Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 3 of the Convention. Worst forms of child labour. Clause (a). Slavery and practices similar to slavery. Sale and trafficking of children. In its previous comments, the Committee had noted the AFL–CIO’s allegation of 9 January 2004, corroborated by the report of the “Trafficking in Persons and Worker Exploitation Task Force” (hereinafter TPWETF), that the United States is thought to be the destination of 50,000 trafficked women and children each year. The AFL–CIO indicated that approximately 30,000 women and children are trafficked annually from South-East Asia, 10,000 from Latin America, 4,000 from the former Soviet Union and Central and Eastern Europe, and 1,000 from other regions. The Committee had noted that the Trafficking Victims Protection Act of 2000 (TVPA) created new crimes and enhanced penalties for existing crimes including trafficking with respect to peonage, slavery, involuntary servitude, forced labour or sex trafficking of children. It had also noted that Title 18 USC, section 1590, introduced by the TVPA, states that whoever knowingly recruits, harbours, transports, provides or obtains by any means a person for labour or services commits an offence. Pursuant to the adoption of the TVPA, victims of trafficking benefit from assistance and are considered to be “victims of a severe form of trafficking in persons” (for sexual or labour exploitation, according to section 8 of the Act) when they are under 18 years of age (section 14).

The Committee noted with satisfaction the Government’s information that on 19 December 2003 Congress enacted the Trafficking Victims Protection Reauthorization Act (TVPRA), which reauthorized the TVPA in 2003 and 2005 and added responsibilities to the United States Government’s anti-trafficking portfolio. The TVPRA of 2003 mandated new information campaigns to combat sex tourism, enhanced anti-trafficking protection under federal criminal law and created a new civil action that allows trafficking victims to sue their traffickers in federal district courts. The TVPRA of 2005 extended and improved prosecutorial and diplomatic tools, provided for new grants to state and local law enforcement agencies, and expanded the services available to certain family members of victims of severe forms of trafficking. The Committee noted the Government’s statement that the statistics referred to by the AFL–CIO in 2004 were based on a compilation of 1997 data which are now outdated. Since that time, the Government has refined its data collection and methodology, and, as of May 2004, it estimates that 14,500–17,500 people are trafficked annually into the United States. This estimate covers men, women and children who are victims of severe forms of trafficking as defined in the TVPA. The most recent estimates show that the largest number of people trafficked into the United States come from East Asia and the Pacific (5,000–7,000). The next highest numbers come from Latin America and from Europe and Eurasia (between 3,500 and 5,500 victims). Most trafficked victims are employed in the sex sector, migrant farm work, domestic or household work, and low-wage industries such as the restaurant and hotel industries.

The Committee noted the Government’s statement that additional research and studies regarding trafficking in persons have been funded over the past five years. In addition, the Government has funded three multi-year projects related to trafficking into the United States which are pending. There are also pending TVPRA-mandated research projects regarding the economic causes and consequences of trafficking, the effectiveness of US efforts to prevent trafficking and assist its victims, and the interrelationship between trafficking in persons and global health risks. The Committee also noted the Government’s information that the Department of Justice (DOJ) has drafted a model anti-trafficking statute for states and is encouraging them to adopt their own laws. Pursuant to this initiative several states have passed comprehensive trafficking laws based on the model, while others have adopted their own statutes.

The Committee welcomed the recent comprehensive measures taken to combat trafficking in children for labour and sexual exploitation. It nevertheless noted that, although the law prohibits the trafficking of children for labour or sexual exploitation, it still remains an issue of concern in practice. The Committee accordingly once again encourages the Government to redouble its efforts to eliminate the trafficking of children under 18 years for labour and sexual exploitation and to provide information on progress made in this regard. The Committee also requests the Government to provide information on the pending projects on trafficking funded by the Government and their impact on eliminating the trafficking of children under 18 years for labour and sexual exploitation.

Articles 3(d) and 4(1). Hazardous work. The Committee had previously noted the AFL–CIO’s indication that between 300,000 and 800,000 children are employed in agriculture under dangerous conditions. Many work for 12 hours a day and are exposed to dangerous pesticides, suffer rashes, headaches, dizziness, nausea and vomiting, often risking exhaustion or dehydration due to lack of water, and are often injured. The Committee had noted that, as an exemption from section 213 of the Fair Labour Standards Act (FLSA), in agriculture, 16 is the minimum age under section 213(c)(1) and (2) of the FLSA for employment in occupations (outside of family farms) that the Secretary of Labor finds and declares to be “particularly hazardous for the employment of children”. It had observed that, while Article 4(1) of the Convention allows the types of hazardous work to be determined by national laws or regulations or the competent authority after consultation with the social partners, section 213 of the FLSA authorizes children aged 16 and above to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health or well-being by the Secretary of Labor.

The Committee noted the AFL–CIO’s allegation of 6 June 2005 – referring to the Child Coalition Report of June 2005 – that, because of the statutory differential in minimum ages in agriculture, on the one hand, and all other industries, on the other hand, the Hazardous Orders regulations contain numerous anomalies, such as the fact that using a power-driven circular saw or band saw is allowed for children starting from 16 in agriculture, whereas in other industries the minimum age for using such saws is 18 years. According to the AFL–CIO and the National Institution for Occupational Safety and Health (NIOSH), during the period from 1992 to 1997, a total of 403 children under 18 years were killed while working. One third of the occupational deaths were associated with tractors. The industry that had by far the highest number of fatalities – 162, or 40 per cent – was agriculture, forestry and fishing, even though only 13 per cent of children under 18 worked in this sector. This high rate of fatal injuries was confirmed by the fact that youth of 15 to 17 years of age working in agriculture appear to have over four times the risk for the injury of youth workers in other industries. However, eventual changes to Hazardous Orders (HOs) could be not expected to have an impact on the injuries of young workers of 16 and 17 years who fall outside the coverage of the FLSA. The AFL–CIO points out that, according to the General Accounting Office (GAO) “Pesticides: Improvements Needed to Ensure the Safety of Farmworkers and their Children” of 2000 (GAO’s report of 2000), over 75 per cent of pesticides are used in agriculture and children are much more vulnerable to harm from pesticides, both because they breathe more than adults per unit of body weight and because their bodies and internal organs are still developing.

The Committee noted the Government’s information that the FLSA, which was developed through a process open to the participation of employers’ and workers’ representatives, does not authorize the Secretary of Labor to restrict young persons of 16 years and older from working in agriculture. It noted the Government’s statement that the national law fulfils the requirements of Articles 3(d) and 4(1) of the Convention, which allow governments, in good faith and subject to certain procedural requirements, to establish standards that treat children of different ages differently, and that treat different classes of occupations differently. Moreover, in determining types of hazardous work, pursuant to Articles 3(d) and 4(1) of the Convention, Paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), allows ratifying countries to permit 16 and 17 year olds to engage in types of work referred to by Article 3(d) on conditions that the health, safety and morals of the children are fully protected. Therefore, the Congress has determined that it is safe and appropriate for children at 16 to perform work in the agricultural sector, in conformity with Articles 3(d) and 4(1) of the Convention. The Committee noted the Government’s statement that it continues to seek ways to better protect the health and safety of children working in the agricultural industry. This includes: (i) programmes to protect farm workers and their children from pesticides, such as the Environmental Protection Agency’s (EPA) review of the Worker Protection Standard (WPS) launched in response to the GAO’s report of 2000; (ii) programmes to educate young workers about safety and health in agriculture through the Department of Labor (DOL)’s Occupational Safety and Health Administration (OSHA); (iii) programmes to prevent injuries among children, through DOL’s participation in the Federal Inter-agency Working Group on Preventing Childhood Agricultural Injuries chaired by the NIOSH. The Committee noted the Government’s statement that some states (i.e. Florida and Oregon) have adopted more stringent agricultural standards than the federal Government and prohibit children under 18 years of age from performing some hazardous activities.

While taking note of this information, the Committee shared the concern of the Conference Committee with regard to the hazardous and dangerous conditions that are and could be encountered by children under 18, and indeed in some cases under 16, in the agricultural sector. It also expressed its concern at the high number of injuries and fatalities, including death, suffered by children under 18 years working in the agricultural sector. The Committee emphasized that, by virtue of Article 3(d), work which, by its nature and the circumstances in which it is carried out, is likely to harm the health, safety or morals of children, constitutes one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, member States are required to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly once again encourages the Government to take the necessary measures to ensure that work performed in the agricultural sector is prohibited to children under 18 years where it is hazardous within the meaning of the Convention.

Article 4, paragraph 3. Examination and periodical revision of the types of hazardous work. The Committee had previously noted that 28 HOs adopted by virtue of the FLSA determine the types of work or activities that children under 18 shall not perform. It also noted that these Orders were established in 1939 and 1960 with regard to non-agricultural occupations and in 1970 for agricultural occupations. It had noted that the NIOSH recommended the development of several new HOs to protect children from particularly hazardous work not adequately addressed in the existing regulation. It had noted the Government’s indication that it was in the final stages of rule-making on several HO recommendations by the NIOSH: those relating to driving and operating balers and compactors, roofing, and handling explosive materials. The Committee noted the AFL–CIO’s allegation of June 2005 that the NIOSH in March 2002 issued recommendations for changing the existing agricultural HOs. It noted the Government’s information that the HOs relating to driving and operating balers and compactors, roofing and handling explosives, were amended on 16 December 2004, along with revisions to the child labour regulations under the FLSA. In particular, HO 2 was amended to provide that minors under 17 years of age cannot drive automobiles and trucks on public roadways on the job and establishes limited conditions and criteria under which 17-year-olds may perform such activities. HO 12 was amended to establish criteria permitting 16 and 17 year-olds to load, but not unload, certain restricted waste material, baling and compacting equipment. The Committee once again requests the Government to continue providing information on the amendments to the existing HOs pursuant to the recommendations of the NIOSH, especially in the agricultural sector.

Article 5. Monitoring mechanisms. Hazardous work and agriculture. The Committee had previously noted the AFL–CIO’s indication that an estimated 100,000 children suffer agriculture-related injuries annually in the United States and that very few inspections take place in agriculture. It had also noted that, according to the GAO’s report of 1998 “Child labour in agriculture: Changes needed to better protect health and educational opportunities”, the number of recorded inspections in agriculture by the DOL’s Wages and Hour Division (WHD), the OSHA, the EPA and the states, has generally declined in recent years. Thus, it observed that the GAO recommended that steps be taken to ensure that the procedures specified in the existing agreement among the WHD and other federal and state agencies, especially with regard to joint inspections and exchange of information, are being followed.

The Committee noted the AFL–CIO’s allegation of 3 October 2006 that, in 2005 the DOL’s WHD conducted 1,784 child labour investigations, which represents a drastic 31.5 per cent decline from 2,606 child labour investigations conducted in 2004 and also represents the lowest number of child labour investigations in at least ten years. Moreover, despite all the hazards faced by children working in agriculture, the DOL conducts very few child labour investigations in agriculture. In 2005, only 25 of the 1,784 child labour investigations conducted (1.4 per cent) involved agricultural employers, which is less than one-fifth of the child labour investigations conducted in 1999.

The Committee noted the Government’s information that, in 2004, the WHD concluded over 1,600 investigations in the agricultural industry and found 42 minors illegally employed in 26 cases. Four minors were found illegally employed in violation of the agricultural HOs. It noted the Government’s information that the EPA revised the national WPS inspection guidance for conducting routine use inspections on agricultural establishments. Moreover, WHD, OSHA and NIOSH have partnered to reduce occupational deaths and injuries to youth on farms through compliance assistance and awareness. While taking note of this information, the Committee expresses its concern at the decreasing number of child labour investigations conducted in the agricultural sector in 2005. It once again encourages the Government to redouble its efforts to enforce child labour laws in agriculture, especially with regard to hazardous work. It requests the Government to provide information on the measures taken in this regard and their impact on the elimination of hazardous work in this sector.

Article 7, paragraph 1. Penalties. The Committee had previously noted that the TVPA and the USC provide for sufficiently effective and dissuasive penalties for the offences of: trafficking for purposes of slavery or forced labour (Title 18 USC, section 1590); sex trafficking of children (Title 18 USC, section 1591(b)(2)); slavery (Title 18 USC, sections 1583 and 1584); forced labour (Title 18 USC, section 1589); using a child to import, export or produce controlled substances or for the commission of drug related offences (Title 21 USC, section 841(b) and 861(b)). The Committee had also noted that the Federal Sentencing Guidelines of 2000 provide for increased penalties for crimes involving minors under 18 years of age such as the exploitation of children for drug trafficking (section 2D1.2), for prostitution (section 2G1.1), for the production of pornography (sections 2G2.1. and 2G2.3) or to commit a crime (section 3B1.4). It had noted that the Secretary of Labor proposed to raise the maximum penalty from US$11,000 to US$50,000 for any kind of child labour violation which results in death or maiming. In addition, the Secretary of Labor proposed to raise the maximum penalty for wilful or repeated violations that lead to the death or serious injury of a child. The Committee noted the Government’s information that the President’s budget for the 2004–06 fiscal years included proposals to increase civil money penalties for violations of the FLSA’s youth employment provisions that result in the death or serious injury of a young worker. The proposal was transmitted to Congress in 2005 but has not been enacted. The Committee once again requests the Government to provide information on any progress towards the enactment of this proposal.

Part V of the report form. Following its previous comments, the Committee noted the Government’s information that the TVPA, as amended by the TVPRA, requires that the Attorney-General submit an annual report to Congress assessing the impact of United States government activities to combat trafficking in persons which include, among others, information on: the number of trafficking victims who received government benefits and services; the number of investigations and prosecutions of trafficking in persons. It also noted the Government’s information that, in 2004, the DOJ filed 12 TVPA cases and obtained 245 convictions. In total, the DOJ filed 29 trafficking cases in 2004, which is more than double the cases filed in 2003. The majority of these cases involved offences against children. It noted the Government’s information that under the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003, there have been roughly 60 sex tourism investigations, 27 sex tourism indictments or complaints and 16 convictions. Regarding the programmes on child pornography launched by the Child Exploitation and Obscenity Sections (CEOS) and the FBI, the Committee noted the Government’s information that 35 victims in Indiana, Montana, Texas, Colorado and Canada have been identified as a result of the FBI Endangered Child Alert Program (ECAP) which was launched in 2004 by the FBI’s Innocent Images Unit with the goal of identifying subjects who are engaged in the sexual exploitation of children depicted in images of child pornography. Moreover, during 2004, the FBI’s Criminal Investigative Division initiated 67 “Innocent Lost” investigations, which led to 118 arrests and 26 indictments. Since the inception in 2003 of the “Innocent lost” initiative to address child prostitution, 80 children have been recovered. The Committee takes due note of this information and requests the Government to continue providing information on the worst forms of child labour through copies of or extracts from official documents, including inspection reports, studies and inquiries, and information on the nature, extent and trends of the worst forms of child labour, the number of children covered by the measures giving effect to the Convention, the number and nature of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.