Objective data, as required by section 13(c)(4) of the Act, shall
also be submitted by the employer or group of employers applying for a
waiver, to show that:
(a) The crop to be harvested is one with a ``particularly short
harvesting season.'' The variety of each crop to be harvested must
ordinarily be harvested within 4 weeks in the region in which the waiver
will be applicable. The Administrator will accept the written statement
to that effect from the agricultural extension agent for the county.
(b) The 12-year minimum age prescribed by the Act for such
employment would cause ``severe economic disruption in the industry of
the employer or group of employers applying for the waiver.'' Severe
economic disruption in the industry refers to the consequences of not
meeting a compelling need for the employment of 10- and 11-year olds to
avoid loss of a significant portion of the crop. Evidence of this need
includes the projected number of laborers needed to harvest the acreage
planted and evidence that recruitment requirements specified in
paragraph (e) of this section have been complied with. Data concerning
the number of hand harvest laborers used in previous years for given
acreages will serve as a basis for evaluating needs for the current
year. If the requisite number of workers cannot be recruited from the
labor supply of 12 years and above, this would ordinarily demonstrate
the compelling need for the employment of 10 and 11 year olds.
(c) The employment of minors under the waiver ``would not be
deleterious to their health or well-being.'' This refers to the
prospective effect on the health or well-being generally (i.e., other
than the tolerance level of pesticides or other chemicals) of 10 and 11
year-old hand harvesters. The Administrator will accept signed
statements to that effect from doctors, or nurses or public health
officials in the region.
(d) The ``level and type of pesticides and other chemicals used
would not have an adverse effect on the health or well-being of'' minors
employed under the waiver. The safe reentry standards established by the
Environmental Protection Agency, and followed by other Federal and State
agencies, were established for adult workers and have not been shown to
be safe for 10 and 11 year olds. Therefore, the applicant, in order to
satisfy this condition, will either have to submit a statement that no
pesticides or other chemicals were used on the crop to be harvested or
submit data which upon study by the Secretary or the Secretary's
designee establishes a safe reentry times for 10 and 11 year olds. If
such data, or additional studies conducted by the Secretary or the
Secretary's designee, establish safe reentry standards for 10 and 11
year olds, this section will be amended to include such standards and
the applicant will then need only identify the type and level of
pesticides or chemicals used and the date of last application of same
prior to harvest.
(e) Individuals age 12 and above are not available for such
employment. Evidence of such unavailability must be documented by the
applicant by:
(1) Placement of intrastate and interstate job orders, in which the
piece rate is specified, with the state employment service sufficiently
in advance of the harvest to allow reasonable time for the recruitment
of local and migrant workers. An interstate order need not be placed if
the applicant can demonstrate that suitable housing is not available.
(2) Placement of at least two advertisements in local papers of
general circulation or advertisements over local radio stations.
(3) Contact with farm labor contractors, migrant workers, and other
potential workers.
(4) Contact with schools, business and labor organizations, non-
profit organizations and public agencies to enlist their help. Data
showing the responses received to these solicitations must be
categorized by age and submitted with the waiver application to verify
that older workers are not available to perform the work.
(f) The ``industry of such employer or groups of employers has
traditionally and substantially employed individuals under twelve years
of age without displacing substantial job opportunities for individuals
over sixteen years of age.'' Documentation that the industry has
traditionally and substantially employed individuals under 12 years of
age may include newspaper reports, magazine articles, research
organization reports, or other appropriate sources. Data to indicate
that such employment did not displace substantial job opportunities for
individuals over 16 years of age may include the signed statement of an
appropriate official of the employment service agency of the State (or
States, if region designated crosses State lines) certifying to that
fact. This certification must be based on statistical documentation for
at least the previous year.
(g) When supporting data required by this section are submitted by
an employer or group of employers, the objective data required by
paragraph (d) of this section shall be submitted on the basis of each
individual employer. However, objective data required by paragraphs (a),
(b), (c), (e), and (f) of this section may be submitted for the specific
geographic area, e.g., an entire county, of the employer or group of
employers.
[43 FR 26562, June 21, 1978; 43 FR 28471, June 30, 1978, as amended at
44 FR 22061, Apr. 13, 1979; 44 FR 24059, Apr. 24, 1979; 44 FR 29049, May
18, 1979; 45 FR 55177, Aug. 19, 1980]
