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DOL regulatory back-down calms family farm tempest

U.S. Department of Labor’s withdraws proposed rule dealing with family farms and child labor. Rule would have prevented the children of farming families from many work-related activities. Lead-up to DOL decision, farm groups' actions discussed.

The U.S. Department of Labor’s recent decision to withdraw the proposed rule dealing with family farms and child labor calmed a months-long storm in rural America. Accused by opponents of being a hyper-regulatory overreach, the rule would have prevented the children of farming families from many work-related activities.

But even as the DOL announcement was welcomed in farm country, it still leaves plenty of agricultural labor issues to resolve.

"The decision to withdraw this rule -- including provisions to define the 'parental exemption' -- was made in response to thousands of comments expressing concerns about the effect of the proposed rules on small family-owned farms,” a DOL statement said. “To be clear, this regulation will not be pursued for the duration of the Obama administration.”

For more, see here.

In lieu of the new rules, the DOL plans to work on educational efforts with leading farm organizations “to reduce accidents to young workers and promote safer agricultural working practices."

In early May, Frank Gasparini, Executive Vice President of the National Council of Agricultural Employers (NCAE), spoke with Farm Press on the importance of farm groups standing strong, ranching families’ big role, the DOL’s promised outreach, and where H-2A/H-2B and E-Verify legislation stands. Among his comments:

On the DOL’s withdrawal of proposed child farm labor rules…

“The DOL was invited – and I use that word facetiously – to talk to several congressmen about (the rules). I hate to name any because I’ll leave some out, but (Montana Rep.) Denny Rehberg and a number of others really put pressure on DOL asking ‘what are you doing? Why are you doing this – it’s bad for family farms.’

“Over the course of this, I found it remarkable how well agricultural groups stuck together and how much pressure people kept up through writing letters to newspapers, calling their congressmen and all the rest.

“Despite the fact that it looked like USDA wasn’t standing up to DOL on this, apparently there was a lot more going on behind the scenes than most of us realized. I’ve heard that USDA continued, through back channels, to tell DOL this wouldn’t be good. And apparently that pressure finally filtered throughout the (Obama) administration and they decided not to promulgate the rules.

“I suspect the fact that this is an election year helped them make that decision.”

On the DOL saying the rules won’t be revisited as long as Obama is in office…

“DOL says it won’t promulgate the rule but that (could provide wiggle room).

“This is an important victory for agriculture. Maybe the biggest victory is that so many different agricultural groups and individuals not only hung together, but did so for so long. That proves the strength of a unified agriculture.

“A lot of times, the commodity groups and associations and farmers from different states compete with one another. It isn’t always easy for such unification on the same issue for so long.

“My concern is that the actual definition of the family farm exemption hasn’t changed. That was what the DOL, the USDA and others kept telling us when agriculture became angry about this. They said ‘well, we understand why you’re so angry. But you don’t understand what we’re doing because the definition for “family farm” hasn’t changed.’

“Well, we feared and know that they were starting to reinterpret the definition and to enforce it differently than they had in the past. And they could still do that.

“We hope they won’t. We hope the marker has been put out that agriculture will be very angry (if they continue).

“The way the definition is written, children are still not exempted on their grandparents’ or aunts’ and uncles’ farms. By strict interpretation, if your family farm is an LLC -- or some kind of limited partnership, which so many are – that is partly, or mostly, owned by the grandparents and the child’s parents aren’t the sole operators/decision-makers, the (law) is still murky. There is still some risk for the family farm exemption – it doesn’t exist as most people perceive.”

Will Congress pass legislation regarding this?

“Many of our allies have been talking to Congress. They’ve been warning – and will continue to – lawmakers about this. A lot of folks in Congress are watching.

“So, (the DOL announcement) was a really good thing. But we can’t just walk away and forget about it. It requires more vigilance. That’s a good thing because it will help keep the coalition of disparate agricultural groups together.”

Ranchers, outreach, H-2A/H-2B/E-Verify

On ranchers’ big push to end the rule change…

“Many people were concerned about this but (ranchers) were very exercised. I didn’t keep good statistics but it appeared that the preponderance of really good letters to editors, really good interviews in small hometown newspapers, tended to revolve around livestock.

“I think the reason for that is there were 13 so-called ‘hazardous operations’ listed (by DOL) that youth would have been virtually prohibited from working on. While a number of those involved equipment that cut across all farms, they were harder to understand…

“The ones that really had an impact, ones that were really in your face, were those like no dealing with animals in a way that could cause pain -- dehorning, docking tails, anything like that. The rules would have even prevented the herding of chickens. They would have prevented children from handling any sexually-intact animals over six months in age.

“Those restrictions would have virtually taken youths out of F-H, FFA and livestock showing and handling. I think that’s why this really raised the hackles of those who own horses, the dairy producers, pork and cattle.

“There was a huge group of organizations – probably 40 or so – that conference-called regularly. We were sharing written comments back-and-forth.

“Probably, the groups that added the most flesh to our comments were up to a dozen state Farm Bureaus. Some of the people from those really understood the issues well and did some very good writing that many of us used. They kept it up throughout.”

Shortly prior to the DOL’s backing down on the new rule, the USDA’s National Agriculture Statistics Service (NASS) released a study showing a decrease in youth farm accidents. NASS found that “agriculture-related injuries to youth under 20 years of age on United States farms have decreased from 13.5 injuries per 1,000 farms in 2001 to 7.2 injuries per 1,000 farms in 2009. … An injury was defined as any condition occurring on the farm operation resulting in at least four hours of restricted activity or requiring professional medical attention.”

For more, see here.

Your reaction to the study? Do you suspect that was the final nail in the proposed rule’s coffin?

“I don’t know that for sure, but it certainly didn’t hurt.

“We’d already seen bits and pieces of those numbers from the ag-safety experts at universities. For example, the injury rate in youth working agriculture had been cut more than half in five years.

“But it was a nice coincidence that study was released (when it was). I can’t say for sure it had an impact (with DOL) but it certainly didn’t hurt.”

On the need for farm safety…

“Accidents and injuries usually result from poor training or preparation, inexperience, haste or fatigue.

“Well, on a farm, you have to do everything. Often, you must be in a hurry because things are seasonal. It’s routine to push yourself beyond what a paid employee in a factory would. That’s because it’s your operation – if you don’t do it, it won’t get done.

“Everyone in agriculture should keep at the front of their minds to do everything possible to create a culture of safety around farms. We could make a lot of progress on that and do much better than we have.”

On the DOL’s plan to work on farm safety through agriculture groups in lieu of the proposed rules…

“The DOL says it will now engage in a stakeholder outreach (on safety).

“It might have taken some time, but if DOL’s goal was results (in safety), the best way to do that was a stakeholder outreach begun a decade ago. You know, pull in growers, leading grower groups and maybe some equipment companies. If the people who are actually doing the work – and whose kids are doing the work – had been involved, I think we’d be in a much better place (already).”

Details on the outreach are yet to be released. Gasparini, who has been involved with such things in the past, “hopes the outreach is very broad. … They aren’t always easy and can be a lot of work. There has to be give-and-take and egos must be checked. In the end, though, some really good guidelines or rules are produced.”

On the latest regarding H-2A/H-2B farm labor programs and E-Verify…

Some in Congress “would still love to pass mandatory E-Verify. It’s still the law in several states and South Carolina will join them very soon.

“The U.S. Supreme Court is still discussing the constitutionality of certain pieces of the Arizona law. If it upholds that later this summer, we expect more states to move very quickly.

“At the federal level, E-Verify is stalled with leadership. Agriculture is telling them ‘we can’t support this unless we have a workable program to both make our current workforce legal, somehow, and have a future flow of non-immigrant workers.

“H-2A remains very difficult with a lot of delays. Nearly everyone who uses H-2A employees is audited. But that program still provides less than 5 percent of the workers.

“Even a better H-2A program is not a solution for mandatory E-Verify. We need more than that. We need a way to keep our existing workers.

“As for H-2B, a judge in Florida issued a temporary injunction (the last week of April) against implementation of the H-2B rule. She will likely rule sometime over the summer on whether that injunction will become permanent. H-2B users will operate under the old law at least through the rest of this season and into 2013.”

For more on farm labor, see here.

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