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Wage and Hour Division

Wage and Hour Division (WHD)

How the Proposals of the September 2, 2011 Notice of Proposed Rulemaking (NPRM) Would Impact the Current Federal Agricultural Child Labor Provisions

 
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Current Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Proposed Revisions to the Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

 

 

The Parental Exemption

 

Recognizes the statutory parental exemptions that allows the child of a farmer to perform any task, even hazardous tasks, at any age on a farm owned or operated by the parent.

The Parental Exemption

 

The parental exemption is statutory and DOL does not have the authority to change it through regulations. It is unchanged in this NPRM.

 

 

Current exemptions from certain of the Ag H.O.s

 

The current regulations allow certain 14- and 15-year-olds who meet the criteria of one of the following exemptions to perform certain otherwise prohibited work, including the operation of tractors and certain named power-driven farm implements:

1.      Student-Learner.  A student-learner is one who is enrolled in a vocational education program in agriculture under a recognized state or local educational authority or in a substantially similar program conducted by a private school.  The current student-learner exemption applies to current Ag H.O. 1 through 6.

2.      Youth who have received certification that they have completed certain required training modules and demonstrated certain knowledge by successfully completing written and practical examinations under the auspices of the Federal Extension Service.  This applies to Ag H.O.s 1 and 2.

3.      Youth who have received certification that they have completed certain required training modules and demonstrated certain knowledge by successfully completing written and practical examinations under the auspices of a vocational agricultural training program. This applies to Ag H.O.s 1 and 2.

The NPRM proposes to revise the exemptions from certain of the Ag H.O.s in the following manner:

 

Eliminate the two current certification programs (listed as 2. and 3. in the column to the left) and strengthen the existing agricultural student-learner exemption so that it more closely resembles the student-learner exemption for certain 16- and 17-year-old student-learners employed in nonagricultural occupations. 

 

Student-learner exemption would only be applicable to the first two Ag. H.O.s in the NPRM.

 

 

Current Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Proposed Revisions to the Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

 

 

Ag H.O. 1

Current Ag H.O. 1 prohibits a hired farm worker under the age of 16 from 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.  The student learner and certification exemptions detailed on page 1 apply.

The NPRM proposes to retain and expand Ag H.O. 1

Remove the 20 PTO horsepower threshold. Small garden-tractors would not be covered under this Ag H.O. (they would be covered under proposed Ag H.O. 2).

 

Move the prohibition regarding youth riding on tractors as passengers from current Ag H.O. 7 to this proposed Ag H.O.

 

Every tractor operated by a 14- or 15-year-old student-learner be equipped with a proper roll-over protection structure (ROPS) and a seatbelt.  Use of the seatbelt by the student-learner would be mandatory.

 

Student-learners operating tractors on public roads must have a valid state driver’s license to operate such equipment.

 

Prohibit most of electronic devices, including communication devices while operating a tractor to eliminate distractions while operating hazardous machinery.


 

 

Current Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Proposed Revisions to the Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Ag H.O. 2

Current Ag H.O. 2 prohibits a hired farm worker under the age of 16 from 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 non-gravity-type self-unloading wagon or trailer, power post-hole digger, power post driver, or non-walking type rotary tiller. The student-learner and certification exemptions discussed on page 1 are allowed.

Ag H.O. 3

Current Ag H.O. 3 prohibits hired farm workers under the age of 16 from operating or assisting to operate, as defined above, any of the following machines: trencher or earthmoving equipment, fork lift, potato combine, or power-driven circular, band, or chain saw.  The student-learner exemption applies to this Ag H.O. but the certification exemptions discussed on page 1 do not apply to this Ag. H.O.

 

 

The NPRM proposes to combine Ag H.O. 2 and 3 into a new Ag. H.O. 2

Expand the Ag H.O. to prohibit hired farm workers under the age of 16 from operating all power-driven machines just as the nonagricultural child labor rules for 14- and 15-year-olds have for over forty years.

 

Revise and strengthen the exemption for student-learners and limit the types of equipment that student-learners may operate.

 

Require a student-learner who is moving a named piece of equipment on or across a public road hold a valid state driver’s license for such operations.

 

Prohibit hired farm workers under 16 from riding as passengers on all farm machines when being moved on public roads.

 

Student-learners riding as passengers on named equipment must have their own approved seat that is equipped with a seatbelt, and the use of the seatbelt is mandated.

 

Allow youth to ride as passengers inside cars, trucks, and buses if certain requirements are met, including the mandatory use of seatbelts.

 

Same limitations on operating electronic devices, including electronic communications devices, as in proposed Ag H.O. 1.

 

The NPRM proposes creation of a new Ag H.O. 3. that would prohibit hired farm workers under the age of 16 from employment in Occupations Involving the Operation of Non-Power Driven Hoisting Apparatus and Conveyors.

 

It is proposed that none of the student-learner or certification exemptions listed on page 1 would apply to the proposed Ag H.O. 3.


 

 

Current Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Proposed Revisions to the Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Ag H.O. 4

Current Ag H.O. 4 prohibits a hired farm worker under the age of 16 form 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).  The student-learner exemption discussed on page 1 is allowed.

The NPRM proposes to retain and expand Ag H.O. 4

Prohibit hired farm workers under the age of 16 from performing certain tasks involving working with or around animals.  The proposed Ag H.O. 4 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 new born 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 trucks or all terrain vehicles.

The student-learner exemption would not be applicable to the revised Ag H.O.4.

Ag H.O. 5

Current Ag H.O. 5 prohibits hired farm workers under the age of 16 from felling, bucking, skidding, loading, or unloading timber with butt diameter of more than six inches. The student-learner exemption discussed on page 1 is allowed.

The NPRM proposes to retain and expand Ag H.O. 5

Remove the 6 inch diameter threshold and to specifically prohibit the removal of stumps by other than manual means.

 

No student-learner exemption is proposed for the revised Ag H.O. 5.


 

 

Current Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Proposed Revisions to the Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

 

The NPRM proposes to create a new Ag H.O. 6 that would prohibit the employment of hired farm workers under the age of 16 in the following tasks:

·         construction

·         communications

·         wrecking and demolition

·         excavation.

This new Ag H.O. brings many of the protections already applicable to the employment of 14- and 15-year-olds in non-agricultural workplaces to the employment of hired farm workers.

 

No student-learner exemption is proposed for the proposed Ag H.O. 6

Ag H.O. 6

Current Ag H.O. 6 prohibits hired farm workers under the age of 16 from working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet. The student-learner exemption discussed on page 1 is allowed.

The NPRM proposes to revise the current Ag H.O. 6 and renumber it as Ag H.O. 7.  For the new Ag H.O. 7, the NPRM:

Prohibit working on or about a roof, on a scaffold, and at elevations greater than 6 feet above another elevation.

Expand the Ag H.O. to prohibit work on elevated farm structures including silos, grain bins, windmills, and towers; and vehicles, machines, and implements.

Reduce the maximum height at which hired farm workers under age 16 may work at elevation from 20 feet to 6 feet, including work on ladders.

The student-learner exemption discussed on page 1 is allowed, but only for bona-fide student learners who are operating tractors and farm implements permitted in the proposed Ag H.O.s 1 and 2.

Ag H.O. 7

Current Ag H.O. 7 prohibits hired farm workers under the age of 16 from driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper. 

 

The exemptions discussed on the page 1 do not apply to current Ag H.O. 7.

The NPRM proposes to retain the prohibitions of the current Ag H.O. 7 but incorporate them into the proposed Ag H.O.s 1 and 2.  


 

 

Current Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Proposed Revisions to the Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Ag H.O. 8

Current Ag H.O. 8 prohibits hired farm workers under the age of 16 from 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.

 

The exemptions discussed on page 1 do not apply to Ag H.O. 8.

The NPRM proposes to both expand and bifurcate the existing Ag H.O. 8 as follows:

Proposed Ag H.O. 8:  Prohibit a hired farm worker under the age of 16 from performing all work inside a fruit, forage, or grain storage (such as a silo or bin).  The student-learner exemption discussed on page 1 would not apply to the proposed Ag H.O. 8.

 

Proposed Ag H.O. 9: Prohibit the employment of a hired farm worker under the age of 16 in any occupation involving working inside a manure pit.  The student-learner exemption discussed on page 1 would not apply to the proposed Ag H.O. 9.

 

Ag H.O. 9

 

Current Ag H.O. 9 prohibits young farm workers under the age of 16 from 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 (FIFRA) (7 U.S.C. 135 et seq.) as Category I of toxicity, identified by the work “poison” and the “skull and crossbones” on the label; or Category II of toxicity, identified by the word “warning” on the label.

 

The student-learner exemption discussed on page 1 does not apply to Ag H.O. 9.

The NPRM would revise Ag H.O. 9 and renumber it as Ag H.O. 10.  For the new Ag H.O. 10, the NPRM:

Revise the current provisions to be consistent with the EPA Worker Protection Standard for pesticides

Prohibit hired farm workers under the age of 16 from performing any work that falls within the EPA classification of pesticide handler. The proposal would adopt the definition of pesticides contained in FIFRA.

 

No student-learner exemption (as discussed on page 1) is proposed for Ag. H.O. 10.

Ag H.O. 10

Current Ag H.O. 10 prohibits young hired farm workers under the age of 16 from handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord.

 

The exemptions discussed on page 1 do not apply to Ag H.O. 10.

 

The NPRM proposes to retain Ag H.O. 10 as currently written and renumber it as

Ag H.O. 11.


 

 

Current Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Proposed Revisions to the Agricultural Hazardous Occupations (Ag H.O.s) for Hired Farm Workers under the Age of 16

Ag H.O. 11

Current Ag H.O. 11 prohibits hired farm workers under the age of 16 from transporting, transferring, or applying anhydrous ammonia

 

The exemptions discussed on page 1 do not apply to Ag H.O. 11.

 

 

The NPRM proposes to retain Ag H.O. 11 as currently written and renumber it as

Ag H.O. 12.

 

The NPRM proposes to create a new Ag H.O. 13 that would prohibit the employment of hired farm workers under the age of 16 in Occupations Involving the Production and Curing of Tobacco.

Prohibit such work as, but not limited to, planting, cultivating, topping, harvesting, baling, barning, and curing of tobacco.

 

The exemptions discussed on page 1 would not apply to proposed Ag H.O. 13.

 

 

The NPRM Also Proposes the Following Three Revisions to the Department’s Regulations:

1.   The NPRM would create a nonagricultural hazardous order to prohibit the employment of young workers under the age of 18 in occupations in the farm-product raw materials wholesale trade industries.  The agricultural child labor provisions have included prohibitions against young hired farm workers being employed in grain storage for many years, but these establishments do not generally fall under “agriculture” as defined by the Fair Labor Standards Act so the Act’s nonagricultural child labor provisions normally apply when they employ youth.  Prohibited establishments would include, but not be limited to, country grain elevators, grain elevators, grain bins, silos, feed lots, feed yards, stockyards, livestock exchanges, and livestock auctions.  No student-learner exemption is proposed for this nonagricultural hazardous occupations order.

 

2.   The NPRM would create a nonagricultural hazardous order to prohibit young workers under the age of 18 from using electronic devices, including communication devices, while operating power-driven equipment, including—but not limited to—motor vehicles, forklifts, woodworking equipment, and lawn mowers.  No student-learner exemption is proposed for this nonagricultural hazardous occupations order. A similar proposal is being made to protect young hired farm workers under the age of 16 (see proposed Ag H.O.s 1 and 2).

 

3.    The Department is also proposing to incorporate into the regulations at 29 CFR part 579 the guidelines it uses to determine whether to assess civil money penalties in response to child labor violations and how much that penalty should be.  

 

 

 

 

Last Updated: September 6, 2011