CFB Comments on the Department of Labor rule affecting agriculture.

Posted by Brent B on Nov 21, 2011 in Ag/Food Industry | 1 comment

The United States Department of Labor is currently accepting comments on their rule that will impact how kids work on farms and ranches.  By going to this link, http://www.regulations.gov/#!submitComment;D=WHD-2011-0001-0001 you can submit your comments.

Below you will find the comments submitted by Colorado Farm Bureau.

On behalf of Colorado Farm Bureau, the state’s largest agriculture grassroots organization, these comments are filed in response to the above-captioned rulemaking.  We appreciate this opportunity to comment on the department’s proposal and to register with the department the harmful impact this proposal, if promulgated, would have on the agricultural sector, rural communities at large and farm and ranching families specifically.  

Farmers and ranchers have no interest or desire in placing youth at risk on the farm. We recognize that youth employment on farms and ranches in certain occupations can be positive, enriching, and rewarding.  Educators, organizations involved in developing future agricultural leaders, rural communities, agricultural leaders in Congress and many others, also share this perspective. That is why we are concerned that the department appears to have adopted the perspective of those who wish to ban youth employment in agriculture altogether.  

The department’s authority to regulate in this area is derived strictly from what it has been granted by Congress.  Congress has not changed these provisions of the Fair Labor Standards Act (FLSA).  In fact, Congress has had proposals before it to make changes and yet declined to take those up – even while the NIOSH report, on much of which the department purportedly bases its proposal, has been publicly available to Congress for nearly a decade.  If the department wishes to amend its regulations in this area, it must provide a firm justification for why it is doing so.  Given those facts, we believe the only appropriate position for the department to take is to reaffirm existing hazardous orders (HOs) and not attempt to assert itself into a policymaking role where it has no authority merely because it disagrees with congressional judgment on this issue. 

In our following comments, we address the Hazardous Orders (HO’s) that we find to be the most egregious. 

Hazardous Occupation Order #1 

The department seeks to “retain and expand” Ag HO1 by removing the 20 PTO horsepower threshold; requiring that tractors operated by 14- and 15-year old student-learners be equipped with roll-over protective structure (ROPS); mandating seatbelt use by student-learners; requiring student-learners to have a valid state driver’s license if operating tractors on public roads; and prohibiting use of most electronic devices. 

In our view, this HO would effectively prohibit youth from operating tractors in all situations, even in instances when such operation is not particularly hazardous.  Therefore, we believe it exceeds the department’s authority and ignores congressional intent.  The practical effect of the revised HO would be to reduce legitimate opportunities for employment and training for youth on farms, making it more difficult to educate and train future farmers in agricultural practices. 

Colorado Farm Bureau represents the diversity of American agriculture. We represent farm families, many of whom have made agriculture their livelihood for generations.  As stated earlier, we do not support having youth engaged in inappropriate occupations on the farm.  We do believe, however, based on our generations of experience that the existing HO is sufficiently protective of agricultural youth on the farm and should not be expanded to foreclose all youths under age 16 from operating tractors. 

We also note that the department in this HO proposes to include low profile tractors as prohibited tractors.  This prohibition is overly broad and encompasses a type of tractor that does not present the sort safety issues with larger, field implements.  It should not be included in the HO. 

Hazardous Occupation Order #2 

This HO is a combination of the previous HOs #2 and #3.  In principle, we believe some equipment may be inappropriate for operation by youth at certain ages and the department may classify such equipment. As proposed, however, the rule is over-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.” 

The department’s proposal, taken on its face, will result in extreme prohibitions. For example, simple devices such as a hand-held screwdriver, a weed-whacker, a lantern or a flashlight can be battery-powered.  Are they prohibited?  Is there a blanket prohibition on cleaning any powered equipment (refrigerators, automobiles, etc.)?   According to the department’s proposal, because these devices are powered by a “power source other than human hand or foot power,” presumably, they are all prohibited. Under this HO, a 15 year old suburban youth would be able to get a summer job mowing lawns using a powered lawnmower, but a 15 year old farm youth would not be able to do the same thing on a farm. 

The HO also 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. 

The department’s proposal thus would prevent a youth from placing picked fruit or vegetables on a wagon, from hauling hay or picking rocks.  It would prohibit the youth from riding an asparagus cart, operating a wiggle hoe or utilizing a powered pruner. It would prevent youth from placing a hay bale onto a conveyer for movement to barn loft storage. 

The prohibition of having physical contact with a vehicle presumably would 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.  As written, the rule would prohibit movement or contact with all (presumably powered) 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 a one-gallon emitter is working and if not replace it or determine if there are any  breaks in the 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), they would not be able to use a battery powered cutting or tube expanding device, inasmuch as all powered devices are prohibited.  Reading the rule as proposed, we also note the department wishes to prohibit youth from having any contact with a garden hose because it is powered by water pressure (not hand or foot power).  Similarly, a youth under age 16 would be prohibited from turning on, touching or even cleaning a water faucet as it is a powered device. 

The text of this HO proposal borders on the ridiculous. 

Hazardous Occupation Order #3 

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. 

The department here clearly exceeds it congressional mandate to identify occupations that are “particularly hazardous” and in fact might even contravene common sense. The department in this HO has actually turned the law on its head by prohibiting youth from being employed in occupations that utilize devices that actually 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.  It is foolish for the department to use a broad brush in an effort to “protect” youth and in so doing actually increase the risk of injury.  We believe the department would be more wise, and follow congressional intent far more closely, to designate specific devices – such as manlifts and boatswain-chair-type devices – that are prohibited, rather than to attempt to ban all activity.  Such an approach is a sweeping arrogation of authority that was not granted to the department by Congress. 

Hazardous Occupation Order #4 

The department broadly expands the previous agricultural HO related to working with animals and does so in a way that greatly exceeds congressional intent. The impact of the HO on working with livestock would be to greatly reduce youths’ exposure to livestock and animal husbandry practices.  Among the notable tasks the proposed HO would prohibit youth from performing are: 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. 

Under this HO proposal the department seeks to expand its regulatory reach by “incorporating the important and thoughtful recommendations of the National Farm Medicine Center.”[1]  Following this path, as the department seeks to do, will lead to very broad regulatory prohibitions, potentially increasing liability for farmers and imposing excessive government controls on agricultural producers.  We believe it exceeds the department’s statutory authority and should not be pursued. 

For example, the NPRM says that 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 [i.e., prohibiting youth from engaging or assisting in animal husbandry practices that inflict pain upon an animal and/or are likely to result in unpredictable animal behavior].  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.’ ” 

We find it astonishing that the department would rely upon a single recommendation of an organization that “no youth development data exists” to suggest youth under 16 years of age can herd animals on horseback when there is almost unlimited real-world experience on which to rely. This is an activity that has been performed for generations in America. The test is not that there is an absence of injury in the task.  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 an activity that has a long history of tradition is regulatory over-reach. 

We also draw the department’s attention to another pernicious aspect of this proposed HO.  By suggesting that any activity that might “inflict pain,” the department, unwittingly or not, may be opening the door for animal rights activists to pursue their own agenda.  We note that a lawsuit was recently filed by an animal rights organization, three marine-mammal experts and others alleging that several orca whales now held at SeaWorld are being held as slaves in violation of the 13^th Amendment to the U.S. Constitution.  The orcas have been named as plaintiffs in the suit and the general counsel of People for the Ethical Treatment of Animals (PETA) has been quoted as saying, “Slavery is slavery, and it does not depend on the species of the slave any more than it depends on gender, race, or religion.” 

Rather than expand its regulatory reach, we urge the department to follow the NIOSH recommendation and retain the current HO without expansion. 

Hazardous Order #5

The preamble states that “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.”  As drafted, the HO may have the effect of mandating an outright prohibition of youth working in Christmas tree farms or in plant nurseries.  It should be clarified to allow such occupations, which are not particularly hazardous.  It also should be clear that it does not prohibit youth from ordinary, non-hazardous activities connected with trees (e.g., pruning). 

Hazardous Order #7 

This HO would prohibit youth in agriculture from working at heights of 6 feet or higher.  A youth that is working on stacking hay in a hayloft would exceed this height in a mere two bales of hay. If would prevent youth from working on any type of a hay pile since they could, conceivability, be higher than 6 feet. This proposed HO would prevent farm youth from working in an orchard. In agriculture, 6 feet in an unrealistic goal to try and maintain and we recommend that the current standard be retained. 

Hazardous Order #8 

This HO would prohibit occupations involving working inside any fruit, forage, or grain storage silo or bin.  While we recognize that some such occupations could be particularly hazardous for youth, we believe as proposed the department has established parameters that make the regulation too vague and encompassing.  For instance, it is not clear what constitutes storage.   Does forage storage apply to hay barns?   Are pole barns that may be used to store overflow grain and empty bunkers covered?  Would “fruit storage” include a bushel crate or bin?  An un-sided empty bin storage structure? A walk-in cooler at a farm stand? Alternatively, would this only apply to storage containers that maintain a hazardous atmosphere? Would this provision apply to a grain elevator that has overhead bins? 

We believe the department needs to clarify the HO to assure that it would only apply to those occupations that are particularly hazardous for youth. 

Farming is inherently dangerous and we are working to make agriculture as safe as we can. Colorado Farm Bureau has for years had a safety program that takes farm safety directly to the public. While we do what we can to increase safety in agriculture, vaguely worded and defined rule proposals that reflect political agendas will do nothing to improve safety.

While this proposed rule does exempt the farm youth of parents whom own or operate 100% of an agricultural operation, this does not reflect the reality of agriculture today. In many agriculture operations multiple family members are part owners of an operation. Under this rule, because no single family owns or operates 100% of a farm or ranch, then none of their children would be allowed to work. Furthermore, this proposed rule does not allow the option of a parent to allow their youth to work on a farm or ranch that is not their own. This proposed rule, while well intentioned, needs to be stricken. 

I appreciate the opportunity to comment on this proposed rule. As Colorado’s largest agriculture grassroots organization, out members will be adversely affected by this rule should it be finalized. I would encourage you to work directly with the various agriculture organizations regarding farm youth labor to develop a rule that reflects the realities of modern agriculture.