[Federal Register Volume 77, Number 103 (Tuesday, May 29, 2012)]
[Proposed Rules]
[Pages 31549-31551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12954]


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DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Parts 570 and 579

RIN 1235-AA06


Child Labor Regulations, Orders and Statements of Interpretation; 
Child Labor Violations--Civil Money Penalties

AGENCY: Wage and Hour Division, Labor.

ACTION: Withdrawal of proposed rule.

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SUMMARY: The Department of Labor (Department or DOL) is withdrawing its 
proposed rule published on September 2, 2011, 76 FR 54836, which 
provided the public with notice of and the opportunity to submit 
written comments on its proposal to amend its

[[Page 31550]]

child labor regulations which protect children from employment in 
particularly hazardous occupations.

DATES: The proposed rule published on September 2, 2011 (76 FR 54836) 
is withdrawn as of May 29, 2012.

FOR FURTHER INFORMATION CONTACT: Mary Ziegler, Director, Division of 
Regulations, Legislation and Interpretation, Wage and Hour Division, 
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone: (202) 693-0406 (this is not a toll 
free number). Copies of this notice may be obtained in alternative 
formats (Large Print, Braille, Audio Tape, or Disc), upon request, by 
calling (202) 693-0023. TTY/TDD callers may dial toll-free (877) 889-
5627 to obtain information or request materials in alternative formats.

SUPPLEMENTARY INFORMATION:

A. Rulemaking Background

    On September 2, 2011, WHD published a Notice of Proposed Rulemaking 
(NPRM), 76 FR 54836, that proposed amendments to child labor 
regulations issued pursuant to the child labor provisions of the Fair 
Labor Standards Act (FLSA), 29 U.S.C. 203(l), 212, 213, primarily to 
address the employment of children under 16 years of age in 
particularly hazardous agricultural occupations. The FLSA's child labor 
provisions do not apply to the employment of children working in 
agricultural industries once they reach the age of 16. The proposed 
amendments would have, among other things, amended existing hazardous 
occupation orders related to the agricultural employment of children 
under the age of 16 to address specific recommendations made by the 
National Institute for Occupational Safety and Health; created new 
agricultural hazardous occupation orders; and revised the agricultural 
student learner exemptions that permit the employment of 14- and 15-
year-olds to perform certain hazardous agricultural work that they 
would otherwise be prohibited from performing because they are under 
the age of 16.
    The FLSA exempts from the agricultural hazardous occupation orders 
and minimum age requirements children who are employed by their parent 
or person standing in the place of their parent on a farm owned or 
operated by the parent or such person. See 29 U.S.C. 213(c)(1)(A), 
(c)(2). As a result of this statutory parental exemption, the 
agricultural hazardous occupation orders apply only to children who are 
hired farm workers employed on farms not owned or operated by their 
parent or person standing in the place of their parent. The rule as 
proposed would have amended the Department's regulations to include the 
Wage Hour Division's interpretations of the statutory parental 
exemption as it applies to the agricultural employment of children 
under the age of 16.
    The Department received over 10,000 written comments on the 
proposed rule and held a public hearing on the rule on October 14, 
2011, in Tampa, Florida. To ensure that all who wished to comment on 
the rule had the opportunity to do so the Department extended the 
initial 60-day comment period for an additional 30 days, through 
December 1, 2011. As a result of the comments it received, on February 
1, 2012, the Department announced that it would re-propose the parts of 
the child labor NPRM related to its interpretation of the agricultural 
parental exemption. On April 26, 2012, the Department announced its 
intent to withdraw the entire rulemaking, including the proposed 
regulations related to the parental exemption.

B. Reason for the Decision To Withdraw the Proposed Rule

1. The Secretary's Discretion To Establish Hazardous Occupations Orders

    To protect the safety, health and welfare of children, the FLSA, 29 
U.S.C. 213(c)(2), gives the Secretary discretion to ``find and 
declare[]'' certain occupations to be ``particularly hazardous,'' for 
children under the age of 16. The FLSA's child labor provisions do not 
apply to children employed in agriculture who are 16 years of age and 
older. The Secretary has the same discretion to establish hazardous 
occupation orders in nonagricultural employment, but those orders apply 
to children who are 17 years of age and younger. 29 U.S.C. 203(l). The 
Secretary has used this discretionary authority to establish 17 
hazardous occupation orders applicable to nonagricultural employment, 
and 11 hazardous orders applicable to agricultural employment. See 29 
CFR 570.51-.68 & 570.71.

2. Use of a Non-Regulatory Approach

    The Department received over 10,000 comments on the proposed rule. 
Many of the comments were from parents who own or operate farms who 
believed that the Department's proposal would limit their ability to 
employ their own children on their farm and to provide their children 
with hands-on experiences in agricultural occupations. Further, many of 
the commenters maintained that the Department's proposed amendments 
interpreting the statutory parental exemption failed to recognize that 
many farms are no longer wholly owned by a parent or parents of the 
children employed on the farm and the proposed rule should allow for 
corporate and other types of ownership of farms by multiple members of 
an employed child's family. Other commenters, including 153 Members of 
the House of Representatives, 42 United States Senators, and a number 
of agricultural education instructors, emphasized the importance of 
preparing the next generation of farmers and ranchers. These 
individuals also stated that the Department's proposal to increase the 
rigor of the current student learner exemptions that allow 14- and 15-
year-olds to be employed in certain occupations that the Secretary has 
declared are particularly hazardous for children under the age of 16, 
would unduly limit the work young children could be employed to perform 
on a farm and thereby limit their opportunity to learn about farming 
through hands-on experience and discourage them from entering the field 
of farming. The Department also received comments from members of 
Congress and the public that supported the Department's proposed 
amendment, citing to data demonstrating that the hazards on farms are 
significant.
    On April 26, 2012, the Department issued a statement announcing 
that it would withdraw the proposed child labor rule. Acknowledging the 
thousands of comments the Department received that expressed concerns 
about the effect the commenters stated the rule would have on small 
family-owned farms and farming traditions, the Department stated that 
``[t]he Obama administration is firmly committed to promoting family 
farmers and respecting the rural way of life, especially the role that 
parents and other family members play in passing those traditions down 
through the generations.'' The Department stated that its decision to 
withdraw, rather than re-propose or finalize the rule, was based on its 
``deep[] commit[ment] to listening and responding to what Americans 
across the country have to say about proposed rules and regulations.'' 
The Department explained that rather than re-proposing the regulation, 
it intended to work to promote safer and healthier working practices 
and conditions for children employed as farm workers by collaborating 
with farming organizations such as the American Farm Bureau and Future 
Farmers of America to develop educational programs that address

[[Page 31551]]

hazardous agricultural work practices and conditions.

C. Conclusion

    In summary, the FLSA grants the Secretary of Labor exclusive 
authority to determine that a proposed rule should be withdrawn 
provided she publishes reasons for her decision not to promulgate the 
rule. This Notice explains the Secretary's reasons for pursuing a non-
regulatory approach to addressing the safety and health of children 
employed in agriculture rather than amending the existing child labor 
rules. The FLSA affords the Secretary broad authority to set and order 
her rulemaking priorities. The Secretary properly exercised her 
discretion by determining not to proceed with the child labor 
rulemaking, particularly in light of the many comments informing the 
Secretary about the effect of the rule.
    For the reasons stated herein, the proposed rule is withdrawn.

Nancy J. Leppink,
Deputy Administrator, Wage and Hour Division.
[FR Doc. 2012-12954 Filed 5-25-12; 8:45 am]
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