TFBF Speaks Out about Child Labor Law Proposal

On behalf of Tennessee farmers the Tennessee Farm Bureau Federation submitted comment regarding proposed changes to the Department of Labor’s Child Labor Laws.  Although comments were due on December 1, it is still important to stress to Members of Congress how these proposed changes would affect farms, agricultural education, FFA and 4-H. The U.S. Department of Labor proposed revisions to the child labor rule, “Child Labor Regulations, Orders and Statements of Interpretation” (RIN 1235-AA06) would prohibit children younger than 16 from operating power-driven equipment and those under the age of 18 from working with livestock. In addition, those under 16 or 18 years old would be prohibited from doing farm work for anyone other than their parents.
Farms offer an opportunity to learn life lessons while developing knowledge about agriculture. Youth need the opportunity to learn responsibility, the value of hard work, and earn a little spending money.
Below are the comments submitted to the Wage and Hour Division of the Department and Labor:
SUBJECT: Comments of the Tennessee Farm Bureau Federation regarding RIN 1235-AA06 Child Labor Regulations, Order and Statements of Interpretation; Notice of Proposed Rulemaking (NPRM) and Request for Comments
Dear Sir or Madam:
The Tennessee Farm Bureau Federation is a general farm organization representing the interests of Tennessee farmers. The membership of the Farm Bureau produces a diverse range of commodities across the state utilizing an equally diverse work force. These comments are filed in response to the above-captioned rulemaking.
We appreciate this opportunity to respond to the U.S. Department of Labor’s proposed new rules regarding the Agricultural Child Labor Hazardous Occupations Orders (Ag H.O.). Protecting our youth and our agricultural production system are very important to Tennessee farmers. No doubt, any rule that has not been updated since 1970 should be reviewed and we welcome the opportunity to comment on the various proposals submitted by DOL.
We will not deny there are risks associated with agricultural work. Likewise, there are risks associated with playing sports and riding in a vehicle. We in no way diminish the dangers associated with agricultural work however; we must acknowledge that the life skills each of us develops teach us how to avoid unnecessary risk. Youth employment on farms can be positive, enriching, and rewarding. We have no interest or desire in placing youth at risk on the farm. It is our responsibility to mitigate hazards to the best of our ability.
We encourage DOL to withdraw this rule making and to re-visit its analysis of the Ag H.O.s so that it truly focuses on those that are particularly hazardous. In our comments below, we outline our views on specific issues raised by the proposed rule.
Interpretation of Parental Exemption
The rulemaking claims these rules do not apply to family farm operations and that “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).” We appreciate that intent. We want the record to reflect that we do not support measures to impose Department of Labor regulations and oversight on family farms that are currently exempt from the regulations. However, despite DOLs intent not to allow these rules to impact family farms, we believe DOL’s “clarification” of the parental exemption actually diminishes it.
Nieces, nephews and other family members should not fall outside the protections Congress envisioned for family farms. Farming has traditionally been and remains a way of life for extended family to participate in operating the farm. It is not uncommon for family farms to operate under partnerships, limited liability corporations or other entities in order to assure the continued operation of the farm and the involvement of siblings and their heirs.
The NPRM states that “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.”
The NPRM goes on to state: 
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…. 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. 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.”
There is no evidence the department has interpreted or enforced the exemption in this manner historically and we find no statutory basis that it should start this now. Traditions are well established for young relatives to work for their grandparents and aunts and uncles in agriculture and for the department to now re-interpret the law in a manner otherwise is inconsistent with congressional intent.
Student Learner Exemption
The existing provisions of the Fair Labor Standards Act (FLSA) provide an exemption for students enrolled in vocational training in agriculture referred to as school-based agricultural education and are a part of career and technical education. These programs play an important role in educating young people and introducing them to careers in agriculture and agricultural science.
Safety education has always been and continues to be an important part of the classroom and laboratory instruction. Supervised agricultural experience, or SAE takes place predominately outside of the classroom and school, but it is supervised by the agricultural instructor.
Agricultural educators go above and beyond to help students succeed while giving great attention to their safety.  That is why agricultural education programs place strong emphasis on teaching safety and ensuring that students understand how to apply these lessons in the real world.
The proposed changes will limit, if not eliminate, opportunities to teach students to be safe when working in agriculture. Many of these learning opportunities, will be lost. It is critical to allow the system to operate so that students can be taught safety while receiving relevant work experience in agriculture.
The proposed regulations and expanded AG H.O.’s either do not include the student learner exemption, or limits the opportunities for students enrolled in agricultural education programs to be involved and “learn by doing.”
Following, we address each of the Ag Hazardous Orders (Ag H.O.’s) and our comments related to DOLs proposed changes.
Operating a Tractor
DOL proposes removing the 20 PTO horsepower threshold; requiring tractors operated by 14- and 15-year olds be equipped with roll-over protective structure (ROPS); mandating seatbelt use by student-learners; prohibit riding on tractors as a passenger and requiring student-learners to have a valid state driver’s license if operating tractors on public roads; and prohibiting use of most electronic devices.
This proposal would effectively prohibit youth from operating tractors in most situations, even in instances when such operation is not particularly hazardous. Granted tractors of any size can be involved in serious or fatal mishaps and therefore tractors should be equipped with ROPS and seat belts. But, the reality is many older tractors were not equipped with such devises and adding such devices is not practical nor economically feasible. Mandating the use of ROPS and seat belts on all tractors, regardless of size, is inappropriate. ROPS and seat belts are not available as retrofits for older tractors. When ROPS and seat belt retrofit kits are available, in many cases, the cost of installation may approach or exceed the value of the tractors.
We do not understand why the criteria for a student-learner do not allow the student-learner to be a passenger if the tractor is equipped with a seat for a passenger. It is difficult to instruct youth on proper operation of a tractor if the youth cannot observe the operation first by an instructor. Modern tractor cab designs provide for a passenger with a seat, seat belts and the same ROPS as the driver. It does not make sense to not utilize this design to properly instruct a young person on the operation of a tractor.
In addition, OSHA Standards for Agriculture, 29 CFR 1928.51(a) allows low clearance tractors without ROPS.
There are situations where a ROPS would interfere with normal operation and can result in property damage, and possibly contribute to overturns. Low clearance operations include work in orchards, landscape maintenance (mowing), and operations in buildings.
The proposal prohibits the use of electronic communication devices for youth operating tractors and power driven machinery. We understand the reasoning behind prohibiting electronic devices that would distract the operator however, many farm operations use 2-way radio communication devices designed for the benefit of the operator.
This proposal would prohibit the use of 2-way mobile and handheld radios. One of the main reasons farmers install these devices is for safety. An equipment operator can talk without distraction to other operators in the field for instructions, warnings or other messages the operator needs to know instantly. 2-way radios also allow workers to communicate with operators from a safe distance and provide emergency communication where cell phone service does not exist in many rural areas.
The existing AG H.O. protects agricultural youth on the farm and should not be expanded to prevent all youths under age 16 from operating tractors. Therefore, we oppose prohibiting youth to operate such tractors.
Operating Certain Machines
DOL proposes combining two current Ag H.O.s and expanding the prohibition from lists of specific machines to machines that perform general functions and eliminating the student learner exemption.
The current rule prohibits 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, or mobile pea viner; feed grinder, crop dryer, forage blower, auger conveyor, or the unloading mechanism of a nongravity- type self- unloading wagon or trailer, or power post- hole digger, power post driver, or nonwalking- type rotary tiller.
The proposed rule is overly-broad, mandating “restrictions on the operation of power-driven machinery consistent with those applied to nonagricultural employment.” The term “operating” includes “cleaning, oiling and repairing” of the equipment; “connecting or disconnecting an implement or any of its parts to or from such equipment;” or “any other activity involving physical contact associated with the operation or maintenance of the equipment.” The term “power-driven equipment” is defined by the department to include “all machines, equipment, implements, vehicles, and/or devices operated by any other power source other than human hand or foot power.”
Interestingly, the proposed rules ignore the benefits of safety equipment mandated by other proposed revisions in preventing injuries and deaths, namely the benefits of a ROPS and seat belt in preventing injuries and deaths from overturns.
The department’s proposal will result in prohibitions that far exceed the department’s regulatory authority. There is no basis to regulate simple devices such as a battery powered hand-held screwdriver, drill or flashlight. Is cleaning a refrigerator or a weather station hazardous? Such activity would be prohibited under the “cleaning any powered equipment” provision. The use of a water hose under pressure would be prohibited, thus any cleaning would need to be from a provided bucket of water. And, youth would not be able to draw the water from a tap as the tap is under pressure.
The AG H.O. states that “farm field equipment means implements, including self-propelled implements, or any combination thereof used in agricultural operations.” This would appear to include both powered and non-powered implements and when a non-powered implement is connected to a powered implement or tractor, any physical contact would be prohibited.
DOL’s proposal would prevent a youth from placing crops on a wagon, from hauling hay or even picking up rocks. The prohibition of having physical contact with a vehicle could prohibit the hand loading or unloading of materials, tools or products onto pickups or trucks if the “operation” of the vehicle would include the preparation for operating.
We also are concerned about the proposed prohibition as it relates to irrigation equipment. The rule would prohibit movement or contact with irrigation equipment including trickle, solid set and even hose and wand watering of bedding plants. It would prohibit youth from running trickle lines with ATVs or even walking tree-to-tree or plant-to-plant to determine if it is working and if not replace it or to determine if there are any breaks in the trickle line and install a connector. If they could replace it (presumably by having a person age 16 or older turn it off and first drain the line as it could be under pressure), they would not be able to use a battery powered cutting or tube expanding device, since all powered devices are prohibited.
Hoisting Apparatus and Conveyors
This proposal by the department prohibits “operating and assisting in the operation of hoisting apparatus and conveyors that are operated either by hand or by gravity.” Similar broad definitions of terms are employed in the proposal.
This category exceeds the congressional mandate to identify occupations that are “particularly hazardous” and even defies common sense. This prohibition actually prevents youth from using equipment designed to reduce risk. For example, a hand cart is a mechanical device that applies leverage by hand and foot power to hoist or lift a load and lowers the load by gravity or by hand or foot. The department would be better served, to designate specific devices that are prohibited, rather than to attempt to ban all activity.
Working with Certain Animals
The current rule prohibits working on a farm in a yard, pen, or stall occupied by a: (i) Bull, boar, or stud horse maintained for breeding purposes; or (ii) Sow with suckling pigs, or cow with newborn calf (with umbilical cord present). We believe the current prohibition is sufficient and recommend it be retained.
DOL proposes to broadly expand the previous agricultural AG H.O. related to working with animals and thereby greatly reduces the opportunities for youths’ to work with livestock. Under this proposal youth would be prohibited from: “engaging or assisting in animal husbandry practices that inflict pain upon the animal and/or likely to result in unpredictable animal behavior; treating sick or injured animals; and herding animals in confined spaces such as feed lots or corrals or on horseback.”
The expanded prohibitions could potentially increase liability for farmers and impose excessive government controls on agricultural producers. We believe it exceeds the department’s statutory authority and should not be pursued.
By including “assisting,” youth are being denied educational opportunities of merely assisting with the handling of the vaccination supplies. Also, no consideration is given to the safety devices provided in the working facility.
“Unpredictable animal behavior” is likely to occur any time one is working around animals. By including such a broad term, youth will basically be prohibited from working around animals.
Youth engage in many activities – competitive horseback riding, skateboarding, surfing, cycling – that can all entail some risk, injury and in extreme cases fatality. To impose a Federal prohibition on activities that has a long history of tradition is regulatory over-reach.
By referring to any activity that might “inflict pain,” DOL may be opening the door for animal rights activists to pursue their own agenda to further an animal rights crusade.
The current timber rule prohibits felling, bucking, skidding, loading or unloading timber with butt diameter of more than 6 inches.
The preamble states that “for purposes of this Ag H.O. timber means trees, logs, and other similar woody plants. However, this AG H.O. would not prohibit a hired farm youth from performing such tasks as carrying firewood or clearing brush.” The proposed revisions remove the size limits and prohibits all work involved in the removal of tree stumps. The AG H.O. may have the effect of mandating an outright prohibition of youth working on Christmas tree farms or in plant nurseries. It should be clarified to allow such occupations, which are not particularly hazardous.
It also should be made clear that it does not prohibit youth from ordinary, non-hazardous activities connected with trees (e.g., pruning).
Working from Ladders
The current rule prohibits working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc) at a height of over 20 feet.
DOL proposes: 1) Expanding to include work on roofs, on farm structures including silos, grain bins, windmills, and towers; and, on vehicles, machines, and implements; 2) Reduce the maximum height at which youth under 16 may work in these settings from 20 feet to 6 feet.
We oppose an absolute prohibition of working at a height greater than 6 feet. There are several tasks youth can safely perform that place them at heights higher than 6 feet. Some of these include stacking bales of hay on trucks and trailers, hanging tobacco in curing barns, picking fruit, etc. The youth are more capable than their parents and grandparents to perform some of these tasks.
The proposed rule provides no qualifying language regarding “above another elevation.” Therefore, as written the rule would prohibit work locations such as hay lofts but also second floor areas or any other location where stairs are used to ascend more than 6 feet regardless of walls, railings or other enclosing methods.
The proposed prohibition against working on roofs, vehicles, machines, and implements does not take into account the size of the work area, the slope of the area, or the presence of any safety railings that could prevent falls from the area. In fact, the operator’s stations on some machinery, especially combines and cotton pickers, is higher than 6 feet from the ground.
Common sense flexibility is warranted in determining safe working heights based upon the type work being performed and the presence of safety features such as guard rails, fall prevention /protection devices, etc.
Construction (including demolition and repair)
We are concerned this reference will prohibit the use of hammers and other hand construction tools in not only the repair and maintenance of any building, facility or other structure on a farm but also the use of hand tools entirely. Common tasks such as fence mending and painting, nailing or simply carrying repair materials would be prohibited. As the terms “in connection with” are used, tasks such as pounding stakes in the ground to “build” stake support “structure” to support vegetable plants would also be prohibited. We disagree that all tasks “in conjunction with” construction are particularly hazardous.
Working inside oxygen deficient environments, manure pits, and silos
The current rule prohibits 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; a horizontal silo while operating a tractor for packing purposes.
The proposal expands the prohibition to all work inside (i) a fruit, forage, or grain storage, such as a silo or bin; (ii) a manure pit. There is good reason to prohibit working inside certain structures during times when the atmosphere may be immediately dangerous to life and health or when the top unloader is in place.
The proposed revision prohibits all work inside fruit, forage, or grain storages and manure pits. This blanket prohibition contains excessive restrictions. Since hay is a forage crop, this proposed revision can be interpreted to prohibit all work in the hay barn. Does forage storage apply to hay barns? Do livestock barns that may have a temporary “forage” storage such as a pile of feed or hay? Are pole barns that normally are used to store farm equipment but could be used to store overflow grain now a prohibited work area? Are empty bunker silos covered? Would “fruit storage” include a bushel crate or bin? If all fruit storages are prohibited then a walk-in cooler at a farm stand, would also be prohibited. The current standard applies only to storages designed to maintain a hazardous atmosphere and to those areas recognized to present a hazard.
We do not support the prohibition of youth from all work inside a grain bin or silo, because youth are capable of cleaning the structures in preparation for filling, provided that appropriate respiratory protection is employed (NIOSH approved toxic dust/mist respirator) to prevent inhalation of grain dusts and mold spores.
The department needs to clarify the AG H.O. to assure that it would only apply to those occupations that are particularly hazardous for youth.
The current rule prohibits 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 (as amended by Federal Environmental Pesticide Control Act of 1972, 7 U.S. C. 136 et seq.) as Toxicity Category I, identified by the Word Danger and/or Poison with Skull and
Crossbones; or Toxicity Category II, identified by the word Warning on the label.
The proposal is to revise the language to be consistent with EPA Worker Protection Standard for pesticides, encompassing prohibitions against pesticides with chronic health effects as well as pesticides with recognized acute toxicity.
The definition of pesticide, “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,” is overly broad. EPA Worker Protection Standard language references the Federal Insecticide Fungicide and Rodenticide Act (7 USC 136) as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any insects, rodents, nematodes, fungi, or weeds or any other forms of life declared to be pests; any substance or mixture of substances intended for use as a plant regulator, defoliant or desiccant.”
The proposed rule will prohibit youth from washing their hands with typical antibacterial soaps as they contain disinfectants and/or sterilants or other substances used to kill, repel, or mitigate pests and meets the definition of the handler task of applying a pesticide.
The Tennessee Vocational Agriculture program includes agricultural and horticultural production programs. One aspect of many programs is the production of plants in greenhouses. There is an occasional need to treat all greenhouses with pesticides to control insects, mites, and various plant diseases. The policy of the Tennessee Department of Education is that all students who will be working in the greenhouses shall receive the EPA Worker Protection Standard (WPS) training. This WPS training teaches pesticide workers and handlers the basics of working in areas that have been treated with pesticides, use of personal protective equipment, and recognition of pesticide poisoning. WPS does not prescribe a minimum age for pesticide workers or pesticide handlers participating in the training or working in agricultural employment. The absolute prohibition of any work involving pesticides would effectively eliminate the greenhouse programs at the high schools and it would have a damaging effect on youth employment opportunities in Middle Tennessee’s very large nursery industry.
Green Tobacco Sickness
This AG H.O. would prohibit all work involved in the production and curing of tobacco. This restriction is overly broad and clearly goes beyond the department’s authority, which is only to restrict those occupations that are “particularly hazardous.” We agree with comments already filed by Mark Purschwitz, Ph.D., Extension Professor and Agricultural Safety and Health Specialist with the University of Kentucky, which point out that there are occupations in the production and curing of tobacco which are not particularly hazardous. If it is the goal of the department to assure that youth avoid situations in which they can contract green tobacco sickness (GTS), the department should tailor its regulation to address those situations, and not promulgate a blanket regulatory prohibition that exceeds its statutory mandate.
Extreme Temperatures and/or Arduous Conditions Request for Comments
The department requested comments on 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 whether “the payment of piece rates to young farm workers impacts their prolonged exposure to potentially harmful conditions.”
The department suggest that “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.”
This could create a paper work nightmare. In the absence of convincing evidence that such a rule is justified, we do not support creation of such a new Ag H.O.
These issues could have a dramatic effect on Tennessee agriculture. Farmers have adapted to the current regulations over the years. The proposed changes would be confusing and burdensome. Many rural students will not be allowed a tremendous “hands on” learning opportunity. There have been no widespread safety issues to warrant the changes considered in the notice.
Agriculture is a dynamic industry that can provide valuable work experiences for youth. We encourage the DOL to monitor young workers and address only those areas that require attention. We support the intent of reducing injuries among youth. However, we continue to believe that educating the youth and farm employers should be the first approach. Those who intentionally and knowingly neglect safety should face bad actor punishment in the form of civil and/or criminal proceedings.
We appreciate the opportunity to respond.