RE: RIN 1235–AA06 Child Labor Regulations, Orders and Statements of Interpretation; Child Labor Violations – Civil Money Penalties; Notice of Proposed Rulemaking and Request for Comments

The following comments represent the views of the Association of Farmworker Opportunity Programs regarding the Department of Labor’s (DOL) published Notice of Proposed Rulemaking (RIN 1235-AA06) to update the agricultural child labor regulations.

The Association of Farmworker Opportunity Programs (AFOP) is a national federation of 52 non-profit and public agencies that provide training and employment services to migrant and seasonal farmworkers. Our goal is to improve the quality of life for all farmworkers and their families through advocacy, education, and training.

For more than 40 years, AFOP members have worked directly with farmworker families in America’s agricultural communities. Our organization understands the needs of our nation’s farmworker families and has seen first-hand the effects of agricultural work, especially on children.  We are concerned about the safety, education, and welfare of children who work on farms.

As many as 500,000 children and teenagers toil in agriculture, an industry consistently ranked as one of the most dangerous industries in America. In its 2008 edition of Injury Facts, the National Safety Council ranked agriculture as the most dangerous industry, with 28.7 deaths per 100,000 adult workers. Kansas State University reports that in 2007, there were 715 deaths on farms involving workers of all ages, and more than 80,000 workers suffered disabling injuries. Most of the injuries were caused by livestock and farm machinery while tractors caused most of the deaths.

Yet, under the current Fair Labor Standards Act, children as young as 12 are allowed to work in agriculture with few protections.

This year provided tragic examples of the dangers youth face when working on farms:

  • On August 4, two 17-year-olds suffered serious injuries when they became trapped in a grain auger in Kremlin, Oklahoma; each teenager lost a leg.
  • On July 25, two 14-year-old girls were killed and eight others injured while they detasseled corn in Tampico, Illinois. The youth worked in water-soaked fields and were electrocuted by nearby irrigation equipment.

For workers 15 to 17, the risk of fatal injury is four times the risk for young workers in other workplaces, according to DOL’s Bureau of Labor Statistics. Additionally, the National Institute of Occupational Safety and Health (NIOSH) reports that between 1995 and 2002, an estimated 907 youth died on American farms, well over 100 per year. Between 1992 and 2000, more than four in 10 work-related fatalities of young workers occurred on farms. Half of the fatalities in agriculture involved youth under age 15.

There is no doubt that work on a farm is dangerous, especially for youth. Agriculture uses more machines and more dangerous chemicals since the days when the U.S. child labor regulations were established, yet there have been no updates to these policies in over 40 years. The DOL’s proposed regulations will help protect tens of thousands of youth workers from life-threatening injuries. In the span of a decade, it will save dozens of lives.

Imperative that Regulations be Adopted within 30 Days

The proposed regulations must be adopted as expeditiously as possible. AFOP is requesting the DOL adopt the regulations within 30 days of the end of the comment period. The DOL has spent nearly a decade refining the proposed regulations and wisely followed the recommendations of NIOSH, producing a body of regulations that both improves the safety of youth workers and passes the common sense tests that most average Americans would apply. These regulations are reasonable and they save lives.

Thirty (30) days will allow sufficient time for any minor edits needed to the proposed regulations and should not be delayed further. Any new major expansions of these safety proposals should begin immediately and implemented separately. Additionally, AFOP believes the H.O.s must be updated on a continual basis every two years henceforth. Updates to the regulations that protect our youth from preventable injuries and death should not be four decades apart.

As recent months have shown, delaying these regulations further at this point will mean that youth working in farm work will be killed and maimed unnecessarily. The updates to the non-agricultural child labor regulations took three years to be implemented after they were proposed. Given the extreme dangers posed by agricultural work, a delay of this magnitude would be disastrous for youth working in agriculture.

The prospect of regulatory change produces fear for many farmers in agricultural areas, yet these regulations seek to protect their sons and daughters when they work on neighboring farms. The regulations will continue to preserve the parental exemptions for children working on their parents’ farms.

According to recent consumer poll conducted by the National Consumers League, the American public supports the concept that children working in agriculture should receive the same level of protection that children working in other industries receive.

The Fair Labor Standards Act provide exemptions for children working in agriculture from many of the protections children working in other industries , including protections against work that is known to be hazardous. It is especially important that children ages 14 and 15 receive the increased protections offered through the updates to the H.O.s.

AFOP has the following recommendations regarding the proposed regulations to the H.O.s:

Support Agricultural Hazardous Order 1; Oppose Student-Learner Exemption

AFOP supports the improved protections in H.O. 1 which removes the 20 PTO Horsepower threshold criteria, and opposes the student-learner exemption.

As noted earlier, tractor operation is a leading cause of deaths among agricultural workers. According to the ROPS Retrofit (Tractor) Program, it is the leading cause of death on the farm and one in seven farmers involved in tractor overturns are permanently disabled by their accidents.

The use of all tractors and machinery should be banned for use by workers under 16, as in other industries, regardless of the youth’s participation in short-term training courses. The effectiveness of the short-term training courses has been called into question by safety advocates. Ample research suggests that teenagers are still developing neurologically and that their still-developing brains lack the capacity to perform the risk assessments that accompany the use of potentially lethal machinery, the same way most states do not allow youth under 16 to operate motor vehicles. Teenagers are four times as likely to be involved in a car crash as adults, according to the Insurance Institute for Highway Safety. We believe these same risk factors apply to the use of tractors. The risks of rollover and the risks of running over young siblings on farms are too great to allow children under 16 to operate tractors. AFOP believes that even well-designed training programs are not capable of overcoming this neurological issue.

AFOP supports the expansion to prohibit outside helpers on vehicles. Additionally, AFOP supports the proposed provision regarding prohibiting electronic devices, including communication devices, while operating tractors.

If the student-learner exemption is to continue, AFOP supports the requirement that student-learners operating tractors have a valid state driver’s license to operate tractors and other farm machinery on public roads.

Support New Agricultural Hazardous Order 2; Oppose Student-Learner Exemption

AFOP supports the proposed changes encompassed by the new H.O. 2, which would protect young workers from many types of power-driven machinery by prohibiting the use of all power-driven equipment, and opposes the student-learner exemption.

AFOP also agree that minors should not be allowed to ride as passengers on farm machines being moved on public roads.

As stated in the above H.O. 1 section, our support is based on our concern that neurologically, teenagers lack sufficient risk assessment capabilities to operate such equipment safely.

If student-learners are allowed to operate equipment on public roads, AFOP agrees that they should hold a valid license for such operations. Furthermore, if student-learners are allowed to ride as passengers, AFOP agrees that they should have an approved seat with a seat belt with the seat-belt use as a requirement.

AFOP opposes the possibility of waiving driving restrictions for 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.

Support New Agricultural Hazardous Order 3; Support the Exclusion of the Student-Learner Exemption

AFOP supports the proposed prohibition of employment in occupations involving the operation of non-power driven hoisting apparatuses and conveyers. Given that apparatuses and conveyors are often used to move heavy objects, there is an unacceptable risk of injury involved with their use by young workers.

AFOP agrees with the decision to not permit a student learner exemption.

Support Agricultural Hazardous Order 4; Support the Exclusion of the Student-Learner Exemption

AFOP supports the proposed protections regarding work with or around animals, and agrees with the decision to not exempt student-learners.

Working with livestock is one of the most common causes of injuries to agricultural workers, according to John Slocombe, an extension farm safety specialist at Kansas State University. According to a publication from the North Dakota Farmers Union (NDFU), a recent 15-state summary of farm accidents revealed that animals were a factor in one of every eight farm injuries reported, ranking it second after farm machinery as the major cause of injuries. According to the NDFU, livestock accidents account for almost 100 deaths a year on farms.

AFOP also supports the prohibition on herding animals into confined spaces, such as feed lots or corrals; on horseback; and on motorized vehicles such as trucks or all terrain vehicles.

Support Agricultural Hazardous Order 5; Support the Exclusion of the Student-Learner Exemption

AFOP supports the removal of the 6-inch threshold when it comes to felling, bucking, skidding, loading or unloading timber, and supports the exclusion of the student-learner exemption.

Support New Agricultural Hazardous Order 6; Support the Exclusion of the Student-Learner Exemption

AFOP supports the new proposed H.O. 6 which prevents employment in construction, communications, wrecking, demolition, and excavation and extends protections enjoyed by other 14- and 15-year-olds in non-agricultural industries.

The dangers of construction, wrecking, demolition, and excavation work are well known, killing hundreds of American workers each year. According to an ABC News report citing federal statistics, in 2006, more than 1,200 workers died in construction accidents. According to the Web site www.trenchsafety.org, between 1990 and 2000, on average 70 workers died in excavation accidents each year; 10 times that number of workers are estimated to be injured each year in excavation accidents.

Support New Agricultural Hazardous Order 7

AFOP supports the new proposed H.O. 7 which prohibits work on roofs, scaffolds and at elevations greater than 6 feet. The dangers of falls to workers are evident. According to the 2009 data from the DOL’s Bureau of Labor Statistics, 605 workers were killed and an estimated 212,760 workers were seriously injured by falls to the same or lower level. Youth workers, with their smaller bodies, are at greater risk of injuries for heights over 6 feet.

AFOP is concerned that the 6-feet threshold may not provide adequate safeguards and encourages the DOL to examine the stricter height restrictions in non-agricultural occupations to determine if greater protections can be included in agricultural work.

AFOP specifically opposes the possibility of adopting a 10-foot threshold. This threshold does not provide adequate protection for the smaller bodies of youth workers for whom a 10-foot height might represent a height twice the length of their body.

AFOP supports prohibitions of any work on ladders involving youth workers. Ladders represent a particularly unstable work surface, increasing the likelihood of falls for youth.

AFOP strongly supports the expansion of current regulations to prohibit work on elevated farm structure, including silos, grain bins, windmills, and towers; and vehicles , machines, and implements.

AFOP supports the removal of the student-learner exemption.

Support Agricultural Hazardous Order 8

AFOP supports the prohibition against all work inside a fruit, forage, or grain storage container, including silos and bins.

Purdue University found that at least 26 U.S. workers were killed in grain entrapments in 2010. Each year in the U.S., teenage workers suffocate as they become trapped in shifting grain in grain structures and facilities.

  • In July 2010 in Middleville, Michigan, 18-year-old Victor Perez and 17-year-old Francisco M. Martinez died after falling into a silo they were power washing.
  • That same month, in Mount Carroll, Illinois, two workers, Alejandro Pacas, 19, and Wyatt Whitebread, 14, also suffocated in a grain silo.
  • David Yenni, a 13-year-old, was killed in a grain loading accident at a Petaluma, California, mill in August 2009.
  • In May 2009, Cody Rigsby, a Colorado 17-year-old was working in a grain bin when he vanished; it took rescuers six hours to find his body.

Suffocation is not the only threat when it comes to working in large agricultural storage containers. Workers are exposed to dangerous gases that emanate from grains, and work around dangerous equipment used to move grain within structures. As noted previously, on August 4, 2011, two 17-year-olds each lost a leg when they became trapped in a grain auger in Kremlin, Oklahoma.

Support New Agricultural Hazardous Order 9

AFOP supports the prohibition against all work inside a manure pit or other manure containers, as described in the new H.O. 9.

AFOP requests the DOL developed a confined spaces standard with broader scope. The recent death of Armando Ramirez, a Californian worker, shows the dangers of confined spaces. Ramirez, a 16-year-old teenager, was asked to clean out a drainage tunnel. While working in the tunnel, he was overcome with hydrogen sulfide gases and died. In attempting to rescue him, his brother also died from the exposure to these gases.

Support New Agricultural Hazardous Order 10

AFOP supports the improved pesticide protections in the proposed regulations and attempts to bring consistency with the Environmental Protection Agency’s (EPA) Worker Protection Standard (WPS) proposed in the new H.O. 10. One of the greatest dangers that farm work poses to young workers is the dangers posed by pesticide exposure.

According to the EPA, children are at a greater risk of the negative effects of pesticides for a number of reasons. Children’s internal organs are still developing and maturing and their enzymatic, metabolic, and immune systems may provide less natural protection than those of an adult. There are “critical periods” in human development when exposure to a toxin can permanently alter the way an individual’s biological system operates. Children may be exposed more to certain pesticides because often they eat different foods than adults.

Adverse effects of pesticide exposure range from mild symptoms of dizziness and nausea to serious, long-term neurological, developmental and reproductive disorders. Americans use more than a billion pounds of pesticides each year to combat pests on farm crops, in homes, places of business, schools, parks, hospitals, and other public places.

Recent research has suggested links between pesticide exposure and Attention Deficit Disorder, presenting yet another educational obstacle especially for migrant farmworker children. Farmworker children drop out of school at four times the national rate due to the hardships the farmworker community faces, including difficulties in keeping up with their studies.

While conducting outreach in the farmworker community, AFOP members observed youth worker behaviors that increase the likelihood of pesticide exposure. Many youth workers wear less protective clothing than adults when working on farms. Children are seen working barefoot, increasing their exposure risks to the chemicals in the soil. Many farmworker children acknowledge eating unwashed fruit and vegetables as they work, and often do not have hand-washing facilities in the fields.

AFOP supports the ban on all work that falls within the EPA classification of pesticide handler. Additionally, AFOP supports the continual automatic updating of DOL regulations as EPA revises the WPS.

AFOP supports the use of the definition of pesticides contained in FIFRA.

AFOP also supports prohibitions on the emptying, handling or washing of used pesticide containers based on concerns that empty or rinsed pesticide containers often have enough chemical residue left to endanger the health of working teens.

Furthermore, AFOP suggests the DOL examine protections contained in pesticide protections in the states of California and Washington for additional improvements to this H.O.

Support New Agricultural Hazardous Order 11

AFOP supports the retention of prohibitions regarding the handling and using of blasting agents in H.O. 11.

Support New Agricultural Hazardous Order 12

AFOP supports the retention of the prohibition regarding the transporting, transferring, or applying of anhydrous ammonia in H.O. 12.

Support New Agricultural Hazardous Order 13

AFOP supports the prohibition of youth working in the tobacco industry in H.O. 13. Young workers should not have contact with tobacco and the toxic chemicals contained in tobacco plants. The dangers of the resulting Green Tobacco Sickness are well-known by the healthcare community.

AFOP recommends adding “packing and transporting” to the list of specifically prohibited activities.

Given the toxicity levels of this product and prohibitions of its use by minors, AFOP supports banning all work on this crop by workers under 18.

Support New Non-Agricultural Hazardous Order 18

AFOP supports the prohibition of young workers in occupations involving farm-product raw materials wholesale trade industries, including most occupations performed at country grain elevators, grain bins, silos, feed lots, feed yards, stockyards, live stock exchanges and livestock auctions.

[Please refer to our specific comments about the dangers posed by working in grain structures and facilities in our discussion of H.O. 8]

Support New Non-Agricultural Hazardous Order 19

AFOP supports prohibitions against using electronic devices, including communication devices, while operating power-driven equipment, including motor vehicles.

ADDITIONAL RECOMMENDATIONS

Create New Heat Stress Agricultural Hazardous Order

AFOP believes the DOL should adopt a Heat Stress H.O. in the next iteration of protective child labor regulations. Children, as young as 12, and sometimes even younger, are working 8-, 10-, and 12-hour days in 100-degree heat performing back-breaking, strenuous labor. These children put far too great a strain on their developing bodies regardless of the heat. The dangers of working in extreme heat were made clear in May 2008 when 17-year-old Maria Isabel Vasquez Jimenez collapsed after she was denied access to shade as she worked in near-triple-digit heat in a California vineyard.

The Occupational Safety and Health Administration (OSHA) considers heat stress to be a major concern in the workplace. Working in hot environments can create heat stress, which is a dangerous, and sometimes fatal, condition. The body functions most effectively within a limited temperature range. If the temperature rises too high, the body’s metabolic rate increases and its efficiency decreases. The body loses fluid through perspiration and the blood vessels dilate in an attempt to cool the body. Eventually, the body suffers from heat exhaustion or heat stroke.

Children are more susceptible to heat stroke than adults. AFOP members know children wear hats less frequently and wear less protective clothing than adults when working in the fields, exposing their bodies more to the sun. The tremendous exertion associated with much field work increases the risk of suffering heat stress and heat exhaustion.

AFOP urges the DOL to implement a ban that would prevent children from working when the temperature is over 100 degrees; and regulations that require rest, shade, and water breaks for work in fields where the temperature is over 90. Both California and Washington have implemented heat stress rules, and we urge the DOL to examine these regulations in implementing new heat stress regulations. DOL should also examine the feasibility of using a heat index and other criteria for deciding when weather conditions are too extreme for children to work. In order to be effective, any standard must be relatively simple to understand and enforce.

Prohibit Piece-Rate Work for Children Under 16

Many crops in U.S. agriculture are harvested under the piece-rate compensation system. Under this system, the pay of the worker is dependent on the amount of crops they harvest. This system causes farmworkers to work at a quick pace for hours on end and prompts many farmworkers to bring their children to work with them in the fields to earn a living wage.

Typically, farmworker youth work under their father’s or mother’s name when performing piece-rate harvesting. The actual compensation rate these children are earning is often only $1 to $3 an hour. As a result, AFOP believes that the piece-rate payment system is a vehicle for rampant wage theft, causing farmworker youth to work for what might be called “slave wages.”

There are health and safety implications associated with the piece-rate payment system as well since it causes children to work at the edge of their capacity. AFOP members have witnessed children as young as 10 working as hard as humanly possible while harvesting onions in Texas in temperatures that were in the mid-90s. Pushing themselves to their limits, these children will often harvest thousands of pounds of produce over an 8- to 14-hour span. Simply put, the piece-rate payment system is inhumane and not fit for children.

The U.S. is out of compliance with International Labor Organization Convention 182, the Worst Forms of Child Labour Convention, which the U.S. signed in December 1999.

The piece-rate payment system and the health dangers posed by farm work at very young ages are two of the salient reasons that we believe the U.S. is in violation of this important international convention.

AFOP urges DOL to prohibit the piece-rate payment system for youth under 16. Additionally, AFOP encourages the DOL to pursue its enforcement activities in agriculture with a focus on ensuring that every individual working in the fields is listed as an employee on the employers’ books. All children should be listed and not permitted to work under other individual’s names, including their parents’ names.

Supports Prohibition of the Hiring of Transferring Student before June 1

AFOP supports the proposed change that would prohibit employers from hiring workers prior to June 1 when the workers in question are under 16 and have transferred schools. The advocacy community believes that farmworker youth, particularly those who migrate, drop out of school at alarming rates. As many as two out of three, migrant youth do not graduate high school. Child labor plays a large part in forcing these youth to drop out. Exhaustion from back-breaking work and the difficulties associated with transferring school districts combine to make it extremely difficult for even the hardest working children to succeed in school. As noted previously, work in pesticide-treated fields impairs the ability of young farmworkers to focus mentally.

The high dropout rates among farmworker youth perpetuates a cycle of poverty that causes great harm to the farmworker community. By requiring a later hire date for farmworker youth, the DOL can mitigate this negative phenomenon and help ensure that farmworker youth finish the school year in their home district or improve the likelihood that children who have already moved will be able to focus on their school work. The extent to which they attend school while they are exhausted from work in the fields will decrease because of this proposed change.

Transportation Recommendation

AFOP urges the DOL to adopt transportation protections that constitute a stronger level than those under the Migrant and Seasonal Farmworker Protection Act (MSPA). We believe that all minor workers transported in agriculture should require a bolted seat with a working seat belt.

The dangers of transportation in the farmworker community are well known. Crew leaders often transport workers in buses lacking safety equipment or in over-crowded 12- and 15-passenger vans which have had seats removed. Workers have been known to sit on wooden planks supported by cinderblocks, which become lethal missiles during crashes.

Any delay in issuing these protections, will almost certainly result in the needless deaths and permanent disability of numerous young farmworkers. We strongly urge that they be promulgated 30 days after the comment period ends. Work should begin immediately to add heat stress and piece-rate prohibitions.