Individual Case (CAS) - Discussion: 2014, Publication: 103rd ILC session (2014)



A Government representative expressed the Government’s full support for the important role of the Conference Committee in the ILO’s supervisory machinery. The Government took its obligations under ratified Conventions very seriously and had described in its article 22 reports the Government’s aggressive actions to enforce existing laws against the worst forms of child labour and to explore new ways to increase protection for vulnerable young workers. No country was immune from the problem of child labour and each needed to address the problem within its own national context, which was the reason why the Convention focused on an objective and principle, while leaving the details of implementation to national determination such as deciding what, in each particular national context and reality, constituted hazardous child labour. The Government had ratified the Convention in good faith on the strength of an unanimous tripartite finding, followed by the advice and consent of the Senate that there were no impediments in existing law or practice to ratification, including with respect to agriculture. Citing the national process of enacting laws in the United States, he noted that, under the Administrative Procedure Act, the Government was required to solicit and consider the views of interested stakeholders and the national public. In 2011, the Department of Labor had proposed a rule to amend the Secretary’s Orders for the employment of children in certain agricultural occupations, including addressing specific recommendations made by the National Institute for Occupational Safety and Health. The proposal had sought comments on whether to expand the list of agricultural occupations considered too hazardous for the employment of children under 16 years of age. The Department of Labor had received over 10,000 comments on the proposed rule, many of which were from parents who owned or operated farms and believed that the proposal would limit their children’s ability to work legally and gain hands-on experience in agricultural occupations. Other commenters, including nearly 200 members of Congress and a number of agricultural education instructors, had expressed concerns that the rule would undermine American farming traditions and the preparation of the next generation of farmers and ranchers. While the Department also received comments supporting the proposed rule, it acknowledged the thousands of comments expressing concerns and withdrew the proposal in April 2012. Nevertheless, the Department had intensified its efforts to combat unlawful child labour and to protect the greatest number of young agricultural workers, including outreach to farmers, farm labour contractors, workers, worker advocates, parents, teachers, other federal agencies and others who provided services to farm workers. Those protection and outreach activities included education and training, as outlined in Recommendation No. 190. The Department of Labor’s Wage and Hour Division (WHD) strictly enforced child labour provisions under the Fair Labour Standards Act and targeted enforcement in low-wage industries, including agriculture. The WHD had hired additional labour inspectors, sought the highest possible penalties for violations of child labour laws and, since Fiscal Year 2009, had conducted over 8,000 investigations in agriculture. Since 2009, the WHD had also conducted over 10,000 outreach events and would soon publish new educational materials specific to agriculture.

The Department of Labor had also developed and expanded a consular partnership programme to work with foreign embassies to inform migrant workers of, among others, child labour rights. That programme had resulted in the identification of many possible labour violations. In addition, the Occupational Safety and Health Administration (OSHA) had recently increased its focus on agriculture and had undertaken a number of enforcement, inspection and educational initiatives to reduce the number of injuries and illnesses of employees in farming, such as its Campaign to Prevent Heat Illness among Outdoor Workers. OSHA considered the age and experience of workers when examining situations that could be hazardous or likely to cause death or serious physical harm. In addition, the Environmental Protection Agency (EPA) had recently proposed modifications to its Worker Protection Standard to protect farm workers and their families from pesticide exposure, which included, for the first time, the requirement that children under 16 years of age would be prohibited from handling pesticides. Referring to a Human Rights Watch report on hazardous child labour in tobacco farming in the United States, the speaker echoed the report’s emphasis on the importance of engaging with workers, employers and others in protecting vulnerable children at work. WHD officials had spoken with the report’s authors about their findings and ways to work together to ensure that young workers in agriculture were not working illegally. He reiterated the Government’s firm commitment to ensuring full compliance with Convention No. 182 and indicated that it would continue to inform the ILO about its efforts to secure the prohibition and elimination of the worst forms of child labour in its next article 22 report, which would respond in full to the most recent observation of the Committee of Experts taking into account the comments and recommendations of the Conference Committee.

The Employer members stated that child labour was a problem of immense global importance. Eliminating child labour was a priority for the Committee and the private sector was committed to taking concrete steps to eliminate child labour. In supervising the case, it was important for the Committee to bear in mind the meaning of the term “worst forms of work”, namely work that was, by its nature or the circumstances in which it was carried out, likely to harm the health, safety or morals of children. The term child applied to persons under the age of 18. Section 213 of the Fair Labor Standards Act authorized children from the age of 16 to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health, as permitted under the agreed exception in paragraph 4 of the Worst Forms of Child Labour Recommendation, 1999 (No. 190), on the condition that the health, safety and morals of young persons were fully protected. The exception had been explicitly agreed after consultation with the United States employers’ and workers’ organizations. They raised the question about why a complaint on non-compliance regarding children under 18 years of age working in agriculture and dangerous conditions had been made with respect to the United States. In 2010, on the recommendations of the National Institute for Occupational Safety and Health, the Wage and Hour Division of the Department of Labor had published a Final Rule on child labour provisions, which revised the existing Hazardous Orders (HOs) to prohibit children under the age of 18 from performing certain types of work. In 2011, a Notice of Proposed Rulemaking was issued, containing proposals to revise the child labour agricultural HOs. The proposed rule had been withdrawn in 2012 following a consultation process. This had been a democratic process and it was not unusual for a proposal to be withdrawn based on the responses of a public consultation exercise. The Wage and Hour Division continued to focus on improving the safety of children working in agriculture. The Employer members recalled that the Committee of Experts had welcomed the measures taken by the Government to protect agricultural workers, including those under the age of 18. Article 4 of Convention No. 182 stipulated that the types of work were to be determined by national laws or regulations or by the competent authority after consultation with the organizations of employers and workers concerned. The competent authority was to identify where these types of work existed, after consultation with the organizations of employers and workers concerned. Moreover, the list of the types of work was to be periodically examined and revised, once again, in consultation with the organizations of employers and workers concerned. All three requirements established in Article 4 had been complied with. Article 5 prescribed that members must, after consultation with its social partners, establish or designate appropriate mechanisms to monitor the implementation of provisions giving effect to the Convention. This too appeared to be occurring in the United States. They recalled that the mandate of the Committee of Experts was to undertake an impartial and technical analysis of how the Conventions were applied in law and in practice in member States. Its recommendations were intended to guide the actions of national authorities. In this case, there was no requirement for the United States to amend its national law and it would seem inappropriate to criticize the Government for deciding not to. The Committee was a technical committee and conclusions had to be based on technical issues arising from the ratification of a Convention.

The Worker members said that United States legislation allowed children to work from the age of 16 onwards, even where they were exposed to pesticides for long periods with the risk of serious injury. That information was based on official statistics relating to the number of fatal accidents on farms and on a Department of Labor document indicating that the fatality rate for young workers in agriculture was four times higher than for their peers in non-agricultural sectors. The proposed rule drafted by the Department of Labor in 2011 to regulate the issue had been withdrawn in 2012. The Government was focusing on awareness-raising and education rather than regulation, and the Worker members disapproved of this. They emphasized that opponents of the proposed rule seemed to be using images that appealed to public opinion in the United States. They recalled that the point of the debate was to focus on young workers, most of whom were migrants, sometimes in a precarious or illegal situation, not organized, with a limited knowledge of English, and were wage earners on farms. For that category of workers, education and grassroots action were not sufficient. For that reason, the Government should be required to go back to the drawing board with respect to the regulation that had been withdrawn.

The Worker member of the United States stated that the United States had made a move in the right direction by ratifying Convention No. 182 in 1999 and, since then, related laws and regulations had been improved to reduce the number of children working in dangerous and unhealthy working conditions. Many government-led programmes and training partnerships with workers’ and employers’ organizations had been supported in a range of sectors. Resources dedicated to enforcement had been increased. However, United States’ laws failed to protect children working in agriculture. In 2011, the executive branch proposed changes to regulations that would have taken an important step forward. In 2012, the Government withdrew the proposed changes, which would have updated the agricultural child labour provisions of the Fair Labor Standards Act by updating the list of hazardous work prohibited for children under the age of 16. The regulations had been designed to prevent children from being hired to perform work that was hazardous to their health and welfare and bring parity to the agricultural and non-agricultural employment provisions affecting children. In 2013, the National Institute for Occupational Safety and Health estimated that more than 360,000 youths under the age of 16 worked on farms in 2009. While official figures indicated that only about 10 per cent of these children were hired workers, a large number of children were thought to be working “off the books” on farms. Nearly half of the estimated 197,000 16- and 17-year-olds who worked on farms were hired workers. All these points showed that hired farm workers were a large and vulnerable working population that included many children, were at a high risk of work-related injuries and had poor access to their rights. While the practice of allowing children to work, even on family farms, might be questioned, research and training programmes, which focused on labour issues on family farms, reported reduced injuries of family farm child workers in recent years. Testimonies from children had mentioned the valuable learning and an increased sense of worth as a result of working on their family’s farm. However, a slowly growing body of research that focused on hired migrant farm labour, including youth, did not point toward such an enriching work experience. It identified an extremely precarious workforce with many children and young persons who had reduced access to education and worker rights. Unfortunately, research such as the National Agricultural Workers Survey that was supported by the Department of Labor and focused on such hired workers was underfunded and its results and analysis inadequately used in implementing policies. Such research and information must be further developed and should weigh heavily in establishing an accurate national context for defining what work was safe and edifying for children in agriculture – and to evaluate whether the United States was in compliance with the Convention. As the United States continued to negotiate trade agreements that included commitments to core labour rights, including the elimination of the worst forms of child labour, it should increase rather than decrease its capacity to honour those commitments in supply chains that produced goods for trade. Governments, workers and employers seeking to meet these obligations agreed on the need to improve working conditions and the protection and respect for rights in these supply chains. Corporate codes could play a role in such efforts, but that role had limits. In order to achieve these goals, including the elimination of the worst forms of child labour, there was no substitute for legally binding laws and work rules.

The Worker member of Brazil recalled that the fight against child labour was one of the ILO’s main challenges. An intense social dialogue had hallmarked the efforts made in his country. At the third Global Conference on Child Labour, held in Brasilia in 2013, significant commitments had been made by the 150 countries present. The case under review was of concern; attention was drawn to the information set out in the Committee of Experts’ observation and that provided by the Government. He ten referred to the publication of Human Rights Watch. The report concerning child labour in the agricultural sector published in 2010 reported that children of 7 years of age or younger were involved in cotton, pear and strawberry harvesting. The majority of children interviewed were subjected to long strenuous work days and were paid less than adults and below the minimum wage, if at all. Testimonies contained in the report published in 2014 concerning child labour on tobacco plantations showed how dangerous the work in that sector was. In conclusion, the withdrawal of the proposed legislative changes mentioned by the Committee of Experts was a setback in the Government’s fight against child labour.

The Government member of the Russian Federation thanked the representative of the Government of the United States for the information on the application of the Convention and took note of the oversight measures that were strengthened with a view to preventing injuries among young agricultural workers. On the basis of the information obtained during the discussion, it was noted that there was a seemingly high level of injuries among young agricultural workers between the ages of 16 and 18 in the United States. The awareness-raising work that had been carried out by the Department of Labor with regard to the dangers in agricultural work was noted. It was important to bear in mind that the workers were often young people who had just started their working lives and were not always in a position to fully evaluate the risks of hazardous work. Measures undertaken by the Government should be supplemented by a direct prohibition of hazardous work for young workers between the ages of 16 and 18 for types of work that would threaten their health and safety. Attempts at amending the legislation had been taken in 2011 but had not been conclusive. The speaker agreed with previous speakers that invited the Government to reconsider following through with this legislative amendment.

The Worker member of Canada stated that Canadian workers were concerned about the use of child labour in United States agriculture because it ethically contaminated the import of agricultural products into Canada, thus competing unfairly with the sale of Canadian-made goods. The speaker referred to the North American Agreement on Labour Cooperation (NAALC) which required the governments of Canada, Mexico and the United States to work together to “protect, enhance and enforce basic workers’ rights”, in each country. In its observation, the Committee of Experts referred to information found on the Department of Labor’s website about the use of child labour in agriculture which validated this problem as an ongoing concern. United States imports entered Canada as products in the supply chains of multinational enterprises, operating in both countries. The case was well illustrated by looking at the tobacco industry, and the speaker referred to a Human Rights Watch report exposing child labour in the United States tobacco industry. Many more companies were involved in the cross-border supply chains for all agriculture products from the United States to Canada, not only for tobacco. The speaker then referred to the legislative changes the Government had proposed in 2011 and stated that the Government clearly understood the steps that needed to be taken on this issue. He urged the Government to do so.

The Worker member of the Netherlands said that agriculture was considered to be the third most hazardous sector for workers. Children were particularly vulnerable to the effects on health of pesticides and the risks of working with heavy machinery and sharp tools, and carrying out repetitive and physically straining work was damaging their development and health. The Government offered children in this sector less protection than children employed in other sectors. There were fewer restrictions concerning age and working times for children in agriculture and children working on family farms were afforded even less protection. Measures taken or planned to lessen the gap had been discussed but had not been pursued. The Government was urged to reconsider the withdrawal of the proposed legislative changes. The United States and the European Union were negotiating a Transatlantic Trade and Investment Agreement and imports of agricultural products from the United States to Europe were increasing at an annual rate of 3 per cent. Through increased trade and supply chains, agricultural products from the United States, which were produced under unacceptable conditions involving the worst forms of child labour, might reach European markets. Moreover, workers in Europe were concerned that the low standards of implementation of ILO fundamental Conventions, including Convention No. 182, in the United States could have a negative impact on the application of standards in Europe. While the Government’s efforts to protect children from exploitation were appreciated, she urged the Government to close the protection gap between children in the agricultural and non-agricultural sectors.

The Worker member of Colombia observed that the Government of the United States had only ratified 14 ILO Conventions. He stressed that the case under consideration concerned workers between 16 and 18 years of age, many of whom were poor, migrants and engaged in particularly hazardous work. He recalled that, at the time of negotiation of the Free Trade Agreement, the American Federation of Labor and Congress of Industrial Organizations (AFL–CIO) had pressured the United States’ Government to demand that labour standards be improved in Colombia, a pressure which had resulted, inter alia, in the adoption of the Labor Action Plan. He thought it paradoxical that the same Government which, at the time, had demanded better working conditions in Colombia was tolerating child labour in agriculture in its own country. The situation also disadvantaged Colombian workers as some 2 million of them were working in the United States, thousands of them in agriculture. Even more serious was the fact that United States legislation allowed young persons to work in agro-industrial activities that could be dangerous to their health. In conclusion, he requested the Committee to urge the Government to reconsider the draft legislation submitted for consultation by the Department of Labor in 2011.

The Employer member of the United States said that while he was often critical of the Government, in this instance there was no cause for criticism. A tripartite process was in place which compared national law to the provisions of the Convention to ensure compliance. The Government and its social partners had agreed that United States law was in line with the Convention. Since its ratification, neither the law nor the terms of the Convention had changed. There had, however, been a change in the position adopted by one of the social partners, which might in turn affect the prospects of ratification of Conventions in the future. The withdrawal of the proposed legislative amendment had been part of a democratic process. More than 10,000 comments had been received and analysed as a result of which the decision to rescind the proposed changes had been taken. Legislation was in line with the Convention. A Human Rights Watch report referred to during the discussion seemed to focus on the tobacco industry, which the proposed changes would not have affected. Referring to previous comments, the speaker noted that they seemed to focus on issues relating to supply chains and recalled that the Convention had to be implemented by governments.

The Government representative fully supported the ILO’s supervisory machinery for ratified Conventions and thanked all those who had contributed to the discussion and offered recommendations. Special note had been taken of the comments made by the Worker member of the United States on the changing demographics of the agricultural workforce. The Government was working to adapt to these changes; further research and information would be valuable in this regard. The Government representative looked forward to continuing a dialogue with the Committee of Experts. Children were the future and it was important to protect them from labour that was unsafe, unhealthy or detrimental to their education and general well-being. This was an ongoing process in the United States and was approached with the urgency required under the Convention.

The Employer members thanked the Government for the considerable information provided. The Government attached great importance to the Convention and the work of the Committee. It had expressed its clear commitment to the Convention by means of the information provided and the initiatives undertaken, especially its monitoring mechanisms and the provision of information to youth in various languages. The Employer members expected the Government to ensure that its laws and practice complied with the Convention and to continue to monitor child labour in agriculture with due regard to their health, safety and morals. Private sector business was committed to taking concrete steps to eliminate the worst forms of child labour. There was a conflict that was not easily reconcilable between, on the one hand, a democratic legislative review process that involved over 10,000 public comments and, on the other, a call to address the issue of children between the ages of 16 and 18 engaged in agricultural work. In this case, however, there was no requirement for the Government to amend its legislation in the light of the provisions of the Convention. It would therefore be inappropriate to criticize the Government given the information that had been heard during the discussion.

The Worker members emphasized that the discussion was not about agricultural work in family-run farms but the working conditions of young wage earners, more often than not migrants, who could not easily be reached by awareness-raising campaigns or educational measures because of the context in which they worked. It was for this reason that the Government of the United States should be encouraged to regulate the type of work that had been discussed, in accordance with ILO standards. They also stressed that the United States did not require ILO technical assistance and the proposed rule-making to which the Government referred was perfectly adequate. This should nevertheless be brought into effect, and no one should be misled by the distorted picture that certain lobbyists had managed to convey on this issue. The Worker members added that the discussions on the American administrative and democratic procedures should not overwhelm the issue, because those who were being discussed were young workers, often migrants, who had less possibility of putting forward their opinions or interests than other groups of more organized groups. The Worker members concluded by suggesting that the Government report on the initiatives that would be taken, thereby allowing the Committee of Experts to analyse this matter in its next report.

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

The Government communicated the following written information.

The United States Government submitted its article 22 report on application of Convention No. 182 after the Committee of Experts 2006 report was published. The Government's report dealt in depth with issues that have been raised by the Committee of Experts, as well as by the AFL-CIO and ICFTU. The United States Government has now submitted four article 22 reports, all of which vividly demonstrate the United States continuous commitment both to the provisions of Convention No. 182 and to dialogue with the Committee of Experts. The information below provides a glimpse into the vast efforts currently being undertaken by the United States Government to eliminate the worst forms of child labour, which also serve to implement Convention No. 182. It corresponds to the comments in bold type in the Committee of Experts' observation relating to Articles 3-8 of the Convention.

Article 3(a): Trafficking

The United States leads the world in the fight against trafficking in persons, and anti-trafficking policies and programmes are coordinated at the highest levels of government. The centrepiece of United States government efforts, both domestic and international, is the Trafficking Victims Protection Act of 2000 (TVPA), which enhanced three aspects of federal government activity to combat trafficking in persons: protection, prosecution and prevention. The TVPA increased protection and assistance for victims of trafficking; expanded the crimes and enhanced the penalties available to investigate and prosecute traffickers; and broadened United States activities internationally to prevent victims from being trafficked in the first place. The TVPA also created a mechanism to allow certain non-citizens who were trafficking victims access to benefits and services from which they might otherwise be barred. The TVPA was reauthorized in 2003 and 2005. The Trafficking Victims Protection Reauthorization Act (TVPRA) of 2003 mandated new information campaigns to combat sex tourism, enhanced anti-trafficking protections under federal criminal law, and created a new civil action that allows trafficking victims to sue their traffickers in federal district courts. The Trafficking Victims Protection Reauthorization Act 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 victims, including appointing guardians for young victims and providing access to residential treatment facilities. The law also directed the United States Agency for International Development, the State Department, and the Department of Defense to incorporate anti-trafficking and protection measures for vulnerable populations, particularly women and children, into their post-conflict and humanitarian emergency assistance and programme activities.

The TVPA as amended by the TVPRA also requires that the Attorney-General submit an annual report to Congress assessing the impact of United States government activities to combat trafficking in persons. Among other things, the report provides information on the number of trafficking victims who received government benefits and services; the number of investigations and prosecutions of trafficking in persons; support for international anti-trafficking programmes; law-enforcement outreach and training at both the domestic and international level; and public-awareness campaigns. The Attorney-General's most recent report was transmitted to the Committee of Experts for examination, along with other materials that assess United States government activities to combat trafficking in persons. The Committee of Experts requested comments on United States government statistics cited by the ICFTU on the number of trafficking victims in the United States, source countries, and employment of such victims within the United States. Those statistics were based on a compilation of 1997 data, which are now outdated. Since that time, the United States Government has refined its data collection and methodology, and it is currently estimated that 14,500 to 17,500 people are trafficked annually into the United States. While these numbers are lower than previous estimates, the United States Government is no less committed to eradicating human trafficking as an urgent priority.

Article 3(c): Illicit activities

The United States Government's most recent article 22 report provides copies of the federal statutes prohibiting the sale, delivery or transfer to a juvenile of a handgun or ammunition suitable for a handgun, and the penalties for violators.

Articles 3(d) and 4(1): Hazardous work

It is true that the Fair Labor Standards Act sets a lower minimum age for agricultural occupations determined by the Secretary of Labor to be hazardous than for hazardous non-agricultural occupations. However, in reviewing Convention No. 182 for possible ratification, the Tripartite Advisory Panel on International Labour Standards reached the unanimous conclusion, based on the negotiating history of the Convention, that this differentiation was not in conflict with Articles 3(d) and 4(1). It was accepted that these provisions 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. In the United States view, and in the view of the drafters of Convention No. 182, countries have the discretion - and the responsibility - to consider the actual nature and circumstances of work performed by children and their age. In the United States, laws and regulations relating to the prohibition of hazardous child labour in agriculture are supported by government initiatives to find ways to better protect the health and safety of children working in the agricultural industry. These include programmes to protect farmworkers and their children from pesticides, to educate young workers about safety and health in agriculture, and to prevent injuries among children working in agriculture. Furthermore, federal laws are often supplemented by state child labour laws, many of which have more stringent agriculture standards.

Article 4(3): Examination and periodical revision of the types of hazardous work

In the United States, there are various federal and state laws that protect children from labour that necessarily exploits them and poses a real danger to them. The Hazardous Occupation Orders (HOs) issued by the Secretary of Labor pursuant to the Fair Labor Standards Act (FLSA) constitute the determination of types of hazardous work contemplated by Articles 3(d) and 4 of Convention No. 182. The HOs mentioned in the CEACR observation 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. Copies of the amendments were submitted with the Government's most recent article 22 report. According to its agreement with the Department of Labor's Wage and Hour Division (WHD), the National Institute for Occupational Safety and Health (NIOSH) was tasked with examining issues within the framework of the current Hazardous Orders. NIOSH consequently did not consider the extent to which fatalities and injuries occur despite existing HOs or other federal or state laws. NIOSH also did not consider strategies short of a complete ban on employment. In some cases, the Department of Labor has found that the best strategy for addressing the occurrence of fatalities resulting from activities that are already illegal might be increased focus on safety training, use of personal protective equipment, and strict adherence to recognized safe working practices. The Department of Labor continues to review the FLSA child labour provisions to ensure that the implementing regulations provide job opportunities for working youth that are healthy and safe and not detrimental to their education. As part of that effort, the Department continues to review and consider the NIOSH report's recommendations, including, as the Experts noted, through stakeholder meetings with all interested parties. As a result, the Department anticipates proposing further revisions to its child labour regulations to address several of the NIOSH recommendations, and soliciting additional data and input from the public for consideration of additional revisions.

Article 5: Monitoring mechanisms

Mechanisms exist at both the federal and state levels to monitor implementation of all aspects of Convention No. 182. The Committee of Experts has commented on three particular areas.

National survey on levels of compliance in grocery stores, full service restaurants and quick service restaurants

In carrying out its enforcement authority, the WHD gives child labour complaints the highest priority. In addition, the WHD conducts self-directed investigations, which are not directly in response to complaints, but initiated by the WHD based on its analysis of where child labour violations are more likely to occur. A review of the data regarding the Department's youth employment investigations conducted over the past five years reveals a pattern of increased compliance with child labour laws. WHD investigations demonstrate that a lower percentage of employers are in violation of the youth employment rules, and they are employing a much lower percentage of youth in violation of child labour laws. Also, the investigations show that employers are much less likely to employ youth in violation of the Hazardous Orders. To further amplify child labour enforcement, the Department of Labor initiated efforts to address the problem of repeat violations in three unique industries where the highest proportion of youth is employed - grocery stores, full service restaurants and quick service restaurants. As the result of these efforts, the most recent youth employment compliance surveys demonstrate that compliance has improved and recidivism rates have dropped.

Measures to eliminate child trafficking and the results achieved

United States government measures to combat and eradicate child trafficking are described elsewhere in this document with regard to Articles 3(a) and 7(2). In addition, the WHD investigators are in workplaces every day and play an essential role in identifying potential trafficking victims and setting in motion measures to help them. All of these efforts pre-date ratification of Convention No. 182 and will continue as long as necessary. The Government will also continue to keep the CEACR informed of measures taken and results achieved.

Measures to ensure the enforcement of child labour laws in agriculture and their impact on the elimination of the worst forms of child labour in the agricultural sector

The United States Government uses every tool available - strong enforcement, compliance assistance and strategic partnerships - to ensure that young agricultural workers have safe and appropriate work experiences. As a matter of policy, the WHD examines child labour compliance in every full investigation that it conducts. Also, as part of its labour standards enforcement responsibilities in low-wage industries, which include agriculture, the WHD is cognizant of and looks for situations in which workers, including young workers, have been intimidated, forced to turn over immigration papers, threatened or held against their will. Where appropriate, the WHD coordinates compliance activities with the states, which also have responsibility for child labour standards. Although, as noted above, child labour violations across industries continue to decrease, violations in agriculture increased last year. As a consequence, the WHD will continue to target youth in agriculture through its self-directed enforcement and will continue to prioritize any child labour complaints received in the agriculture industry. Compliance assistance includes initiatives to ensure that employers and young workers and their parents fully understand United States child labour laws with regard to work in the agriculture industry. The Department of Labor distributes information, by various means and in multiple languages, which details in an easy-to-understand format the requirements for employing youth in agriculture. Strategic partnerships have been established with agricultural associations to disseminate compliance information to employers in the industry, with foreign consulates to advise employees of their rights and the remedies available to them under child labour laws, and with other federal agencies to reduce occupational deaths and injuries to youth on farms. For example, in conjunction with consulates from Mexico, Colombia and Central America as well as other community and governmental organizations, the Department of Labor established the Justice and Equality in the Workforce Program. The programme provides an avenue for non-English speakers to report violations of United States labour laws and channels complaints to the appropriate agency.

Article 6: Programmes of action to eliminate the worst forms of child labour

Measures relating to the Federal Inter-Agency Working Group on Young Worker Safety and Health

The United States Government has developed an array of programmes to educate all those who affect youth employment - employers, parents, teachers, government agencies, and the youth themselves - about United States child labour laws and the importance of compliance. The Federal Inter-Agency Working Group on Young Worker Safety and Health is now the "Federal Network for Young Worker Safety and Health", and it has expanded to include over 30 participants representing 11 federal agencies. The ultimate goal of FedNet is to prevent occupational injuries and illness among young workers by: increasing awareness of young worker occupational safety and health among key community players and young workers as they enter the workforce; fostering education, training and outreach to promote young worker safety and health; enhancing federal initiatives that create relationships with small businesses, trade associations, and other organizations that employ young workers; and promoting resources that enhance employer compliance and knowledge of federal and state regulations related to young workers. FedNet provides a forum for discussion, sharing resources and reducing redundancy among federal agencies. Following a review of injury/illness and fatality data, FedNet participants selected two areas of emphasis for 2004-06: motor vehicle safety and workplace violence prevention in retail settings.

Achievements and impact of the Child Exploitation and Obscenity Section, especially with regard to combating the commercial sexual exploitation of children under 18

The Child Exploitation and Obscenity Section (CEOS) of the Department of Justice's Criminal Division was created in 1987, and has a long history of prosecuting cases involving the commercial sexual exploitation of children. CEOS enforcement efforts have been significantly strengthened in recent years with the passage of the TVPA and TVPRA, mentioned above, as well as the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act of 2003. The PROTECT Act, for example, allows law enforcement officers to prosecute American citizens and legal permanent residents who travel abroad and commercially sexually abuse children, without having to prove intent to commit the crime. CEOS concentrates its efforts on investigations that have the maximum deterrent impact, and has expanded its efforts to include new fronts in the battle to protect children from exploitation, such as the misuse of computers and advanced technology. In the past two years CEOS has increased its caseload by more than 445 per cent and has increased its focus on producers and commercial distributors of child pornography. In addition to its enforcement activities, CEOS provides advice and training on child exploitation to prosecutors, investigators and judges at the federal, state, local and international levels. CEOS also works in partnership with other agencies to identify the victims of child sexual exploitation so they can be rescued and protected from further abuse. The Government has provided the CEACR with detailed information about CEOS priorities, activities and achievements.

Article 7(1): Penalties

In its observation, the Experts have noted some of the penalties available under United States law for violations relevant to Convention No. 182. The Experts also noted that some of these penalties have been increased substantially, and that penalties tend to be more severe when the infringements involve children under 18 years of age. In an attempt to further strengthen child labour protections, the President's budget for financial year 2007 once again calls for increasing the amount of civil monetary penalties that can be assessed against an employer whose violation of the child labour laws result in a youth's death or serious injury, and for even larger penalties where such violations are repeated or willful. In addition, the Department of Labor has requested additional funds to sustain a proactive enforcement programme of directed investigations in low-wage industries, including young workers, and to continue to meet its goals for investigating complaints in a timely manner.

Article 7(2): Effective and time-bound measures

Means used to encourage migrant children to remain in school

The Office of Migrant Education at the Department of Education administers several programmes that provide academic and supportive services to the children of families who migrate to find work in the agricultural and fishing industries, focusing on helping migrant students to succeed. Some of these programmes assist migrant students in meeting challenging academic standards and achieving graduation from high school by designing programmes that help migrant children overcome the effects of migrancy, such as educational disruption and cultural and language barriers. Others are designed to help break the cycle of poverty and improve the literacy of participating migrant families by integrating early childhood education, adult literacy or adult basic education and parenting education into a unified family literacy programme. Further, in response to the recommendations of a Presidential Task Force for Disadvantaged Youth, the Departments of Labor, Education, Health and Human Services, and Agriculture have joined forces to address the education needs of migrant youth, including basic education services for high-school completion, workforce training and placement services.

Measures taken by the Trafficking in Persons and Worker Exploitation Task Force

Coordination among United States federal agencies in combating trafficking, which previously occurred through the Trafficking in Persons Worker Exploitation Task Force (TPWETF), is now primarily done by the President's Interagency Task Force to Monitor and Combat Trafficking in Persons and the Senior Policy Operating Group on Trafficking in Persons (SPOG). Such coordinated efforts include toll-free hotlines to report instances of human trafficking and worker exploitation, public-awareness strategies, and delivery of benefits and services to trafficking victims. Special programmes have been created to care for trafficked children who do not have a parent or guardian. Still others are aimed at addressing the educational needs of at-risk students in an effort to make these children less vulnerable to the worst forms of child labour. Extensive information has been provided to the CEACR on these activities. A good example is the campaign Rescue and Restore Victims of Human Trafficking, initiated by the Department of Health and Human Services. This programme is helping to increase the rate at which victims are identified and become eligible to receive benefits and services under the TVPA so that they can regain their dignity and safely rebuild their lives in the United States. Other programmes exist to help trafficking victims find appropriate jobs, including basic literacy training and related academic and vocational services, and, in some cases, federal financial aid for post-secondary education.

Programmes adopted or envisaged to keep child victims of trafficking in school

As noted above, a wide array of programmes have been created to care for child victims of trafficking, including programmes aimed at addressing their educational needs, knowing that keeping these children in school makes them less vulnerable to trafficking and other unacceptable forms of child labour.

Programmes specifically designed to protect girls under 18 years of age from the worst forms of child labour

There are many federal and state programmes designed to protect young girls who are considered at high risk of exploitation, as well as programmes designed to rehabilitate girls coming out of particular kinds of abusive labour situations. The United States Government has provided details on several of these programmes, including the long-running Girl Power! initiative, launched by the Department of Health and Human Services (HHS) before ratification of Convention No. 182. In 2005, HHS launched a new programme to increase outreach in targeted geographic regions to girls exploited through commercial sex and other victims of trafficking.

Article 8: International cooperation

The United States contributes to a wide array of programmes that support the elimination of child labour worldwide. In particular, since 1995, the United States Government has provided approximately US$480 million for technical assistance projects aimed at eliminating exploitative child labour around the world. Of this amount, over US$295 million has gone to ILO/IPEC, making the United States the largest contributor to IPEC. In addition, through its Child Labor Education Initiative (EI), the United States has provided over US$182 million for grants to promote educational and training opportunities for child labourers or children at risk of engaging in exploitative labour. Combined, the IPEC and EI programmes have funded more than 180 projects in at least 75 countries in Asia, Africa, Latin America and the Caribbean, the Middle East and Europe.

The United States has also invested nearly US$400 million in international anti-trafficking efforts over the last five years. These programmes run the gamut from small projects to large multi-million-dollar projects to develop comprehensive regional and national strategies to combat trafficking, improve law-enforcement capacity to arrest and prosecute traffickers, enhance support to victims of trafficking, and increase awareness of both at-risk populations and policymakers to trafficking.

In addition, before the Committee, a Government representative stated that the United States took its obligations under ratified conventions very seriously. He pointed to document D.10 which provided point-by-point information to the Committee of Experts' comments. He indicated that the Government's article 22 report on Convention No. 182 had been transmitted to the ILO subsequent to the Committee of Experts' meeting. In the United States, ratification was viewed not as a promise to come into compliance with the provisions of an ILO Convention, but as confirmation that law and practice already conformed to all of the Convention's requirements prior to ratification. To make this determination with confidence, the Tripartite Advisory Panel on International Labor Standards (TAPILS) carefully analysed the legal feasibility of ratifying ILO Conventions. In the case of Convention No. 182, the TAPILS process actually began while the ILO Conference was negotiating the instrument in 1999, and it included tripartite participation at the highest levels. All parties agreed and confirmed, within months of the Convention's adoption, that United States law, regulations and practice gave full effect to the requirements of Convention No. 182. The speaker noted that implementation of the Convention was a work in progress, just as it was in every ratifying nation. His Government's reports to the ILO had demonstrated unceasing, aggressive actions on the part of the United States Government to enforce existing laws against the worst forms of child labour, and to study new ways to increase protection for vulnerable young workers. The Committee of Experts had acknowledged the breadth and intensity of his Government's efforts to eradicate the worst forms of child labour in the United States and around the world.

In this regard he recalled that the Committee of Experts had noted with interest the various measures under way in the United States with regard to the sale and trafficking of children, and the United States' anti-trafficking policies and programmes which were coordinated at the highest levels of Government, and which encompassed protection, prosecution and prevention. Programmes had been developed to identify trafficking victims and provide them with benefits and services, including education, so they could regain their dignity and safely rebuild their lives. Other programmes were aimed at protecting children at risk of exploitation and punishing exploiters. These efforts has had an impact on thousands of children in the United States and dozens of other countries. In addition to domestic-based activities, his Government had invested nearly US$400 million in international anti-trafficking efforts in the last five years. The Committee of Experts had also noted the Government's efforts to protect children from commercial sexual exploitation and other illicit activities; to ensure that employers, parents and young workers fully understood and complied with United States child labour laws; and to adequately punish violators and exploiters. The extent of the United States Government's international cooperation was well known, in particular, the nearly US$300 million contributed since 1995 to IPEC.

The one area where the Committee of Experts expressed concern related to hazardous work and the requirements of Articles 3(d) and 4(1) of the Convention. The Committee of Experts had correctly observed that the Fair Labor Standards Act set a lower minimum age for agricultural occupations determined to be hazardous than for hazardous non-agricultural occupations. However, in the pre-ratification legal review of the Convention, TAPILS concluded unanimously that this differentiation was not in conflict with the Convention. Their conclusion was based on the negotiating history of the Convention, which made it clear that Article 4 allowed governments, in good faith and subject to certain procedural requirements, to establish standards that treated children of different ages differently, and that treated different classes of occupations differently. In his Government's view, countries had the discretion - and the responsibility - to consider the actual nature and circumstances of work performed by children and their age. Moreover, in the United States, laws and regulations relating to the prohibition of hazardous child labour in agriculture were supported by government initiatives to find ways to better protect the health and safety of children working in the agricultural industry. His Government also used strong enforcement, compliance assistance and strategic partnerships to ensure that young agricultural workers had safe and appropriate work experiences. As a matter of policy, the Department of Labor's Wage and Hour Division examined child labour compliance in every full investigation that it conducted. The speaker also pointed to programmes to protect farm workers and their children from pesticides, to educate young workers about safety and health in agriculture and to prevent injuries among children working in agriculture. Federal laws and programmes, furthermore, were often supplemented by measures at the state level. Regarding the Committee of Experts' comment on amendments to the Hazardous Orders that constituted the determination of the types of hazardous work contemplated by Articles 3(d) and 4 of the Convention, the speaker pointed out that some of the Hazardous Orders had in fact been amended, and that the Department of Labor anticipated proposing further revisions to the child labour regulations, in light of the recommendations of the National Institute for Occupational Safety and Health (NIOSH). The review included stakeholder meetings with all interested parties, such as trade unions and employer organizations.

Finally, the speaker stressed that the Wage and Hour Division gave child labour complaints its highest priority. He reiterated that child labour compliance was an element of every full investigation. In addition, the Division conducted self-directed investigations, which were not dependent upon complaints, but initiated wherever child labour violations were most likely to occur. The Department had also addressed the problem of repeated violations in three industries where the highest proportion of youth was employed - grocery stores, full service restaurants and quick services. The result of all these efforts had been a pattern of increased compliance with child labour laws over the past five years. In agriculture, however, violations were up last year. Consequently, the Wage and Hour Division would continue to target youth agricultural workers through its self-directed enforcement and would continue to prioritize any child labour complaints received in the agriculture industry. He concluded by stating that protecting children from labour that was unsafe, unhealthy or detrimental to their education was an ongoing process in the United States. Although there might be differing viewpoints with respect to the best approach to be taken, his Government was committed to the prohibition and elimination of the worst forms of child labour. He noted that the Government would continue its efforts in this regard, and would continue to inform the ILO about these efforts and their impact.

The Worker members thanked the Government for the extensive information submitted to the Committee which indicated considerable efforts to eliminate the worst forms of child labour. Nonetheless, they regretted that the article 22 report had been received only after the Committee of Experts report had been published. The Government admitted that its regulations fixed a lower minimum age for hazardous work in agriculture than in non-agricultural sectors. The Government argued that this differentiation was admissible under certain conditions, referring to the preparatory work on Convention No. 182. In its report, however, the Committee of Experts did not appear to have the same view. The Worker members thus requested the Committee of Experts to pronounce itself on this question in general in their next report, not only in connection with the case of the United States. Furthermore, they wished to have clarification from the Government as regards amendments to the provisions on hazardous work and on child labour, made at the end of 2004. Finally, they noted that the Government had provided information concerning initiatives and programmes to fight the worst forms of child labour, as well as improvements in some areas, and deterioration in others, notably in the agricultural sector. They asked for greater quantitative information in this regard.

The Employer members recalled the fundamental nature of Convention No. 182 and its profound legal and moral weight in the community of nations. They commended the United States for its important role in seeking to eliminate the worst forms of child labour and recalled the Global Report on child labour, currently under discussion at this Conference, which indicated that progress had been made but also pointed to the magnitude of the task that remained. They commended the work carried out by the Committee of Experts which helped the United States Government to deal with human trafficking, illicit activities and hazardous work, and encouraged businesses to achieve high standards with regard to the employment of minors. The Employer members noted that the Committee of Experts had requested action to be taken by the Secretary of Labor with respect to the minimum age for hazardous work in the agricultural sector. The Committee of Experts were concerned that the minimum age of 16 for hazardous work in the agricultural sector was different from the minimum age of 18 in various other industries. It had to be borne in mind that Article 4(1) of the Convention provided that the "types of work referred to under Article 3(d) shall be determined by national laws or regulations or by the competent authority ... taking into consideration relevant international standards". The standard itself did not provide the minimum age for employment; this was a matter for national determination in consultation with national social partners. Those national determinations had to be based on national circumstances. In the agricultural sector there was a high incidence of family or community-based work. This was not unique to the United States; nor were health and safety risks in agriculture. A mere differential between a minimum age for agricultural occupations and a minimum age for non-agricultural occupations was not in itself in conflict with the Convention. Hence, it was difficult to say that the Order of the Secretary of Labor was in conflict with the Convention. In addition, employees under domestic law in the United States carried significant obligations relating to the health and safety of employees, whatever the age of the employees, and in all industries.

The Worker member of the United States stated that a great number of young children worked long, hard hours in agriculture under working conditions that threatened their health, safety and well-being. The Fair Labor Standards Act permitted children in agriculture to work at younger ages, longer hours and in more dangerous occupations than children in any other industry, working on average 30 hours a week. Among 15-17 year-olds, child workers in agriculture accounted for at least 25 per cent of all fatalities experienced by all young workers. United States legislation prohibited a 12-13 year-old from working in an air-conditioned office but allowed children of the same age to work unlimited hours outside of school harvesting produce under the blazing sun without adequate water or sanitation. The three major industries in the United States that employed children were grocery stores, full service restaurants and quick service restaurants. Legal protection was sparsely enforced, labour inspections by federal agencies had declined and records were inadequately maintained. The speaker stated that last year, the Department of Labor had lowered the age below which it was impermissible for fast food restaurants and other retail establishments to employ children to operate deep fryers and grills and to clean grills and deep fryers that had cooled to 100 degrees Fahrenheit, in spite of concerns raised by the National Institute for Occupational Safety and Health (NIOSH). This clearly weakened the protection afforded to young workers in hazardous occupations. Another regulatory change allowed for 16-17 year-olds to load paper balers and compactors that met specific safety standards. Such equipment was extremely dangerous to operate. This also represented a serious step backwards by the United States in protecting against the worst forms of child labour.

With respect to the Government's assertion that the Department of Labor gave the highest priority to child labour complaints, the speaker noted that the Department had reached a settlement with Wal-Mart, where it had found that the company had committed dozens of violations of the Secretary's Hazardous Orders in three states, including violations of the prohibitions of loading, operating and unloading of paper balers by 16 and 17-year-olds. The settlement provided the company with advance notification of future investigations and the ability to avoid civil money penalties. When the agreement became public, Congress demanded that the Department of Labor's Office of Inspector General launch an investigation. This agreement raised serious concerns over the Government's ability and commitment to protect children from the worst forms of child labour. The speaker urged the Committee of Experts to continue to closely monitor developments in the United States.

The Worker member of the United Kingdom noted that the present discussion concerned the most vulnerable segments of the population in the world's richest nation, namely children of migrant agricultural workers and workers resident in the United States, the number of which was estimated at 800,000. He presented to the Committee the testimonies of several child labourers in agriculture in the United States. These included Dora, a 15-year-old from Eagle Pass, Texas, who worked every summer in the sugar beet fields of Minnesota. Dora worked nine hours per day in the fields in extreme heat or cold and often without drinking water for hours. She had also been exposed to pesticides thrown from airplanes. Dora also missed classes because she and her family had to leave for the fields in May every year. The speaker also mentioned Santos, 16 years old, who had started cutting onions at the age of five, and who had hurt himself many times in the fields and had often worked for hours without drinking water. Flor, began to work in a fruit packing plant in Washington State at the age of 15, a year younger than the State law permitted. Together with another 100 workers, seven of which were 15 or younger, she suffered poisoning by carbon monoxide fumes and was dismissed by the company because she was underage, without receiving any form of compensation. The speaker also cited the cases of Jessica, who left school at the age of 15 to work in the melon fields near Yuma, where she worked 12 hours a day and earned US$3 per hour, and of Dean, aged 14, who also worked 12 hours per day, sleeping only six hours a night. He chopped cotton and pitched watermelons in the fields of Arizona, where temperatures routinely rose above 40 degrees.

Under United States federal law, a 12-year-old child could harvest from 3 to 8 a.m. seven days a week, before going to school, while a 15-year-old could work 50 hours a week during a school year. He also remarked that many children were dropping out of school to work full time in the fields. Turning to the provisions of Convention No. 182, and in particular its Article 4, the speaker recalled the importance of Paragraph 3 of Recommendation No. 190 in the determination of hazardous work, which in his view represented minimum international standards. Recalling that Convention No. 182 required States to take full action for the elimination of the worst forms of child labour, he invited the Government to heed to the recommendations of the Committee of Experts, amend the legislation and re-establish a labour inspectorate committed to protecting workers and children rather than restricting labour union rights.

The Government member of Cuba indicated that the Committee of Experts was unable to examine the report by the United States as it was not sent within the set deadline. This non-compliance constituted an obstacle against the good functioning of the supervisory mechanism, as it did not allow the comprehensive examination of the case, which was before the Committee. With respect to Article 3(a) of the Convention relating to the trafficking of persons, the late reply of that country only included information of a general nature, omitting important details on the number and adequacy of sanctions, which applied in cases of trafficking of persons and that of sexual tourism. This was in contrast with the very exhaustive report made by the State Department on the situation of trafficking of persons in the rest of the world. Thus while this Committee was discussing the case of the United States, Washington was evaluating the rest of the world. Set against the above context, the speaker pointed to the so-called Cuban Adjustment Act, which encouraged and privileged illegal emigration from Cuba to the United States. It was a business of death in which hundreds of traffickers acted in all impunity in the South of Florida. It would thus be preferable for the Committee of Experts to request more information on persons who were prosecuted on the grounds of this grave offence, the sanctions imposed and the nationality of traffickers.

With regard to Article 3(c) of the Convention on illicit activities, the country in question indicated that it had submitted copies of federal laws, which prohibited the sale, delivery or offering of firearms to children. Additional information relating to subparagraph 3(b) had been omitted, which concerned the use of children in child prostitution and pornography, which was mentioned in a previous observation by the Committee of Experts. It was also in the above case that it would be preferable for the Committee of Experts to request information on the number of victims, their nationality, and sanctions applied to the perpetrators. Finally, with respect to Article 7 of the Convention, the Committee of Experts should rely on more precise information, which would enable it to evaluate if the monetary sanctions imposed on unscrupulous employers, who were responsible for violations relating to child labour, were sufficiently dissuasive to discourage such horrible practices.

The Worker member of India noted that annually 50,000 trafficked women and children, with a majority from South-East Asia, were employed in the United States in the sex industry, in domestic and cleaning work, in sweat shops and in agricultural work. According to the report of the Committee of Experts, between 300,000 and 800,000 children were employed in agriculture under hazardous conditions. Many worked for 12 hours a day and suffered from rashes, headaches, dizziness, nausea and vomiting as a result of their exposure to dangerous pesticides. They also risked long-term illnesses due to pesticide exposure, in particular cancer and brain damage, while injuries from knives and heavy equipment were common as well. The speaker went on to acknowledge the existence of legislation against trafficking, involuntary servitude and prostitution, but emphasised that law without implementation was useless. Although the United States had spent nearly US$400 million within the last five years in anti-trafficking efforts, the country still faced great difficulties in punishing traffickers, rehabilitating victims and protecting children from the worst forms of child labour. A question might very reasonably arise in the minds of the civilized world, as to why the powerful United States Administration, capable of detecting and targeting missile attacks at the kitchen of their enemy 10,000 km away, could not detect the offenders in their territory and punish them. This was perhaps because of absence of political will as the employers benefited from employment of cheap child labour like those in other countries of the world. In the given circumstances, the United States should supply information on the compliance of the Convention on Worst Forms of Child Labour, particularly, with numbers and rates of infringements reported, investigations, prosecutions, convictions and penal sanctions applied.

The Worker member of Pakistan noted that the number of children in hazardous work had declined by 26 per cent, as indicated in this year's Global Report. The Committee of Experts' report pointed out that an estimated 50,000 women and children were annually trafficked in the United States, of which 30,000 came from South Asia. The Government had indicated that it had established strategic partnerships with Central American countries to combat trafficking. He proposed establishing similar cooperation with Asian countries. While he acknowledged the information provided by the Government concerning efforts to combat trafficking, the speaker called for further information on the number of offenders prosecuted and on how many victims of trafficking had been rehabilitated. It would be useful as well to obtain more information on prosecutions and penalties imposed for cases of sexual exploitation of children.

The Government representative wished to provide clarification with regard to a comment regarding the Wal-Mart settlement. The speaker stated that the Wal-Mart agreement was part of the Labor Department's comprehensive efforts aimed at protecting young workers. The corporate-wide settlement reached with Wal-Mart imposed a number of significant, proactive obligations that went far beyond what the law required, and the agreement secured the payment of 90 per cent of the penalties that had been initially assessed, which was high in comparison to the average settlement rate of 70 per cent. Under the agreement, Wal-Mart agreed to decline from employing 14 and 15-year-olds, even though this was legal in many cases, and it agreed to prohibit 16 and 17-year-olds from using cardboard balers. The company also agreed to make compliance with child labour laws a factor in evaluating the performance of managers. Most of these measures would not have been implemented in the absence of the agreement. Furthermore, he stressed that nothing in the agreement prevented the Wage and Hour Division from conducting unannounced interventions to protect youth from hazardous situations. He pointed out that the Department of Labor's Office of the Inspector General had acknowledged that the Department had addressed its concerns over the Wal-Mart settlement, and that it now considered the matter closed. In closing, he assured the Committee that his Government would take into consideration the debate and conclusions, and would respond fully and promptly to all issues raised.

The Employer members recalled that the purpose of the Conference Committee was to call upon governments to account for their legislation and practice. What was of relevance to the present discussion was not the conduct of individual corporations but that of the respondent government. In response to the comments made by the Worker member of the United Kingdom on Article 2 of the Convention, the speaker drew attention to the fact that the Article did not establish a standard for child employment. What was prohibited by the terms of Article 2 was employment that constituted the worst forms of labour. The question of whether work of hazardous nature was being performed could be answered only by recourse to the provisions of Articles 3(d) and 4(1) of the Convention. The speaker expressed his satisfaction with the response provided by the United States. He considered it to be a serious response which should be considered not only for the discussion of the specific case but also for the overall work of the Committee.

The Worker members once more expressed their regret about the delayed receipt of the report on Convention No. 182. They observed that the ratification of the United States with respect to the fundamental human rights Conventions being so poor, one would have expected the Government to be keen to set an example as regarded their obligations under ratified Conventions. They also regretted the fact that the United States, a country that was proud of its human rights standards, had not opened up itself more to the ILO supervisory system by ratifying more fundamental human rights Conventions. Now, they were not really in a strong and credible position to teach lessons to countries that had ratified these ILO Conventions. The Worker members wished to see the United States as the richest country in the world setting an example for other countries in the implementation of this Convention. They acknowledged the efforts made by the Government to eliminate the worst forms of child labour but pointed out that it had not put in place the laws necessary to attain this objective. They invited the Government to reinforce the programmes for the eradication of child labour by integrating them into a national coherent action plan, in which the social partners would fully participate, and to provide the Committee of Experts with detailed information on the development and the effects of these programmes, respecting the reporting cycle of the Convention. The Worker members also requested the Committee of Experts to continue to examine the situation in the country by reviewing the progress of all implemented programmes. In closing, they expressed their wish to see their comments reflected in the conclusions and their desire for the Committee of Experts to address the question of the differentiation of minimum age for hazardous work as per sector of economic activity not only for the United States, but also in a more general context, taking into account the conflicting views on this issue of the US Government and the Committee of Experts.

The Worker member of the Netherlands, in addition to raising an editorial point, noted that the length of the Committee's conclusions was constantly increasing. He expressed the view that it would be more productive if the Committee focused more closely on the most important substantive matters in shorter conclusions.

The Committee noted the detailed written and oral information provided by the Government representative and the discussion that ensued, while noting that the report to the Committee of Experts had not been received in time. The Committee noted the information contained in the report of the Committee of Experts relating to the sale and trafficking of persons under 18 into the United States for purposes of economic and sexual exploitation, as well as the employment of children in hazardous work in the agricultural sector.

In this regard, the Committee noted the information provided by the Government representative that his country was leading the world in the fight against trafficking in persons and that the centrepiece of United States Government efforts was the Trafficking Victims Protection Act of 2000 (TVPA), which enhanced three aspects of government activity to combat trafficking in persons: protection, prosecution and prevention. Furthermore, the TVPA increased protections and assistance for victims of trafficking; created new crimes, and enhanced penalties for existing crimes including trafficking for labour or sexual exploitation. The Committee further noted with interest the Government's indication that the Trafficking Victims Protection Act was reauthorized in 2003 and 2005 and, inter alia, mandated new information campaigns to combat sex tourism, enhanced anti-trafficking protections under federal law and expanded services available to victims, including appointing guardians for young victims and providing access to residential treatment facilities. Finally, the Committee noted the information provided by the Government representative that the number of persons trafficked annually into the United States was currently less than previous estimates. The Committee welcomed the recent measures taken to combat trafficking in children for labour or sexual exploitation. It nevertheless noted that, although the law prohibited the trafficking of children for labour or sexual exploitation, it remained an issue of concern in practice. The Committee accordingly invited the Government to redouble its efforts to eliminate the trafficking of children under 18 years of age for labour and sexual exploitation and asked it to provide information in its next report to the Committee of Experts on progress made in this regard.

Concerning the issue of the employment of children under 18 in work determined to be hazardous in the agricultural sector, the Committee noted the information provided by the Government representative that it was true that the Fair Labour Standards Act set a lower minimum age of 16 for agricultural occupations determined to be hazardous, than for hazardous non-agricultural occupations. However, in the Government's view, this differentiation was not in conflict with Articles 3(d) and 4(1) of the Convention that allowed governments to establish standards that treated children of different ages differently, and that treated classes of occupations differently. The Government representative had also pointed out that in the United States, laws and regulations relating to the prohibition of hazardous child labour in agriculture were supported by government initiatives to find ways to better protect the health and safety of children working in the agricultural industry. These included programmes to protect farm workers and their children from pesticides, to educate young workers about safety and health in agriculture, and to prevent injuries among children working in agriculture. While taking note of this information, the Committee shared the concern expressed by many speakers with regard to the hazardous and dangerous conditions that were and could be encountered by children under 18, and indeed in some cases under 16, in the agricultural sector. The Committee also noted the statement of the Government representative that, although child labour violations across industries continued to decrease, violations in agriculture had increased the previous year.

The Committee emphasized that, by virtue of Article 3(d), work which, by its nature or the circumstances in which it was carried out was likely to harm the health, safety or morals of children, constituted one of the worst forms of child labour and that, by virtue of Article 1 of the Convention, member States were 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. While Article 4(1) allowed the types of hazardous work to be determined by national laws or regulations or the competent authority, after consultation with the social partners, the Committee noted that the Fair Labour Standards Act authorized children aged 16 to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health or well-being by the Secretary of Labour.

The Committee accordingly requested the Government to indicate, in its next report to the Committee of Experts, the measures taken or envisaged (including but not limited to legislation) to ensure that work performed in particular in the agricultural sector was prohibited for children under 18 years where it was hazardous work within the meaning of the Convention.

The Worker member of the Netherlands, in addition to raising an editorial point, noted that the length of the Committee's conclusions was constantly increasing. He expressed the view that it would be more productive if the Committee focused more closely on the most important substantive matters in shorter conclusions.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 3 of the Convention. Worst forms of child labour. Clause (a). Slavery and practices similar to slavery. Sale and trafficking of children. The Committee had previously noted the Government’s information that, on 19 December 2003, Congress enacted the Trafficking Victims Protection Reauthorization Act (TVPRA), which reauthorized the Trafficking Victims Protection Act of 2000 (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 notes the Government’s statement that, on 23 December 2008, the TVPRA of 2008 was enacted which once more reauthorized the TVPA for four years and authorized new measures to combat human trafficking, including efforts to increase effectiveness of anti-trafficking in persons programmes, providing interim assistance for potential child victims of trafficking and enhancing the ability to criminally punish traffickers. For example, the Committee notes that, according to the detailed information provided in the Attorney-General’s Annual Report to Congress and Assessment of United States Government Activities to Combat Trafficking in Persons of June 2009 (Attorney‑General’s Annual Report of 2009), the TVPRA of 2008 broadens the crime of sex trafficking by fraud, force or coercion by providing that the Government need merely prove that the defendant acted in reckless disregard of the fact that such means would be used. The TVPRA also broadens the reach of the crime of sex trafficking of minors by eliminating the requirement to show that the defendant knew that the person engaged in commercial sex was a minor in cases where the defendant had a reasonable opportunity to observe the minor. The Committee once again strongly encourages the Government to pursue its efforts to eliminate the trafficking of children under 18 years of age for labour and sexual exploitation. It requests the Government to continue providing information on the measures taken in this regard and the results attained.

Article 3(d) and Article 4, paragraph 1. Hazardous work. The Committee had previously 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 family farms) that the Secretary of Labour finds and declares to be “particularly hazardous for the employment of children”. It had observed that 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 Labour.

The Committee had noted the allegation of the American Federation of Labour and Congress of Industrial Organizations (AFL–CIO) 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 further noted that, according to the AFL–CIO and the National Institute 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 youths of 15–17 years of age working in agriculture appear to have over four times the risk of injury than youths working in other industries. However, eventual changes to Hazardous Orders (HOs) could not be 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 Committee had also noted that, according to the Worker member of the United States at the Conference Committee on the Application of Standards at the 95th Session of the International Labour Conference in June 2006, among 15–17-year-olds, child workers in agriculture accounted for at least 25 per cent of all fatalities experienced by young workers. The Committee therefore shared the concern expressed by many speakers with regard to the hazardous and dangerous conditions that were and could be encountered by children under 18, and indeed in some cases under 16, in the agricultural sector.

The Committee had noted the Government’s statement that the FLSA, which was developed through a process open to the participation of employers’ and workers’ representatives, does not authorize the Secretary of Labour to restrict young persons of 16 years and older from working in agriculture. Moreover, in determining types of hazardous work pursuant to Article 3(d) and Article 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 condition that the health, safety and morals of the children are fully protected. Therefore, the Congress had determined that it is safe and appropriate for children at 16 to perform work in the agricultural sector, in conformity with Article 3(d) and Article 4(1) of the Convention. However, the Committee, considering the significant number of injuries and fatalities suffered by children under 18 years working in the agricultural sector, observed that the conditions of protection and prior training appeared not to be fully met in all circumstances and requested the Government to take the necessary measures to ensure that this work is only carried out in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190.

The Committee notes the information in the Government’s report that the Environmental Protection Agency (EPA) and the Department of Labour (DOL) have robust health and safety standards for the agricultural sector, including the EPA’s worker protection regulation (40 C.F.R. 170) and certified pesticide applicator regulation (40 C.F.R. 171), both of which are scheduled to undergo modifications in 2010. The Government indicates that the proposed modifications, which were delayed under the previous administration, would help ensure the health and safety of young agricultural workers by setting specific age requirements for pesticide-related activities. Furthermore, the Government indicates that the EPA and DOL have training requirements to protect all agricultural workers’ health and safety, including the standard on occupational hazard communication that requires training on the recognition of chemical hazards and appropriate protective measures. The DOL’s Wage and Hour Division (WHD) and the United States Department of Agriculture have also worked together to reinvent and streamline a voluntary tractor certification programme for 14- and 15-year-olds, who are permitted by HOs to operate certain otherwise prohibited farm equipment after being properly trained and certified in the equipment’s safe operation. Moreover, the DOL’s Occupational Safety and Health Administration also engages in significant education and outreach designed to keep youth safe, including child farm workers.

The Committee notes, however, that the United States Government has no special training or instructional requirements at the federal level for 16- and 17‑year-old agricultural workers engaged in hazardous labour and there are currently no separate health and safety standards under federal law for child farm workers aged 16 or 17 engaging in hazardous work. The Committee also notes the information in the Government’s report that all children on family farms and
12- and 13-year-old farm workers working alongside their parents or with parental consent are excluded from the FLSA minimum-age requirements.

The Committee must express its serious concern over the fact that children under 18 years of age are allowed, in law and in practice, to perform these types of work which are clearly hazardous, as acknowledged by the Government itself in its report when it refers to agriculture as the industry with the highest youth fatality rate. It also expresses its serious concern that children aged 14 and 15 years are permitted by HOs to receive training in the operation of otherwise prohibited farm equipment, such as tractors, and that children of all ages working on family farms or 12- and 13-year-olds working alongside their parents or with parental consent are excluded from the application of the FLSA. The Committee must therefore once again emphasize 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 under 18, 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. It also recalls that Paragraph 4 of Recommendation No. 190 addresses the possibility of authorizing the employment or work of young persons as from the age of 16 under strict conditions that their health and safety be protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. Considering the significant number of injuries and fatalities suffered by children, as reflected by the fact that agriculture is the industry with the highest fatality rate, it would appear that the conditions of protection and training as set out in Paragraph 4 of Recommendation No. 190 are not fully met in all circumstances. The Committee accordingly urges the Government to take immediate and effective measures to comply with Article 1 of the Convention, read with Article 3(d), to prohibit children under 18 years of age from engaging in hazardous and dangerous work in agriculture. However, where such work is performed in the agricultural sector by young persons between 16 and 18 years of age, the Committee urges the Government to take the necessary measures to ensure that this work is only carried out in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190, namely that the health and safety of such young persons be protected and that they receive adequate specific instruction or vocational training. The Committee requests the Government to provide information on the progress made in this regard in its next report.

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 had also noted that these Orders were established in 1939 and 1960 with regard to non-agricultural occupations and 1970 for agricultural occupations. It had noted the AFL–CIO’s allegation of June 2005 that the NIOSH issued recommendations for changing the existing agricultural HOs. The Committee had noted that, in 2004, the DOL issued a final rule addressing six of the 35 NIOSH report recommendations relating to non-agricultural HOs. Furthermore, it had noted the Government’s information that the DOL published a Notice of Proposed Rulemaking (NPRM) and Advance Notice of Proposed Rulemaking (ANPRM) on 17 April 2007, both of which address the remaining 29 non-agricultural HO recommendations. The Committee had further noted the Government’s statement that the DOL intended to give the HOs for agricultural occupations the same attention it has given the other NIOSH recommendations relating to non-agricultural occupations.

The Committee notes the information in the Government’s report that, due to the amount of work involved, the DOL has been following up on the NIOSH recommendations in stages. The Government indicates that the ANPRM requested comments from the public on the student-learner and apprentice exceptions contained in certain of the HOs, as well as additional recommendations made by the NIOSH report for which there was not sufficient data to propose new rules. The DOL has reviewed the comments that were received from the public and is in the process of moving forward in its efforts. The Government also indicates that the DOL values the NIOSH report’s recommendations on agricultural HOs for youth employment and is still evaluating the appropriate course of action. The DOL is also continuing its ongoing review of workplace conditions of youth in agriculture to assess the relevancy of existing regulations. Noting that the Government has been referring to the envisaged amendments to the HOs for a number of years, the Committee requests the Government to take immediate measures to ensure that the NIOSH’s recommendations for changing the existing HOs are followed up on and that the amendments to the HOs are effectively adopted pursuant to these recommendations as a matter of urgency, in particular with regard to the agricultural HOs. It requests the Government to provide information on the progress made in this regard in its next report.

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. Moreover, it had expressed its concern at the decreasing number of child labour investigations conducted in the agricultural sector. Finally, the Committee had noted that, according to the Government representative at the Conference Committee on the Application of Standards of the 95th Session of the International Labour Conference in June 2006, although child labour violations across industries continued to decrease, violations in agriculture had increased in the previous year.

The Committee notes the information contained in the Government’s report that, in 2007, the WHD conducted 1,667 investigations of agricultural employers, in which 75 minors were found illegally employed in 35 cases. The number of cases with agricultural HO violations was six and the number of minors employed in the agricultural industry in violation of HOs was seven. In 2008, the WHD conducted 1,600 investigations of agricultural employers in which 52 minors were found illegally employed in 34 cases. The number of cases with agricultural HO violations was ten and the number of minors employed in violation of HOs was 11. Furthermore, from September 2007 to August 2009, the OSHA and its state partners conducted a total of 5,415 inspections of agricultural employers and in 3,399 cases found 10,694 violations.

The Committee also notes the Government’s statement that the WHD will be hiring 250 additional wage and hour inspectors in 2010. The Government indicates that the WHD has used and continues to use every tool available – enforcement, compliance, assistance, public awareness, partnership, regulation and legislation – to promote compliance with child labour laws. In addition, the WHD has begun working with an independent evaluator to assess its strategies and their effectiveness in increasing compliance with the FLSA child labour provisions, and this study is ongoing. However, the Committee notes the Government’s statement that these statistics do not include enforcement data relating to farming operations that do not maintain a temporary labour camp and employ ten or fewer employees. Indeed, as a result of a provision from Congress, the OSHA’s inspection personnel only conduct inspections and levy fines on farms with over ten employees. The Committee recalls that Article 5 of the Convention requires each Member, after consultation with the social partners, to establish or designate appropriate mechanisms to monitor the implementation of the provisions giving effect to the Convention. The Committee therefore urges the Government to take immediate and effective measures to ensure that the necessary monitoring mechanisms are in place so that all farms are inspected and monitored, regardless of the number of persons they employ. It requests the Government to continue to provide information on the inspections carried out and on the number and nature of violations detected with regard to children under 18 employed in the worst forms of child labour and, particularly, in agricultural undertakings and in farms where ten or fewer employees are employed.

Parts III, IV and V of the report form. Application of the Convention in practice. Referring to its previous comments, the Committee notes that, according to the Attorney-General’s Annual Report of 2009, the Federal Bureau of Investigation (FBI) participates in a significant majority of the Bureau of Justice Assistance-funded human trafficking task forces as well as other human trafficking task forces and working groups. In fiscal year 2008, the FBI opened 132 human trafficking investigations, made 139 requests and filed 60 complaints. In the same fiscal year, 129 information/indictments were filed in FBI human trafficking cases and 94 convictions were obtained. Furthermore, in June 2008, the Innocence Lost Task Forces of the Innocence Lost Initiative, launched by the FBI and the Department of Justice’s Child Exploitation and Obscenity Section in 2003, participated in the Operation Cross Country to combat domestic sex trafficking in children. This operation resulted in the arrest of 356 individuals and the recovery of 21 children. In October 2008, Operation Cross Country II took place. A total of 630 law enforcement personnel participated in the operation, which resulted in 642 arrests, the disruption of 12 large-scale prostitution operations and, most importantly, the rescue of 49 children aged 13–17 years from the sex trade. From the inception of the Innocence Lost Initiative in June 2003 to the execution of Operation Cross Country II in October 2008, over 575 children were rescued from such situations. The Committee further notes that the Human Trafficking Reporting System, which provides data on human trafficking incidents on a regular basis, conducted analyses on those incidents investigated between 1 January 2007 and 30 September 2008. During the 21-month analysis period, 1,229 suspected incidents of human trafficking were reported, nearly 83 per cent of which involved sex trafficking and 12 per cent involved trafficking for labour exploitation. Of the 1,018 alleged sex trafficking incidents, 391 (38 per cent) involved allegations of child sex trafficking. Finally, the Committee observes that the Attorney-General’s Annual Report of 2009 enumerates several examples of cases investigated or prosecuted by the Department of Justice in fiscal year 2008 which involved the trafficking of children for labour or sexual exploitation.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Article 3 of the Convention. Worst forms of child labour. Clause (a). Slavery and practices similar to slavery. Sale and trafficking of children. The Committee had previously noted with satisfaction the Government’s information that, on 19 December 2003, Congress enacted the Trafficking Victims Protection Reauthorization Act (TVPRA), which reauthorized the Trafficking Victims Protection Act of 2000 (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 had noted that, as of May 2004, the Government estimated that 14,500 to 17,500 people were trafficked annually into the United States. This estimate covered men, women and children who were victims of severe forms of trafficking as defined in the TVPA. Most trafficked victims are employed in the sex sector, migrant farm work and low-wage industries, such as the restaurant and hotel industries. The Committee had also noted several measures taken to combat trafficking in children for labour and sexual exploitation, such as additional research and studies, funding of projects and the drafting of a model anti-trafficking statute for states.

The Committee notes the information provided by the Government in its report, which, inter alia, refers to the Attorney-General’s Annual Report to Congress on US Government Activities to Combat Trafficking in Persons. According to the Attorney-General’s Annual Report of May 2007, the measures that were undertaken to combat trafficking are ongoing. In 2006, for example, the United States Government obligated approximately US$74 million to fund 154 projects in about 70 countries to support foreign government and non-governmental organizations’ efforts to combat human trafficking. Furthermore, the Government continues to adopt measures for domestic and international law enforcement training, for public awareness campaigns and street outreach, as well as for the provision of social services to trafficking victims. The Committee strongly encourages the Government to pursue its efforts to eliminate the trafficking of children under 18 years of age for labour and sexual exploitation. It requests the Government to continue providing information on the measures taken in this regard and the results attained.

Article 3(d) and Article 4, paragraph 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 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, paragraph 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 had noted that, 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 15–17 years of age working in agriculture appear to have over four times the risk of injury than youth working in other industries. The AFL-CIO had pointed 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. However, eventual changes to Hazardous Orders (HOs) could not be 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 Committee had noted the Government’s statement 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. Moreover, in determining types of hazardous work pursuant to Article 3(d) and Article 4, paragraph 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 had determined that it is safe and appropriate for children at 16 to perform work in the agricultural sector, in conformity with Article 3(d) and Article 4, paragraph 1, of the Convention. The Committee had 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 and had noted the several programmes adopted for that purpose, including 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.

With regard to this programme, the Committee notes the Government’s information that the work of the WPS assessment is ongoing and that new regulations should be proposed in 2008. Furthermore, on 3 April 2006, the administrator of EPA issued a response to a review of pesticide-related health risks to farm workers made by the Children’s Health Protection Advisory Committee (CHPAC). The CHPAC raised concern about farm workers under the age of 16 handling certain pesticides, and the EPA agreed that an age limitation on pesticide-handling activities is worthy of consideration. The Committee further notes that the CHPAC also expressed concern that EPA labelling requirements do not address fit-testing for young workers aged 16 and above who need to use respirators in handling pesticides.

The Committee notes that, according to the worker member of the United States at the Conference Committee on the Application of Standards at the 95th Session of the International Labour Conference of June 2006, among
15–17-year-olds, child workers in agriculture accounted for at least 25 per cent of all fatalities experienced by young workers. The Committee once again shares the concern expressed by many speakers with regard to the hazardous and dangerous conditions that were and could be encountered by children under 18, and indeed in some cases under 16, in the agricultural sector. Consequently, the Committee emphasizes 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 applies to all young persons under 18 years of age. It also recalls that Paragraph 4 of Recommendation No. 190 addresses the possibility of authorizing the employment or work of young persons as from the age of 16 under strict conditions that their health and safety be protected and that they receive adequate specific instruction or vocational training in the relevant branch of activity. In the present case, considering the significant number of injuries and fatalities suffered by children under 18 years working in the agricultural sector, it would appear that the conditions of protection and prior training, as set out in Recommendation No. 190, are not fully met in all circumstances. The Committee accordingly once again strongly 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. However, where such work is performed in the agricultural sector by young persons between 16 and 18 years of age, the Committee urges the Government to take the necessary measures to ensure that this work is only carried out in accordance with the strict conditions set out in Paragraph 4 of Recommendation No. 190, namely that the health and safety of such young persons be protected and that they receive adequate specific instruction or vocational training. The Committee requests the Government to provide information on progress made in this regard in its next report.

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 had also noted that these Orders were established in 1939 and 1960 with regard to non-agricultural occupations and 1970 for agricultural occupations. 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 also noted the AFL-CIO’s allegation of June 2005 that the NIOSH issued recommendations for changing the existing agricultural HOs.

The Committee notes the Government’s information that, in 2004, the Department of Labor (DOL) issued a final rule addressing six of the 35 NIOSH report recommendations relating to non-agricultural HOs. Furthermore, it notes the Government’s information that the DOL published a Notice of Proposed Rulemaking (NPRM) and Advance Notice of Proposed Rulemaking (ANPRM) on 17 April 2007, both of which address the remaining 29 non-agricultural HO recommendations. The modifications proposed by the NPRM include changes to: (i) HO 7, which proposes to prohibit minors under 18 from working from cherry pickers, scissor lifts and bucket trucks; (ii) HO 10, to prohibit work in all meat products manufacturing industries for young persons under 18, including poultry slaughtering and processing and meat manufacturing; and (iii) HO 14, to prohibit the use of chain saws and wood chippers, as well as reciprocating saws, for young persons under 18. The Committee also notes the Government’s statement that the DOL intends to give the HOs for agricultural occupations the same attention it has given the other NIOSH recommendations relating to non-agricultural occupations. The Committee requests the Government to provide information on the amendments to the existing HOs that are effectively adopted pursuant to the recommendations of the NIOSH. Noting that the proposed amendments only address the NIOSH recommendations in respect of non-agricultural occupations, the Committee expresses the firm hope that the Government will take the necessary measures to address the NIOSH’s recommendations for changing the existing agricultural HOs. It also requests the Government to provide information on the amendments envisaged or already adopted for the agricultural HOs, and on any progress made in this regard.

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 observed that the GAO recommended that steps be taken to ensure that the procedures specified in the existing agreement among the DOL’s Wages and Hour Division (WHD) and other federal and state agencies, especially with regard to joint inspections and exchange of information, are being followed. The Committee had 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 had noted the Government’s information that the EPA revised the national WPS inspection guidance for conducting routine use inspections on agricultural establishments. Moreover, it had noted that WHD, OSHA and NIOSH have partnered to reduce occupational deaths and injuries to youth on farms through compliance assistance and awareness. However, the Committee had expressed its concern at the decreasing number of child labour investigations conducted in the agricultural sector from 2004 to 2005 which, according to the AFL-CIO, had decreased by 31.5 per cent.

The Committee notes from the Government’s report that, in 2005, the WHD conducted 1,449 investigations of agricultural employers, throughout which 61 minors were found illegally employed in 35 cases. In 2006, the WHD conducted 1,410 investigations of agricultural employers and found 51 minors illegally employed in 23 cases. The Committee further notes the Government’s statement that OSHA conducts on-site inspections whenever it receives a complaint which gives it reasonable grounds to believe that a serious violation or hazard exists and that workers under 18 years of age are exposed to that hazard, particularly if it relates to construction, manufacturing or agriculture. The Government indicates that, between September 2005 and August 2007, the OSHA and its state partners conducted 4,268 inspections of agricultural employers and found 8,952 violations in 2,637 cases. However, the Committee notes that, according to the Government representative at the Conference Committee on the Application of Standards of the 95th Session of the International Labour Conference of June 2006, although child labour violations across industries continued to decrease, violations in agriculture had increased in the previous year. The Committee strongly encourages the Government to continue to strengthen the role of the institutions responsible for the enforcement of child labour laws in agriculture, especially with regard to hazardous work. It requests the Government to continue to provide information on the inspections carried out and on the number and nature of violations detected with regard to children under 18 employed in the worst forms of child labour and, particularly, in agriculture.

Article 7, paragraph 1. Penalties. The Committee had previously 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 had noted the Government’s information that the President’s budget for the 2004–06 fiscal years included proposals to increase civil monetary penalties for violations of the FLSA’s youth employment provisions that result in the death or serious injury of a young worker.

The Committee notes the Government’s statement that the Bill which expects to increase the civil monetary penalty from US$11,000 to US$50,000 would also raise to US$100,000 the maximum penalty per wilful or repeated violation that causes the death or serious injury of a child employed in violation of FLSA child labour provisions. The Government indicates that the Bill was passed by the House of Representatives on 12 June 2007 and received by the Senate on 13 June 2007, which referred it to the Committee on Health, Education, Labor and Pensions for consideration. The Committee requests the Government to supply a copy of the Bill once it has been adopted.

Parts III, IV and V of the report form. Application of the Convention in practice. The Committee had previously 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; and the number of investigations and prosecutions of trafficking in persons.

The Committee notes that, according to the Attorney-General’s Annual Report to Congress on US Government Activities to Combat Trafficking in Persons of May 2007, the Department of Justice (DOJ) Civil Rights Division’s anti-trafficking efforts resulted in a record number of defendants charged and convicted in a single year, while the number of investigations increased more than 20 per cent over the fiscal year 2005. In 2006, DOJ initiated prosecutions against 111 traffickers, which is higher than the number charged in 2005 (96) and more than twice the number charged in 2004 (47). The Committee also notes that the US Immigration and Customs Enforcement (ICE), which investigates the sexual exploitation of children overseas by US citizens, has conducted over 299 investigations of child sex tourism. In addition, ICE operates “Operation Predator” to safeguard children from foreign national sex offenders, international sex tourists, Internet child pornographers and human traffickers. Since 2003, the initiative has resulted in more than 9,000 arrests, of which 2,381 occurred in 2006. Furthermore, in 2006, the FBI’s Crime Against Children Unit, which initiated in 2003 the “Innocence Lost National Initiative” in partnership with DOJ’s Criminal Division to address the problem of children exploited in prostitution, conducted 103 open investigations, 157 arrests, and 43 convictions. Since the inception of the “Innocence Lost National Initiative”, in 2003, more than 300 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, and more specifically on children involved in trafficking for sexual or labour exploitation or performing hazardous work in agriculture, 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.

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.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report. It also notes the communications of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) dated 6 June 2005 and 3 October 2006 and the Child Labor Coalition’s reports annexed thereto. The Committee further takes note of the detailed discussion which took place at the Conference Committee on the Application of Standards at the 95th Session of the International Labour Conference in June 2006. The Committee requests the Government to provide information on the following points.

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 notes 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 notes 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 notes 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 notes 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 welcomes the recent comprehensive measures taken to combat trafficking in children for labour and sexual exploitation. It nevertheless notes 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 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 notes 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 further 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 notes 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 notes 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 notes 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 notes 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 shares 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 expresses 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 emphasizes 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 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 notes the AFL-CIO’s allegation of June 2005 that the NIOSH in March 2002 issued recommendations for changing the existing agricultural HOs. It notes 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 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. 1. Trafficking of children. In its previous comments, the Committee had noted that the TPWETF was established to prevent the criminal exploitation of children and to investigate cases involving the exploitation of children in forced labour in agriculture or sweatshops or as domestic servants or as prostitutes. The Committee notes the Government’s information that coordination among US federal agencies in combating trafficking, which previously occurred through the TPWETF, is now primarily done by the cabinet-level Inter-agency Task Force to Monitor and Combat Trafficking in Persons (ITFCTP) and the Senior Policy Operating Group on Trafficking of Persons (SPOG), chaired by the Director of the State Department’s Office to Monitor and Combat Trafficking in Persons. Such coordinated efforts include: toll-free hotlines to report instances of human trafficking and worker exploitation; public-awareness strategies; and delivery of benefits and services to trafficking victims. Since its inception, the SPOG has been responsible for a number of inter-agency policy developments, including coordination of plans to address trafficking in persons and coordination guidelines to implement the National Security Presidential Directive on trafficking in persons.

2. 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 notes 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 notes 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 notes 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 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 notes 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 requests the Government to provide information on any progress towards the enactment of this proposal.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Children in migrant and seasonal agriculture. Following its previous comments, the Committee notes with interest the Government’s information that the Office of Migrant Education at the Department of Education administers several programmes that provide academic and supportive services to children of families who migrate to find work in the agricultural and fishing industries, focusing on helping migrant students to succeed. Some of these programmes, as the College Assistance Migrant Program (CAMP), the High School Equivalency Program (HEP) and the Migrant Education Program (MEP), assist migrant students in meeting challenging academic standards and achieving graduation from high school and help them to overcome the effects of migrancy (such as educational disruption and cultural and language barriers). Others, such as the Migrant Education Even Start Program (MEES) are designed to help break the cycle of poverty and improve the literacy of participating migrant families by integrating early childhood education, adult literacy or adult basic education and parenting education into a unified family literacy programme. The Committee notes the Government’s information that, in response to the recommendations of a Presidential Task Force for Disadvantaged Youth, the Departments of Labor, Education, Health and Human Services, and Agriculture have joined forces to address the education needs of migrant youth, including basic education services for high school completion, workforce training and placement services.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration. Following its previous comments, the Committee notes the Government’s information that in 2004 the Department of Health and Human Services (HHS) issued 19 eligibility letters to minors, compared with six letters in 2003. Special programmes, which involve immigration attorneys and social service providers, as well as the Lutheran Immigration and Refugee Service and the US Conference of Catholic bishops, have been created to care for trafficked children who do not have a parent or guardian. In addition, by April 2004, the HHS, as a member of the ITFCTP, awarded over US$8 million in grants to 28 organizations for services geared specifically toward trafficking victims and for outreach to them. Moreover, the HHS has launched in 2004 the campaign “Rescue and Restore Victims of Human Trafficking”. This programme – launched in the three pilot cities of Atlanta, Philadelphia and Phoenix and then expanded to others – is helping to increase the rate at which victims are identified and become eligible to receive benefits and services under the TVPA so that they can regain their dignity and safely rebuild their lives in the United State s. The theme of the campaign is “Looking beneath the surface” and it seeks to educate intermediaries that may be encountering victims to look beyond the obvious in order to increase the number of trafficking victims identified. The “Rescue and restore” campaign also includes the “Human trafficking and referral hotline”, a toll-free telephone number manned by trained crisis counsellors with on-site capability in English and Spanish and conference call access to translators in 150 additional languages.

Clause (c). Access to free basic education. Child victims of trafficking. The Committee had previously noted that, under section 106(A)(3) of the TVPA, the President shall establish and carry out programmes to keep children, especially girls, in elementary and secondary school and to educate persons who have been victims of trafficking. The Committee notes the Government’s information that Title I of the “No Child Left Behind Act” of 2001, “Improving the Academic Achievement of Disadvantaged”, although not specifically aimed at keeping child victims of trafficking in school, has as its goal ensuring that all children have a fair, equal and significant opportunity to obtain a high quality education. Title I provides supplemental education funding for locally designed programmes that offer extra academic support to help raise the achievement of students at risk of educational failure. In addressing the needs of at risk students, these programmes contribute to making them less vulnerable to the worst forms of child labour. The Committee also notes the Government’s information that the Office of Refugee Resettlement (ORR)’s Unaccompanied Refugee Minors (URM) programme places unaccompanied minor trafficking victims into foster care and provides them, amongst others, with education, job skill training and career counselling.

Clause (e). Special situation of girls. The Committee had previously noted that there are federal and state programmes designed to protect young girls who are considered at high risk of exploitation. The Committee notes the Government’s information that, in addition to the continuation of the “Girl Power!” initiative, in May 2005 the HHS launched a new programme to increase outreach in targeted geographic regions to, inter alia, girls exploited through commercial sex.

Article 8. International cooperation. The Committee had previously noted that the United States participates in ILO/IPEC projects aimed at the elimination of the worst forms of child labour worldwide. The Committee notes with interest the Government’s information that, in 2004, it supported approximately 251 international anti-trafficking programmes in 86 countries, running the gamut from small projects to large projects to develop comprehensive regional and national strategies to combat trafficking. It notes the Government’s statement that since 1995, it has provided approximately US$480 million for technical assistance projects aimed at eliminating exploitative child labour around the world. Of this amount, over US$295 million has gone to ILO/IPEC, making the United States the largest contributor to IPEC. In addition, through its Child Labor Education Initiative (EI), the United States has provided over US$182 million for grants to promote educational and training opportunities for child labourers or children at risk of engaging in exploitative labour. Combined, the IPEC and EI programmes have funded more than 180 projects in at least 75 countries in Asia, Africa, Latin America and the Caribbean, the Middle East and Europe. The Committee notes the Government’s statement that awareness-raising campaigns on the global worst forms of child labour, especially the problem of child soldiers and the trafficking of children for labour and commercial sexual exploitation, constitute an important part of the DOL’s activity.

Part V of the report form. Following its previous comments, the Committee notes 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 notes 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 notes 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 CEOS and the FBI, the Committee notes 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.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the communication of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) dated 6 June 2005. It also notes that the Government’s report has not been received and must therefore repeat its previous observation, which read as follows:

The Committee takes note of the Government’s detailed reports, and of the communication of the International Confederation of Free Trade Unions (ICFTU) dated 9 January 2004. The Committee requests the Government to supply further information on the following points.

Article 3 of the Convention. The worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Slavery. The Committee observes that, by virtue of Title 18 of the United States Code (USC), section 1583, anyone who kidnaps or carries away any other person, with the intent that such person be sold into involuntary servitude or held as a slave, commits an offence. Title 18 USC, section 1584, provides that anyone who knowingly and wilfully holds a person to involuntary servitude or sells into any condition of involuntary servitude any other person, or brings within the United States any person so held commits an offence.

2. Sale and trafficking of children. The Committee notes the indications of the ICFTU, in a communication dated 9 January 2004, corroborated by the report of the Trafficking in Persons and Worker Exploitation Task Force (i.e. a governmental body), that the United States is thought to be the destination of 50,000 trafficked women and children each year. It further indicates 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 primary source countries for the United States are Thailand, Viet Nam, China, Mexico, the Russian Federation, Ukraine and the Czech Republic. According to the ICFTU, this report also indicates that most trafficked women and children are employed in the sex sector, domestic and cleaning work (in offices, hotels, etc.), sweatshops and agricultural work. Most reported cases of trafficking occurred in New York, California and Florida. 

The Committee notes that the Trafficking Victims Protection Act, 2000, 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. Hence, it observes that Title 18 USC, section 1590 (introduced by the Trafficking Victims Protection Act, 2000), states that whoever knowingly recruits, harbours, transports, provides or obtains by any means a person for labour or services commits an offence.

The Committee also notes the Government’s indication that section 105(d)(2) of the Trafficking Victims Protection Act, 2000, mandates an evaluation of the progress made by the United States in the areas of trafficking prevention, prosecution and assistance to victims. The Committee notes with interest that, pursuant to the adoption of the Trafficking Victims Protection Act, 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 requests the Government to provide information on the impact of the Trafficking Victims Protection Act, 2000, in reducing the number of children involved in trafficking. It also requests the Government to provide, in its next report, its comments on the points raised by the ICFTU.

3. Forced labour. The Committee observes that, by virtue of Title 18 USC, section 1589, whoever knowingly provides or obtains the labour or services of a person: (1) by threats of serious harm to, or physical restraint against, that person or another person; (2) by means of any scheme, plan or pattern intended to cause the person to believe that, if the person did not perform such labour or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse or threatened abuse of law or the legal process, is liable to a fine and/or imprisonment.

Clause (b). 1. Use, procuring or offering of a child for prostitution. The Committee observes that Title 18 USC, section 1591 (as amended by the Trafficking Victims Protection Act, 2000), provides for sanctions for anyone who knowingly: (1) in or affecting interstate commerce, recruits, entices, harbours, transports, provides, or obtains by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1). Title 18 USC, section 1591 also states that whoever, knowing that force, fraud, or coercion will be used to cause a person to engage in a commercial sex act, shall also be punished. The term "commercial sex act" means any sex act, on account of which anything of value is given to or received by any person (Title 18 USC, section 1591). The Committee also notes that according to Title 18 USC, section 2423(a), it is a criminal offence to transport an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offence, or attempts to do so. Subsection (b) of section 2423 states that a person who travels in interstate commerce, or conspires to do so, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, or conspires to do so, for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of Chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States, shall be fined under this Title and/or imprisoned for not more than 15 years.

The Committee also takes due note of the Government’s indication that all 50 states have laws prohibiting prostitution. It further indicates that state child prostitution statutes address patronizing a child prostitute, inducing or employing a child to work as a prostitute or actively aiding the promotion of child prostitution. It also indicates that some state statutes prohibit child prostitution in very general terms while other states specify the various acts and participants.

2. Use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee observes that, by virtue of Title 18 USC, section 2251, anyone who employs, uses, persuades, induces, entices or coerces a minor (i.e. a person under the age of 18 according to Title 18 USC, section 2256(1)), or who transports any minor in interstate or foreign commerce, or in any territory of the United States, with the intent that such minor engage in any sexually explicit conduct for the purpose of producing a visual depiction of such conduct commits an offence. Title 18 USC, section 2251(1)(c), provides for sanctions for anyone who makes, prints or publishes any notice or advertisement seeking or offering to receive, exchange, buy, produce, display, distribute or reproduce any visual depiction involving the use of a minor engaged in any sexually explicit conduct. The Committee notes that, according to Title 18 USC, section 2252(a), it is prohibited to transport or ship in interstate or foreign commerce, receive, distribute or knowingly reproduce child pornography, by any means including by computer or mails. The Committee also observes that Title 18 USC, section 2260, prohibits the use of a minor to produce child pornography for importation into the United States, and the receipt, distribution, sale or possession of child pornography with the intent to import the visual depiction into the United States. It further notes that, according to Title 18 USC, sections 2423 and 2427, the transportation of children under 18 years of age in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in the production of child pornography, is an offence.

Clause (c). Use, procuring or offering of a child for illicit activities. The Committee takes due note that, under the Controlled Substances Act, it is an offence to knowingly and intentionally employ, hire, use, persuade, induce, entice or coerce a person under 18 years of age to create, manufacture, distribute, dispense, import or export controlled substances or a counterfeit substance (Title 21 USC, sections 841, 861, 952 and 953). The Committee also notes the Government’s statement that the use, procuring or offering of a child for the unlawful carrying or use of firearms or other weapons are illegal. The Committee requests the Government to supply a copy of the legal provisions prohibiting the use, procuring or offering of a child for the unlawful carrying of weapons.

Articles 3(d) and 4(1). Hazardous work. The Committee notes the ICFTU’s indication that between 300,000 and 800,000 children are employed in agriculture under dangerous conditions. These children work in fields, orchards and packing sheds. For instance, they pick lettuce and cantaloupe, weed cotton fields and pick cherries in orchards. 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. According to the ICFTU, child farm workers risk long-term consequences of pesticide poisoning including cancer and brain damage and suffer high rates of injuries from knives and heavy equipment.

In its previous comments, the Committee observed that the Fair Labour Standards Act (FLSA), Chapter 8, section 212(c), states that no employer shall employ any oppressive child labour in commerce or in the production of goods for commerce. According to section 203(3)(b)(l) of the FLSA, "oppressive child labour" refers to a condition of employment under which any employee aged 16 to 18 is employed by an employer in any occupation that the Secretary of Labor shall find and, by order, declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being. The Committee also noted that section 213 of the FLSA provides for exemptions. Thus, 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". The Committee notes the Government’s statement that, by virtue of Article 4(1) of the Convention, the types of hazardous work shall be determined by the national competent authority. The Committee nevertheless observes that section 213 of the FLSA authorizes a child aged 16 to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health or well-being by the Secretary of Labor. Consequently, the Committee reminds the Government that, by virtue of Article 3(d) of the Convention, work which, by its nature or 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 is therefore prohibited for children under 18 years of age. The Committee accordingly requests the Government to indicate the measures taken or envisaged to ensure that work performed in the agricultural sector, which is determined to be particularly hazardous for the employment of children by the Secretary of Labor, is prohibited for children under 18 years.

Article 4, paragraph 3. Examination and periodical revision of the types of hazardous work. The Committee noted, in its previous comments, that 28 Hazardous Orders 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.

The Committee observed, in its previous comments, that the United States Department of Labor’s Wages and Hour Division (WHD) entered into an inter-agency agreement with the National Institute for Occupational Safety and Health (NIOSH) to conduct research on safety and health risks for children, with particular emphasis on issues relevant to child labour regulations. It noted that, according to the NIOSH’s report dated 3 May 2002, "there have been significant changes in the workplace and advancement in knowledge about occupational safety and health hazards that are not reflected in the existing Hazardous Orders". The NIOSH consequently recommended the development of several new Hazardous Orders to protect children from particularly hazardous work not adequately addressed in the existing regulation.

The Committee notes that, as requested, the Government provides detailed information on actions taken by the Government towards amending the provisions of the FLSA and its implementing regulations in light of the NIOSH’s report of 2002. The Committee takes due note of the Government’s indication that since the recommendations were issued by the NIOSH, the administrator of the WHD has held stakeholders’ meetings on the report with all interested parties, including trade unions, organizations of employers, child advocacy groups and educators. The Government also states that the stakeholder meetings were held jointly with the NIOSH and many written comments received. It further indicates that the WHD is in the process of determining which recommendations concerning the Hazardous Orders will be presented in a first round of proposed rules. It also indicates that it is in the final stages of rule-making on several NIOSH Hazardous Orders recommendations: those relating to driving and operating balers and compactors, roofing, and handling explosive materials. The Committee welcomes the Government’s initiative to review Hazardous Orders to reflect changes in the workplace and advancement in knowledge about occupational health and safety hazards affecting children. The Committee would be grateful if the Government would supply a copy of the amendments or new orders when adopted.

Article 5. Monitoring mechanisms. 1. General investigations on child labour. The Committee notes the Government’s indications that in 2002 the number of targeted investigations in child labour by the WHD increased by 4 per cent; however, the number of child labour violations found in 2002 decreased by 8 per cent from 2001. The Government indicates that in 2002 there were 1,936 cases of violations of child labour standards, 748 of which involved Hazardous Order violations, a decrease of 14 per cent from the previous year. The Committee also notes that in 2002 the WHD initiated efforts to address problems of repeated violations in grocery stores, full services restaurants and quick services restaurants. A survey conducted in 2000 demonstrates a high rate of recidivism in those sectors. As a result, each region has committed to reinvestigate firms with earlier child labour violations. The Government also indicates that a new national survey is being conducted to determine levels of compliance in these industries. The Committee asks the Government to provide information on the findings of this survey.

2. Monitoring mechanisms for the trafficking of children. In its previous comments, the Committee had noted that a worker exploitation task force was established to prevent the criminal exploitation of children and to investigate cases involving the exploitation of children in forced labour in agriculture or sweatshops or as domestic servants or as prostitutes. The Committee had asked the Government to provide updated information on this task force’s actions. The Government accordingly indicates that the worker exploitation task force is now referred to as the Trafficking in Persons and Worker Exploitation Task Force. This task force issued, in August 2003, a report entitled "Assessment of United States activities to combat trafficking in persons", which describes the recent activities undertaken in this area. The Committee observes that the United States has made strides in providing benefits and services to victims of trafficking, including housing and legal assistance. For instance, a regulation (66 Feb. reg. 38514 (24 July 2001)) was issued to outline procedures for appropriate federal employees to ensure that victims are housed in a manner appropriate to their status, afforded proper medical care and other assistance and protected while in federal custody. The Committee accordingly encourages the Government to continue its efforts to eliminate child trafficking. It asks the Government to continue to provide information on the measures taken to this end and the results achieved.

3. Monitoring mechanisms in the agricultural sector. The Committee notes the ICFTU’s indication that child farm workers account for only 8 per cent of working children, but 40 per cent of all work-related fatalities among minors. The ICFTU adds that an estimated 100,000 children suffer agriculture-related injuries annually in the United States and that very few inspections take place in agriculture.

In its previous comments, the Committee had taken note of a report entitled "Child labour in agriculture: Changes needed to better protect health and educational opportunities" submitted to Congress by the General Accounting Office (GAO) in 1998. This report points out that "the weaknesses in current enforcement and data collection procedures limit enforcement agencies’ ability to detect all violations of illegal child labour in agriculture". The Committee had also noted that, according to the GAO’s report, the number of recorded inspections in agriculture by the WHD, the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and the states, has generally declined in recent years. Inspections may not be conducted at the appropriate time or in the relevant location. 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 that the Department of Labor (DOL) generally concurred with the GAO’s recommendations on the necessity to ensure that coordination procedures specified in existing agreements with federal and state agencies are followed. The Committee notes that the Government supplies a document that addresses each of the GAO recommendations. Thus, the Committee observes that in 1999, the DOL requested an increase of US$3 million to enhance compliance in targeted industries, including agriculture. Regarding the fact that the criteria used by the WHD to determine where and when to conduct investigations may not reflect the likely presence of children, a national agricultural coordinating team conference was held in 1998. During this conference, the Wage and Hour Offices were instructed to incorporate into each national, regional and local agricultural initiative a child labour enforcement component, including, as appropriate, plans to conduct weekend and pre- and post-school hours investigations designed to detect unlawful child labour. The Committee asks the Government to continue to provide information on the measures taken to ensure the enforcement of child labour laws in agriculture and their impact on the elimination of the worst forms of child labour in this sector.

Article 6. Programmes of action to eliminate the worst forms of child labour. 1. The Federal Inter-Agency Working Group on Young Worker Safety and Health. The Committee takes due note of the Government’s indication that a Federal Inter-Agency Working Group on Young Worker Safety and Health was formed in 2003. Within this Working Group, agencies share information on educational programmes focused on an identified occupational hazard, on the provision of personal protective equipment to youth, or on methods by which complex injury and illness surveillance and reporting systems are gathered. This Working Group is composed of the WHD, OSHA, NIOSH, the Department of Interior, the Office of Job Corps, the International Trade Administration and the Department of Commerce. The Committee asks the Government to provide information on the measures taken and findings of the Federal Inter-Agency Working Group on Young Worker Safety and Health.

2. Youth Rules! Campaign. In its previous comments, the Committee noted that various programmes of action were launched to eliminate the worst forms of child labour, including "Work safe this summer" and "Operations salad bowl". As requested by the Committee, the Government provides further information on these programmes. It indicates that the two abovementioned programmes have been integrated into the Youth Rules! Campaign for increased effectiveness. The Committee observes that this campaign aims at increasing public awareness of federal and state rules on young workers. To this end, posters and fact sheets for specific industries such as restaurants, grocery stores and construction firms were designed; information articles on Youth Rules! were published in industry newsletters and magazines; and seminars and compliance training were conducted. The Government also indicates that the Youth Rules! Campaign was broadened in 2003 to include the agricultural industry. The Committee observes that over 20 partners have signed the Youth Rules! Campaign, which include businesses, unions, advocacy groups and 13 individual states (for instance, Illinois, Indiana, New York, Texas, Utah).

3. The Child Exploitation and Obscenity Section. In its previous comments, the Committee had noted that the Child Exploitation and Obscenity Section was acting towards the prevention of the criminal exploitation of children. It asked the Government to provide updated information regarding its actions. The Committee notes the Government’s indication that the Child Exploitation and Obscenity Section has worked since 2001 with the assistance of the Bureau of Immigration, the Customs Enforcement of the Department of Homeland Security, the Federal Bureau of Investigation (FBI) and the Postal Inspection Service. The Government also indicates that the Child Exploitation and Obscenity Section conducts programmes that bring together states and federal law enforcement and social services for training in the investigation, prosecution and prevention of commercial sexual exploitation of minors. The Committee asks the Government to continue to provide information on the achievements and impact of the Child Exploitation and Obscenity Section, especially with regard to combating the commercial sexual exploitation of children under 18.

Article 7, paragraph 1. Penalties. The Committee observes that, by virtue of the Victims of Trafficking and Violence Prevention Act, 2000, penalties for infringements of the provisions of the USC on enticement to slavery (Title 18 USC, section 1583) and sale into involuntary servitude (Title 18 USC, section 1584) were increased from imprisonment of no more than ten years to imprisonment of no more than 20 years. It also observes that a person who infringes Title 18 USC, section 1589, on forced labour is liable to a fine and/or to imprisonment for no more than 20 years. It further observes that trafficking with respect to peonage, slavery, involuntary servitude or forced labour is punishable by a fine and/or imprisonment for any term of years or life (Title 18 USC, section 1590). Sex trafficking of children under 18 years of age is punishable by a fine and/or imprisonment for not more than 20 years (Title 18 USC, section 1591(b)(2)). The Committee notes that a person who violates Title 21 USC, section 861(a)(1) and (2), on the prohibition to employ, hire, use, persuade, induce, entice or coerce a person under 18 years of age to import, export or manufacture controlled substances, shall be sentenced to a term of imprisonment which may not be less than 20 years (Title 21 USC, sections 841(b) and 861(b)). Penalties are very detailed and vary according to the quantity of drugs found. However, when children under 18 years of age are used for drug-related offences, the offender is liable to twice the maximum punishment otherwise authorized and at least twice any term of supervised release otherwise authorized (Title 21 USC, section 861(b)). The Committee also observes that the Federal Sentencing Guidelines, 2000, provide for increased penalties for crimes involving minors under 18 years of age such as 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). Moreover, the Committee notes the Government’s indication 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 asks the Government to provide information on any developments in this regard.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Children in migrant and seasonal agriculture. The Committee takes note of the ICFTU’s indication that only 55 per cent of child farm workers have completed high school. In its previous comments, the Committee noted that, according to the GAO’s report on child labour in agriculture of 1998, few of the programmes of the Departments of Education and Labor specifically target migrant and seasonal agricultural child workers. As requested by the Committee, the Government provides information on this issue. The Committee notes that the Department of Education annually collects information on the academic achievements of migrant children in the subject areas of reading and mathematics on state assessments that must be administered at least once during grades 3 through 5, grades 6 through 9, and grades 10 through 12. Each state is asked to report on the percentage of migrant students who have scored at the "proficient" level in reading and mathematics. In addition, the Department of Education also now plans to collect information on the percentage of migrant students who graduate from high school and the number of migrant students who drop out from school. The Committee asks the Government to continue to provide information on the means used to encourage migrant children to remain in school and the results attained.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration. The Committee notes that the Trafficking Victims Protection Act, 2000, allows for federally funded or administered benefits and services, such as cash assistance, medical care, food stamps and housing, to be available for certain non-citizen trafficking victims (section 107). It notes that, according to the report of the Trafficking in Persons and Worker Exploitation Task Force of August 2003, the Department of Health and Human Services provides certification and eligibility letters for trafficked persons that allow them to have access to most benefits and services. Since the enactment of the Trafficking Victims Protection Act, the Department has provided 28 benefits eligibility letters to child trafficking victims. The report also indicates that child trafficking victims may be placed with caring families that understand their cultural background and can speak their language. There are also therapeutic placements for children with special needs. The Committee further observes that the State provides assistance for trafficking victims who have requested repatriation to their home countries. The assistance includes maintaining housing and victim benefits pending repatriation. The Government has established links with foreign governments and NGOs to facilitate the victim’s return and to ensure that the victim is not trafficked again. The Committee also observes that the Government is engaged in improving its contacts with victims, including engagement in extensive outreach to NGOs which are often the first point of contact with victims of trafficking. The Committee asks the Government to continue to provide information on the measures taken by the Trafficking in Persons and Worker Exploitation Task Force, and the impact of such measures with regard to reducing the number of children involved in trafficking and providing for their rehabilitation and social integration.

Clause (c). Access to free basic education. Child victims of trafficking. The Committee observes that, according to section 106(A)(3) of the Trafficking Victims Protection Act, 2000, the President shall establish and carry out programmes to keep children, especially girls, in elementary and secondary school and to educate persons who have been victims of trafficking. The Committee asks the Government to provide information on the time-bound programmes adopted or envisaged to keep child victims of trafficking in school and the impact of such programmes.

Clause (e). Special situation of girls. The Committee observes that, according to the Government, there are federal and state programmes designed to protect young girls who are considered at high risk of exploitation. The Committee requests the Government to provide further information on the programmes specifically designed to protect girls under 18 years of age from the worst forms of child labour.

Article 7, paragraph 3. Competent authority responsible for the implementation of the Convention. The Committee notes that the Criminal Division of the Department of Justice works, with the assistance of the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security (formerly the United States Customs Service), as well as the FBI and the United States Postal Inspection Service, to conduct programmes that bring together state and federal law enforcement and social groups for training in the investigation, prosecution and prevention of commercial sexual exploitation of minors. The Committee also notes that the FBI is responsible for investigating suspected violations of federal drug laws, and benefits from the assistance of the Drug Enforcement Administration to this end. The Committee further notes that child labour standards on hazardous work are administered and enforced by the WHD of the Department of Labor. The Occupational Safety and Health Administration is responsible for the enforcement of the Occupational Safety and Health Act.

Article 8. International cooperation. The Committee notes that the United States is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. It also observes that, since 1995, the United States participates in ILO/IPEC projects aimed at the elimination of the worst forms of child labour worldwide. The Committee takes due note that, according to the report of the Trafficking in Persons and Worker Exploitation Task Force annexed to the Government’s report, the Government supported 200 anti-trafficking programmes in 75 countries in 2002. These programmes include researching into the nature and extent of trafficking in Haiti, the Dominican Republic, Afghanistan and in the Balkans. Another programme aimed at improving access to education and health for children in the Dominican Republic. The United States also participated in launching media campaigns to promote child welfare and prevent trafficking in Mali and Côte d’Ivoire. The Committee asks the Government to continue to provide information on the steps taken to assist other member States in giving effect to the provisions of this Convention.

Part III of the report form. The Committee notes that, according to the Trafficking in Persons and Worker Exploitation Task Force’s report, 2003, the Department of Justice has initiated more than double the number of trafficking prosecutions (20 versus nine), involving more than three times the number of defendants (79 versus 24) in 2001-02 when the Trafficking Victims Protection Act came into effect, than in 1999-2000. It also indicates that the number of defendants successfully prosecuted increased more than twofold (51 versus 23). The Committee also observes that the report provides examples of recent case law involving child exploitation. Thus, in United States v. Jimenez-Calderon (Indictment 9/26/02), a Mexican family lured and smuggled girls from small towns in Mexico to the United States with false promises of marriage, only to force them into prostitution in New Jersey. Two defendants were sentenced to 210 months’ incarceration, three other members of the conspiracy are awaiting sentencing and two others are fugitives. The Committee also observes that another case (United States v. Alamin and Akhter (Indictment 11/16/00)) involved a 14-year-old Cameroonian girl who was held in involuntary servitude and used as a domestic servant for several years. It further observes that in United States v. Quinton Williams (indictment 2/25/03), a person transported a 16-year-old girl by car to different states where he supervised her prostitution activities, collected and kept all of the earnings. He was convicted of sex trafficking of children and sentenced to 125 months’ imprisonment and ordered to pay a US$2,500 fine. The Committee asks the Government to continue to provide information on court decisions concerning child trafficking for labour or sexual exploitation and the penalties imposed. It also asks the Government to provide information on case law regarding other worst forms of child labour.

Part V of the report form. The Committee observes that the report on the youth labour force drafted by the DOL, in June 2000, provides statistics on trends in youth employment, occupational injuries, illnesses and fatalities. According to the abovementioned data on injuries, male workers under 18 suffer from sprains, strains and tears (22 per cent); cuts and lacerations (14 per cent); and heat burns and scalds (9 per cent). Females suffer from the same type of injuries but in different proportions. It also observes that out of 442 cases of occupational fatalities among youth under 18 years of age 57 per cent occurred in non-agricultural occupations. The Committee also notes that specific data on the number of children trafficked in and out of the United States, on child victims of sexual exploitation (prostitution and pornography) or on children engaged in hazardous work do not seem to exist. The Committee encourages the Government to continue to supply 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. As far as possible, such information and statistical data should include data disaggregated by sex, age group, occupation, branch of economic activity, and status in employment, school attendance and geographical location.

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

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s detailed reports, and of the communication of the International Confederation of Free Trade Unions (ICFTU) dated 9 January 2004. The Committee requests the Government to supply further information on the following points.

Article 3 of the Convention. The worst forms of child labour. Clause (a). All forms of slavery or practices similar to slavery. 1. Slavery. The Committee observes that, by virtue of Title 18 of the United States Code (USC), section 1583, anyone who kidnaps or carries away any other person, with the intent that such person be sold into involuntary servitude or held as a slave, commits an offence. Title 18 USC, section 1584, provides that anyone who knowingly and wilfully holds a person to involuntary servitude or sells into any condition of involuntary servitude any other person, or brings within the United States any person so held commits an offence.

2. Sale and trafficking of children. The Committee notes the indications of the ICFTU, in a communication dated 9 January 2004, corroborated by the report of the Trafficking in Persons and Worker Exploitation Task Force (i.e. a governmental body), that the United States is thought to be the destination of 50,000 trafficked women and children each year. It further indicates 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 primary source countries for the United States are Thailand, Viet Nam, China, Mexico, the Russian Federation, Ukraine and the Czech Republic. According to the ICFTU, this report also indicates that most trafficked women and children are employed in the sex sector, domestic and cleaning work (in offices, hotels, etc.), sweatshops and agricultural work. Most reported cases of trafficking occurred in New York, California and Florida. 

The Committee notes that the Trafficking Victims Protection Act, 2000, 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. Hence, it observes that Title 18 USC, section 1590 (introduced by the Trafficking Victims Protection Act, 2000), states that whoever knowingly recruits, harbours, transports, provides or obtains by any means a person for labour or services commits an offence.

The Committee also notes the Government’s indication that section 105(d)(2) of the Trafficking Victims Protection Act, 2000, mandates an evaluation of the progress made by the United States in the areas of trafficking prevention, prosecution and assistance to victims. The Committee notes with interest that, pursuant to the adoption of the Trafficking Victims Protection Act, 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 requests the Government to provide information on the impact of the Trafficking Victims Protection Act, 2000, in reducing the number of children involved in trafficking. It also requests the Government to provide, in its next report, its comments on the points raised by the ICFTU.

3. Forced labour. The Committee observes that, by virtue of Title 18 USC, section 1589, whoever knowingly provides or obtains the labour or services of a person: (1) by threats of serious harm to, or physical restraint against, that person or another person; (2) by means of any scheme, plan or pattern intended to cause the person to believe that, if the person did not perform such labour or services, that person or another person would suffer serious harm or physical restraint; or (3) by means of the abuse or threatened abuse of law or the legal process, is liable to a fine and/or imprisonment.

Clause (b). 1. The use, procuring or offering of a child for prostitution. The Committee observes that Title 18 USC, section 1591 (as amended by the Trafficking Victims Protection Act, 2000), provides for sanctions for anyone who knowingly: (1) in or affecting interstate commerce, recruits, entices, harbours, transports, provides, or obtains by any means a person; or (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1). Title 18 USC, section 1591 also states that whoever, knowing that force, fraud, or coercion will be used to cause a person to engage in a commercial sex act, shall also be punished. The term "commercial sex act" means any sex act, on account of which anything of value is given to or received by any person (Title 18 USC, section 1591). The Committee also notes that according to Title 18 USC, section 2423(a), it is a criminal offence to transport an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offence, or attempts to do so. Subsection (b) of section 2423 states that a person who travels in interstate commerce, or conspires to do so, or a United States citizen or an alien admitted for permanent residence in the United States who travels in foreign commerce, or conspires to do so, for the purpose of engaging in any sexual act (as defined in section 2246) with a person under 18 years of age that would be in violation of Chapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States, shall be fined under this Title and/or imprisoned for not more than 15 years.

The Committee also takes due note of the Government’s indication that all 50 states have laws prohibiting prostitution. It further indicates that state child prostitution statutes address patronizing a child prostitute, inducing or employing a child to work as a prostitute or actively aiding the promotion of child prostitution. It also indicates that some state statutes prohibit child prostitution in very general terms while other states specify the various acts and participants.

2. The use, procuring or offering of a child for the production of pornography or for pornographic performances. The Committee observes that, by virtue of Title 18 USC, section 2251, anyone who employs, uses, persuades, induces, entices or coerces a minor (i.e. a person under the age of 18 according to Title 18 USC, section 2256(1)), or who transports any minor in interstate or foreign commerce, or in any territory of the United States, with the intent that such minor engage in any sexually explicit conduct for the purpose of producing a visual depiction of such conduct commits an offence. Title 18 USC, section 2251(1)(c), provides for sanctions for anyone who makes, prints or publishes any notice or advertisement seeking or offering to receive, exchange, buy, produce, display, distribute or reproduce any visual depiction involving the use of a minor engaged in any sexually explicit conduct. The Committee notes that, according to Title 18 USC, section 2252(a), it is prohibited to transport or ship in interstate or foreign commerce, receive, distribute or knowingly reproduce child pornography, by any means including by computer or mails. The Committee also observes that Title 18 USC, section 2260, prohibits the use of a minor to produce child pornography for importation into the United States, and the receipt, distribution, sale or possession of child pornography with the intent to import the visual depiction into the United States. It further notes that, according to Title 18 USC, sections 2423 and 2427, the transportation of children under 18 years of age in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in the production of child pornography, is an offence.

Clause (c). The use, procuring or offering of a child for illicit activities. The Committee takes due note that, under the Controlled Substances Act, it is an offence to knowingly and intentionally employ, hire, use, persuade, induce, entice or coerce a person under 18 years of age to create, manufacture, distribute, dispense, import or export controlled substances or a counterfeit substance (Title 21 USC, sections 841, 861, 952 and 953). The Committee also notes the Government’s statement that the use, procuring or offering of a child for the unlawful carrying or use of firearms or other weapons are illegal. The Committee requests the Government to supply a copy of the legal provisions prohibiting the use, procuring or offering of a child for the unlawful carrying of weapons.

Articles 3(d) and 4(1). Hazardous work. The Committee notes the ICFTU’s indication that between 300,000 and 800,000 children are employed in agriculture under dangerous conditions. These children work in fields, orchards and packing sheds. For instance, they pick lettuce and cantaloupe, weed cotton fields and pick cherries in orchards. 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. According to the ICFTU, child farm workers risk long-term consequences of pesticide poisoning including cancer and brain damage and suffer high rates of injuries from knives and heavy equipment.

In its previous comments, the Committee observed that the Fair Labour Standards Act (FLSA), Chapter 8, section 212(c), states that no employer shall employ any oppressive child labour in commerce or in the production of goods for commerce. According to section 203(3)(b)(l) of the FLSA, "oppressive child labour" refers to a condition of employment under which any employee aged 16 to 18 is employed by an employer in any occupation that the Secretary of Labor shall find and, by order, declare to be particularly hazardous for the employment of children between such ages or detrimental to their health or well-being. The Committee also noted that section 213 of the FLSA provides for exemptions. Thus, 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". The Committee notes the Government’s statement that, by virtue of Article 4(1) of the Convention, the types of hazardous work shall be determined by the national competent authority. The Committee nevertheless observes that section 213 of the FLSA authorizes a child aged 16 to undertake, in the agricultural sector, occupations declared to be hazardous or detrimental to their health or well-being by the Secretary of Labor. Consequently, the Committee reminds the Government that, by virtue of Article 3(d) of the Convention, work which, by its nature or 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 is therefore prohibited for children under 18 years of age. The Committee accordingly requests the Government to indicate the measures taken or envisaged to ensure that work performed in the agricultural sector, which is determined to be particularly hazardous for the employment of children by the Secretary of Labor, is prohibited for children under 18 years.

Article 4, paragraph 3. Examination and periodical revision of the types of hazardous work. The Committee noted, in its previous comments, that 28 Hazardous Orders 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.

The Committee observed, in its previous comments, that the United States Department of Labor’s Wages and Hour Division (WHD) entered into an inter-agency agreement with the National Institute for Occupational Safety and Health (NIOSH) to conduct research on safety and health risks for children, with particular emphasis on issues relevant to child labour regulations. It noted that, according to the NIOSH’s report dated 3 May 2002, "there have been significant changes in the workplace and advancement in knowledge about occupational safety and health hazards that are not reflected in the existing Hazardous Orders". The NIOSH consequently recommended the development of several new Hazardous Orders to protect children from particularly hazardous work not adequately addressed in the existing regulation.

The Committee notes that, as requested, the Government provides detailed information on actions taken by the Government towards amending the provisions of the FLSA and its implementing regulations in light of the NIOSH’s report of 2002. The Committee takes due note of the Government’s indication that since the recommendations were issued by the NIOSH, the administrator of the WHD has held stakeholders’ meetings on the report with all interested parties, including trade unions, organizations of employers, child advocacy groups and educators. The Government also states that the stakeholder meetings were held jointly with the NIOSH and many written comments received. It further indicates that the WHD is in the process of determining which recommendations concerning the Hazardous Orders will be presented in a first round of proposed rules. It also indicates that it is in the final stages of rule-making on several NIOSH Hazardous Orders recommendations: those relating to driving and operating balers and compactors, roofing, and handling explosive materials. The Committee welcomes the Government’s initiative to review Hazardous Orders to reflect changes in the workplace and advancement in knowledge about occupational health and safety hazards affecting children. The Committee would be grateful if the Government would supply a copy of the amendments or new orders when adopted.

Article 5. Monitoring mechanisms. 1. General investigations on child labour. The Committee notes the Government’s indications that in 2002 the number of targeted investigations in child labour by the WHD increased by 4 per cent; however, the number of child labour violations found in 2002 decreased by 8 per cent from 2001. The Government indicates that in 2002 there were 1,936 cases of violations of child labour standards, 748 of which involved Hazardous Order violations, a decrease of 14 per cent from the previous year. The Committee also notes that in 2002 the WHD initiated efforts to address problems of repeated violations in grocery stores, full services restaurants and quick services restaurants. A survey conducted in 2000 demonstrates a high rate of recidivism in those sectors. As a result, each region has committed to reinvestigate firms with earlier child labour violations. The Government also indicates that a new national survey is being conducted to determine levels of compliance in these industries. The Committee asks the Government to provide information on the findings of this survey.

2. Monitoring mechanisms for the trafficking of children. In its previous comments, the Committee had noted that a worker exploitation task force was established to prevent the criminal exploitation of children and to investigate cases involving the exploitation of children in forced labour in agriculture or sweatshops or as domestic servants or as prostitutes. The Committee had asked the Government to provide updated information on this task force’s actions. The Government accordingly indicates that the worker exploitation task force is now referred to as the Trafficking in Persons and Worker Exploitation Task Force. This task force issued, in August 2003, a report entitled "Assessment of United States activities to combat trafficking in persons", which describes the recent activities undertaken in this area. The Committee observes that the United States has made strides in providing benefits and services to victims of trafficking, including housing and legal assistance. For instance, a regulation (66 Feb. reg. 38514 (24 July 2001)) was issued to outline procedures for appropriate federal employees to ensure that victims are housed in a manner appropriate to their status, afforded proper medical care and other assistance and protected while in federal custody. The Committee accordingly encourages the Government to continue its efforts to eliminate child trafficking. It asks the Government to continue to provide information on the measures taken to this end and the results achieved.

3. Monitoring mechanisms in the agricultural sector. The Committee notes the ICFTU’s indication that child farm workers account for only 8 per cent of working children, but 40 per cent of all work-related fatalities among minors. The ICFTU adds that an estimated 100,000 children suffer agriculture-related injuries annually in the United States and that very few inspections take place in agriculture.

In its previous comments, the Committee had taken note of a report entitled "Child labour in agriculture: Changes needed to better protect health and educational opportunities" submitted to Congress by the General Accounting Office (GAO) in 1998. This report points out that "the weaknesses in current enforcement and data collection procedures limit enforcement agencies’ ability to detect all violations of illegal child labour in agriculture". The Committee had also noted that, according to the GAO’s report, the number of recorded inspections in agriculture by the WHD, the Occupational Safety and Health Administration (OSHA), the Environmental Protection Agency (EPA), and the states, has generally declined in recent years. Inspections may not be conducted at the appropriate time or in the relevant location. 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 that the Department of Labor (DOL) generally concurred with the GAO’s recommendations on the necessity to ensure that coordination procedures specified in existing agreements with federal and state agencies are followed. The Committee notes that the Government supplies a document that addresses each of the GAO recommendations. Thus, the Committee observes that in 1999, the DOL requested an increase of US$3 million to enhance compliance in targeted industries, including agriculture. Regarding the fact that the criteria used by the WHD to determine where and when to conduct investigations may not reflect the likely presence of children, a national agricultural coordinating team conference was held in 1998. During this conference, the Wage and Hour Offices were instructed to incorporate into each national, regional and local agricultural initiative a child labour enforcement component, including, as appropriate, plans to conduct weekend and pre- and post-school hours investigations designed to detect unlawful child labour. The Committee asks the Government to continue to provide information on the measures taken to ensure the enforcement of child labour laws in agriculture and their impact on the elimination of the worst forms of child labour in this sector.

Article 6. Programmes of action to eliminate the worst forms of child labour. 1. The Federal Inter-Agency Working Group on Young Worker Safety and Health. The Committee takes due note of the Government’s indication that a Federal Inter-Agency Working Group on Young Worker Safety and Health was formed in 2003. Within this Working Group, agencies share information on educational programmes focused on an identified occupational hazard, on the provision of personal protective equipment to youth, or on methods by which complex injury and illness surveillance and reporting systems are gathered. This Working Group is composed of the WHD, OSHA, NIOSH, the Department of Interior, the Office of Job Corps, the International Trade Administration and the Department of Commerce. The Committee asks the Government to provide information on the measures taken and findings of the Federal Inter-Agency Working Group on Young Worker Safety and Health.

2. Youth Rules! Campaign. In its previous comments, the Committee noted that various programmes of action were launched to eliminate the worst forms of child labour, including "Work safe this summer" and "Operations salad bowl". As requested by the Committee, the Government provides further information on these programmes. It indicates that the two abovementioned programmes have been integrated into the Youth Rules! Campaign for increased effectiveness. The Committee observes that this campaign aims at increasing public awareness of federal and state rules on young workers. To this end, posters and fact sheets for specific industries such as restaurants, grocery stores and construction firms were designed; information articles on Youth Rules! were published in industry newsletters and magazines; and seminars and compliance training were conducted. The Government also indicates that the Youth Rules! Campaign was broadened in 2003 to include the agricultural industry. The Committee observes that over 20 partners have signed the Youth Rules! Campaign, which include businesses, unions, advocacy groups and 13 individual states (for instance, Illinois, Indiana, New York, Texas, Utah).

3. The Child Exploitation and Obscenity Section. In its previous comments, the Committee had noted that the Child Exploitation and Obscenity Section was acting towards the prevention of the criminal exploitation of children. It asked the Government to provide updated information regarding its actions. The Committee notes the Government’s indication that the Child Exploitation and Obscenity Section has worked since 2001 with the assistance of the Bureau of Immigration, the Customs Enforcement of the Department of Homeland Security, the Federal Bureau of Investigation (FBI) and the Postal Inspection Service. The Government also indicates that the Child Exploitation and Obscenity Section conducts programmes that bring together states and federal law enforcement and social services for training in the investigation, prosecution and prevention of commercial sexual exploitation of minors. The Committee asks the Government to continue to provide information on the achievements and impact of the Child Exploitation and Obscenity Section, especially with regard to combating the commercial sexual exploitation of children under 18.

Article 7, paragraph 1. Penalties. The Committee observes that, by virtue of the Victims of Trafficking and Violence Prevention Act, 2000, penalties for infringements of the provisions of the USC on enticement to slavery (Title 18 USC, section 1583) and sale into involuntary servitude (Title 18 USC, section 1584) were increased from imprisonment of no more than ten years to imprisonment of no more than 20 years. It also observes that a person who infringes Title 18 USC, section 1589, on forced labour is liable to a fine and/or to imprisonment for no more than 20 years. It further observes that trafficking with respect to peonage, slavery, involuntary servitude or forced labour is punishable by a fine and/or imprisonment for any term of years or life (Title 18 USC, section 1590). Sex trafficking of children under 18 years of age is punishable by a fine and/or imprisonment for not more than 20 years (Title 18 USC, section 1591(b)(2)). The Committee notes that a person who violates Title 21 USC, section 861(a)(1) and (2), on the prohibition to employ, hire, use, persuade, induce, entice or coerce a person under 18 years of age to import, export or manufacture controlled substances, shall be sentenced to a term of imprisonment which may not be less than 20 years (Title 21 USC, sections 841(b) and 861(b)). Penalties are very detailed and vary according to the quantity of drugs found. However, when children under 18 years of age are used for drug-related offences, the offender is liable to twice the maximum punishment otherwise authorized and at least twice any term of supervised release otherwise authorized (Title 21 USC, section 861(b)). The Committee also observes that the Federal Sentencing Guidelines, 2000, provide for increased penalties for crimes involving minors under 18 years of age such as 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). Moreover, the Committee notes the Government’s indication 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 asks the Government to provide information on any developments in this regard.

Article 7, paragraph 2. Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Children in migrant and seasonal agriculture. The Committee takes note of the ICFTU’s indication that only 55 per cent of child farm workers have completed high school. In its previous comments, the Committee noted that, according to the GAO’s report on child labour in agriculture of 1998, few of the programmes of the Departments of Education and Labor specifically target migrant and seasonal agricultural child workers. As requested by the Committee, the Government provides information on this issue. The Committee notes that the Department of Education annually collects information on the academic achievements of migrant children in the subject areas of reading and mathematics on state assessments that must be administered at least once during grades 3 through 5, grades 6 through 9, and grades 10 through 12. Each state is asked to report on the percentage of migrant students who have scored at the "proficient" level in reading and mathematics. In addition, the Department of Education also now plans to collect information on the percentage of migrant students who graduate from high school and the number of migrant students who drop out from school. The Committee asks the Government to continue to provide information on the means used to encourage migrant children to remain in school and the results attained.

Clause (b). Direct assistance for the removal of children from the worst forms of child labour, and for their rehabilitation and social integration. The Committee notes that the Trafficking Victims Protection Act, 2000, allows for federally funded or administered benefits and services, such as cash assistance, medical care, food stamps and housing, to be available for certain non-citizen trafficking victims (section 107). It notes that, according to the report of the Trafficking in Persons and Worker Exploitation Task Force of August 2003, the Department of Health and Human Services provides certification and eligibility letters for trafficked persons that allow them to have access to most benefits and services. Since the enactment of the Trafficking Victims Protection Act, the Department has provided 28 benefits eligibility letters to child trafficking victims. The report also indicates that child trafficking victims may be placed with caring families that understand their cultural background and can speak their language. There are also therapeutic placements for children with special needs. The Committee further observes that the State provides assistance for trafficking victims who have requested repatriation to their home countries. The assistance includes maintaining housing and victim benefits pending repatriation. The Government has established links with foreign governments and NGOs to facilitate the victim’s return and to ensure that the victim is not trafficked again. The Committee also observes that the Government is engaged in improving its contacts with victims, including engagement in extensive outreach to NGOs which are often the first point of contact with victims of trafficking. The Committee asks the Government to continue to provide information on the measures taken by the Trafficking in Persons and Worker Exploitation Task Force, and the impact of such measures with regard to reducing the number of children involved in trafficking and providing for their rehabilitation and social integration.

Clause (c). Access to free basic education. Child victims of trafficking. The Committee observes that, according to section 106(A)(3) of the Trafficking Victims Protection Act, 2000, the President shall establish and carry out programmes to keep children, especially girls, in elementary and secondary school and to educate persons who have been victims of trafficking. The Committee asks the Government to provide information on the time-bound programmes taken or envisaged to keep child victims of trafficking in school and the impact of such programmes.

Clause (e). Special situation of girls. The Committee observes that, according to the Government, there are federal and state programmes designed to protect young girls who are considered at high risk of exploitation. The Committee requests the Government to provide further information on the programmes specifically designed to protect girls under 18 years of age from the worst forms of child labour.

Article 7, paragraph 3. Competent authority responsible for the implementation of the Convention. The Committee notes that the Criminal Division of the Department of Justice works, with the assistance of the Bureau of Immigration and Customs Enforcement of the Department of Homeland Security (formerly the United States Customs Service), as well as the FBI and the United States Postal Inspection Service, to conduct programmes that bring together state and federal law enforcement and social groups for training in the investigation, prosecution and prevention of commercial sexual exploitation of minors. The Committee also notes that the FBI is responsible for investigating suspected violations of federal drug laws, and benefits from the assistance of the Drug Enforcement Administration to this end. The Committee further notes that child labour standards on hazardous work are administered and enforced by the WHD of the Department of Labor. The Occupational Safety and Health Administration is responsible for the enforcement of the Occupational Safety and Health Act.

Article 8. International cooperation. The Committee notes that the United States is a member of Interpol which helps cooperation between countries in the different regions especially in the fight against trafficking of children. It also observes that, since 1995, the United States participates in ILO/IPEC projects aimed at the elimination of the worst forms of child labour worldwide. The Committee takes due note that, according to the report of the Trafficking in Persons and Worker Exploitation Task Force annexed to the Government’s report, the Government supported 200 anti-trafficking programmes in 75 countries in 2002. These programmes include researching into the nature and extent of trafficking in Haiti, the Dominican Republic, Afghanistan and in the Balkans. Another programme aimed at improving access to education and health for children in the Dominican Republic. The United States also participated in launching media campaigns to promote child welfare and prevent trafficking in Mali and Côte d’Ivoire. The Committee asks the Government to continue to provide information on the steps taken to assist other member States in giving effect to the provisions of this Convention.

Part III of the report form. The Committee notes that, according to the Trafficking in Persons and Worker Exploitation Task Force’s report, 2003, the Department of Justice has initiated more than double the number of trafficking prosecutions (20 versus nine), involving more than three times the number of defendants (79 versus 24) in 2001-02 when the Trafficking Victims Protection Act came into effect, than in 1999-2000. It also indicates that the number of defendants successfully prosecuted increased more than twofold (51 versus 23). The Committee also observes that the report provides examples of recent case law involving child exploitation. Thus, in United States v. Jimenez-Calderon (Indictment 9/26/02), a Mexican family lured and smuggled girls from small towns in Mexico to the United States with false promises of marriage, only to force them into prostitution in New Jersey. Two defendants were sentenced to 210 months’ incarceration, three other members of the conspiracy are awaiting sentencing and two others are fugitives. The Committee also observes that another case (United States v. Alamin and Akhter (Indictment 11/16/00)) involved a 14-year-old Cameroonian girl who was held in involuntary servitude and used as a domestic servant for several years. It further observes that in United States v. Quinton Williams (indictment 2/25/03), a person transported a 16-year-old girl by car to different states where he supervised her prostitution activities, collected and kept all of the earnings. He was convicted of sex trafficking of children and sentenced to 125 months’ imprisonment and ordered to pay a US$2,500 fine. The Committee asks the Government to continue to provide information on court decisions concerning child trafficking for labour or sexual exploitation and the penalties imposed. It also asks the Government to provide information on case law regarding other worst forms of child labour.

Part V of the report form. The Committee observes that the report on the youth labour force drafted by the DOL, in June 2000, provides statistics on trends in youth employment, occupational injuries, illnesses and fatalities. According to the abovementioned data on injuries, male workers under 18 suffer from sprains, strains and tears (22 per cent); cuts and lacerations (14 per cent); and heat burns and scalds (9 per cent). Females suffer from the same type of injuries but in different proportions. It also observes that out of 442 cases of occupational fatalities among youth under 18 years of age 57 per cent occurred in non-agricultural occupations. The Committee also notes that specific data on the number of children trafficked in and out of the United States, on child victims of sexual exploitation (prostitution and pornography) or on children engaged in hazardous work do not seem to exist. The Committee encourages the Government to continue to supply 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. As far as possible, such information and statistical data should include data disaggregated by sex, age group, occupation, branch of economic activity, and status in employment, school attendance and geographical location.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

Articles 1, 3(d) and 4 of the Convention

  2002 NIOSH Report: Areas requiring further research

1. The Committee notes that, in its May 2002 report on Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders, the National Institute for Occupational Safety and Health (NIOSH) recommended both revised and new hazardous occupation orders under the Fair Labor Standards Act (FLSA), and it also referred to "other serious and potentially fatal occupational safety and health hazards to young workers under age 18 which are of considerable concern, but for which there is insufficient documentation to support recommendations for new HOs (hazardous orders) at this time". Based on its review of available data and scientific information, the NIOSH concluded that these areas "merit additional research prior to future rule-making. Research into risk factors for work-related homicide - a leading cause of young worker injury death - is one such research area. Further research is needed to characterize youth worker exposures to health hazards, such as chemical substances, biologic agents, and repetitive motion, and to determine if such exposures result in negative health outcomes in later years. Research is needed on the effectiveness of youth training programmes to help ensure exemptions for apprentice, and student-learner programmes are effective in facilitating a safe training environment. Finally, research on employer best practices, and knowledge and attitudes about HOs among employers, parents, youth, and other stakeholders could be used to increase effectiveness of outreach and educational campaigns."

2. The Committee hopes that the Government will supply detailed information about steps taken to conduct or to finance new research in those areas of risk identified by the NIOSH where insufficient data currently exist to guide future rule-making.

3. The NIOSH report also addresses the question of child labour in occupations involving the handling or applying of pesticides. One of its recommendations to the Department of Labour (DOL) is to revise and expand the scope of Hazardous Occupation Order 9, issued under the FLSA, to make the prohibition consistent with the level of protection from acute and chronic pesticide exposures afforded by the Worker Protection Standard (40 C.F.R. Part 170). The Worker Protection Standard is a regulation issued by the Environmental Protection Agency (EPA) pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), (7 U.S.C. §§ 136 et seq.)

4. The report discusses the special risks of pesticide exposure to young workers and recognizes the need for further research in this area. It states:

Health effects of pesticides have been largely unstudied with respect to young workers. However, based on an extensive review of the literature and studies on immature animals, the National Research Council concluded that the toxicity of pesticides can potentially be influenced by the immaturity of biochemical and physiological functions and body composition of developing children and adolescents […]. The U.S. EPA. recently cancelled many uses of three highly toxic pesticides […]. This determination is required under the Food Quality Protection Act of 1998, but has been done for only a few pesticides to which children and adolescents are exposed and never to determine unreasonable risks to farm workers under age 18 […]. Many pesticides in current and past use have not been tested for all endpoints of concern, and pesticide studies conducted to date are designed primarily to assess pesticide toxicity in sexually mature animals, not developing children and adolescents.

5. The Committee hopes that the Government will supply detailed information about any studies, reviews, or analyses conducted to systematically determine unreasonable risks to farm workers under age 18 of exposure to pesticides, and that it will report on any policies EPA has adopted or contemplates adopting to determine in a more comprehensive way the need to cancel the use of toxic pesticides because they pose an unreasonable risk to children. The Committee also requests, more generally, that the Government report on, and to supply copies of, any recent studies on the health effects of pesticides with respect to young workers, and to further supply information about the results of any tests or pesticide studies designed to assess pesticide toxicity in developing children and adolescents.

  State child labour laws

6. The Committee notes the information on state child labour laws contained in three Government reports: the November 2000 Report of the Youth Labor Force (revised) of the U.S. DOL, the August 1998 report of the U.S. General Accounting Office (GAO): Child labour in agriculture: Changes needed to better protect health and educational opportunities (GAO/HEHS-98-193), and the May 2002 report of the NIOSH on Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders.

7. These reports indicate that every state has a child labour law, usually enforced by a state labour department. These laws, which often share extensive overlap in coverage with the FLSA, vary in the level of protection afforded young workers for both agricultural and non-agricultural employment. Under the state law of a given state, there may be some provisions that are more or less restrictive than provisions of the federal law. The FLSA requires employers to comply with the higher standard, but only where both are applicable (29 U.S.C. § 218(a)).

8. The NIOSH report states:

Under current law, states are not required to have child labor laws that are at least as protective as federal law (unlike the Occupational Safety and Health Act which requires state laws to be at least as protective as federal law). There are numerous cases in which the federal HOs [hazardous orders] cannot be applied because the jurisdictional thresholds of the Act are not met, and state law does not cover the particular hazards addressed in the federal HOs. Many states have not incorporated all the federal HOs, and in some states child labor regulations are less protective than the federal HOs.

9. According to these reports, federal law is generally more stringent than the state laws with respect to prohibiting work in occupations involving physical hazards and assessing penalties for violations. This is true for both agricultural and non-agricultural employment. Much like the FLSA, state laws generally provide less protection to children working in agriculture than to children working in other industries. Sixteen States (Alabama, Georgia, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Montana, Nebraska, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, West Virginia, Wyoming) exempt agricultural employment entirely or do not list it among the covered sectors. More than half the 34 states that do have protections for children working in agriculture allow them to work more hours per day or per week than children in other industries. Eight States (New Jersey, New York, Ohio, South Carolina, Vermont, Virginia, Washington, Wisconsin) place restrictions on agricultural employment similar to federal standards. Eight states have, by law, restricted daily or weekly hours of work, or both, for minors under the age of 18 employed in agriculture. Twelve states impose a higher age standard than the federal provisions and prohibit 16- and 17-year-olds from working in certain hazardous occupations; some restrictions may apply to agriculture. In some cases, states have specifically adopted standards for agriculture that are more stringent than those of the Federal government. For example, Florida prohibits persons under the age of 18 from operating or assisting in the operation of tractors of a certain size, earth-moving equipment, and other related machinery. Oregon precludes anyone under 18 years old from operating power-driven farm equipment of any kind.

10. The Committee hopes that the legislation and practice at the level of the states in relation to child labour in hazardous employment will be reviewed in the light of the NIOSH report and that the Government will transmit details on the action taken. The Committee further requests that the Government supply copies of the texts of the relevant state laws and regulations.

Articles 5 and 7(1) of the Convention

  Fair Labor Standards Act

11. In its initial report, the Government indicated that the FLSA authorizes the Secretary of Labor or her designated representative to use a number of tools to enforce its child labour provisions, including: conducting investigations and inspections (29 U.S.C. § 212(b)); seeking injunctions in federal court (29 U.S.C. § 217); assessing civil money penalties in administrative actions (29 U.S.C. § 216(e)); pursuing criminal penalties for wilful violations (29 U.S.C. § 216(a)); and using the "hot goods" provision of the FLSA to stop the shipment in interstate commerce of goods produced in violation of the Act (29 U.S.C. § 212(a)). Section 12(a) of the FLSA bars shipment in commerce of any goods that have been produced on a farm or other U.S. establishment where "oppressive child labor" was employed within 30 days prior to the removal of the goods from that establishment. Goods produced in such establishments cannot be shipped in commerce even if oppressive child labour was not used to produce those particular goods. The Government indicates that the DOL’s Wage and Hour Division (WHD), a unit of the Employment Standards Administration, is the designated enforcement agency for the child labour provisions of the FLSA. The Government indicated that, as of the time of filing of its report, the DOL had filed 58 child labour administrative cases in fiscal year 2001 and had filed 78 in fiscal year 2000. The Government also indicated that WHD has settled many cases with employers prior to the initiation of prosecution.

12. The Committee hopes that the Government will supply further specific, updated information about how it has used the enforcement tools it describes in its report for the enforcement of the orders on hazardous occupations for children, which the Secretary of Labor has, by regulation, issued under the FLSA. The Committee seeks this information both as to the orders pertaining to occupations generally, listed under Subpart E of the regulations, and to those relating to employment in agriculture, listed in Subpart E-1 of the regulations.

13. The Committee has noted the September 2002 report to Congress of the U.S. GAO entitled Child labor: Labor can strengthen its efforts to protect children who work (GAO-02-880). It notes from Appendix IV that, in comments supplied to the GAO on 11 September 2002 on the draft of its report, the DOL stated that in fiscal year 2000, the WHD found child labour violations in 1,886 investigations and assessed US$6.2 million in child labour civil money penalties. In fiscal year 2001, WHD found child labour violations in 2,103 investigations and assessed US$6.7 million in child labour civil money penalties, an increase of 8 per cent. The Committee requests that the Government supply information about how many of these investigations and penalties assessed involved violations of the DOL’s hazardous occupation orders. The Committee also requests the Government to address comment 6 of the GAO, made in Appendix IV of its September 2002 report in reply to the DOL’s comments on the GAO draft report:

6. We continue to believe that the trends in the number of child labor violations found and the amount of penalties assessed - including the fact that the numbers have declined significantly since 1990 - are not valid indicators of WHD’s commitment to child labor compliance, nor are they evidence of the success of its efforts to ensure compliance with the child labor provisions of FLSA. As noted in our report, because we do not know what factors led to the changes in the number of violations, it is unclear whether the increase in the number of violations found by WHD in fiscal year 2002 compared to fiscal year 2001 indicates a growing problem with child labor, improvements in WHD’s efforts to identify violations, or other factors.

  Occupational Safety and Health Act

14. In its initial report, the Government notes that under the "General Duty Clause" of the Occupational Safety and Health Act (OSH Act), an employer subject to the Act is required to provide to all his or her employees, including those under the age of 18, a workplace "free from recognized hazards that are causing or likely to cause death or serious physical harm" (29 U.S.C. § 654(a)). The Government indicates that the OSH Act is administered by the Occupational Safety and Health Administration (OSHA), which carries out its functions by setting minimum safety and health standards for all employers and enforcing those standards through a comprehensive on-site inspection programme (29 U.S.C. § 655).

15. The Government also refers to a 1990 Memorandum of Understanding, under which OSHA works in cooperation and coordination with the WHD to enforce the child labour provisions of the FLSA, and to measures OSHA has taken, including amending its penalty policy to account for vulnerable young workers and requiring on-site inspections for complaints of exposure of young workers to serious occupational hazards. The Government indicates that OSHA has included larger agricultural establishments in its Data Initiative, the objective of which is to assist in identifying where injuries and illnesses among young agricultural workers may be occurring.

16. The Committee requests the Government to supply detailed, updated information concerning these measures, policies and initiatives, including any and all progress reports evaluating their implementation and their effectiveness in relation to the efforts of OSHA to prohibit, prevent and eliminate child labour in hazardous occupations.

  Federal Insecticide, Fungicide and Rodenticide Act

17. The Committee notes the Government’s indication that the EPA, pursuant to the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), (7 U.S.C. §§ 136 et seq.), has issued a Worker Protection Standard, which is intended to reduce the risks of illness or injury resulting from occupational exposures to pesticides (40 C.F.R. Part 170).

18. The Committee notes the March 2000 report of the GAO, Pesticides: Improvements needed to ensure the safety of farmworkers and their children (GAO/RCED-00-40). According to the GAO report, the EPA implemented the Worker Protection Standard in recognition of the potential for pesticides to cause a variety of illnesses. According to the EPA, one of the most important protections afforded by the Standard are the time intervals - the duration between the time pesticides are applied and when workers may enter treated areas (called entry intervals). According to the GAO report, EPA officials told the GAO investigators that these entry intervals were designed for adults and children at least 12 years old who do farm work, but were not designed for children younger than 12 years of age. Furthermore, the EPA had little assurance that the protections called for in the Worker Protection Standard were actually being provided to farmworkers generally or to children who work in agriculture. The GAO found that EPA regions have been inconsistent in setting goals for the number of worker protection inspections states should conduct, in defining what constitutes a worker protection inspection, and in the extent to which they oversee and monitor the states’ implementation and enforcement of the Worker Protection Standard. The GAO report includes several recommendations addressed to the EPA, aimed at a better understanding of the overall risks that pesticides pose for farmworkers and their families as well as for the general public.

19. The Committee requests that the Government supply information that specifically addresses how the EPA has implemented, or plans to implement, the detailed steps laid out in the GAO recommendations. The Government is requested to identify specific actions the EPA has taken, or plans to take, directly related to the adequacy of the Worker Protection Standard for children who work in agriculture or who are otherwise present in pesticide-treated fields, and that it supply documentation relating to findings on the adequacy of the Standard’s entry intervals. The Committee requests that the Government report on steps taken by the EPA to work with the National Institute for Occupational Safety and Health and the National Center for Environmental Health to expand and improve data collection and reporting of pesticide-related illnesses. The Government is also requested to comment on the problems identified in the GAO report, and report on measures it can take to address those problems.

  Child labour in agriculture: The 1998 Report of the
  General Accounting Office

20. The Committee takes note of the August 1998 report to Congress of the U.S. GAO, entitled Child Labor in Agriculture: Changes needed to better protect health and educational opportunities (GAO/HEHS-98-193). In Chapter 4 of that report, the GAO summarized a few of the problem areas it identified with respect to the Government’s enforcement of child labour laws, particularly in agricultural employment:

Weaknesses in current enforcement and data collection procedures limit enforcement agencies’ ability to detect all violations of illegal child labour in agriculture. The characteristics of the agricultural industry and its workforce pose several challenges to enforcement agencies for effectively detecting violations of child labour laws. However, resources devoted to agriculture by federal and selected state enforcement agencies have declined in the past 5 years as have the number of cases of detected agricultural child labour violations. In addition, WHD [Wage and Hour Division] and the states lack procedures necessary for detecting illegal child labour in agriculture, and enforcement agencies are not following established coordination procedures for facilitating detection of illegal child labour in agriculture. Moreover, enforcement databases lack information on children’s involvement in many violations, and data limitations may affect WHD’s ability to assess its progress in reducing illegal child labor in agriculture.

21. The Committee notes that in Chapter 4 of the GAO report, a number of specific points and problems in regard to enforcement were identified, including the following.

-  The number of recorded inspections in agriculture by WHD, OSHA, EPA, and the states has generally declined in recent years.

-  OSHA has devoted less than 3 per cent of its inspections over the past five years to agriculture, even though agriculture is often considered to be one of the most hazardous industries.

-  OSHA and EPA have devoted declining resources to agriculture.

-  Recently, the Secretary of Labor said that it was difficult to know whether the decline in the number of recorded child labour violations was due to WHD’s reduced enforcement activity or a reflection of actual conditions.

-  No EPA data are available on the extent of resources devoted solely to the use provision of the Worker Protection Standard - the provision protecting farmworkers from occupational pesticide exposure.

-  According to WHD officials, if the FLSA’s non-agricultural protections for child labour were applied to agriculture, the number of violations found would increase.

-  According to WHD officials, the use of the FLSA’s "hot goods" provision, which involves a request for a temporary restraining order that prohibits a grower from selling goods, has been difficult to apply because of crops’ time-sensitive nature.

-  A general lack of communication and exchange of information exists among WHD and OSHA, EPA and selected state enforcement agencies.

-  Inspections may not be conducted where and when children are most likely to be working.

-  WHD is the only federal enforcement agency required to collect any age information on individuals involved in violations but only does so when inspectors believe a potential child labour violation may exist.

-  Although WHD found over 350 minimum-wage violations for agricultural employers in fiscal year 1997, WHD has no data on the number of citations, if any, issued for minimum-wage violations that involved children.

-  OSHA found over 175 violations of employers not providing hired farmworkers adequate housing conditions, but the extent to which the violations involve children under age 18 is unknown.

-  EPA rarely collects specific information on the type of violations under the use provision of the Worker Protection Standard, although state agencies may collect such data; children’s involvement in these violations, however, is not captured.

-  Despite the amount of data collected by WHD, it has been unable to determine which child labour violations resulted in civil monetary penalties. According to WHD officials, its financial database (which tracks the civil monetary penalties assessed on employers for violations of FLSA and other laws) is not compatible with its enforcement database.

-  This inability to compare and disaggregate types of violations with penalties is related to an issue that surfaced in 1997 - that agricultural employers were being assessed lower penalties than employers in other industries for similar child labour violations.

-  The Department of Labor established the reduction of illegal child labour in agriculture as a key enforcement priority. The Secretary established this priority, which is indicated by the "Salad Bowl" enforcement initiative and by DOL’s requested budget increase for fiscal year 1999 to enhance enforcement in agriculture.

-  In that respect, DOL already plans to increase its allocation of enforcement resources to agriculture and child labour; improved guidance to inspectors and emphasis on coordination would ensure more efficient use of those resources.

22. The Committee notes that at the conclusion of the report, the GAO made several recommendations "to improve [the Department of] Labor’s detection and reporting of illegal child labour in agriculture". In particular, it recommended that the Secretary of Labor direct the Assistant Secretary of Employment Standards to take the following actions:

-  issue national enforcement procedures specifying the actions WHD inspectors should take during agricultural inspections when documentation for verifying a child’s age is missing or potentially fraudulent or when existing documentation does not reflect a child’s possible employment;

-  take steps to ensure that procedures specified in the existing agreements among WHD and other federal and state agencies - especially regarding referrals to and from other agencies, joint inspections, and exchange of information - are being followed and, as required in some agreements, are being recorded and tracked;

-  develop a method for identifying the number of record-keeping violations resulting from employers not having children’s ages on file as required by FLSA; and

-  test the feasibility of collecting data on the number of minimum wage and other labour law violations that involve individuals under 18.

23. The GAO provided copies of its draft report to the Departments of Labor and Education for comment. In its response, the DOL concurred with the intent of the GAO’s recommendation to issue national enforcement guidance specifying the actions WHD inspectors should take during agricultural inspections to verify a child’s age or employment status. The GAO states:

Labor has, in fact, provided additional guidance on this matter on the regional level in at least two regions, and the Department said it will determine if additional guidance is needed. We believe this recently issued guidance includes the additional procedures necessary to better detect illegal child labor in agriculture. At this time, however, the guidance has only been distributed to particular WHD local offices. Although this represents a positive first step toward implementing our recommendation, we still believe that this guidance needs to be issued to all WHD inspectors so they can systematically and consistently take these actions to adequately detect illegal child labor in agriculture.

24. The DOL also concurred with the GAO recommendation aimed at ensuring that coordination procedures specified in existing agreements with federal and state agencies are followed, recorded and tracked. It indicated that WHD does have specific procedures for responding to and issuing case referrals and is now streamlining this process. As the GAO reported, however, "whether these procedures are followed is not always evident. Ideally, in streamlining these procedures and implementing this recommendation, WHD will focus on documenting adherence to these procedures to preclude the communication problems we detected among WHD and other agencies".

25. Regarding the recommendations to develop a method for identifying the number of FLSA child labour record-keeping violations and to test the feasibility of collecting data on children’s involvement in other violations, the DOL acknowledged that such data may be beneficial but identified cost and the practicality of collecting such information as major issues requiring consideration. In response, the GAO stated:

We agree that these are important issues, but given the Results Act [the Government Performance and Results Act of 1993, under which major federal agencies must establish program goals and measure their achievement of those goals] environment that seeks to encourage data-driven measurable goals and objectives, the emphasis WHD has placed on detecting illegal agricultural child labor, and WHD’s efforts to revise its databases to better reflect enforcement activities and outcomes, we still believe that collecting this information - even on a limited basis - would enhance the agency’s efforts to protect children from exploitation in the work place. In addition, the lack of data contributes to the general lack of information about the nature, magnitude, and dynamics of illegal child labor in the United States. Only WHD, as an enforcement agency tasked with protecting children, can collect this kind of data. Although NAWS [National Agricultural Workers Survey] may be useful for understanding some aspects of the child labor problem, its self-reporting nature and sampling limitations make it less appropriate.

26. The Committee requests that the Government supply detailed information that addresses the points and problems the GAO raised in its report, particularly with regard to the problems of enforcement of child labour laws in hazardous agricultural employment identified in Chapter 4. The Committee requests that the Government supply complete and updated reports, evaluations and other documentation concerning the progress the DOL has made in the adoption and implementation of the recommendations in the report with which the DOL concurred. These include the issuance of guidance to all WHD inspectors; measures to ensure that coordination procedures specified in existing agreements with federal and state agencies are followed, recorded and tracked; documenting the adherence to these procedures to preclude the communication problems detected among WHD and other agencies; and developing a method for identifying the number of FLSA child labour record-keeping violations and testing the feasibility of collecting data on children’s involvement in other violations. The Committee requests that the Government report on measures taken to ensure that sufficient resources are allocated to meet the cost of efforts by the DOL to collect data and revise its databases that are undertaken to better reflect enforcement activities and outcomes.

  Strengthening protection of child workers: The 2002 report of the
  General Accounting Office

27. The Committee refers to the September 2002 report to Congress of the U.S. GAO, entitled Child Labor: Labor can strengthen its efforts to protect children who work (GAO-02-880). The report is an update of information from its 1991 reports on child labour. It provides information on: (1) how the number and characteristics of working children in the United States have changed over the past decade; (2) whether the number and characteristics of work-related injuries to children have changed over this same time period; and (3) how well the DOL enforces the child labour provisions of FLSA. To obtain this information, the GAO analysed data on the characteristics of, and injuries to, children obtained from DOL’s Bureau of Labor Statistics (BLS) and injury data from the Department of Health and Human Services’ NIOSH; reviewed the child labour provisions of FLSA and its implementing regulations, agency documents, information from the DOL investigations database, and individual case files; interviewed DOL officials in Washington, D.C., and 11 field offices (5 regions and 6 district offices), officials from NIOSH, and other experts on child labour; and developed estimates of the number of children who are employed illegally by comparing BLS data on working children to the child labour provisions of FLSA.

28. The work was conducted from September 2001 to August 2002 in accordance with generally accepted government auditing standards. In its report, the GAO has made recommendations to the Secretary of Labor "aimed at helping the agency evaluate the effect of its child labour compliance efforts and ensure that resources are used more effectively, including developing goals for improving compliance in industries in which children face the greatest risk of being injured or killed; measures to use in assessing its success in meeting goals; using existing data to better plan compliance efforts and assess success in meeting goals; and providing additional guidance and training to staff".

29. The Committee notes the GAO’s finding that the DOL’s WHD has not developed adequate methods of measuring the success of all of its child labour compliance efforts:

Over the decade, WHD’s measures of success have generally consisted of counting the number of its child labor compliance activities. For example, WHD measured the success of "Operation Child Watch" in the early 1990s by citing the large number of violations and penalties produced. More recently, WHD headquarters officials told us they look at trends in the number of child labor violations found each year, and noted that the numbers have dropped dramatically since the early 1990s. It is not clear, however, what factors led to the decrease in the number of violations. […] It could have resulted from an increased rate of compliance among employers, the decrease in the number of child labor investigations conducted by WHD, or other factors. For example, since "Operation Child Watch", the number of investigator hours devoted to child labor investigations has declined from a high of 11 per cent [in 1990] to 7 per cent in 2001, with a low of 5 per cent in 1998.

30. In summarizing the results of its study, the GAO stated that the Department of Labor:

[...] devotes many resources to ensuring compliance with the child labor provisions of FLSA, including conducting nationwide campaigns designed to increase public awareness of the provisions, but its compliance efforts suffer from limitations that may prevent adequate enforcement of the law. First, Labor only recently developed specific goals for improving employer compliance in the industries in which most children work and continues to lack specific goals for industries for which children have high rates of injuries and fatalities. Second, it has not developed adequate methods of measuring the success of all of its compliance efforts. Third, Labor does not use all available data to plan its compliance efforts or assess the efforts of its local offices to ensure compliance with the child labor provisions of FLSA. Finally, Labor does not provide sufficient guidance and training to its local offices on how to use their resources most effectively or help them consistently apply the provisions of the law.

31. The GAO report includes seven recommendations that are intended to "strengthen WHD’s ability to evaluate the effectiveness of its child labor compliance efforts and ensure that limited resources are used in the most effective manner". The GAO recommends that the Secretary of Labor:

(1)  establish additional specific, measurable goals for WHD’s child labour compliance efforts for industries in which children are most likely to be injured or killed;

(2)  develop methods of measuring the success of WHD’s child labour compliance efforts, including its education and outreach activities;

(3)  routinely obtain data from BLS and NIOSH on the industries, occupations and locations in which children work - both legally and illegally - and sustain work-related injuries and use them to target WHD’s child labour compliance efforts;

(4)  routinely obtain and review data from its investigations database on the number and types of investigations conducted by WHD’s district offices and child labour violations found and use these data to: (i) ensure that WHD’s resources are deployed in the most effective manner; and (ii) hold regional and local offices accountable at the national level for ensuring recommendations that all children nationwide are protected under the child labour provisions of FLSA;

(5)  consider enhancing the data collected on children who work by expanding the Current Population Survey (CPS) to include 14 year-olds or beginning additional cohorts of the National Longitudinal Survey of Youth (NLSY) at regular intervals, such as every five years.

To provide WHD’s regional and district offices with the information they need to properly plan and implement their child labour compliance efforts, the Secretary of Labor should:

-  provide better guidance to WHD’s regional and district offices on how to improve employer compliance and specific guidance on when to assess penalties for child labour violations; and

-  provide training to all WHD staff on how to obtain information from the investigations database.

32. The GAO sent a draft of its report to the DOL for comments. The report indicates that DOL disagreed with many of the recommendations and conclusions, including those related to developing additional programme goals, improving methods for measuring programme success, and better use of data for management oversight, while it concurred with others. The GAO, in a summary of its own reply to the DOL comments, stated:

We continue to believe that additional improvements can be made in each of these areas. [The Department of] Labor agreed with the remainder of our recommendations or agreed to take action on them. For example, it agreed to obtain and review data from the WHISARD [Wage and Hour Investigative Support and Reporting Database] database to better hold local offices accountable, explore the possibilities of collecting additional data through CPS [Current Population Survey] or NLSY [National Longitudinal Survey of Youth], provide better guidance to WHD’s regional and district offices concerning penalty assessment, and provide training to WHD staff on how to obtain information from the investigations database.

33. The Committee notes the correspondence from the WHD of the DOL dated 11 September 2002, which contains the DOL comments on the GAO’s draft report, and which is reproduced in Appendix IV of the GAO report. The Committee also notes the GAO’s 29 detailed replies to the comments by the WHD, also set forth in Appendix IV.

34. The Committee notes that the DOL agreed with recommendations 4, 6 (in part), and 7 and, in the summary of its remarks, agreed to implement the following improvements in fiscal year 2003.

-  WHD has directed each District Office to submit plans for at least one directed child labour initiative in fiscal year 2003.

-  WHD will run reports from the WHISARD database on a quarterly basis to hold region and district offices accountable for conducting child labour investigations and compliance assistance activities.

-  WHD will work with the Office of the Solicitor to develop internal guidance on the assessment of civil money penalties for child labour violations. WHD will distribute an update to its Field Operations Handbook in fiscal year 2003. During fiscal year 2003, WHD will implement, and provide training for, a new reporting programme - Business Objects - that will allow staff to access standardized reports from the WHISARD database.

35. The Committee hopes that, in light of the points raised, the Government will address in detail all the points raised by the GAO in its replies to the comments of the DOL on the GAO draft report. The Committee further requests the Government to supply detailed and updated information on the implementation of the measures the DOL has agreed to take in fiscal year 2003 in response to recommendations 4, 6, and 7 in the GAO report. The Committee requests that the Government supply detailed and updated information concerning the progress and implementation of the measures discussed by the DOL in its comments on the GAO recommendations. The Committee requests that the Government supply a copy of the DOL Wage and Hour Administration’s fiscal year 2003 Annual Performance Plan. The Committee further requests that the Government report on the progress achieved by the WHD on reaching the goals in the plan, and to supply detailed information on the implementation and results of the specific measures and strategies for accomplishing the goals set out in the fiscal 2003 plan.

  Pending Legislative Amendments (Federal)

36. The Committee notes that in 2001, several legislative amendments to the FLSA were introduced in the 107th Congress to accord greater protection to child workers in hazardous employment. S.869, the Children’s Act for Responsible Employment of 2001 (The CARE Act), raises from 16 to 18 years old the minimum age for engaging in hazardous agricultural employment; limits the exemptions for agriculture to those children employed outside of school hours by a specified family member on that member’s farm; increases the maximum penalty for child labour violations to US$15,000 and impose a minimum penalty of US$500; requires the DOL to compile data biannually from state agencies and other sources concerning the types of industries and occupations in which children are employed and cases in which children are employed in violation of federal child labour prohibitions; requires employers to report to the state government on work-related injuries and illnesses incurred by employees under age 18; requires DOL to establish closer working relationships with non-governmental organizations and with state and local government agencies having responsibility for administering and enforcing labour and safety and health laws; and requires state and local government agencies to inform the DOL, upon request, about employee injuries and death.

37. H.R. 2239, the Children’s Act for Responsible Employment of 2001 (The CARE Act), is similar to S.869. It also directs the DOL to employ at least 100 additional inspectors within the WHD to enforce child labour laws; provides for a 10 per cent increase in the budget for the Employment Standards Division within the office of the Solicitor of Labor for increased prosecution of child labour law violations; amends the Federal Insecticide, Fungicide and Rodenticide Act to direct the EPA to revise and review every five years, a farmworker protection standard to take into account the routine presence of children employed on a farm or in a field in which a pesticide is applied; and amends the Workforce Investment Act of 1998 to direct the DOL to make competitive grants for specified types of programmes for migrant and seasonal farmworker youth dropout prevention.

38. The Young American Workers’ Bill of Rights, H.R. 961, amends FLSA to require employers to obtain work permits for all children age 18 or under who are still in school. It also requires the DOL and the Census Bureau to compile data on child labour from the states, including data on child labour violations, and produce an annual report. It amends the limitation on the scope of coverage to employers with a certain sales volume and increases the civil and criminal penalties for child labour violations. It also requires the DOL to establish an Advisory Committee for Child Labor, and to publish and disseminate the names and addresses of individuals who wilfully violate child labour laws.

39. The Committee requests that the Government supply detailed information about its position on these proposed legislative amendments and to report on steps to promote the The CARE Act and the Young American Workers’ Bill of Rights, with a view to bringing about their enactment by Congress.

Article 6 of the Convention

40. The Committee notes that, in its report the Government refers to a number of programmes of action and initiatives it indicates it has put in place to eliminate the worst forms of child labour, including a National Program of Action. With respect to preventing criminal exploitation of children, the Government mentions a Worker Exploitation Task Force and the work of the Child Exploitation and Obscenity Section of the Criminal Division of the Department of Justice. In relation to efforts to increase compliance with child labour laws aimed at reducing workplace injuries and fatalities to young workers, the Government cites an initiative of the DOL called Safe Work/Safe Kids, an ongoing enforcement initiative of the DOL’s WHD known as "Operation Salad Bowl," a Child Labor Task Force to improve enforcement coordination, and the implementation of new procedures to prioritize and increase sanctions for safety and health violations involving young workers. The Government also mentions a youth safety initiative sponsored by the Department of Agriculture. With respect to efforts to ensure that work of children does not adversely affect educational achievement and completion, the Government mentions the Migrant Education Program (MEP) and the High School Equivalency Program of the Department of Education. The Government further notes a number of statistical surveys and analyses on the labour force and occupational injuries conducted by the DOL, aimed at the provision of adequate information on issues arising from youth employment. The Committee further notes several initiatives and campaigns cited by the Government in its comments supplied to the GAO on its draft 2002 report on child labour, including "YouthRules!", "Work Safe This Summer", "Spring into Safety", and "Fair Harvest/Safe Harvest".

41. The Committee request that the Government supply updated information about these initiatives and programmes of action, including detailed and updated information on their implementation and how well they are being resourced, and reports evaluating their impact and effectiveness on the elimination of hazardous child labour and other worst forms of child labour. The Government is further requested to supply specific information about how these programmes are being designed and implemented through ongoing consultations with relevant government institutions and workers’ and employers’ organizations, and about the mechanisms set up to take into consideration the views of other concerned groups, as appropriate. The Committee requests that the Government supply information about any new programmes of action, initiated since the time of filing of its report and which address the problem of child labour in hazardous employment.

Article 7(2) of the Convention

42. The Committee takes note of the August 1998 report of the U.S. GAO, entitled Child Labour in Agriculture: Changes needed to better protect health and educational opportunities (GAO/HEHS-98-193). The Committee on Government Reform and Oversight of the Congress commissioned the report, in part, "to identify federal educational assistance programs and describe how they address the needs of children in migrant and seasonal agriculture, focusing on those aged 14 to 17". In Chapter 5 of the report, the GAO discussed these questions and identified a number of problems and raised a number of issues, including the following:

-  the Departments of Education and Labor administer many programs that provide direct educational services to educationally and economically disadvantaged school-aged children (those aged 6 to 17); however, few of these programs specifically target migrant and seasonal agricultural child workers or children of such workers, and most collect no information on the number of such children served; and

-  even for the two largest programmes that target some or all of this population - the Department of Education’s Migrant Education Program (MEP) and the Department of Labor’s Migrant and Seasonal Farmworker Program (MSFWP) - programme operations and subsequent data limitations impede a national evaluation of these programmes’ results for this target population.

43. Among the recommendations included in the GAO’s report were that "the Secretary of Labor direct the Assistant Secretary of the Employment and Training Administration to develop and analyse data on MSFWP services and outcomes for children aged 14 to 17 to determine the number of these children served, the services provided, and the outcomes experienced by these children".

44. The GAO provided copies of its draft report to the Departments of Labor and Education for comment. The GAO noted that the Department of Education provided technical comments to improve the clarity and accuracy of the report. The GAO reported that the DOL "did not directly comment on our recommendation to develop and analyse data on MSFWP services and outcomes for children aged 14 to 17, to determine the number of these children served, services provided, and outcomes achieved by these children. Labor said, however, that this information is included in the aggregated data collected on all participants aged 14 to 22. We [the GAO] recognize this, and, in fact, the inability to isolate information on children aged 14 to 17 is the main reason why we are making this recommendation. By combining the experiences of youths with adults, Labor cannot analyse the services provided to participants under 18".

45. The Committee requests that the Government supply updated information concerning the MEP and MSFWP programmes, as well as the initiatives of the Departments of Labor and Education mentioned in the GAO report to improve the administration and implementation of these programmes so as to benefit children engaged in hazardous agricultural employment. The Committee requests that the Government report in detail on these and any other measures, taken or contemplated, to address the problems identified by the GAO in Chapter 5 of its report.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

1. The Committee has taken note of the Government’s first report. In its previous observation, the Committee took note of a communication dated 11 September 2001 of the International Confederation of Free Trade Unions (ICFTU), submitting comments on the observance of the Convention. In its communication, the ICFTU alleged, inter alia, that an underfunded labour inspectorate and inadequate penalties for employers who violate the law mean that legally established labour standards covering child labour are inadequately enforced. It indicated that, notwithstanding the fact that agriculture is both dangerous and employs the largest share of children working in the United States, child labour laws governing minimum age, working hours, and overtime pay do not apply to agriculture. The ICFTU alleged that children are often unprotected from harmful pesticides and between 400 and 600 children working in agriculture suffer work-related injuries that are reported each year. In addition, between 1992 and 1996, 59 children lost their lives while working in agriculture. The Committee requested the Government to present its comments on these and other allegations made by the ICFTU.

2. The Committee has noted the Government’s detailed supplemental report with its comments on the communication of the ICFTU. The Committee notes the concern expressed by the Government that, while the Government’s first report arrived late, the Committee’s previous observation referred only to the communication of the ICFTU and not to the Government’s report. The Committee also notes the Government’s comments in response to the allegations in the communication of the ICFTU. The Government cites statistics in the Department of Labor’s June 2000 Report on the Youth Labor Force to challenge the contention that agriculture employs a proportionally larger number of children than other industries. In commenting on the study referred to in the communication of the ICFTU, the Government questions the validity of estimates of the number of children working illegally that are gleaned from the Current Population Survey (CPS) - a monthly survey of households prepared by the U.S. Census and the Bureau of Labor Statistics - because of what it considers to be the generality of the CPS and the lack of high-quality data for children younger than age 14. The Committee also notes that, in its reply to the ICFTU allegations of an underfunded labour inspectorate and inadequate penalties, the Government describes what it considers to be a much more comprehensive enforcement strategy including the aims of targeted enforcement, compliance education and outreach, partnerships, and heightened public awareness, and it cites statistics which it says demonstrate that its strategy is making a difference.

Articles 1, 2, 3(d) and 4 of the Convention

3. The Committee notes that, in its comments on determining, under Article 4 of the Convention, what constitutes hazardous types of work for purposes of Article 3(d) of the Convention, the Government refers back to its first report to, as it states, describe "the manner in which the United States has made and continues to review this determination". In that report, the Government indicated that "two federal laws enforced by the Secretary of Labor are the primary means of establishing the principles of Article 3(d)". It identified these as the Fair Labor Standards Act (FLSA), 29 U.S.C. sections 201 et seq., and the Occupational Safety and Health Act (OSH Act), 29 U.S.C. sections 651 et seq. The Government also referred to an inter-agency agreement with the National Institute for Occupational Safety and Health (NIOSH), an agency within the U.S. Department of Health and Human Services, of April 1999, as one of the means by which the types of work it has determined to be hazardous for children under Article 3(d) are "periodically reviewed and amended as necessary", in accordance with Article 4(3) of the Convention.

The Fair Labor Standards Act

4. The Committee notes that the Fair Labor Standards Act of 1938 (FLSA), and its implementing regulations, regulates the types of jobs, number of hours, and times of day that children can work and provides the overall framework for regulating the employment of child workers. The child labour provisions of the FLSA are contained in section 12 (29 U.S.C. section 212(a-d)). Section 12 prohibits the employment of "oppressive child labor" in commerce or in the production of goods for commerce, or in any enterprise so engaged (29 U.S.C. section 212(c)). Enterprises with an annual volume of sales of less than US$500,000 are exempt (29 U.S.C., section 203(s)(1)). The FLSA defines oppressive child labour, in part, as a condition of employment in occupations which the Secretary of Labor finds and, by order, declares to be "particularly hazardous for the employment of children … or detrimental to their health or well-being" (29 U.S.C. section 203(l)). The Secretary of Labor has, by regulation, designated such occupations and types of work or work activities in 28 "hazardous occupation orders"- 17 relating to non-agricultural employment and a separate category of 11 orders for agricultural employment (29 C.F.R. Part 570, Sub-parts E and E-1). For hazardous work activities in non-agricultural occupations, the FLSA establishes a minimum age of 18, whereas for employment in agriculture, the FLSA sets a minimum age of 16 (29 U.S.C. section 213(c)(2)).

5. The Committee notes that, among others, a specific exemption from the child labour provisions of the FLSA is made for a child working in agriculture on a family farm, that is, a farm "owned or operated by his or her parent or by someone standing in the place of the parent" (29 U.S.C. section 213(c)(1)(A)(i)). Thus, the hazardous occupation orders relating to the employment of children under 16 years of age in agriculture do not cover employment of children on family farms (29 U.S.C. section 213(c)(2); 29 C.F.R. section 570.70(b)). Employment in agriculture is also exempt from the statute’s restrictions on work hours (29 U.S.C. section 213(b)(12), (13)).

2002 NIOSH report: Recommendations to the U.S. Department
of Labor for Changes to Hazardous Orders

6. In its initial and supplemental reports, the Government indicates that, as part of its obligation under Article 4(3) to periodically re-examine the list of the types of work determined to be hazardous for children, the U.S. Department of Labor’s Wage and Hour Administration entered into an inter-agency agreement with the National Institute for Occupational Safety and Health (NIOSH) to conduct research on "safety and health risks for children, with particular emphasis on issues relevant to child labor regulations". NIOSH is the federal agency responsible for conducting research and making recommendations for the prevention of work-related disease and injury. The Institute is part of the Centers for Disease Control and Prevention (CDC). The CDC is an agency of the US Department of Health and Human Services. The Government indicates that the agreement contemplated that the research conducted and overseen by NIOSH would, among other things, address "the adequacy of existing hazardous occupation orders under the FLSA and the potential for new orders". In its supplemental report, the Government indicates that NIOSH released its report on Recommendations to the U.S. Department of Labor for Changes to Hazardous Orders in July 2002.

7. The Committee takes notes of this report, which is dated 3 May 2002. In summarizing the purpose of its study, NIOSH states: "The Fair Labor Standards Act (FLSA), largely unchanged in decades, defines work activities prohibited for young workers through 28 Hazardous Orders (HOs) for non-agricultural and agricultural occupations … The HOs in non-agricultural occupations were established between 1939 and 1963. The agricultural HOs were established in 1970. There have been significant changes in the workplace and advancement in knowledge about occupational safety and health hazards that are not reflected in the existing HOs. The need to update the HOs has been recognized by the Department of Labor [citations omitted] and numerous researchers and advocates." The report notes a recommendation for such periodic reviews made recently by the National Research Council/Institute of Medicine in its report, Protecting Youth at Work: "The U.S. Department of Labor should undertake periodic reviews of its hazardous orders in order to eliminate outdated orders, strengthen inadequate orders, and develop additional orders to address new and emerging technologies and working conditions. Changes to the hazardous orders should be based on periodic reviews by the National Institute for Occupational Safety and Health of current workplace hazards and the adequacy of existing hazardous orders to address them."

8. The NIOSH report states that "the DOL responded to the above charge" by requesting that NIOSH prepare a report based on a review of data and the scientific literature and provided funding to support the effort. The primary data sources used by NIOSH were the Census of Fatal Occupational Injuries, the Survey of Occupational Injuries and Illnesses, the National Electronic Injury Surveillance System, and the Current Population Survey. The report indicates that, in addition, hundreds of scientific articles and reports were reviewed. NIOSH states that its report "makes recommendations specific to HOs that define prohibited occupations … NIOSH recognizes the need to better protect the health and safety of working youth, and provides this report to assist the DOL in aligning child labor regulations with current knowledge about occupational safety and health. NIOSH offers its continued support to work closely with DOL to ensure that child labor regulations provide adequate protections for working youth and to initiate research into those areas of risk where insufficient data currently exist to guide rule-making".

9. In a summary of its findings, NIOSH reports that it "found justification for all of the existing HOs [hazardous orders]. Review of available data and scientific evidence found that work currently prohibited by HOs continues to pose risks for death, serious injury and disabling health conditions. NIOSH proposes several types of revisions to HOs: better definition of prohibited activities, incorporation of associated legislative provisions, and in some cases, removal of current exemptions. Additionally, NIOSH makes recommendations to expand several HOs to include similar work with comparable or greater risk. In a couple of cases, NIOSH concluded that revisions of existing HOs may be warranted, to allow use of currently prohibited equipment which appears to be associated with relatively minor injuries". The Committee notes that, for existing hazardous occupation orders, NIOSH recommends that only seven of the 28 orders (four of the 17 orders for non-agricultural occupations and three of the 11 orders for agricultural employment) be retained, and that the other 75 per cent be revised to expand the prohibitions or to redefine them more broadly.

10. The report indicates that NIOSH "recommends the development of several new HOs to protect youth from especially hazardous work not adequately addressed in the existing regulations. The recommended HOs encompass work associated with deaths and severe injuries of youth, work with especially high fatality rates, and work associated with disabling health occupations. In several instances, NIOSH recommends extending prohibitions now in place for agricultural occupations to similar tasks in non-agricultural occupations, e.g., pesticide handling, work in confined spaces, and tractor operation". NIOSH recommends new hazardous occupation orders that would prohibit the following types of work: commercial fishing occupations; construction occupations; work in refuse occupations; water transportation industries; work in scrap and waste materials industry; farm product raw materials wholesale trade industry; railroad industry; work at heights; operating a tractor (for non-agricultural occupations); operating heavy machinery (for non-agricultural occupations); welding; work inside confined spaces (for non-agricultural occupations); work involving powered conveyors (in manufacturing industries); pesticide handling (in non-agricultural occupations); work with potential exposure to lead; work with potential exposure to silica dust; and work requiring the use of respiratory protection.

2002 NIOSH report: Minimum age for work in hazardous
occupations in agriculture and exemptions from the FLSA

11. In describing the scope of its study, NIOSH specifically notes that it "does not address statutory issues such as the minimum age for work in HOs and exemptions from the FLSA … Many deaths and serious injuries occur among youth not covered by the FLSA". With regard to agricultural employment, the report states: "Thirty-five percent of the young workers killed over the 1992-1997 period lost their lives in agricultural production jobs". The report states further (page 12) that "more than half of the 162 deaths in agriculture [during the period 1992-1997] occurred on family farms … Youth 15 to 17 years of age working in agriculture appeared to have over four times the risk for fatal injury of youth workers in other industries".

12. The report states:

Despite the well-documented hazards and consistently high rates of injury and fatalities, youth in agricultural workplaces are afforded less protection than youth in non-agricultural occupations. This is true even with respect to the same hazards, such as machinery. In fact, the current distinctions between HOs for agricultural and non-agricultural occupations are frequently artificial, given that the same machinery, activities, and exposure are often present in both settings. Yet the minimum age for similar hazardous work in agriculture is 16, compared to 18 in non-agricultural occupations. For the six year period 1992-1997, there were 39 deaths of youth 16-and 17-years of age in agricultural production [citation omitted]. Changes to HOs could not be expected to impact these young worker injury deaths since they are exempt from the FLSA, unlike most other types of family businesses. It is not possible for NIOSH to determine from the CFOI [Census of Fatal Occupational Injuries] research file provided by BLS [Bureau of Labor Statistics] the numbers of agricultural production deaths of youth less than 16 years of age that would not be covered by the FLSA because the youth was working on the family farm. A previous analysis of CFOI by BLS researchers suggested that more than half of the farming-related deaths of youth less than 18 years of age occurred on farms owned by the victim’s families.

1998 Report of the General Accounting Office

13. The Committee takes note of the August 1998 report to Congress of the U.S. General Accounting Office (GAO), entitled Child Labor in Agriculture: Changes Needed to Better Protect Health and Educational Opportunities (GAO/HEHS-98-193). The GAO is an independent and non-partisan government agency that evaluates federal programmes, audits federal expenditures, and issues legal opinions. The GAO advises Congress and the heads of executive agencies about ways to make government more effective and responsive. In its report the GAO, like NIOSH, has recognized the particular hazards of agricultural employment for child workers: "Agriculture is a hazardous industry, with one of the highest rates of injuries, fatalities, and lost workdays for employees generally. Available data indicate that although the relative number of injuries of children working in agriculture is not as high as that for those working in other industries, the severity tends to be greater and these children have a disproportionate number of fatalities. Although a number of data sources document injuries and illnesses to children working in agriculture, methodological constraints result in estimates that may understate injuries to and fatalities of these children."

14. The GAO explained in practical terms the impact of the FLSA provisions that exempt, or apply less protection to, child labour in hazardous agricultural employment:

... 60 years after FLSA was passed, although it covers children working in both agriculture and other industries, children working in agriculture are legally permitted to work at younger ages, in more hazardous occupations, and for longer periods of time than children working in other industries. For example, … a 16-year-old may not operate a power saw in a shop or a forklift in a warehouse but may operate either on a farm. … Children as young as 16 may work in agriculture in any capacity, including in some occupations declared hazardous by the Secretary of Labor … In non-agricultural industries, children generally may not perform such tasks until age 18. Furthermore, in agriculture, parents do not have to adhere to hazardous occupation requirements, which means a parent may allow his or her 7-year-old to operate a power saw or drive a tractor, although a parent would not be able to allow his or her 7-year-old to operate a similar machine in a non-agricultural setting.

15. The Committee notes that the GAO includes, as a "matter for congressional consideration", the following as one of its recommendations: "Considering the evolutionary changes that are transforming the agricultural industry and the increased emphasis on the safety, health, and academic achievement of children, the Congress may wish to formally re-evaluate whether FLSA adequately protects children who are hired to work as migrant and seasonal farmworkers."

Pending Legislative Amendments (Federal)

16. The Committee notes with interest that, in 2001, several legislative amendments to the FLSA were introduced in the 107th Congress to accord greater protection to child workers in hazardous employment. S. 869, the Children’s Act for Responsible Employment of 2001 (The CARE Act), among other things, raises, from 16 to 18 years old the minimum age for engaging in hazardous agricultural employment, and it limits the exemptions for agriculture to those children employed outside of school hours by a specified family member on that member’s farm. H.R. 2239, the Children’s Act for Responsible Employment of 2001 (The CARE Act), is similar to s. 869. The Young American Workers’ Bill of Rights, H.R. 961, among other things, amends the limitation on the scope of coverage to employers with a certain sales volume, and it requires employers to obtain work permits for all children age 18 or under who are still in school.

17. The Committee also notes with interest, in relation to the NIOSH review, the Government’s indication that "the Department [of Labor] has already begun to implement many of the changes urged in the report and is reviewing others", and that it will report further on these developments in its next report.

18. The Committee hopes that the provisions of the Fair Labor Standards Act and its implementing orders and regulations, as they relate to hazardous child labour, will be amended in the light of the Government’s NIOSH and GAO reviews and recommendations, and that the Government will report on the action it has taken to this end.

The Committee is raising several other questions in a request addressed directly to the Government.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee has noted a communication dated 11 September 2001 of the International Confederation of Free Trade Unions (ICFTU), submitting comments on the observance of the Convention, a copy of which has been forwarded to the Government for any comments it might wish to make on the matters raised therein.

In its communication, the ICFTU alleged, inter alia, that an underfunded labour inspectorate and inadequate penalties for employers who violate the law mean that legally established labour standards covering child labour are inadequately enforced. It referred to a 1997 survey, based on federal government data, which revealed that some 290,000 children were working illegally, of whom the greatest number worked in the agricultural and horticultural sectors. Some 14,000 children under the age of 14, some as young as nine, worked in garment "sweatshops". Under-age children were also employed in such industries as meatpacking, construction and in sawmills and furniture factories. In its communication, the ICFTU indicated that, notwithstanding the fact that agriculture is both dangerous and employs the largest share of children working in the United States, child labour laws governing minimum age, working hours, and overtime pay do not apply to agriculture. The ICFTU alleged that children are often unprotected from harmful pesticides and between 400 and 600 children working in agriculture suffer work-related injuries that are reported each year. In addition, between 1992 and 1996, 59 children lost their lives while working in agriculture.

The Committee requests the Government to present its comments on the allegations made by the ICFTU.