec.  579.3. The current 
Sec.  579.3(a)(5) and (6) would become Sec.  579.3(a)(3) and (4). The 
Department also proposes to revise the current Sec.  579.3(a)(6) to 
note that employers will be subject to a civil money penalty for 
failing to comply with FLSA sections 12 and 13(c), in addition to a 
separate penalty for failing to comply with the provisions of 29 CFR 
part 570. This revision, which because of the ``renumbering'' would be 
located at Sec.  579.3(a)(4), clarifies the civil money penalty 
assessment process in light of Congress' amendments to the child labor 
provisions of the FLSA.
    The Department is proposing to revise Sec.  579.3(b)(2)(i) to note 
that school hours are now determined in the same manner for youth 
engaged in either agricultural or nonagricultural employment. This 
revision was necessitated by the Final Rule published by the Department 
on May 20, 2010 which revised Sec.  570.35(b) (see 75 FR 28451). The 
Department is also proposing to switch the order of, but not change the 
language of, Sec.  579.3(b)(2)(ii) and (iii). The Department believes 
this reordering brings greater clarity to the regulation.
    Finally, the Department is proposing to reformat, but not change 
the language of, Sec.  579.3(c)(1) and (3). By reformatting these 
subparagraphs in an outline form, the Department believes it brings 
both clarity and conformity to the regulation.
    Section 579.4 has no content and is currently ``reserved.'' Section 
579.5 addresses Determining the amount of the penalty and assessing the 
penalty. The Department proposes to bifurcate this section, creating a 
new Sec.  579.4 that will address Determining the initial amount of the 
penalty for child labor violations that caused the death or serious 
injury of a minor under the Child Labor Enhanced Penalty Program 
(CLEPP). This proposed section, by incorporating provisions of the WHD 
FAB 2010-1, details the processes the Department uses to determine the 
initial amounts of child labor civil money

[[Page 54867]]

penalties for violations that fall under the provisions of section 
16(e)(1)(A)(ii) that were introduced by GINA. Section 579.5 will be 
revised and titled Determining the initial amount of the penalty for 
child labor violations that do not fall under the Child Labor Enhanced 
Penalty Program (CLEPP). This proposed section details the processes 
the Department uses to determine the initial amounts of child labor 
civil money penalties that do not fall under the provisions of section 
16(e)(1)(A)(ii). The proposed revision notes that the initial amount of 
a civil money penalty for child labor violations that do not fall under 
GINA is a predetermined amount that has been established for each type 
of violation based on the relative gravity of the violation when 
compared to the universe of violations; i.e., the initial penalty 
amounts are stratified to take into consideration the gravity of each 
violation when compared to the array of possible violations. The more 
egregious violations--those that place young workers at greater risk--
warrant a higher initial civil money penalty amount. The Department has 
published this list of predetermined amounts on the WHD Web site at 
http://www.dol.gov/whd/childlabor.htm and may periodically increase the 
initial penalty amounts in accordance with Sec.  579.1(b) of this part 
or for other reasons, such as a strategic effort by the Department to 
increase compliance regarding specific types of violations or within 
specific types of industries. The Department is also proposing to 
redesignate Sec.  579.5(e) and (f), which deal with the actual 
assessment and finality of child labor civil money penalties, as Sec.  
579.7(a) and (b).
    The Department is proposing to create a new Sec.  579.6 entitled 
Determining the amount of the civil money penalty to assess. The 
proposed Sec. Sec.  579.4 and .5 demonstrate how WHD generates initial 
child labor civil money penalties. The revised Sec.  579.6 discusses 
how WHD arrives at the actual amount that will be assessed. This 
section discusses how the Department will, during the child labor civil 
money penalty assessment process, continue to take into consideration 
both the statutory and regulatory requirements when arriving at the 
amounts of the penalties that will be assessed. This process, as noted 
in the proposed Sec.  579.6(a), includes a review by the WHD assessing 
official to ensure that both the statutory and regulatory provisions 
are given due consideration. As previously noted, the Department 
proposes to create a new Sec.  579.7 entitled Assessment and finality 
of the penalty. This new paragraph would be comprised solely of those 
subparagraphs previously located at Sec.  579.5(e) and (f).

VII. Paperwork Reduction Act

    In accordance with requirements of the Paperwork Reduction Act 
(PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR 
part 1320, the Department seeks to minimize the paperwork burden for 
individuals, small businesses, educational and nonprofit institutions, 
Federal contractors, state, local and Tribal governments, and other 
persons resulting from the collection of information by or for the 
agency. The PRA typically requires an agency to provide notice and seek 
public comments on any proposed collection of information contained in 
a proposed rule. See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. Persons are 
not required to respond to the information collection requirements as 
contained in this proposal unless and until they are approved by the 
Office of Management and Budget (OMB) under the PRA at the final rule 
stage.
    This ``paperwork burden'' analysis estimates the burdens for the 
proposed regulations as drafted.
    Circumstances Necessitating Collection: The Department is proposing 
to revise 29 CFR 570.2(b) to clarify the Department's regulations. 
Under current Sec.  570.2(b), 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 
person standing in place of the parent is also employed. The section 
also allows a minor under 12 years of age to 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 
section 13(a)(6)(A) of the FLSA. The Department has always interpreted 
the term consent, as it applies to all hired farm workers under 14 
years of age, to mean written consent. In order to provide 
clarification, the Department proposes to revise Sec.  570.2(b) by 
changing consent to written consent for persons employed in agriculture 
under 12 years of age to make the language consistent with the existing 
language applicable to minors employed in agriculture at 12 and 13 
years of age.
    Purpose and Use: Section 11(c) of the FLSA requires employers to 
make, keep, and preserve records of employees and of their wages, 
hours, and other conditions and practices of employment in accordance 
with the regulations prescribed by the Administrator of the U.S. 
Department of Labor's Wage and Hour Division. The regulations require 
employees and employers to make and keep the third-party disclosure 
written parental consent. No particular format of the written parental 
consent is required.
    The recordkeeping requirements are necessary in order for the 
Department to carry out its statutory obligation under the FLSA to 
investigate and ensure employer compliance. The Wage and Hour Division 
uses these records to determine employer compliance.
    Information Technology: The proposed regulations prescribe no 
particular order or form of the written parental consent record. The 
preservation of records in such forms such as microfilm, photocopies, 
scans, PDF files, or automated word or data processing is acceptable, 
provided the employer maintains the information and provides adequate 
facilities to the DOL for inspection, copying, transcription, or 
reproduction.
    Minimizing Duplication: The proposed change (to make the consent 
required for minor persons under 12 years of age employed in 
agriculture 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 a written consent) does not duplicate other existing 
information collections.
    Agency Need: The Department is assigned a statutory responsibility 
to ensure employer compliance with the FLSA. Without the third-party 
disclosure of written parental consent, the Department would have 
difficulty determining whether the employer has met the exemption from 
the child labor requirements.
    Public Comments: The Department seeks public comments regarding the 
burdens imposed by information collections in this proposed rule. In 
particular, the Department seeks comments that: evaluate whether the 
proposed collection of information is necessary for the proper 
performance of the functions of the agency, including whether the 
information will have practical utility; evaluate the accuracy of the 
agency's estimates of the burden of the proposed collection of 
information including the methodology and assumptions used; enhance the 
quality, utility and clarity of the information to be collected; and 
minimize the burden of the collection of information on those who are 
required to respond. Commenters may send their views about these 
information collections to the Department in the same way as all other 
comments (e.g.. through the regulations.gov Web site). All comments 
received will be made a

[[Page 54868]]

matter of public record, and posted without change to http://www.regulations.gov, including any personal information provided.
    An agency may not conduct an information collection unless it has a 
currently valid OMB approval, and the Department has submitted the 
identified information collections contained in the proposed rule to 
the OMB for review under the PRA. See 44 U.S.C. 3507(d); 5 CFR 1320.11. 
While much of the information provided to OMB in support of the 
information collection request appears in this preamble, interested 
parties may obtain a copy of the full supporting statement by sending a 
written request to the mail address shown in the ADDRESSES section at 
the beginning of this preamble or by visiting the http://www.reginfo.gov/public/do/PRAMain Web site.
    In addition to having an opportunity to file comments with the 
Department, comments about the paperwork implications of the proposed 
rule may be addressed to OMB. Comments to the OMB should be directed 
to: Office of Information and Regulatory Affairs, Attention OMB Desk 
Officer for Wage and Hour, Office of Management and Budget, Room 10235, 
Washington, DC 20503, Telephone: 202-395-7316/Fax: 202-395-6974 (these 
are not toll free numbers).
    Confidentiality: The Department makes no assurances of 
confidentiality to respondents. As a practical matter, the Department 
would only disclose agency investigation records of materials subject 
to this collection in accordance with the provisions of the Freedom of 
Information Act, 5 U.S.C. 552, and the attendant regulations, 29 CFR 
part 70, and the Privacy Act, 5 U.S.C. 552a, and its attendant 
regulations, 29 CFR part 71.
    Respondent Hours Burden Estimates: Lacking exact data, the 
Department estimates a total of 338 employers and parents of individual 
employees under 12 years of age will be burdened by the change in the 
proposed regulatory language. According to data published by the 
National Agricultural Workers Survey (NAWS), approximately 13,500 
persons under 16 years of age worked in crop production between 2006-
2009. (See NAWS Public Data available at: http://www.doleta.gov/agworker/naws.cfm). The Department divided the total persons under age 
16 by the four years of the survey (13,500/4 = 3,375 persons under age 
16). The Department further took ten percent of the annual number of 
persons under age 16 to represent the number of persons under age 12 
working in agriculture in a single year (3,375 x 10% = 338 (rounded)).
    The Department estimates that the individual or household burden of 
providing written consent to allow a minor under 12 years of age to 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 section 13(a)(6)(A) of the FLSA is approximately one 
minute per individual, imposing an annual burden of 338 minutes (338 
persons x 1 minute per person).
    To define the universe, the Department used the NAWS public data 
(available at http://www.doleta.gov/agworker/naws.cfm and cited in the 
preamble of this NPRM) on minors hired in crop production during the 
period 2006-2009. The NIOSH Child Agriculture Injury Survey data from 
2006 is also mentioned in the preamble of this NPRM. In defining the 
universe, the Department elected to use the NAWS data as opposed to the 
NIOSH data because the NAWS data covers a four year period and thereby 
reduces the risk of outliers. The Department invites comment on whether 
the use of the NIOSH Child Agriculture Injury Survey data for 2006 is 
more appropriate than the NAWS public data in making an estimate about 
the average number of farm workers hired each year under 12 years of 
age.
    The Department further estimates respondent employer burden to file 
and maintain the record to be one minute per individual under 12 years 
of age employed. This imposes a burden of approximately 338 minutes 
(338 employers x 1 minute per individual employed in agriculture under 
12 years of age).
    There are no Federal burdens or costs associated with this 
information collection.
    TOTAL ANNUAL BURDEN HOURS = 11 HOURS (338 + 338 = 676 minutes).
    There is a cost burden imposed on employers who are required to 
maintain records of parental consent for three years in compliance with 
the FLSA recordkeeping requirements. As a result, employers will 
require staff to receive and file the written parental consent. Without 
the availability of specific data on employers who maintain these 
parental consent records, the Department has used the January 2011 
average hourly rate for production or nonsupervisory workers on nonfarm 
payrolls of $22.86 to determine respondent costs. In ``The Employment 
Situation, January 2011'', Bureau of Labor Statistics, Table B-3, 
http://www.bls.gov/news.release/pdf/empsit.pdf, the Department 
estimates annual respondent costs to be approximately $126 ($22.86 x 
5.5 employer respondent burden hours) annually to file and maintain 
these written parental consent records.
    TOTAL ANNUAL COST BURDEN = $126.

VIII. Executive Orders 13563 and 12866; Small Business Regulatory 
Enforcement Fairness Act; Regulatory Flexibility

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``significant regulatory 
action'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.
    The Fair Labor Standards Act, in order to curtail oppressive child 
labor, charges the Secretary of Labor to find and by order declare 
those nonagricultural occupations that are particularly hazardous for 
the employment of children between the ages of 16 and 18 years or 
detrimental to their health or well-being (see 29 U.S.C. 203(l)). A 
similar charge, regarding the employment of youth under 16 years of age 
in agriculture, is provided in 29 U.S.C. 213(c). Both the 
nonagricultural Hazardous Occupations Orders (HOs) and the Agricultural 
Hazardous Occupations Orders (Ag H.O.s) identify the types of 
occupations and tasks that young workers may not perform in order to 
reduce occupational injuries and deaths to young workers.
    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 been conducting a continuous 
review of the Federal child labor provisions with the purpose of 
refining and improving its regulations. A detailed discussion of the 
Department's

[[Page 54869]]

review was included in the Notice of Proposed Rulemaking (NPRM) 
relating primarily to the nonagricultural HOs that was 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), which became effective on July 19, 2010.
    An important component of the Department's continuous review 
includes the aforementioned NIOSH Report. The Department provided funds 
for NIOSH to develop the report based on a review of the data and the 
scientific literature. The primary data sources used by NIOSH were the 
Census of Fatal Occupations Injuries (CFOI), the Survey of Occupational 
Injuries and Illnesses (SOII), the National Electronic Injury 
Surveillance System (NEISS), and the Current Population Survey (CPS).
    NIOSH made recommendations regarding all the existing hazardous 
occupations--both agricultural and nonagricultural--and suggested new 
orders for occupations and tasks not then regulated. The 
recommendations were driven by information on high-risk activities for 
all workers, not just patterns of fatalities and serious injuries among 
young workers. The general rationale for recommending an order was the 
number of fatalities and the number and severity of nonfatal injuries, 
as well as research on health effects of workplace exposures (see NIOSH 
Report, page xi).
    As discussed earlier, the NIOSH recommendations regarding the 
nonagricultural HOs were addressed in previous rulemaking efforts (see 
72 FR 19339, see also 72 FR 19328). All the NIOSH recommendations 
concerning the Ag H.O.s are addressed in this NPRM. The current Ag 
H.O.s, and the NIOSH Report recommendations addressing them, are as 
follows:
    (1) 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 (see 29 CFR 570.71(a)(1)). NIOSH recommends that the Department 
``(1) Revise to remove the 20 PTO (power-take off) horsepower 
threshold; (2) Revise exemption for 14- and 15-year-olds with tractor 
certification to require tractors to be equipped with a rollover 
protective structure (ROPS) and mandate the use of seatbelts'' (see 
NIOSH Report, page xv).
    (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 (see 29 CFR 
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; power-
driven circular, band, or chain saw (see 29 CFR 570.71(a)(3)).
    NIOSH recommends that the Department combine Ag H.O. 2 and Ag H.O. 
3 and expand the prohibitions from a list of specific machines to a 
list of machines organized by function; e.g., harvesting and threshing 
machinery; mowing machinery; plowing, planting and fertilizing 
machinery; excavating machinery; etc. (see NIOSH Report, page xv).
    (4) Working on a farm in a yard, pen, or stall occupied by a bull, 
boar, or stud horse maintained for breeding purposes; a sow with 
suckling pigs; or cow with newborn calf (with umbilical cord present) 
(see 29 CFR 570.71(a)(4)). NIOSH recommends that the Department retain 
this Ag H.O (see NIOSH Report, page xv).
    (5) Felling, bucking, skidding, loading, or unloading timber with 
butt diameter of more than 6 inches (see 29 CFR 570.71(a)(5)). NIOSH 
recommends that the Department remove the 6-inch diameter threshold 
(see NIOSH Report, page xv).
    (6) Working from a ladder or scaffold (painting, repairing, or 
building structures, pruning trees, picking fruit, etc.) at a height of 
over 20 feet (see 29 CFR 570.71(a)(6)) NIOSH recommends that the 
Department (1) expand the Ag H.O. to include work on roofs, on farm 
structures including silos, grain bins, windmills, and towers; and, on 
vehicles, machines and implements; and (2) reduce the maximum height at 
which youth may work in these settings from 20 feet to 6 feet (see 
NIOSH Report, page xvi).
    (7) Driving a bus, truck, or automobile when transporting 
passengers, or riding on a tractor as a passenger or helper (see 29 CFR 
570.71(a)(7)). NIOSH recommends that the Department (1) expand the Ag 
H.O. to prohibit driving of all motor vehicles and off-road vehicles 
(including all-terrain vehicles), with or without passengers, on or off 
the highway; (2) expand the Ag H.O. to prohibit work as an outside 
helper on a motor vehicle; and (3) retain the provision prohibiting 
riding on a tractor as a passenger or helper, but move it under the 
revised Ag. H.O. 1 (see NIOSH Report, page xvi).
    (8) Working inside a fruit, forage, or grain storage designed to 
retain an oxygen deficient or toxic atmosphere; an upright silo within 
2 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 (see 29 CFR 570.71(a)(8)). 
NIOSH recommends that the Department expand the Ag H.O. to prohibit all 
(emphasis in the original) work inside a fruit, forage, or grain 
storage, such as a silo or bin; and all work in a manure pit (see NIOSH 
Report, page xvi).
    (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 (see 29 CFR 
570.71(a)(9)). NIOSH recommends that the Department revise this Ag H.O. 
to be consistent with the Environmental Protection Agency (EPA) Worker 
Protection Standard for pesticides, encompassing prohibitions against 
pesticides with chronic health effects as well as pesticides with 
recognized acute toxicity (see NIOSH Report, page xvi).
    (10) Handling or using a blasting agent, including but not limited 
to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, 
and primer cord (see 29 CFR 570.71(a)(10)). NIOSH recommends that the 
Department retain this Ag H.O. (see NIOSH Report, page xvi).
    (11) Transporting, transferring, or applying anhydrous ammonia (see 
29 CFR 570.71(a)(11)). NIOSH recommends that the Department retain this 
Ag H.O. (see NIOSH Report, page xvii).
    As discussed in the preamble of this NPRM, the Department proposes 
to accept all of the NIOSH Ag H.O. recommendations and they, along with 
input from other stakeholders and the Department's own enforcement 
experiences, serve as the impetus for the revisions being proposed by 
this NPRM.
    The Department considers the issuance of this proposed rule an 
important and necessary step to reduce occupational injuries and deaths 
of young workers. This proposal, which,

[[Page 54870]]

under the Secretary's FLSA charges must be restrictive in nature, still 
strives to balance the potential benefits of transitional, staged 
employment opportunities for youth with the necessary protections for 
their education, health and safety.
    This proposed rule is necessary for many reasons. 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, i.e., 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 injury 
and death 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 lower than in 
nonagricultural employment (see, i.e., Occupational Injuries and Deaths 
Among Young Workers--United States, 1998-2007, Journal of the American 
Medical Association, 304(1), 33-35 (2010); see also, 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; BLS 
Report on the Youth Labor Force [2000], p. 60 available at http://www.bls.gov/opub/rylf/rylfhome.htm). The Census of Fatal Occupational 
Injuries, 2009, reported a fatality rate of 26 per 100,000 full time 
workers in agriculture, fishing, and hunting, well above the figure for 
other industries. The risks are heightened when considering that 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)).
    Because youth often overcome the effects of those characteristics 
that initially place them at increased risk of injury and death in the 
workplace only through the maturation process, the Department has long 
believed that requiring older workers to perform those tasks that 
present greater risks to younger workers actually eliminates injuries 
and deaths--rather than delaying them or transferring them to the older 
workers. (see Sudhinaraset M, Blum R, [2010]. The Unique Development 
Considerations of Youth-Related Work Injuries, International Journal of 
Occupational Environmental Health; 16:216-222).
    Research has shown that the prefrontal cortex is the last part of 
the adolescent brain to fully mature and that the process is not 
completed until the early twenties or beyond. With that maturation, the 
executive functioning of youth is fine-tuned, improving their ability 
to understanding future risks and impulsive actions. At maturation, 
``young workers are able to better assess and react to risks'' (Id.). 
For example, the states' wide adoption of graduated driver licensing, 
which has been an important process for reducing automobile crashes 
among the youngest drivers, is designed to compensate for the lack of 
judgment of youth and the fact that judgment only comes with maturity 
(see Insurance Institute for Highway Safety Licensing Systems for Young 
Drivers available at http://www.iihs.org/laws/graduatedlicenseIntro.aspx. See also Thompson R, [2010]. What's Really 
Hurting Our Kids? The School Nurse Role in Preventing Teen Vehicle 
Fatalities, National Association of School Nurses School Nurse, 25; 
183).
    Adoption of this proposed rule is essential to reducing 
occupational injuries to young workers, especially those employed in 
agriculture. As noted earlier, 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.
    The number of farm workers affected by this proposal is quite 
small--there are only approximately 56,000 hired farm workers under the 
age of 16, as discussed earlier in this preamble. However, the fatality 
rate for youth aged 15 to 17 between 1992 and 2000 who performed work 
on farms was four times higher than the risk experienced by their peers 
in other industries (see NIOSH Alert Preventing Deaths, Injuries, and 
Illnesses of Young Workers available at http://www.cdc.gov/niosh/docs/2003-128/2003-128.htm).
    The Government Accountability Office noted that during the 1990s, 
while only about four percent of all working youth were employed in the 
agricultural and forestry sector, they experienced over 40 percent of 
all workplace youth fatalities. GAO Report 98-193, Child Labor in 
Agriculture, August 1998, pp. 22-23.
    Eliminating injuries and deaths, especially those involving youth, 
obviously result in considerable benefits in terms of reduced human 
pain and suffering and increased economic cost savings. As noted 
earlier, 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. Helen Murphy, writing in 
2007 as the outreach and education director at the University of 
Washington Pacific Northwest Agricultural Health and Safety Center, 
noted that annually, more than 100 children--who live on, work on, and/
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). 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).
    The Department's proposal, by prohibiting most youth under 16 years 
of age from operating tractors, and allowing only bona fide 14- and 15-
year-old student-learners to operate such equipment under conditions 
that include the use of ROPS and seat belts, has the potential for 
reducing the number of deaths and injuries experienced by young hired 
farm workers. Timothy W. Kelsey, PhD, surveyed surviving family members 
of people killed between 1985 and 1987 in New York farm tractor 
rollovers and found the average expected income lost by each death was 
$243,615 (see Kelsey T, [1992]. The Cost of Farm Tractor Rollover 
Deaths in New York. The Journal of Rural Health. Volume 8, Issue

[[Page 54871]]

2, pages 143-146). Although the value of these lost wages pales next to 
the life of a young farm worker, preventing the accident preserves both 
the young life and the potential earnings.
    Although it might appear that an employer would incur greater labor 
costs because of the requirement that for certain jobs it hire older 
workers, most youth occupy entry-level jobs and receive entry-level 
wages--at or close to the applicable state or Federal minimum wage. 
Hiring a 19-year-old rather than an 18-year-old for nonagricultural 
work, or a 16-year-old rather than a 15-year-old in agricultural 
employment, is unlikely to result in significantly increased labor 
costs. These labor inputs could be seen as easily substitutable, 
especially within the ``less than 16 years of age'' category. In 
addition, hiring a 16-year-old rather than a 15-year-old would allow an 
agricultural employer to comply with this proposed rule with almost no 
other change in behavior; such an employer would incur minimal or no 
additional costs, but such changes would have a potential positive 
impact in the reduction of occupational injuries and deaths to workers 
under the age of 16.
    Implementing the Department's proposal to revise subpart G of the 
child labor regulations, General Statements of Interpretation of the 
Child Labor Provisions of the Fair Labor Standards Act of 1938, as 
Amended, to incorporate all the regulatory changes relevant to 
agricultural employment that were made since this subpart was revised 
in 1971--including those contained in this proposal--provides 
compliance guidance on the youth employment provisions detailed in 
earlier subparts of 570 and reflects practices in which employers are 
already engaged. As discussed elsewhere in this section, this revision 
would not impose any additional economic costs, as subpart G does not 
impose any independent obligations; it simply sets forth guidance on 
the requirements set forth in other subparts.
    The creation of two new nonagricultural HOs in subpart E dealing 
with employment in farm-product raw materials wholesale trade 
industries and the use of electronic devices, including communication 
devices, while operating or assisting to operate power-driven 
equipment, along with the revision of several of the Ag H.O.s, in 
subpart F would (1) implement specific recommendations made by NIOSH or 
by those who commented on the NIOSH recommendations; (2) bring greater 
parity between the agricultural child labor provisions and the 
nonagricultural child labor provisions; and/or (3) implement improved 
protections as a result of Departmental enforcement experiences. These 
changes are expected to have little or no direct cost impact but 
produce benefits related to reduced injuries, deaths, and property 
damage.
    For example, traffic crashes have long been the leading cause of 
death among youth 16 to 20 years of age, and persons in this age group 
have the highest fatality and injury rates due to traffic crashes of 
any age group (see NIOSH Report, page 23). The number of drivers aged 
15-20 involved in fatal crashes in 2008, according to the Rocky 
Mountain Insurance Information Association, was 5,864. They accounted 
for 12% of all drivers involved in fatal crashes (see Teen Driving 
Statistics available at http://www.rmiia.org/index.asp). The National 
Highway Traffic Safety Administration (NHTSA) in its study The Economic 
Burden of Traffic Crashes on Employers (DOT Publication HS 809 682) 
reports that motor vehicle crash injuries on and off the job cost U.S. 
employers almost $60 billion annually in 1998-2000. The NHTSA data 
would include 14- and 15-year-old farm workers driving motor vehicles 
on farm roads and the prevention of a death of such a worker would 
reduce the overall costs. A white paper funded by OSHA notes that the 
average crash costs an employer $16,500--and when a worker has an on-
the-job crash that results in an injury, the cost to his or her 
employer is $74,000. These costs, according to the white paper, can 
exceed $500,000 when a fatality is involved (see Guidelines for 
Employers to Reduce Motor Vehicle Crashes, available at http://www.osha.gov/Publications/motor_vehicle_guide.pdf). The National 
Safety Council has described these increased costs as including wage 
and productivity losses, medical expenses, administrative expenses, 
motor vehicle damage, and employers' uninsured costs (see National 
Safety Council, Arizona Chapter Estimating the Costs of Unintentional 
Injuries available at http://www.acnsc.org/estimating-the-costs-of-unintentional-injuries.html). Reductions in the number of teen driving 
injuries and fatalities attributable to the Department's proposal would 
result in considerable monetary savings and avoid the substantial 
emotional pain associated with such tragedies.
    These proposals also include revising the first Ag H.O. relating to 
the operation of agricultural tractors by removing the 20 PTO 
tolerance, incorporating a prohibition from another Ag H.O. concerning 
riding on a tractor as a passenger, requiring that the youth hold a 
valid state driver's license when operating a tractor on a public road, 
and requiring that all tractors operated under the student-learning 
exemption associated with this Ag H.O. be equipped with proper rollover 
protection structures and seat belts. The costs associated with 
rollover protection structures and seat belts are expected to be 
outweighed by the savings associated with fatality and injury 
prevention. Most tractors manufactured and sold in the U.S. in the last 
twenty-five years have been equipped with these essential safety 
devices. Manufacturer-provided retrofit kits are available for many 
older tractors. One study reported that the cost of retrofitting older 
tractors for roll-over protection structures varied between $676 and 
$903 (2002 dollars),\2\ including three hours of installation time and 
shipping costs (see Tevis C, Adding roll bars saves lives. Successful 
Farming. February 2002, Vol 100, No 2). Another study noted that, in 
1993, the material cost of retrofitting rollover protection structures 
was estimated at $937 per tractor.\3\ That same study reported an 
estimated retrofitting cost of $825,000 per life saved \4\ (see Myers 
JR, Snyder KA, Roll-over Protective Structure Use and the Cost of 
Retrofitting Tractors in the United States, 1993.\5\ Journal of 
Agricultural Safety and Health. 1(3):185-197, 1995). It is also 
important to reiterate that this proposal does not require any 
agricultural employers to retrofit any tractors with rollover 
protection structures and seat belts--such equipment only becomes 
mandatory on a tractor if the employer wishes to employ a hired farm 
worker under the age of 16 to operate or assist in the operation of 
that tractor. In addition, little or no costs in the form of increased 
wages would be incurred and full compliance would be achieved if the

[[Page 54872]]

employer chose to employ a 16-year-old worker to drive the tractor 
rather than a 14- or 15-year-old worker. The Department does not have 
any data on which to estimate the number of farmers who will choose to 
retrofit their tractors so they can continue to employ 14- and 15-year-
olds as tractor operators. The NIOSH CAIS indicates that only 7,565 
such youth operated a tractor in 2006 as part of their employment (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). The 
Department invites commenters to provide data regarding the number of 
farmers who employ such young workers; the percentage of them who own 
tractors that do not have ROPS and seat belts; and the percentage of 
such farmers who will retrofit their tractors.
---------------------------------------------------------------------------

    \2\ The costs in 2011 dollars would be $845 and $1,129. See 
http://www.dol.gov/bls/data/inflation_calculator.htm.
    \3\ The cost in 2011 dollars would be $1,458. See http://www.dol.gov/bls/data/inflation_calculator.htm.
    \4\ $1,284.065 in 2011 dollars. See http://www.dol.gov/bls/data/inflation_calculator.htm.
    \5\ Myers and Snyder report that the ROPS retrofitting cost per 
life saved for these specific tractors was estimated by: (1) 
Determining how many years would be required to reach the same level 
of ROPS protection, based on hours of use, if no retrofit program 
was conducted; (2) estimating the number of lives saved, assuming 
100% effectiveness for the retrofit ROPS, over the number of years 
estimated in step 1; and (3) estimating the cost effectiveness of a 
ROPS-retrofit program by dividing the total cost of the retrofit 
program by the estimated number of lives saved by the retrofit 
program (Jacobs, 1991). It was assumed the cost of retrofitting 
would occur in a single payment and that all retrofitted tractors 
would remain in use for the entire time period.
---------------------------------------------------------------------------

    The proposal would also combine the existing second and third Ag 
H.O.s into a single Order that prohibits operating, riding in or on, 
assisting to operate, repairing, or cleaning of all power-driven 
machinery. This new Order would also incorporate provisions of a 
current Ag H.O. which addresses the driving of motor vehicles when 
transporting passengers or working as a helper on such vehicles. The 
proposed new Ag H.O. would permit student-learners to operate and work 
with several named pieces of farm machinery, under the provisions of a 
written training agreement, after specified training has been 
successfully completed. The Department is not aware of data regarding 
the number of 14- and 15-year-olds hired to work on machinery that 
would be newly barred under this proposal. However, as noted above, the 
Department believes there would be little or no additional wage cost 
involved with instead hiring a 16-year-old to perform such work. 
Moreover, given that machinery is a leading cause of death among young 
farm workers, the Department believes that any costs would be 
outweighed by the savings resulting from reduced injuries and deaths.
    The proposal would also strengthen the prohibitions concerning 
herding and working with or around certain animals, and remove the six 
inch butt-diameter tolerance currently associated with the felling, 
bucking, skidding, loading, or unloading of timber. The proposal would 
expand the Ag H.O. prohibiting work from scaffolds or ladders at 
heights in excess of twenty feet by prohibiting work on or about a 
roof, from a scaffold, or from farm structures and equipment at 
elevations greater than six feet. As an adjunct to the recommendations 
concerning working at heights, the proposal would also create a new Ag 
H.O. prohibiting the employment of youth in construction, 
communications, public utilities, excavation, and demolition--
prohibitions long applicable to nonagricultural employment of youth 
under 16 years of age. The Department is not aware of any data on the 
number of youths under 16 years of age performing construction, 
demolition, or excavation performing work on scaffolds above 6 feet but 
less than 20 feet or working with timber of less than a six-inch 
diameter on which to estimate the cost of this proposed provision. 
However, the Department believes that providing youth employed in 
agriculture the same protections as youth employed in nonagriculture, 
to the extent permitted by law, will reduce occupational deaths and 
injuries and thereby reduce the financial and emotional costs 
associated with such tragedies.
    The proposal would continue the prohibitions regarding working 
inside a manure pit and expand the prohibitions concerning work in a 
silo and fruit, forage, or grain storage facility. The proposal also 
strengthens the current Ag H.O. addressing working with pesticides by 
prohibiting young farm workers from performing any tasks that would be 
performed by a pesticide handler under the Environmental Protection 
Agency's pesticide Worker Protection Standard. The proposal also 
retains the Ag H.O.s that address the handling of explosive materials 
and the transporting, transferring, or applying of anhydrous ammonia. 
The Department is not aware of any data on the number of youths under 
16 years of age performing work inside a manure pit or a silo, fruit, 
forage, or grain storage facility; performing tasks performed by 
pesticide handlers; handling explosive materials; or transporting, 
transferring, or applying anhydrous ammonia. However, the Department 
believes that providing youth employed in agriculture the same 
protections as youth employed in nonagriculture, to the extent 
permitted by law, will reduce occupational deaths and injuries and 
thereby reduce the financial and emotional costs associated with such 
tragedies. Moreover, as noted above, the Department believes that 
because employers may achieve compliance by assigning these tasks to 
16-year-olds, any increased wage costs will be minimal.
    The proposal brings the agricultural youth employment standards 
more in line with those applicable to nonagricultural employment by 
eliminating the two certification programs contained in Sec.  570.72(b) 
and (c). Under the proposal, 14- and 15-year-old hired farm workers 
would still be able to perform work otherwise prohibited by some of the 
Ag H.O.s, but only when they are bona fide student-learners enrolled in 
a detailed and progressive course of study that provides them with 
important knowledge and safety information before the actual work is 
performed. The student-learner exemption, as retained in this proposal, 
continues to mimic the student-learner exemption applicable to 16- and 
17-year-olds employed in nonagricultural occupations (see Sec.  
570.50(c)). The Department is not aware of any data on the number of 
youths under 16 years of age performing otherwise prohibited 
agriculture work under the auspices of the existing certification 
programs. However, the Department believes that providing youth 
employed in agriculture the same protections as youth employed in 
nonagriculture, to the extent permitted by law, will reduce 
occupational deaths and injuries and thereby reduce the financial and 
emotional costs associated with such tragedies. Nevertheless, the 
Department invites comments on the number of 14- and 15-year-old hired 
farm workers who qualify for exemption each year under current Sec.  
570.72(b) or (c), because they have completed the existing training 
programs, and on the number of such youth who are hired to perform 
duties that require that training.
    The Department believes that implementation of the proposed rule 
would not reduce the overall number of safe, positive, and legal 
employment opportunities available to young workers. Although, as 
mentioned above, some employers would be required in most cases to 
replace younger workers with workers 16 years of age or older to 
perform certain tasks were the Department's proposals implemented, the 
impact would be minimal as relatively few minors are currently employed 
to perform these occupations and the wage differential between young 
hired farm workers and older hired farm workers is minimal. As noted in 
the preamble of this NPRM, the United States Department of 
Agriculture's (USDA) 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

[[Page 54873]]

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 National Agricultural Workers Survey (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 existing Sec.  570.72.
    The National Institute for Occupational Health and Safety (NIOSH) 
Childhood Agriculture Injury Survey (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 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). 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 existing Sec.  570.72. 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.
    The Department believes that these proposals will enhance the 
safety of working youth by prohibiting occupations that are 
particularly hazardous or detrimental to their health or well-being. 
Costs that might result from using older employees to perform the 
previously permitted tasks are likely to be offset by reduced health 
and productivity costs resulting from accidents and injuries to minors 
on the job. Ensuring that permissible job opportunities for working 
youth are safe and healthy as required by the statute produces many 
positive benefits in addition to fewer occupational injuries and 
deaths. These benefits include reduced health and productivity costs 
that employers may otherwise incur because of higher accident and 
injury rates to young and inexperienced workers.
    The increases in the maximum child labor civil money penalties that 
may be assessed for violations that cause the death or serious injury 
of a minor that were implemented by GINA have not had a significant 
impact on the total amount of child labor civil money penalties that 
the Department has assessed. Fortunately, investigations that involve a 
death or serious injury of a minor that could fall under the provisions 
of GINA have traditionally represented less than three percent of all 
child labor investigations. The amounts of child labor civil money 
penalties assessed by the Department have remained fairly constant for 
the year prior to the enactment of GINA ($4.4 million in 2007), the 
year GINA was enacted ($4.2 million in 2008), and the year after the 
enactment of GINA ($4.2 million in 2009). In addition, as employers are 
expected to attain and maintain constant compliance with all applicable 
provisions of the FLSA, including its child labor provisions, the 
amount of civil money penalties assessed for violations of the FLSA is 
not considered as an incremental cost under this Order. The Department 
has similarly concluded that this proposed rule is not a ``major rule'' 
requiring approval by the Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). It would not 
likely result in (1) an annual effect on the economy of $100 million or 
more; (2) a major increase in costs or prices for consumers, individual 
industries, Federal, state, or local government agencies, or geographic 
regions; or (3) significant adverse effects on competition, employment, 
investment, productivity, innovation, or on the ability of U.S.-based 
enterprises to compete with foreign-based enterprises in domestic or 
export markets.
    This proposed rule is not expected to have a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act and the Department has certified to this effect to the 
Chief Counsel for Advocacy of the U.S. Small Business Administration. 
Therefore, no Regulatory Flexibility Analysis is required. The factual 
basis for such a certification is that even though this rule can and 
does affect small entities, there are not a substantial number of small 
entities that will be affected, nor, as discussed below, is there a 
significant economic impact upon those entities that are affected.
    As previously discussed, NIOSH's CAIS 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. It is for these youth--and for 
only these youth--that this proposal would require a farmer to retrofit 
a tractor with ROPS and a seat belt should the farmer wish to have a 
14- or 15-year-old student-learner operate the tractor. This proposal 
does not require tractor retrofits for a farmer to employ his or her 
own child on a farm owned or operated by that farmer, because of the 
statutory parental exemption. Nor would a tractor retrofit as proposed 
in this NPRM change the Department's longstanding prohibition that no 
hired farm worker under the age of 14 may operate a tractor under any 
conditions.
    Of the total 2,204,792 farms in the United States,\6\ only 5 
percent have sales equal to or greater than $500,000 per year. Some of 
these farms will fall within SBA's definition of small entities, which 
is $750,000 for the Agriculture, Fishing and Forestry industry. Even if 
each youth under the age of 16 were employed by a different farm 
meeting the SBA definition of small entities, only 7,565 small farms 
(less than \1/2\ of 1 per cent) would be impacted by the tractor 
provision of this

[[Page 54874]]

rule because, as NIOSH identified, that was the number of hired 14- and 
15-year-old farm workers who drove tractors. Were the Department to 
assume that all 56,000 hired farm workers under the age of 16 were (1) 
employed by a different small farm entity, and (2) affected by any 
provision of this proposed rule, approximately only 2.5 percent of all 
small farm entities would be impacted. Therefore, this proposal does 
not affect a substantial number of small entities.
---------------------------------------------------------------------------

    \6\ 2007 U.S. Census of Agriculture--United States Data.
---------------------------------------------------------------------------

    The costs associated with retrofitting all the tractors discussed 
above, even assuming all 7,565 young operators were to drive tractors 
none of which were equipped with proper ROPS and a seat belt, would not 
be significant. One study reported that the cost of retrofitting older 
tractors with ROPS varied between $676 and $903 (2002 dollars), 
including three hours of installation time and shipping costs (see 
Tevis C, Adding roll bars saves lives. Successful Farming. February 
2002, Vol 100, No 2). Another study noted that, in 1993, the material 
cost of retrofitting rollover protection structures was estimated at 
$937 per tractor. That same study reported an estimated retrofitting 
cost of $825,000 per life saved (see Myers JR, Snyder KA, Roll-over 
Protective Structure Use and the Cost of Retrofitting Tractors in the 
United States, 1993. Journal of Agricultural Safety and Health. 
1(3):185-197, 1995). If all 7,565 14- and 15-year-old hired farm 
workers identified by NIOSH as having driven tractors drove a different 
tractor, and none of those tractors already were equipped with proper 
ROPS and a seat belt, the cost of retrofitting all of those tractors 
using the maximum estimate of $937 per tractor provided by Myers and 
Snyder would be less than $7,100,000. Furthermore, for those small 
farms that employ workers under the age of 16, the cost of compliance 
with this portion of the proposal can be completely avoided by ensuring 
no hired farm worker under the age of 16 operates any tractor, although 
there may be minimal additional wages paid to the 16-year-old youths.
    Finally, the proposal would prohibit young farm workers from 
employment in the production and curing of tobacco. NIOSH calculated 
the average cost to the work for treatment of GTS in Kentucky in 1993 
to be $250 for out-patient treatment, $566 for hospital admission, and 
$2,041 for intensive care treatment (see NIOSH Update, July 8, 1993 
available at http://www.cdc.gov/niosh/updates/93-115.html). NIOSH notes 
that these costs can impose an enormous burden on farm families because 
in many states agricultural workers are not covered by worker's 
compensation and some tobacco harvesters have no form of health 
insurance (Id.). NIOSH also emphasized that when a worker gets sick 
during the busy tobacco harvest season, the employer suffers losses 
because taking the sick worker to medical care ties up another worker 
and a vehicle; thus harvesting is slowed down by the loss of one or 
more workers (Id.). The Department believes that the proposal may 
reduce this lost work time because children may be more susceptible to 
green tobacco sickness in light of their small body size.

IX. Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, this proposed rule does not include any Federal mandate that may 
result in excess of $100 million in expenditures by state, local and 
Tribal governments in the aggregate or by the private sector.

X. Executive Order 13132 (Federalism)

    The proposed rule does not have federalism implications as outlined 
in E.O. 13132 regarding federalism. Although states are covered 
employers under the FLSA, the proposed rule does not have substantial 
direct effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.

XI. Executive Order 13175, Indian Tribal Governments

    This proposed rule was reviewed under the terms of E.O. 13175 and 
determined not to have ``Tribal implications.'' The proposed rule does 
not have ``substantial direct effects on one or more Indian Tribes, on 
the relationship between the Federal government and Indian Tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian Tribes.'' As a result, no Tribal summary impact 
statement has been prepared.

XII. Effects on Families

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

XIII. Executive Order 13045, Protection of Children

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

XIV. Environmental Impact Assessment

    A review of this proposal in accordance with the requirements of 
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et 
seq.; the regulations of the Council on Environmental Quality, 40 CFR 
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11, 
indicates that the proposed rule will not have a significant impact on 
the quality of the human environment. There is, thus, no corresponding 
environmental assessment or an environmental impact statement.

XV. Executive Order 13211, Energy Supply

    This proposed rule is not subject to E.O. 13211. It will not have a 
significant adverse effect on the supply, distribution or use of 
energy.

XVI. Executive Order 12630, Constitutionally Protected Property Rights

    This proposal is not subject to E.O. 12630, because it does not 
involve implementation of a policy ``that has takings implications'' or 
that could impose limitations on private property use.

XVII. Executive Order 12988, Civil Justice Reform Analysis

    This proposed rule was drafted and reviewed in accordance with E.O. 
12988 and will not unduly burden the Federal court system. The proposed 
rule was: (1) Reviewed to eliminate drafting errors and ambiguities; 
(2) written to minimize litigation; and (3) written to provide a clear 
legal standard for affected conduct and to promote burden reduction.

List of Subjects

29 CFR Part 570

    Child labor, Child labor occupations, Employment, Government, 
Incorporation by reference, Intergovernmental relations, 
Investigations, Labor, Law enforcement, Minimum age.

29 CFR Part 579

    Child labor, Law enforcement, Penalties.


[[Page 54875]]


    Signed at Washington, DC, this 22nd day of August, 2011.
Nancy J. Leppink,
Deputy Administrator, Wage and Hour Division.

    For the reasons set out in the preamble, the DOL proposes to amend 
Title 29, parts 570 and 579 of the Code of Federal Regulations as 
follows:

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

    1. The authority citation for part 570, subpart A, continues to 
read as follows:

    Authority:  Secs. 3, 11, 12, 52 Stat. 1060, as amended, 1066 as 
amended, 1067, as amended; 29 U.S.C. 203, 211, 212.

    2. Amend Sec.  570.2 by revising paragraph (b) to read as follows:


Sec.  570.2  Minimum age standards.

* * * * *
    (b) Occupations in agriculture. The Act sets a 16-year minimum age 
for employment in agriculture during school hours for the school 
district in which the employed minor is living at the time, unless the 
parental exemption in section 3(l) of the Act applies. The Act also 
sets a 16-year minimum age for employment in any occupation in 
agriculture that the Secretary of Labor finds and declares to be 
particularly hazardous except where such employee is employed by his 
parent or by a person standing in the place of his parent on a farm 
owned or operated by such parent or person (see Subpart F of this 
part). There is a minimum age requirement of 14 years generally for 
employment in agriculture outside school hours for the school district 
where such employee is living while so employed. However--
    (1) A minor 12 or 13 years of age may be so employed with written 
consent of his parent or person standing in place of his parent, or may 
work on a farm where such parent or person is also employed; and
    (2) A minor under 12 years of age may be 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, or may be employed with the written consent 
of such parent or person on a farm where all employees are exempt from 
the minimum wage provisions by virtue of section 13(a)(6)(A) of the 
Act.
    3. The authority citation for part 570, subpart E, continues to 
read as follows:

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

    4. Add Sec.  570.69 to subpart E to read as follows:


Sec.  570.69  Occupations in farm-product raw materials wholesale trade 
industries (Order 18).

    (a) Finding and declaration of fact. All occupations in farm-
product raw materials wholesale trade industries are particularly 
hazardous for the employment of minors between 16 and 18 years of age 
and detrimental to their health and well-being.
    (b) Definition. 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.
    5. The authority citation for part 570, subpart E-1, is revised to 
read as follows:

    Authority: 29 U.S.C. 212, 213, 218.

Subpart E-1--[Redesignated as Subpart F]

    6. Redesignate subpart E-1, consisting of Sec. Sec.  570.70 through 
570.72, as subpart F.


Sec. Sec.  570.70 through 570.72   [Redesignated as Sec. Sec.  570.97 
through 570.99]

    7. Redesignate Sec. Sec.  570.70 through 570.72 as Sec. Sec.  
570.97 through 570.99 in newly redesignated subpart F.
    8. Add new Sec.  570.70 to subpart E to read as follows:


Sec.  570.70  The use of electronic devices, including communication 
devices, while operating power-driven equipment (Order 19).

    (a) Findings and declaration of fact. The use of electronic 
devices, including communication devices, while operating or assisting 
to operate power-driven equipment is particularly hazardous for the 
employment of minors between 16 and 18 years of age and detrimental to 
their health and well-being.
    (b) Definitions.
    Operating power-driven equipment includes 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 does not matter if 
the equipment is operated on public or private property. Operating 
power-driven equipment does not include periods of time when the 
machine is not being powered (is turned off), and in the case of a 
motor vehicle, is legally parked.
    Power-driven equipment includes 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.
    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. Use of electronic devices, 
including communication devices, does not include listening to music or 
other recorded information on a one-way, non-interactive device such as 
a radio or iPodTM as long as the device is being operated 
``hands free'' without headphones or earbuds. Use of electronic 
devices, including communication devices, does not include 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 legally parked. In addition, the 
term does not prohibit the use of a cell phone or other device to call 
911 in emergencies.

[[Page 54876]]

Sec. Sec.  570.71 through 570.96   [Reserved]

    9. Add reserved Sec. Sec.  570.71 through 570.96 to newly 
redesignated subpart F.
    10. Revise newly redesignated Sec. Sec.  570.97 through 570.99 to 
read as follows:


Sec.  570.97  Purpose and scope.

    (a) Purpose. Section 13(c)(2) of the Fair Labor Standards Act of 
1938, as amended (29 U.S.C. 213(c)(2)), states that the provisions of 
section 12 of the Act relating to child labor shall apply to an 
employee below the age of 16 employed in agriculture in an occupation 
that the Secretary of Labor finds and declares to be particularly 
hazardous for the employment of children below the age of 16, except 
where such employee is employed by his parent or by a person standing 
in the place of his parent on a farm owned or operated by such parent 
or person. The purpose of this subpart is to apply this statutory 
provision.
    (b) Parental Exception. This subpart shall not apply to the 
employment of a child below the age of 16 by his parent or by a person 
standing in the place of his parent on a farm owned or operated by such 
parent or person.
    (c) Statutory definitions. As used in this subpart, the terms 
agriculture, employ, and employer have the same meanings as the 
identical terms contained in section 3 of the Fair Labor Standards Act 
of 1938, as amended (29 U.S.C. 203), which are as follows:
    Agriculture includes 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(f) 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.
    Employ includes to suffer or permit to work.
    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 officer 
or agent of such labor organization.


Sec.  570.98  General.

    (a) Higher Standards. Nothing in this subpart shall authorize non-
compliance with any Federal or state law, regulation, or municipal 
ordinance establishing a higher, more protective standard. If more than 
one standard within this subpart applies to a single activity, the 
higher standard shall be applicable.
    (b) Student-learners. Some sections in this subpart contain an 
exemption for the employment of 14- and 15-year-olds as vocational 
agricultural student-learners. Such an exemption shall apply only when 
each of the following requirements is met:
    (1) The student-learner is 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;
    (2) Such student-learner has satisfactorily completed the 
equivalent of at least 90 hours of systematic school instruction in 
agricultural education at or above the eighth grade level;
    (3) Such student-learner is employed under, and in accordance with, 
a written agreement which provides:
    (i) That the work of the student-learner in the occupations 
declared particularly hazardous is incidental to his training;
    (ii) That such work shall 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;
    (iii) That the student-learner has completed at least 90 hours of 
systematic school instruction in agricultural education at or above the 
eighth grade level;
    (iv) That safety instruction shall be given by the school and 
correlated by the employer with on-the-job training; and
    (v) That a schedule of organized and progressive work processes to 
be performed on the job have been prepared.
    (4) Such written agreement contains the name of the student-
learner, and is signed by the employer, the parent or guardian of the 
student-learner, and by a person authorized to represent the 
educational authority or school; and
    (5) Copies of each such signed 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 under this subpart.


Sec.  570.99  Hazardous occupations involved in agriculture.

    (a) Findings and declarations of fact as to specific occupations in 
agriculture. The occupations in agriculture listed in paragraph (b) of 
this section are particularly hazardous for the employment of children 
below the age of 16.
    (b) The agricultural hazardous occupations orders. (1) Occupations 
involving the operation of agricultural tractors (Ag H.O. 1). Operating 
and assisting in the operation of an agricultural tractor.
    (i) Definitions:
    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. The term shall include low profile 
tractors. The term 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 paragraph (b)(2) of this section.
    Low profile tractor means
    (1) A wheeled tractor that possesses the following characteristics:
    (i) 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;
    (ii) The clearance from the bottom of the tractor chassis to the 
ground does not exceed 18 inches;
    (iii) The highest point of the hood does not exceed 60 inches; and
    (iv) The tractor is designed so that the operator straddles the 
transmission when seated.
    (2) The term 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 paragraph (b)(2) of this section.
    Operating includes the tending, setting up, adjusting, moving, 
cleaning, oiling, or repairing of 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 also includes starting, stopping, or any other 
activity involving physical contact associated with the operation or 
maintenance of the tractor.

[[Page 54877]]

    Public road or highway shall 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.
    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. Use of electronic devices, 
including communication devices, does not include 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. Use of electronic devices, 
including communication devices, does not include 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 safely at a complete stop and 
incapable of moving--such as when the transmission is in ``park'' or 
when the transmission is in ``neutral'' and the hand brake is set--so 
that the minor can safely direct his or her attention away from the 
safe operation of the tractor. The term also does not include glancing 
at or listening to other similar electronic devices on the tractor, 
such as moisture monitors or chemical applicator computers, provided 
that they are programmed either before driving or when the vehicle is 
safely at a complete stop and incapable of moving. In addition, the 
term use of electronic devices, including communication devices, does 
not prohibit the use of a cell phone or other device to call 911 in 
emergencies.
    (ii) Exemption. A student-learner employed in accordance with the 
provisions of Sec.  570.98(b) may operate and assist in the operation 
of an agricultural tractor, including the connecting and disconnecting 
of an implement or any of its parts to or from the tractor, when all of 
the following conditions are met:
    (A) The tractor is equipped with both a roll-over protection 
structure and a seat belt, and the tractor operation, the roll-over 
protection structure, and the seat belt meet all the requirements of 
the U.S. Department of Labor's Occupational Safety and Health 
Administration's standard at Sec.  1928.51 of this title established 
for roll-over protection structures for tractors used in agricultural 
operations;
    (B) When implements are being used, both the operation of the 
implements and the implements themselves must meet the requirements of 
the U.S. Department of Labor's Occupational Safety and Health 
Administration's standard at Sec.  1928.57 of this title established to 
prevent hazards associated with moving machinery parts of farm field 
equipment, farmstead equipment, and cotton gins used in any 
agricultural operation;
    (C) 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 while operating the tractor;
    (D) The student-learner must have successfully completed his or her 
school's classroom-portion of the educational unit on the safe 
operation of agricultural 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-learner;
    (E) The employer must instruct the employee that the use of 
electronic devices, including communication devices, while operating 
the tractor or implement is prohibited and the minor in fact does not 
use any electronic device while operating the tractor or implement.
    (F) 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;
    (G) The student-learner must not operate a 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 an 
approved passenger 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.
    (2) Occupations involving the operation of power-driven equipment, 
other than agricultural tractors (Ag H.O. 2). Operating and assisting 
in the operation of power-driven equipment.
    (i) Definitions.
    Farm field equipment means implements, including self-propelled 
implements, or any combination thereof used in agricultural operations. 
The term does not include agricultural tractors as defined in paragraph 
(b)(1)(i) of this section.
    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.
    Garden and lawn tractors shall mean 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.
    Implements shall include, but not be limited to, power-driven 
equipment and tools used in agricultural occupations such as farm field 
equipment and farmstead equipment as defined in this section.
    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 also includes starting, 
stopping, or any other activity involving physical contact associated 
with the operation or maintenance of the equipment.
    Power-driven equipment includes 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 paragraph (b)(1)(i) of this 
section. The term includes lawn and garden type tractors, and lawn 
mowers that are used for yard mowing and maintenance.
    Use of electronic devices, including communication devices, would 
include,

[[Page 54878]]

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. Use of electronic devices, 
including communication devices, does not include listening to music or 
other recorded information on a one-way, non-interactive device such as 
a radio or iPodTM as long as the device is being operated 
``hands free'' without headphones or earbuds. Use of electronic 
devices, including communication devices, does not include 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 and/or implement is safely at a 
complete stop and incapable of moving--such as when the transmission is 
in ``park'' or when the transmission is in ``neutral'' and the hand 
brake is set--so that the minor can safely direct his or her attention 
away from the safe operation of the tractor and/or implement. The term 
also does not include glancing at or listening to other similar 
electronic devices on the implement, such as moisture monitors or 
chemical applicator computers, provided that they are programmed either 
before driving or when the vehicle is safely at a complete stop and 
incapable of moving. In addition, the term does not prohibit the use of 
a cell phone or other device to call 911 in emergencies.
    (ii) Exemption. (A) A student-learner employed in accordance with 
the provisions of Sec.  570.98(b) may operate and assist in the 
operation of the power-driven machinery named in paragraphs 
(b)(2)(ii)(A)(1) through (7) of this section if he or she has 
successfully completed his or her school's classroom-portion of the 
educational unit on the safe operation of the specific piece of power-
driven machinery he or she is operating or assisting to operate. If the 
minor is operating the machinery on a public road or highway as defined 
in paragraph (b)(1)(i) of this section, he or she must hold a state 
motor vehicle license valid for the type of machine being operated. The 
employer must instruct the student-learner that the use of electronic 
devices, including communication devices, while operating or assisting 
in the operation of the power-driven machinery is prohibited and the 
student-learner in fact does not use any wireless communication device 
while operating or assisting in the operation of the power-driven 
machinery. The equipment must meet and be operated in accordance with 
the requirements of the U.S. Department of Labor's Occupational Safety 
and Health Administration's standard at Sec.  1928.57 of this title if 
it is a type of equipment addressed by the standard. If the equipment 
is being powered or pulled by a tractor, the student-learner must also 
be employed in accordance with the provisions of paragraph (b)(1)(ii) 
of this section. The student-learner may ride as an extra passenger in 
or on the equipment named in paragraphs (b)(2)(ii)(A)(1) through (7) of 
this section only if the vehicle, machinery, or implement is equipped 
with an approved passenger seat that includes a seat belt or 
appropriate similar restraint that comports with the U.S. Department of 
Labor's Occupational Safety and Health Administration's standard at 
Sec.  1928.51(b)(2) of this title and the minor actually uses the seat 
belt or similar restraint, but not when the vehicle, machinery, or 
implement is being operated by someone under the age of 16 years or on 
a public road or highway as defined in paragraph (b)(1)(i) of this 
section.
    (1) Harvesting and threshing machinery, including balers, grain 
combines, and reapers, but not including potato combines;
    (2) Plowing machinery;
    (3) Planting machinery;
    (4) Spreading machinery;
    (5) Mowing and swathing machinery;
    (6) Power post-hole digger and power post driver machinery; and
    (7) Nonwalking type rotary tillers.
    (B) Student-learners may not operate, as defined in paragraph 
(b)(2)(i) of this section, the following power-driven equipment under 
any circumstances:
    (1) Automobiles, buses, or trucks, including serving as an outside 
helper on such motor vehicles;
    (2) All terrain vehicles, scooters, or motorcycles;
    (3) Trenching or earthmoving equipment, including backhoes and 
bulldozers;
    (4) Loaders, including skid steer loaders, front end loaders, and 
Bobcats;
    (5) Milking equipment;
    (6) Potato combines;
    (7) Hoisting equipment, including cranes, derricks, highlift 
trucks, fork lifts, hoists, and manlifts as defined in Sec.  570.58;
    (8) Woodworking machines as defined in Sec.  570.55;
    (9) Feed grinders;
    (10) Circular, reciprocating, band, or chain saws as defined in 
Sec.  570.65;
    (11) Wood chippers as defined in Sec.  570.65;
    (12) Abrasive cutting discs as defined in Sec.  570.65;
    (13) Metal forming, punching, or shearing machines as defined in 
Sec.  570.59;
    (14) Welding equipment;
    (15) Augers, auger conveyors, or conveyors;
    (16) Irrigation equipment;
    (17) Rotary tillers, walking type;
    (18) Crop dryers; and
    (19) The unloading mechanism of a nongravity-type self-unloading 
wagon or trailer.
    (C) Notwithstanding the definition of operating in paragraph 
(b)(2)(i) of this section, minors under 16 years of age may ride as 
passengers in automobiles, trucks, and buses, on public roads and 
private property, provided all of the following are met:
    (1) Each minor riding as a passenger in a motor vehicle must have 
his or her own seat in the passenger compartment;
    (2) Each seat must be equipped with a seat belt or similar 
restraining device; the employer must instruct the minors that such 
belts or other devices must be used while riding; and the seat belt or 
similar restraining device is actually used; and
    (3) Each driver transporting the young workers must hold a state 
driver's license valid for the type of driving involved and, if the 
driver is under the age of 18, his or her employment must comply with 
the provisions of Sec.  570.52.
    (3) Occupations involving the operation of non-power-driven 
hoisting apparatus and conveyors (Ag H.O. 3). Operating and assisting 
in the operation of hoisting apparatus and conveyors that are operated 
either by hand or by gravity.
    (i) Definitions.
    Non-power-driven hoisting apparatus and conveyors mean hoisting 
apparatus and conveyors that are operated by human hand, foot, or by 
gravity. Power-driven hoisting apparatus and conveyors are addressed in 
paragraph (b)(2) of this section.
    Operating includes the tending, setting up, adjusting, moving, 
cleaning, oiling, repairing, of the equipment; riding on the equipment 
as a passenger or helper; or connecting or disconnecting an implement 
or any of its parts to for from such equipment. Operating would also 
include starting,

[[Page 54879]]

stopping, or any other activity involving physical contact associated 
with the operation or maintenance of the equipment. Minors are also 
prohibited from serving as ``safety spotters'' directing the operator 
of the hoisting apparatus or conveyor as to the proper operation of the 
equipment.
    (ii) [Reserved]
    (4) Certain occupations involving working with or around animals 
(Ag H.O. 4). Working on a farm in a yard, pen, or stall occupied by an 
intact (not castrated) male equine, porcine, bovine, or bison older 
than six months, a sow with suckling pigs, or cow with newborn calf 
(with umbilical cord present); engaging or assisting in animal 
husbandry practices that inflict pain upon the animal and/or are likely 
to result in unpredictable animal behavior such as, but not limited to, 
branding, breeding, dehorning, vaccinating, castrating, and treating 
sick or injured animals; handling animals with known dangerous 
behaviors; poultry catching or cooping in preparation for slaughter or 
market; and herding animals in confined spaces such as feed lots or 
corrals, or on horseback, or using motorized vehicles such as, but not 
limited to, trucks or all terrain vehicles.
    (5) Occupations involving timber operations (Ag H.O. 5). Felling, 
bucking, skidding, loading, or unloading timber and the removal and 
disposal of tree stumps by other than manual means.
    (6) Occupations involving work in construction; in communications; 
in public utilities; in wrecking and demolition; and in excavation (Ag 
H.O. 6). (i) General. The restrictions concerning employment in the 
construction, communications, and public utilities industries will be 
applied in the same manner as in Sec.  570.33(n). Construction 
occupations include occupations in all types of construction, including 
building, residential, heavy, and highway construction.
    (ii) Definitions.
    Occupations involved in excavation shall have the same meaning as 
in Sec.  570.68(a).
    Wrecking and demolition shall mean all work, including clean-up and 
salvage work, performed at the site of the total or partial razing, 
demolishing, or dismantling of a building, bridge, steeple, tower, 
chimney, or other structure including but not limited to a barn, silo, 
or windmill.
    (7) Occupations involving work on roofs, scaffolds, and at 
elevations greater than six feet (Ag H.O. 7). Working on or about a 
roof; from a scaffold; and at elevations greater than six feet above 
another elevation, such as, but not limited to, working on or from a 
ladder, a farm structure (including, but not limited to silos, towers, 
grain bins, and windmills), or equipment.
    (i) Definitions.
    Elevations greater than six feet will be determined by measuring 
the distance between the minor's feet and the lower elevation above 
which the minor is working.
    On or about a roof shall have the same meaning as in Sec.  
570.67(b).
    (ii) Exemption. The prohibition against working on or from 
equipment at elevations greater than six feet above another elevation 
shall not apply to a bona fide student-learner as described in Sec.  
570.98(b) employed in compliance with the provisions of Sec.  570.98(b) 
and paragraphs (b)(1)(ii) and/or (ii) of this section.
    (8) Occupations involving working inside any fruit, forage, or 
grain storage silo or bin (Ag H.O. 8).
    (9) Occupations involving working inside a manure pit (Ag H.O. 9).
    (10) Occupations involving the handling of pesticides (Ag H.O. 10). 
Performing any task that may be performed by a pesticide handler.
    (i) Definitions.
    Pesticide shall mean any substance or mixture of substances 
intended for preventing, destroying, repelling, or mitigating any pest; 
any substance or mixture of substances intended for use as a plant 
regulator, defoliant, or desiccant; and any nitrogen stabilizer, except 
that the term pesticide shall not include any article that is a new 
animal drug within the meaning of section 201(w) of the Federal Food, 
Drug, and Cosmetic Act (21 U.S.C. 321(w)), that has been determined by 
the Secretary of Health and Human Services not to be a new animal drug 
by a regulation establishing conditions of use for the article, or that 
is an animal feed within the meaning of section 201(x) of such Act (21 
U.S.C. 321(x)) bearing or containing a new animal drug. The term 
pesticide does not include liquid chemical sterilant products 
(including any sterilant or subordinate disinfectant claims on such 
products) for use on a critical or semi-critical device, as defined in 
section 201 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 
321). For purposes of the preceding sentence, the term critical device 
includes any device which is introduced directly into the human body, 
either into or in contact with the bloodstream or normally sterile 
areas of the body and the term semi-critical device includes any device 
which contacts intact mucous membranes but which does not ordinarily 
penetrate the blood barrier or otherwise enter normally sterile areas 
of the body.
    Pesticide handler shall mean any person, including a self-employed 
person, who performs any of the following tasks:
    (1) Mixing, loading, transferring, or applying pesticides;
    (2) Disposing of pesticides or pesticide containers;
    (3). Handling opened containers of pesticides;
    (4) Acting as a flagger;
    (5) Cleaning, adjusting, handling, or repairing the parts of 
mixing, loading, or application equipment that may contain pesticide 
residues;
    (6) Assisting with the application of pesticides;
    (7) Entering a greenhouse or other enclosed area after the 
application and before the inhalation exposure level listed in the 
labeling has been reached or one of the ventilation criteria 
established by 40 CFR 170.110(c)(3) or in the labeling has been met to 
operate ventilation equipment, to adjust or remove coverings used in 
fumigation, or to monitor air levels;
    (8) Entering a treated area outdoors after application of any soil 
fumigant to adjust or remove soil coverings such as tarpaulins;
    (9) Performing tasks as a crop advisor during any pesticide 
application, before the inhalation exposure level listed in the 
labeling has been reached or one of the ventilation criteria 
established by 40 CFR 170.110(c)(3) or in the labeling has been met, or 
during any restricted-entry interval.
    (10) The term pesticide handler does not include any person who is 
only handling pesticide containers that have been emptied or cleaned 
according to pesticide product labeling instructions or, in the absence 
of such instructions, have been subjected to triple-rinsing or its 
equivalent.
    (ii) [Reserved]
    (11) Occupations involving the handling of blasting agents (Ag H.O. 
11). Handling or using a blasting agent, including but not limited to, 
dynamite, black powder, sensitized ammonium nitrate, blasting caps, and 
primer cord.
    (12) Occupations involving the transporting, transferring, or 
applying of anhydrous ammonia (Ag H.O. 12).
    (13) Occupations involving the production and curing of tobacco (Ag 
H.O. 13). All work in the production and curing of tobacco, including, 
but not limited to, planting, cultivating, topping, harvesting, baling, 
barning, and curing.
    11. Revise Sec.  570.123 to read as follows:

[[Page 54880]]

Sec.  570.123  Agriculture

    (a) Section 13(c)(1) and (c)(2) of the Act, when read together with 
section 3(l), provide an almost complete exemption from the child labor 
provisions for any youth who is employed in agriculture by his or her 
parent (or by a person standing in the place of his or her parent) on a 
farm owned by such parent or person. By virtue of the parental 
exemption provided in sections 3 and 13 of the Act, children under 16 
years of age are permitted to work, for their parent (or person 
standing in place thereof) on a farm owned by such parent or person at 
any time to perform any tasks, provided they are not employed in a 
manufacturing or mining occupation. Sections 13(c)(1) and (c)(2) also 
provide a limited exemption from certain of the agricultural child 
labor provisions for any youth who is employed in agriculture by his or 
her parent (or by a person standing in the place of that parent) on a 
farm operated by such parent or person. When employed by a parent or 
person standing in place of a parent on a farm operated by that parent 
or person, the minor may perform hazardous work as described in Sec.  
570.99(b) of this part, but the minor must be employed outside of 
school hours for the school district where he or she is living while so 
employed.
    (1) Application of the parental exemption in agriculture is limited 
to the employment of children exclusively by their parents or person(s) 
standing in place thereof on a farm owned or operated by the parent(s). 
Only the sole 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, or 
in addition to, the parent or person standing in place of 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 his or her parent, and his or her duties would be regulated 
by the corporation or partnership.
    (2) 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. 
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. Generally, a period of less than one month would not be 
sufficient for the parental exemption to apply in such situations.
    (3) The ``parent or person standing in the place of the parent'' 
shall be 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.
    (4) ``Operated by'' the parent or person standing in the place of 
the parent means 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 who meets these criteria could employ his or her own 
children under 16 years of age on the ranch he or she operates to 
perform any tasks, but only outside of school hours for the school 
district where the youth is living while so employed.
    (5) A child who is exempt from the agricultural child labor 
provisions of the FLSA when employed on his or her parent's farm would 
lose that exempt status (not be exempt) when employed on a farm owned 
or operated by a neighbor or non-parental relative. Such youth could 
not be employed during school hours, nor could he or she perform any 
tasks prohibited by an Ag. H.O unless exempt as a student-learner in 
accordance with Sec.  570.98(b) of this part. This is true even if the 
youth is operating equipment owned by his or her parent.
    (b) Section 13(c)(1) provides additional exemptions from the Act's 
child labor provisions for the following employees employed in 
agriculture outside of school hours for the school district where such 
employees are living while so employed if not employed in an occupation 
that the Secretary of Labor finds and declares to be particularly 
hazardous for the employment of children below the age of 16:
    (1) An employee less than twelve years of age who is employed with 
the written consent of his or her parent or person standing in the 
place of his or her parent on a small farm where none of the employees 
are required to be paid the Federal minimum wage prescribed by FLSA 
section 6(a)(5) because the criteria of FLSA section 13(a)(6)(A) have 
been met;
    (2) An employee who is 12 or 13 years of age and such employment is 
either with the written consent of his or her parent or person standing 
in place of his or her parent or his or her parent is employed on the 
same farm as the youth; and
    (3) An employee who is 14 years of age or older.
    (c)(1) The exemptions discussed in paragraph (b) of this section 
apply only when the employment is limited to periods outside of school 
hours for the school district where the minor resides while so 
employed.
    (2) The applicability of the exemptions to employment in 
agriculture discussed in paragraph (b) of this section depends in 
general upon whether such employment conflicts with the school hours 
for the locality where the child lives. Since the phrase ``school 
hours'' is not defined in the Act, it must be given the meaning that it 
has in ordinary speech. Moreover, the statute speaks of school hours 
``for the school district'' rather than for the individual child. Thus, 
the provision does not depend for its application upon the individual 
student's requirements for attendance at school. For example, if an 
individual student is excused from his studies for a day or a part of a 
day by the superintendent or the school board, the exemption would not 
apply if school was in session then. ``Outside of school hours'' 
generally may be said to refer to such periods as before or after 
school hours, holidays, summer vacation, Sundays, or any other days on 
which the school for the district in which the minor lives does not 
assemble. Since ``school hours for the school district'' do not apply 
to minors who have graduated from high school (successfully completed 
the 12th grade or a high school general equivalency diploma (GED) 
program), the entire year would be considered ``outside of school 
hours'' and, therefore, their employment in agriculture would be 
permitted at any time. While it is the position of the Department that 
a minor who leaves one district where schools are closed for the summer 
and moves into and lives in another district where schools are still in 
session is subject to the hours that schools are in session in the new 
district, the Department generally will not assert a violation for the 
agricultural employment of that minor during those few weeks that the 
schools in the new district are still in session. As a reasonable 
precaution against employing children during school hours, however, no 
employer should employ a child under such circumstances before June 1, 
and after that date it should do so only if shown by the minor 
satisfactory evidence in the form of a written statement signed by a 
school official stating that the school with which he is connected is 
the one last attended by the minor and

[[Page 54881]]

that the school is closed for summer vacation. Such statement should 
contain the minor's name, the name and address of the school, the date 
the school closed for the current year, the date the statement was 
signed, and the title of the school official signing the statement. In 
addition, the minor could allow the employer to examine or even 
photocopy his or her report card to document that the minor has 
completed the school year prior to seeking agricultural employment.
    (d) The hazardous occupations orders contained in subpart E of this 
part declaring certain occupations to be particularly hazardous for the 
employment of minors between 16 and 18 years of age or detrimental to 
their health or well-being shall not apply to employment in 
agriculture. Agricultural employment is subject to the agricultural 
hazardous occupations orders contained in subpart F of this part.

PART 579--CHILD LABOR VIOLATIONS--CIVIL MONEY PENALTIES

    12. The authority citation for part 579 continues to read as 
follows:

    Authority: 29 U.S.C. 203(l), 211, 212, 213(c), 216; Reorg. Plan 
No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 Stat. 
72, 76; Secretary of Labor's Order No. 09-2009 (Nov. 16, 2009): 
Delegation of Authorities and Assignment of Responsibilities to the 
Administrator, Wage and Hour Division, 74 FR 58836; 104 Stat. 890 
(28 U.S.C. 2461 note), as amended by 110 Stat. 1321-373 and 112 
Stat. 3293.

    13. Revise Sec.  579.2 to read as follows:


Sec.  579.2  Definitions.

    As used in this part and part 580 of this chapter:
    Act means the Fair Labor Standards Act of 1938, as amended (52 
Stat. 1060, as amended; 29 U.S.C. 201, et seq.);
    Administrative law judge means a person appointed as provided in 5 
U.S.C. 3105 and qualified to preside at hearings under 5 U.S.C. 554-
557.
    Administrator means the Administrator of the Wage and Hour 
Division, U.S. Department of Labor, and includes an authorized 
representative designated by the Administrator to perform any of the 
functions of the Administrator under this part and part 580 of this 
chapter.
    Agency has the meaning given it by 5 U.S.C. 551.
    Caused by a child labor violation means that there is a 
relationship between the violation that occurred and the serious injury 
or death of a minor employee. Causation shall be found when the injury 
or death can be directly attributed to the performance of a violative 
act listed in Sec.  579.3. Causation may also be found if the death or 
serious injury occurs while the youth is employed in an occupation, 
workplace, or industry that the Secretary has found and declared in 
subpart E of part 570 of this chapter to be particularly hazardous for 
the employment of workers 16 and 17 years of age, such as in a saw 
mill, in a meat processing plant, as a roofer, or in a mine. Causation 
may also be found when a minor under 16 years of age was killed or 
seriously injured while employed in an agricultural occupation or 
workplace that the Secretary has found and declared in subpart F of 
part 570 of this chapter (previously subpart E-1) to be particularly 
hazardous for the employment of children below the age of 16, such as 
handling or using a blasting agent or working inside a manure pit. 
Causation may also be found when a minor under 16 years of age was 
killed or seriously injured while employed in an occupation, workplace, 
or industry that the Secretary has found and declared, in accordance 
with Sec.  570.33 of this chapter, to not be a permitted occupation, 
workplace, or industry for the employment of 14- and 15-year-olds, such 
as work in a warehouse, in construction, in transportation, or in a 
room where manufacturing or processing takes place. Finally, causation 
may be found when a minor was seriously injured or killed as a result 
of a violation of the hours and times of day standards established by 
Sec.  570.35 of this chapter when it can be demonstrated that the time 
of day or the number of hours worked by the minor employed in violation 
jeopardized his or her health, safety, alertness, or mental acumen.
    Chief Administrative Law Judge means the Chief Administrative Law 
Judge, Office of Administrative Law Judges, U.S. Department of Labor, 
800 K Street, NW., Suite 400, Washington, DC 20001-8002.
    Child Labor Enhanced Penalty Program (CLEPP) refers to the process 
the Department has developed to assess a civil money penalty of up to 
$50,000 for each violation that caused the serious injury or death of 
any employee under the age of 18 as authorized by section 16(e) of the 
FLSA, as amended by the Genetic Information Nondiscrimination Act of 
2008. Such penalties may be doubled, up to $100,000, when the violation 
is determined to be repeated or willful. An employer may be assessed 
CLEPP and Non-CLEPP penalties for violations documented during the same 
investigation.
    CLEPP serious injury means an injury to a minor employee that: 
occurred after May 20, 2008; was caused by a child labor violation as 
defined in this section; and involves the permanent loss or substantial 
impairment of one of the senses (sight, hearing, taste, smell, tactile 
sensation); the permanent loss or substantial impairment of the 
function of a bodily member, organ, or mental faculty, including the 
loss of all or part of an arm, leg, foot, hand or other body part; or 
permanent paralysis or substantial impairment that causes loss of 
movement or mobility of an arm, leg, foot, hand or other body part. The 
Department's assessment whether the injury resulted in substantial 
impairment will take into account the nature and degree of the 
impairment and its expected duration. A cut or abrasion that impairs a 
youth's ability to bend his or her knee for one week, for example, will 
not rise to the level of a substantial impairment because the injury is 
neither significant nor long-lasting, while a puncture or laceration 
that results in permanent numbness or scarring to a youth's finger will 
be deemed to have substantially impaired the youth's sense of touch. 
Even if an injury is expected to eventually heal with no lasting 
effects, it may qualify as a substantial impairment under CLEPP if the 
initial injury, such as a fall that shatters a youth's leg, impairs a 
body part, sense, or mobility for a significant period of time. While 
injuries resulting in substantial impairment will generally take longer 
than six weeks to heal, an impairment may be substantial for purposes 
of CLEPP even if it lasts, or is expected to last, for fewer than six 
weeks, particularly if the youth is unable to attend school or work for 
that period of time.
    Contributed to the death or injury of a minor means that although 
there may not be a direct causal relationship between the child labor 
violation and the death or injury, the death or injury would not have 
occurred if a minor were not employed in violation of a child labor 
provision at the time of the death or injury. For example, if a 14-
year-old was employed in a retail store at 9:30 p.m. in violation of 
the hours standards established by Child Labor Regulation No. 3 (CL 
Reg. 3) (subpart C of part 570 of this chapter) and was crushed to 
death because a large box that was improperly stowed fell from a high 
shelf, the hours standards violation would not have caused the death. 
But the hours standards violation would have contributed to the minor's 
death because had he or she not been

[[Page 54882]]

employed at that time, the death would not have occurred.
    Death means the cessation of life, even if the death does not occur 
immediately but eventually results from an injury. A child labor civil 
money penalty may be assessed under CLEPP if the death of an employee 
under the age of 18 years occurred after May 20, 2008 and the death was 
caused by a child labor violation listed in Sec.  579.3 of this 
chapter. A child labor civil money penalty of up to $11,000 may be 
assessed for each violation that caused or contributed to the death of 
a minor when the violations do not fall under CLEPP.
    De minimis means something of such minimal importance or trifling 
nature that the law does not refer to it and will not consider it. A de 
minimis child labor violation, for the purpose of determining the 
amount of child labor civil money penalties that will be assessed an 
employer, includes only those CL Reg. 3 hours standards violations that 
involve the employment of no more than one minor and recordkeeping 
violations that involve the employment of no more than one minor. 
Violations of the CL Reg. 3 hours standards (beginning and ending of 
work day, total number of hours worked in a day, and total number of 
hours worked in a week) could be de minimis only if the individual 
violations: are the only child labor violations documented by the 
investigation of the employer; do not violate the standard by more than 
15 minutes--i.e., the minor worked no later than 7:15 p.m. on a winter 
evening, did not work before 6:45 a.m., or worked no more than 3\1/4\ 
hours on a school day; such violations involve the employment of a only 
a single minor; and there are no more than three such violations 
involving exceeding the CL Reg. 3 hours standards during that minor's 
employment with the employer. A recordkeeping violation may be 
considered a de minimis child labor violation only when the employer 
fails to maintain a record of the date of birth of no more than one 
minor employee and no other child labor violations are documented by 
the investigation of the employer. The following types of child labor 
violations cannot be considered de minimis for the purpose of 
determining the amount of child labor civil money penalties that will 
be assessed:
    (1) Violations involving hazardous occupations orders detailed in 
subparts E and F of part 570 of this chapter;
    (2) Violations which caused or contributed to the death, CLEPP 
serious injury, serious injury (Non-CLEPP), or nonserious injury of a 
minor;
    (3) Violations involving CL Reg. 3 occupation standards detailed in 
subpart C of part 570 of this chapter;
    (4) Violations involving minors under the age of 14 in 
nonagricultural employment and under the age of 12 in agricultural 
employment;
    (5) Violations involving minors under 16 years of age working 
during school hours; and
    (6) Repeated or willful violations as defined in this section.
    Department means the U.S. Department of Labor.
    First aid shall mean any one-time treatment of a nonserious injury. 
Such one-time treatment is considered first aid even though provided by 
a physician or registered medical professional personnel.
    Nonserious injury means any injury that requires treatment no more 
extensive than first aid and results in the youth missing school or 
work, or having their normal activities curtailed, for less than five 
days. A nonserious injury may be caused by a child labor violation or 
the violation may have only contributed to the injury. A child labor 
civil money penalty may only be assessed for a nonserious injury when 
the minor whose employment is in violation of a child labor provision 
is also the minor who suffered the nonserious injury. A nonserious 
injury will never fall under the provisions of CLEPP.
    Person includes any individual, partnership, corporation, 
association, business trust, legal representative, or organized group 
of persons. For purposes of the assessment of child labor civil money 
penalties, the term person shall also include a parent when he or she 
is the employer of his or her child and that child's employment is not 
in compliance with the provisions of part 570 of this chapter and not 
otherwise exempt.
    Repeated violations have two components. An employer's violation of 
section 12 or section 13(c) of the Act relating to child labor or any 
regulation issued pursuant to such sections shall be deemed to be 
repeated:
    (1) Where the employer has previously violated section 12 or 
section 13(c) of the Act relating to child labor or any regulation 
issued pursuant to such sections, provided the employer has previously 
received notice, through a responsible official of the Wage and Hour 
Division or otherwise authoritatively, that the employer allegedly was 
in violation of the provisions of the Act; or,
    (2) Where a court or other tribunal has made a finding that an 
employer has previously violated section 12 or section 13(c) of the Act 
relating to child labor or any regulation issued pursuant to such 
sections, unless an appeal therefrom which has been timely filed is 
pending before a court or other tribunal with jurisdiction to hear the 
appeal, or unless the finding has been set aside or reversed by such 
appellate tribunal.
    Secretary means the Secretary of Labor, U.S. Department of Labor, 
or an authorized representative of the Secretary.
    Serious injury (Non-CLEPP) means an injury that, while 
significantly impacting the life of the minor, fails to meet any or all 
of the criteria listed in the definition of CLEPP serious injury. A 
serious injury (Non-CLEPP) is one that did not: Occur after May 20, 
2008; fall within one of the three categories of CLEPP serious injury; 
and/or meet the level of causation required by CLEPP, but which either 
requires treatment more extensive than first aid or which curtails the 
minor's normal activities (school, work, sports) for at least five 
days. A serious injury (Non-CLEPP) includes situations where a minor is 
required to return to a medial practitioner after an accident to have 
stitches removed or for an evaluation of the healing process. A child 
labor civil money penalty may only be assessed for a serious injury 
(Non-CLEPP) when the minor whose employment is in violation of a child 
labor provision is also the minor who suffered the serious injury (Non-
CLEPP).
    Solicitor of Labor means the Solicitor, U.S. Department of Labor, 
and includes attorneys designated by the Solicitor to perform functions 
of the Solicitor under this part and part 580 of this chapter.
    Willful violations have several components. An employer's violation 
of section 12 or section 13(c) of the Act relating to child labor or 
any regulation issued pursuant to such sections shall be deemed to be 
willful where the employer knew that its conduct was prohibited by the 
Act or showed reckless disregard for the requirements of the Act. All 
of the facts and circumstances surrounding the violation shall be taken 
into account in determining whether a violation was willful. In 
addition, an employer's conduct shall be deemed knowing, among other 
situations, if the employer received advice from a responsible official 
of the Wage and Hour Division to the effect that the conduct in 
question is not lawful. An employer's conduct shall be deemed to be in 
reckless disregard of the requirements of the Act, among other 
situations, if the employer should have inquired further into whether 
its conduct was in compliance

[[Page 54883]]

with the Act, and failed to make adequate further inquiry.
    14. Amend Sec.  579.3 by:
    a. Redesignating paragraphs (a)(5) and (6) as paragraphs (a)(3) and 
(4), respectively;
    b. Revising newly redesignated paragraph (a)(4); and
    c. Revising paragraphs (b)(2)(i) through (iii), (b)(4)(ii), and 
(c)(1) and (3) to read as follows:


Sec.  579.3  Violations for which child labor civil money penalties may 
be assessed.

    (a) * * *
    (4) The failure by an employer employing any minor subject to any 
provision of FLSA sections 12 and 13 and/or any provision of part 570 
of this chapter to take or cause to be taken such action as is 
necessary to assure compliance with all requirements of such provisions 
which, by the Act and the regulations in such part, are conditions for 
lawful employment of such minor.
    (b) * * *
    (2) * * *
    (i) During school hours for the school district where such minor is 
living while so employed; or
    (ii) In any manufacturing or mining occupation; or
    (iii) In agriculture in any occupation found and declared by the 
Secretary, as set forth in subpart F of part 570 of this chapter, to be 
particularly hazardous for the employment of minors below such age; or
* * * * *
    (4) * * *
    (ii) Is employed with the written consent of a parent or person 
standing in place of a parent of such minor, on a farm where, because 
of the provisions of section 13(a)(6)(A) of the Act, none of the 
employees are required to be paid at the wage rate prescribed by 
section 6(a)(5) of the Act.
    (c) * * *
    (1) That none of the child labor provisions of section 12 shall 
apply to:
    (i) Any child employed as an actor or performer in motion pictures 
or theatrical productions, or in radio or television productions;
    (ii) Any employee engaged in the delivery of newspapers to the 
consumer;
    (iii) Any homeworker engaged in the making of wreaths composed 
principally of natural holly, pine, cedar, or other evergreens 
(including the harvesting of the evergreens or other forest products 
used in making such wreaths); or
    (iv) Any employee whose services during the workweek are performed 
in a workplace within a foreign country or within territory under the 
jurisdiction of the United States other than the States, territories, 
and possessions listed in section 13(f) of the Act (see Act, sections 
13(c)(3), 13(d), 13(f));
* * * * *
    (3) That, with respect to violations described in paragraph (a)(2) 
of this section resulting from employment of minors as described in 
paragraph (b)(2)(iv) of this section, a parent or person standing in 
place of a parent may lawfully employ his or her own child or a child 
in his or her custody under the age of 16 years in an occupation other 
than:
    (i) Manufacturing;
    (ii) Mining; or
    (iii) An occupation found and declared by the Secretary of Labor to 
be particularly hazardous for the employment of children between the 
ages of 16 and 18 years or detrimental to their health or well-being, 
and an employer may lawfully employ a young worker between 14 and 16 
years of age in an occupation permitted and under conditions prescribed 
by part 570 of this chapter, subpart C;
* * * * *
    15. Add Sec.  579.4 to read as follows:


Sec.  579.4  Determining the initial amount of the penalty for child 
labor violations that caused the death or serious injury of a minor 
under the Child Labor Enhanced Penalty Program (CLEPP).

    (a) General. This section addresses the administrative 
determination of the initial amount of the civil money penalty that may 
be assessed for each violation that occurred after May 20, 2008 and 
caused the death or CLEPP serious injury of an employee under 18 years 
of age.
    (b) CLEPP assessment for minor's death. The Department will 
generally determine an initial child labor civil money penalty amount 
of $50,000 for each violation that occurred after May 20, 2008 that 
caused the death of any employee under 18 years of age. In accordance 
with FLSA section 16(e), the minor who was killed need not be the minor 
whose employment is the subject of such violation. For example, if a 
17-year-old minor, while operating a forklift in violation of Hazardous 
Occupations Order No. 7, ran over and killed another 15-year-old 
employee, the Department could determine an initial civil money penalty 
amount under CLEPP of $50,000 because the 17-year-old was employed in 
violation of the child labor provisions and the violation caused the 
death of any employee under the age of 18 years.
    (c) Assessment for CLEPP serious injuries. (1) The Department will 
conduct a general review of each CLEPP serious injury and determine 
where, on the continuum of serious injuries, the permanent loss, 
permanent paralysis, or substantial impairment falls. When evaluating 
the seriousness of the injury, WHD will consider the totality of the 
injury, including such things as the nature and degree of the permanent 
loss, permanent paralysis, or substantial impairment, potential for 
recovery, recovery time, impact of the injury on the minor's daily 
life, the prognosis by medical practitioners and therapists, and 
evaluations of the degree of loss or impairment pursuant to sources 
such as the American Medical Association's Guide to the Evaluation of 
Permanent Impairment or a determination by a state or Federal worker's 
compensation authority.
    (i) With respect to the evaluation of a substantial impairment, as 
the degree of impairment increases, the duration that is necessary for 
the impairment to qualify as substantial decreases. Even if an injury 
is expected eventually to heal with no lasting effects, it may qualify 
as a substantial impairment under CLEPP if the impairment lasts for a 
significant period of time, or it has a significant, albeit temporary, 
impact.
    (ii) Generally, a total body impairment rating of 35 percent or 
more will merit placement at the higher (more serious) end of the 
continuum. Those injuries that merit an impairment rating of between 20 
percent and 35 percent will generally merit placement in the middle of 
the continuum. Finally, those injuries that are the least severe but 
still fall within the definition of a CLEPP serious injury--that merit 
an impairment rating of less than 20 percent--will generally merit 
placement at the lower end of the continuum.
    (2) In accordance with FLSA section 16(e)(1)(A)(ii), which 
addresses the death or serious injury of any employee under the age of 
18 years, the minor who suffered the CLEPP serious injury need not be 
the minor whose employment is the subject of such violation. For 
example, if a 16-year-old minor employee, while operating a motor 
vehicle in the course of his or her employment on a public road in 
violation of Hazardous Occupations Order No. 2 (see Sec.  570.52 of 
this chapter), caused an accident that resulted in the CLEPP serious 
injury of a 17-year-old co-worker who was riding in the vehicle as a 
passenger, the Department would determine an initial civil money 
penalty under CLEPP because the 16-year-old was employed in violation 
of the child labor provisions and the violation caused the CLEPP 
serious injury of any employee under the age of 18 years. The amount of 
the

[[Page 54884]]

initial penalty determination would be based on the severity of the 
minor's injury.
    (3) The amount of the initial civil money penalty determination 
will be $40,000 for each violation that causes a CLEPP serious injury 
to any employee under the age of 18 years that the Department 
determines belongs on the higher (more serious) end of the serious 
injury continuum.
    (4) The amount of the initial civil money penalty determination 
will be $25,000 for each violation that causes a CLEPP serious injury 
to any employee under the age of 18 years that the Department 
determines belongs in the middle of the serious injury continuum.
    (5) The amount of the initial civil money penalty determination 
will be $15,000 for each violation that causes a CLEPP serious injury 
to any employee under the age of 18 years that the Department 
determines belongs at the lower (least serious) end of the serious 
injury continuum.
    (6) The initial civil money penalty amount may be reduced in 
consideration of the small size of the employer's business in 
accordance with Sec.  579.6(b)(3). The initial civil money penalty 
amount may also be increased, up to a maximum of $50,000 or $100,000 if 
the violation is repeated or willful, in accordance with the provisions 
of Sec.  579.6(b)(2).
    16. Revise Sec.  579.5 to read as follows:


Sec.  579.5  Determining the initial amount of the penalty for child 
labor violations that do not fall under the Child Labor Enhanced 
Penalty Program (CLEPP).

    (a) This section addresses the administrative determination of the 
initial amount of the civil money penalty that may be assessed for each 
violation that does not fall under CLEPP, i.e., those violations that 
occurred before May 21, 2008 and/or did not cause the death or serious 
injury of an employee under 18 years of age. Paragraph (b) of this 
section addresses the determination of initial penalty amounts for Non-
CLEPP violations that do not involve the death or injury (serious or 
nonserious) of a minor. Paragraph (c) of this section addresses the 
determination of penalty amounts for violations of child labor 
provisions that caused or contributed to the death, serious injury 
(Non-CLEPP) and/or nonserious injury of an employee under 18 years of 
age.
    (b) For Non-CLEPP violations that involve the employment of a minor 
who was the subject of a violation of section 12 or section 13(c)(5) of 
the Act relating to child labor or of any regulation issued under those 
sections but that did not result in a youth's injury, the Department 
may assess a civil money penalty not to exceed $11,000 for all child 
labor violations impacting his or her employment. The assessment of the 
penalty will be based on the available evidence. The Department will 
use, as an initial starting point for determining the amount of the 
penalty, a predetermined amount established for each type of violation 
based on the relative gravity of the violation when compared to the 
universe of violations. The initial penalty amounts are stratified to 
take into consideration the gravity of each violation, when compared to 
the array of possible violations. The more egregious violations--those 
that place young workers at greater risk--warrant a higher initial 
civil money penalty amount. The Department has published this list on 
the WHD Web site and may periodically increase the initial penalty 
amounts listed in accordance with Sec.  579.1(b) of this part or for 
other reasons, such as a strategic effort by the Department to increase 
compliance regarding specific types of violations or within specific 
types of industries.
    (c) When determining the initial penalty amounts for those child 
labor violations that do not qualify under CLEPP but caused or 
contributed to the death, serious injury (Non-CLEPP), or nonserious 
injury of a minor employee, the Department will consider the following:
    (1) The Department will conduct a general review of each serious 
injury (Non-CLEPP) and determine where, on the continuum of injuries, 
the injury falls, depending on the severity and permanency of the 
injury. When evaluating the seriousness of the injury, WHD will 
consider the totality of the injury, including such things as the 
nature and degree of impairment, potential for recovery, recovery time, 
impact of the injury on the minor's daily life, the prognosis by 
medical practitioners and therapists, and evaluations of the degree of 
loss or impairment pursuant to sources such as the American Medical 
Association's Guide to the Evaluation of Permanent Impairment or a 
determination by a state or Federal worker's compensation authority. 
Generally, a total body impairment rating of 35 percent or more or a 
recovery period of three months or more will merit placement at the 
higher (more serious) end of the continuum. Those injuries that merit 
an impairment rating of between 20 percent and 35 percent or a recovery 
period between one and two months will generally merit placement in the 
middle of the continuum. Finally, those injuries that are the least 
severe but still fall within the definition of a CLEPP serious injury--
that merit an impairment rating of less than 20 percent or a recovery 
period of less than one month--will generally merit placement at the 
lower end of the continuum. In accordance with FLSA section 
16(e)(1)(A)(i), the minor who suffered the serious injury (Non-CLEPP) 
must also be the minor whose employment is the subject of such 
violation.
    (i) The amount of the initial civil money penalty determination 
will be $10,000 for each child labor violation that causes or 
contributes to a serious injury (Non-CLEPP) to the employee employed in 
violation when the Department determines the serious injury belongs on 
the higher (most serious) end of the injury continuum.
    (ii) The amount of the initial civil money penalty determination 
will be $8,000 for each child labor violation that causes or 
contributes to a serious injury (Non-CLEPP) to the employee employed in 
violation when the Department determines the injury belongs in the 
middle of the injury continuum.
    (iii) The amount of the initial civil money penalty determination 
will be $6,000 for each child labor violation that causes or 
contributes to a serious injury (Non-CLEPP) to the employee employed in 
violation when the Department determines the injury belongs at the 
lower (least serious) end of the injury continuum.
    (iv) The initial civil money penalty for violations causing or 
contributing to these serious injuries (Non-CLEPP) may be reduced in 
consideration of the small size of the employer's business in 
accordance with Sec.  579.6(b)(3). Such initial civil money penalty may 
also be increased, up to a maximum of $11,000 for each violation, in 
accordance with the provisions of Sec.  579.6(b)(1) and (c) when 
appropriate.
    (2) For each violation (Non-CLEPP) that contributed to the death of 
an employee under 18 years of age, WHD will generally assess an initial 
penalty of $11,000.
    (3) For each violation that caused or contributed to the nonserious 
injury of a minor under 18 years of age, the initial penalty amount 
will be three times the predetermined amount that is listed for the 
violation on the List of Initial Child Labor Civil Money Penalty 
Amounts posted on the Wage and Hour Division's Web site (www.dol.gov). 
The initial civil money penalty for violations causing or contributing 
to a nonserious injury may be reduced in consideration of the small 
size of the employer's business in accordance with Sec.  579.6(b)(3). 
Such

[[Page 54885]]

initial civil money penalty may also be increased, up to a maximum of 
$11,000 per child in accordance with the provisions of Sec.  
579.6(b)(1) and (c).
    17. Add new Sec. Sec.  579.6 and 579.7 to read as follows:


Sec.  579.6  Determining the amount of the civil money penalty to 
assess.

    (a) All initial child labor civil money penalty amounts will be 
reviewed by the WHD assessing official for conformance with the 
provisions of the FLSA and this part. The Department will adjust the 
initial civil money penalty amounts to arrive at the amount to be 
assessed as discussed in paragraphs (b) through (e) of this section, as 
appropriate.
    (b) When determining the amount of the penalty, the Department may 
reduce certain initial civil money penalty assessments in consideration 
of the size of the business of the person(s) charged with the 
violation(s) and the gravity of the violation(s). The Department will 
typically not find reductions to be appropriate in those cases where a 
violation (or violations) causes or contributes to a youth's death; 
causes the most serious type of CLEPP serious injury; or causes or 
contributes to the most serious type of serious injury (Non-CLEPP), but 
will consider the facts of each individual case before making such a 
determination.
    (1) Adjustments to the Non-CLEPP initial penalty amounts may be 
made in the following manner. The initial penalty amounts may be 
doubled, not to exceed $11,000 per violation, when any of the following 
aggravating factors are present:
    (i) It is determined that any of the employer's child labor 
violations were repeated or willful;
    (ii) The employer falsified records to conceal child labor 
violations;
    (iii) The employer concealed child labor violations during the 
investigation that led to the assessment of civil money penalties; or
    (iv) The employer did not agree to future compliance with the child 
labor provisions, did not achieve such compliance when advised of the 
violations, or gave promises of future compliance which, in WHD's sole 
estimation, cannot be relied upon.
    (2) The initial civil money penalty amounts computed pursuant to 
Sec.  579.4(b) and (c) for CLEPP assessments may be doubled, not to 
exceed $100,000, for each violation that is determined to be repeated 
or willful.
    (3) Certain CLEPP and Non-CLEPP initial penalty amounts may be 
reduced as provided in paragraph (b)(3)(i) or (ii) of this section. WHD 
will generally find such reduction to be appropriate only when: none of 
the violations caused or contributed to the death of an employee under 
the age of 18 or a serious injury that the Department has determined is 
among the most serious type of CLEPP serious injury or serious injury 
(Non-CLEPP); none of the aggravating factors listed in paragraph (b)(1) 
of this section were present; and the employer's gross annual dollar 
volume of sales made or business done, exclusive of excise taxes, did 
not exceed $1,000,000 at any time during the period of the 
investigation that documented the child labor violations. However, WHD 
will consider the appropriateness of a civil money penalty reduction 
based on the facts of each case.
    (i) The initial child labor civil money penalty amounts may be 
reduced by 50 percent if the employer never employed more than 20 
employees during any workweek during the period of investigation; or
    (ii) The initial child labor civil money penalty amounts may be 
reduced by 30 percent if the employer employed at least 21 employees, 
but never more than 99 employees, during any workweek during the period 
of investigation.
    (c) When a violation of a child labor provision listed in Sec.  
579.3 causes or contributes to the death, CLEPP serious injury, or 
serious injury (Non-CLEPP) of an employee under 18 years of age, the 
Department will generate the initial penalty amounts regarding the 
employment of the youth employed in violation using the formulae 
detailed in Sec.  579.4 or Sec.  579.5 as appropriate. The Department 
will also increase the initial penalty amounts for any minor employees 
also employed by the employer who--although themselves not killed or 
seriously injured--performed the same violative act(s) as those that 
caused or contributed to the death or serious injury of the minor. The 
initial penalty for such minors will be five times the predetermined 
amount listed for each violation on the List of Initial Child Labor 
Civil Money Penalty Amounts posted on the Wage and Hour Division's Web 
site (http://www.dol.gov). The total child labor civil money penalty 
addressing the employment of any such minor employee who was not 
himself or herself killed or injured may not exceed $11,000.
    (d) In determining the amount of the child labor civil money 
penalty, the Department will also consider, when appropriate, whether 
the evidence shows that the child labor violation is de minimis, 
whether the violation involved any intentional or heedless exposure of 
any minor to any obvious hazard or detriment to health or well-being or 
was inadvertent, whether the person so charged has given credible 
assurance of future compliance, and whether a civil money penalty in 
the circumstances is necessary to achieve the objectives of the Act.
    (e) Factors that the Department will not consider when determining 
the amount of the child labor civil money penalty include whether the 
minor or his or her parent or guardian provided an incorrect birth 
date, whether the minor's actions contributed to the violation and/or 
his or her injury or death, and whether the parent or guardian 
attempted to or agreed to waive the child labor provisions on behalf of 
the minor.


Sec.  579.7  Assessment and finality of the penalty.

    (a) An administrative determination of the amount of the civil 
money penalty for a particular violation or particular violations of 
FLSA sections 12 and 13(c) relating to child labor or any regulation 
issued under those sections shall become final 15 days after receipt of 
the notice of penalty by certified mail by the person so charged unless 
such person has, pursuant to Sec.  580.6 of this chapter, filed with 
the Secretary an exception to the determination that the violation or 
violations for which the penalty is imposed occurred.
    (b) A determination of the penalty made in an administrative 
proceeding after opportunity for hearing as provided in section 16(e) 
of the Act and pursuant to part 580 of this chapter shall be final.

[FR Doc. 2011-21924 Filed 8-31-11; 8:45 am]
BILLING CODE 4510-27-P