2011-25472. Public Hearing on Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations-Civil Money Penalties

AGENCY:

Wage and Hour Division, Labor.

ACTION:

Notice of public hearing.

SUMMARY:

The Wage and Hour Division (WHD) will hold a public hearing on its Notice of Proposed Rulemaking (NPRM), Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations—Civil Money Penalties to give interested persons an opportunity to present comments on the proposed rule. In the NPRM, the Department proposes to revise the child labor regulations issued pursuant to the Fair Labor Standards Act (FLSA) which set forth the criteria for the permissible employment of minors under 16 years of age in agricultural and under 18 years in nonagricultural occupations. The NPRM proposes to 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 NPRM was published in the Federal Register on September 2, 2011, and the comment period runs through November 1, 2011.

DATES:

The public hearing will be held on October 14, 2011 from 10 a.m.-12 noon, EST in Tampa, Florida. All requests to speak at the hearing must be received by 5 p.m. EST, October 11, 2011.

ADDRESSES:

Persons interested in presenting testimony at this public hearing must submit notice of their intent to participate in the hearing and their name, title, organization, and e-mail address using one of the following methods:

Electronic. You may submit requests to speak at the public hearing and requests for special accommodations to attend the hearing at: [e-mail].

Regular Mail, express delivery, hand (courier) delivery, and messenger service. You may submit requests to speak at the public hearing and requests for special accommodations to attend the hearing to: Wage and Hour Division, attention: Division of Regulations, Legislation, and Interpretation, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210.

Instructions: Please submit one copy of your request by only one method. All requests received must include the agency name (Wage and Hour Division) and Regulatory Information Number identified above for the subject rulemaking (1235-AA06). All comments and requests to speak 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 the submission, 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 submitter's responsibility to safeguard his or her information. Because we continue to experience delays in receiving mail in the Washington, DC area, interested parties are strongly encouraged to transmit their requests to speak at the public hearing electronically via [e-mail] or to submit them by mail early. For additional information on submitting comments on the proposed rule 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 the proposed rule, background documents or comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Information regarding this notice is available from the following sources:

Press inquiries. Contact Michael Kravitz, Director of Communications, Room S-3502, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone].

General and technical information. Contact Arthur M. Kerschner, Jr., Chief, Branch of Child Labor, Room S-3510, U.S. Department of Labor, 200 Constitution Avenue, NW., Washington, DC 20210; telephone: [phone].

Copies of this Federal Register notice. This Federal Register notice, as well as news releases and other relevant information, are available on the WHD web site at http://www.dol.gov/​whd/​.

Questions of interpretation and/or enforcement of regulations issued by this agency or referenced in this notice may be directed to the nearest WHD District Office. Locate the nearest office by calling the WHD toll-free help line at (866) 4US-WAGE ([phone]) between 8 a.m. and 5 p.m. in your local time zone, or log onto the WHD Web site for a nationwide listing of WHD District and Area Offices at: http://www.dol.gov/​whd/​america2.htm.

SUPPLEMENTARY INFORMATION:

The NPRM was published in the Federal Register on September 2, 2011, and the comment period runs through November 1, 2011. (76 FR 54836). Comments on the rule can be electronically submitted through that time at http://www.regulations.gov.

Public Participation: The WHD is proposing to revise the child labor regulations issued pursuant to the FLSA, which set forth the criteria for the permissible employment of minors under 18 years of age in agricultural and nonagricultural occupations. (29 CFR parts 570 and 579). The proposed rule, background documents, and comments received on the proposal are available at www.regulations.gov. 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. The comment period for this rulemaking runs through November 1, 2011.

The public hearing will be held on October 14, 2011, beginning at 10 a.m. at the Tampa Port Authority, 1101 Channelside Drive, #400, Tampa, FL 33602. Persons interested in speaking at this public hearing must submit by 5 p.m., EST, October 11, 2011, the following information: (1) A written request to be heard; and (2) An outline of the topics to be discussed, indicating the time allocated to each topic. To facilitate the receipt and processing of requests, WHD encourages interested persons to submit their requests and outlines electronically to [e-mail]. It should be noted that, while reasonable efforts will be made to accommodate requests to speak on the specified issues, it may be necessary to limit the number of those speaking and/or the amount of time allocated to each speaker in order to adhere to the hearing format. Any persons not afforded an opportunity to testify will have an opportunity to submit a written statement on the specified issues for the record. The hearing will be open to the general public.

Persons submitting requests and outlines on paper should send or deliver their requests and outlines to the Wage and Hour Division, attention: Division of Regulations, Legislation, and Interpretation, U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW., Washington, DC 20210. All requests and outlines submitted to the Department will be available to the public online at http://www.regulations.gov.

The Department will prepare an agenda indicating the order of the presentation of oral comments and testimony. In the absence of special circumstances, presenters will be allotted an equal amount of time for presenting oral comments and testimony. Information about the agenda will be posted on http://www.regulations.gov on or after October 12, 2011.

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. The NPRM, published September 2, 2011 in the Federal Register, 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. (76 FR 54836). As mentioned, the Department's proposals arise from the enforcement experiences of the Wage and Hour Division, specific recommendations made by the National Institute for Occupational Safety and Health, and a commitment to provide young hired farm workers with the same level of workplace protections afforded their peers who are employed in nonagricultural industries.

A. Child Labor Provisions for Employment in Nonagriculture

The child labor provisions of the FLSA, 29 U.S.C. 201 et seq., establish a minimum age of 16 years for employment in nonagricultural occupations, but the Secretary of Labor is authorized to provide by regulation for 14- and 15-year-olds to work in suitable occupations other than manufacturing or mining, and during periods and under conditions that will not interfere with their schooling or health and well-being. The FLSA provisions permit 16- and 17-year-olds to work in the nonagricultural sector without hours or time limitations, except in certain occupations found and declared by the Secretary to be particularly hazardous, or detrimental to the health or well-being of such workers.

The regulations concerning nonagricultural hazardous occupations are contained in subpart E of 29 CFR part 570 (29 CFR 570.50-.68). These Hazardous Occupations Orders (HOs) apply on either an industry basis, specifying the occupations in a particular industry that are prohibited, or an occupational basis, irrespective of the industry in which the work is performed. The seventeen nonagricultural HOs were adopted individually during the period of 1939 through 1963. Seven of these HOs, specifically HOs 5, 8, 10, 12, 14, 16, and 17, contain limited exemptions that permit the employment of 16- and 17-year-old apprentices and student-learners under particular conditions to perform work otherwise prohibited to that age group. The terms and conditions for employing such apprentices and student-learners are detailed in § 570.50(b) and (c). In the recently published 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 National Institute for Occupational Safety and Health (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.

B. Child Labor Provisions for Employment in Agriculture

The FLSA, 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). However, the FLSA, when enacted, also included a broad exemption from the child labor provisions for youth under 16 years of age employed in agriculture.

In 1966, Congress amended the FLSA and, among other things, authorized the Secretary to create Agricultural Hazardous Occupations Orders (Ag H.O.s) (Pub. L. 89-601, § 203). The newly enacted FLSA section 13(c)(2) stated that “[t]he provisions of section 12 relating to child labor shall apply to an employee below the age of sixteen employed in agriculture in any occupations that the Secretary of Labor finds and declares to be particularly hazardous for the employment of children below the age of sixteen, except where such employee is employed by his parent or by a person standing in place of his parent on a farm owned or operated by such parent or person.” It is important to note that the amendment created a minimum age of 16 for the permissible performance of hazardous work in agricultural occupations, although 18 remained the minimum age for the performance of hazardous work in nonagricultural employment. This statutory difference remains to this day. The Department published a final rule implementing FLSA § 213(c) 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.

The Department proposes to not only accept all of the agricultural hazardous occupations order recommendations made by the National Institute for Occupational Safety and Health but to expand several of them. The NPRM proposes to eliminate two exemptions that currently allow 14- and 15-year-old hired farm workers to operate tractors and certain other farm equipment after receiving limited training and the successful completion of a practical examination. The proposal would also strengthen a student-learner exemption for 14- and 15-year-old hired farm workers by modeling it after the same exemption that is available to 16- and 17-year-old youths employed in nonagricultural work places.

The Department's proposals apply only to young hired farm workers and in no way change the statutory parental exemptions applicable to children of any age who are employed on a farm owned or operated by their parent.

C. The Assessment of Child Labor Civil Money Penalties (29 CFR Part 579)

The Department proposes to revise 29 CFR 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). The Department believes this proposal will increase the public's understanding of the child labor civil money penalty assessment process while preserving national consistency in its administration.

Authority and Signature

This document was prepared under the direction of Nancy J. Leppink, Deputy Administrator for the Wage and Hour Division, U. S. Department of Labor, pursuant to sections 3 and 13 of the Fair Labor Standards Act (29 U.S.C. 203, 213).

Signed at Washington, DC, this 28th day of September 2011.

Nancy J. Leppink,

Deputy Administrator, Wage and Hour Division.