BROWNBACK DEMAGOGUES U.S. DEPARTMENT OF LABOR RULES DESIGNED TO KEEP FARM KIDS SAFE

Sam Brownback has perfectly positioned himself to demagogue on the nostalgic recollections of the family farm.  The United States Department of Labor, Brownback bemoans, has gone too far with their overreaching regulation of child labor on Kansas farms.

Just what did the Labor Department do?  They issued "Subpart E–1—Occupations in Agriculture Particularly Hazardous for the Employment of Children Below the Age of 16".  That's right the Labor Department established new rules for children working in Agriculture, children younger than 16 years of age.

How dare the Labor Department interfere with the operations of a family farm, and the historic rites of passage for rural youth.  And that is where the demagoguery comes in.  These regulations do not affect family farms!  Specifically, §570.70 (b), which is listed at the top of the regulation under the heading "Exception" says "This subpart shall not apply to the employment of a child below the age of 16 by his parent or by a person standing in the place of his parent on a farm owned or operated by such parent or person."

Brownback and Attorney General Derek Schmidt, an official statement from Brownback's office reported, said that "they both benefited from spending time working on family members’ farms.
However, the proposed rule threatens this Kansas tradition." 

See, https://governor.ks.gov/frontpagenews/2011/12/01/governor-brownback-attorney-general-schmidt-say-federal-proposal-bad-for-kansas-agriculture. 

I expect the State's top lawyer to read the rule before he opens his mouth and demonstrates why he wasn't a very good choice for the job he holds. If Brownback's staff was as eager to get good information to the Governor as they are in haranguing high school students for the content of their Twitter accounts then Brownback wouldn't look so bad for the second time in a week.

The Governor's statement said that  Kansas Secretary of Agriculture Dale Rodman, Secretary of Commerce Pat George and Secretary of Labor Karin Brownlee voiced similar concerns in a separate letter. 

Here is the list of what children may no longer do as agricultural employees.

a) Findings and declarations of fact as to specific occupations. The following occupations in agriculture are particularly hazardous for the employment of children below the age of 16:

(1) Operating a tractor of over 20 PTO horsepower, or connecting or disconnecting an implement or any of its parts to or from such a tractor.

(2) Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:

(i) Corn picker, cotton picker, grain combine, hay mower, forage harvester, hay baler, potato digger, or mobile pea viner;

(ii) Feed grinder, crop dryer, forage blower, auger conveyor, or the unloading mechanism of a nongravity-type self-unloading wagon or trailer; or

(iii) Power post-hole digger, power post driver, or nonwalking type rotary tiller.

(3) Operating or assisting to operate (including starting, stopping, adjusting, feeding, or any other activity involving physical contact associated with the operation) any of the following machines:

(i) Trencher or earthmoving equipment;

(ii) Fork lift;

(iii) Potato combine; or

(iv) Power-driven circular, band, or chain saw.

(4) Working on a farm in a yard, pen, or stall occupied by a:

(i) Bull, boar, or stud horse maintained for breeding purposes; or

(ii) Sow with suckling pigs, or cow with newborn calf (with umbilical cord present)

(5) Felling, bucking, skidding, loading, or unloading timber with butt diameter of more than 6 inches.

(6) Working from a ladder or scaffold (painting, repairing, or building structures, pruning trees, picking fruit, etc.) at a height of over 20 feet.

(7) Driving a bus, truck, or automobile when transporting passengers, or riding on a tractor as a passenger or helper.

(8) Working inside:

(i) A fruit, forage, or grain storage designed to retain an oxygen deficient or toxic atmosphere;

(ii) An upright silo within 2 weeks after silage has been added or when a top unloading device is in operating position;

(iii) A manure pit; or

(iv) A horizontal silo while operating a tractor for packing purposes.

(9) Handling or applying (including cleaning or decontaminating equipment, disposal or return of empty containers, or serving as a flagman for aircraft applying) agricultural chemicals classified under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 135 et seq. ) as Category I of toxicity, identified by the word “poison” and the “skull and crossbones” on the label; or Category II of toxicity, identified by the word “warning” on the label;

(10) Handling or using a blasting agent, including but not limited to, dynamite, black powder, sensitized ammonium nitrate, blasting caps, and primer cord; or

(11) Transporting, transferring, or applying anhydrous ammonia.

(b) Occupational definitions. In applying machinery, equipment, or facility terms used in paragraph (a) of this section, the Wage and Hour Division will be guided by the definitions contained in the current edition of Agricultural Engineering, a dictionary and handbook, Interstate Printers and Publishers, Danville, Ill. Copies of this dictionary and handbook are available for examination in Regional Offices of the Wage and Hour Division, U.S. Department of Labor.

[35 FR 221, Jan. 7, 1970. Redesignated at 36 FR 25156, Dec. 29, 1971]

This reasonable list is followed by more exceptions.  They are the 4-H exceptions which  basically carves out wiggle room for student learners, permits students to operate certain machinery after they have passed the tests listed in the 4-H manual, and then details the 4-H learning curve.  Here it is from §570.72.

a) Student-learners. The findings and declarations of fact in §570.71(a) shall not apply to the employment of any child as vocational agriculture student-learner in any of the occupations described in paragraph (1), (2), (3), (4), (5), or (6) of §570.71(a) when each of the following requirements are met:

(1) The student-learner is enrolled in a vocational education training program in agriculture under a recognized State or local educational authority, or in a substantially similar program conducted by a private school;

(2) Such student-learner is employed under a written agreement which provides; (i) that the work of the student-learner is incidental to his training; (ii) that such work shall be intermittent, for short periods of time, and under the direct and close supervision of a qualified and experienced person; (iii) that safety instruction shall be given by the school and correlated by the employer with on-the-job training; and (iv) that a schedule of organized and progressive work processes to be performed on the job have been prepared;

(3) Such written agreement contains the name of the student-learner, and is signed by the employer and by a person authorized to represent the educational authority or school; and

(4) Copies of each such agreement are kept on file by both the educational authority or school and by the employer.

(b) Federal Extension Service. The findings and declarations of fact in §570.71(a) shall not apply to the employment of a child under 16 years of age in those occupations in which he has successfully completed one or more training programs described in paragraph (b) (1), (2), or (3) of this section provided he has been instructed by his employer on safe and proper operation of the specific equipment he is to use; is continuously and closely supervised by the employer where feasible; or, where not feasible, in work such as cultivating, his safety is checked by the employer at least at midmorning, noon, and midafternoon.

(1) 4–H tractor operation program. The child is qualified to be employed in an occupation described in §570.71(a)(1) provided:

(i) He is a 4–H member;

(ii) He is 14 years of age, or older;

(iii) He is familiar with the normal working hazards in agriculture;

(iv) He has completed a 10-hour training program which includes the following units from the manuals of the 4–H tractor program conducted by, or in accordance with the requirements of, the Cooperative Extension Service of a land grant university:

( a ) First-year Manual:

Unit 1—Learning How to be Safe;

Unit 4—The Instrument Panel;

Unit 5—Controls for Your Tractor;

Unit 6—Daily Maintenance and Safety Check; and

Unit 7—Starting and Stopping Your Tractor;

( b ) Second-year Manual:

Unit 1—Tractor Safety on the Farm;

( c ) Third-year Manual:

Unit 1—Tractor Safety on the Highway;

Unit 3—Hitches, Power-take-off, and Hydraulic Controls;

(v) He has passed a written examination on tractor safety and has demonstrated his ability to operate a tractor safely with a two-wheeled trailed implement on a course similar to one of the 4–H Tractor Operator's Contest Courses; and

(vi) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address, and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the leader who conducted the training program and by an Extension Agent of the Cooperative Extension Service of a land grant university to the effect that the child has completed all the requirements specified in paragraphs (b)(1) (i) through (v) of this section.

(2) 4–H machine operation program. The child is qualified to be employed in an occupation described in §570.71(a)(2) providing:

(i) He satisfies all the requirements specified in paragraphs (b)(2)(i) through (v) of this section;

(ii) He has completed an additional 10-hour training program on farm machinery safety, including 4–H Fourth-Year Manual, Unit 1, Safe Use of Farm Machinery;

(iii) He has passed a written and practical examination on safe machinery operation; and

(iv) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address, and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the leader who conducted the training program and by an Extension Agent of the Cooperative Extension Service of a land grant university, to the effect that the child has completed all of the requirements specified in paragraphs (b)(2) (i) through (iii) of this section.

(3) Tractor and machine operation program. The child is qualified to be employed in an occupation described in §570.71(a) (1) and (2) providing:

(i) He is 14 years of age, or older;

(ii) He has completed a 4-hour orientation course familiarizing him with the normal working hazards in agriculture;

(iii) He has completed a 20-hour training program on safe operation of tractors and farm machinery, which covers all material specified in paragraphs (b) (1)(iv) and (2)(ii) of this section.

(iv) He has passed a written examination on tractor and farm machinery safety, and has demonstrated his ability to operate a tractor with a two-wheeled trailed implement on a course similar to a 4–H Tractor Operator's Contest Course, and to operate farm machinery safely.

(v) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the volunteer leader who conducted the training program and by an Extension Agent of the Cooperative Extension Service of a land grant university, to the effect that all of the requirements of paragraphs (b)(2) (i) through (iv) of this section have been met.

(c) Vocational agriculture training. The findings and declarations of fact in §570.71(a) shall not apply to the employment of a vocational agriculture student under 16 years of age in those occupations in which he has successfully completed one or more training programs described in paragraph (c)(1) or (2) of this section and who has been instructed by his employer in the safe and proper operation of the specific equipment he is to use, who is continuously and closely supervised by his employer where feasible or, where not feasible, in work such as cultivating, whose safety is checked by the employer at least at midmorning, noon, and midafternoon, and who also satisfies whichever of the following program requirements are pertinent:

(1) Tractor operation program. The student is qualified to be employed in an occupation described in §570.71(a)(1) provided:

(i) He is 14 years of age, or older;

(ii) He is familiar with the normal working hazards in agriculture;

(iii) He has completed a 15-hour training program which includes the required units specified in the Vocational Agriculture Training Program in Safe Tractor Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare and acceptable by the U.S. Department of Labor. The training program is outlined in Special Paper No. 8, April 1969, prepared at Michigan State University, East Lansing, Mich., for the Office of Education. Copies of this training program outline are available for examination in the Regional Offices of the Wage and Hour Division, U.S. Department of Labor, and a copy may be obtained from the Office of Education, U.S. Department of Health, Education, and Welfare, Washington, DC 20202.

(iv) He has passed both a written test and a practical test on tractor safety including a demonstration of his ability to operate safely a tractor with a two-wheeled trailed implement on a test course similar to that described in the Vocational Agriculture Training Program in Safe Tractor Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare; and

(v) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address, and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the Vocational Agriculture teacher who conducted the program to the effect that the student has completed all the requirements specified in paragraphs (c)(1)(i) through (iv) of this section.

(2) Machinery operation program. The student is qualified to be employed in an occupation described in paragraph (2) of §570.71(a) provided he has completed the Tractor Operation Program described in paragraph (c)(1) of this section and:

(i) He has completed an additional 10-hour training program which includes the required units specified in the Vocational Agriculture Training Program in Safe Farm Machinery Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare and approved by the U.S. Department of Labor;

(ii) He has passed both a written test and a practical test on safe machinery operation similar to that described in the Vocational Agriculture Training Program in Safe Farm Machinery Operation, outlined by the Office of Education, U.S. Department of Health, Education, and Welfare; and

(iii) His employer has on file with the child's records kept pursuant to part 516 of this title (basically, name, address and date of birth) a copy of a certificate acceptable by the Wage and Hour Division, signed by the Vocational Agriculture teacher who conducted the program to the effect that student has completed all the requirements specified in paragraphs (c)(2)(i) and (ii) of this section.

(d) Agency review. The provisions of paragraphs (a), (b), and (c) of this section will be reviewed and reevaluated before January 1, 1972. In addition, determinations will be made as to whether the use of protective frames, crush resistant cabs, and other personal protective devices should be made a condition of these exemptions.

You can read these regulations,on the e-cfr, for yourself at: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=48d6ee3b99d3b3a97b1bf189e1757786&rgn=div5&view=text&node=29:3.1.1.1.30&idno=29#29:3.1.1.1.30.5.

SAUSAGE MAKING IN THE KANSAS LEGISLATURE, OR HOW ANTI-ABORTION FORCES IN THE KANSAS LEGISLATURE BROKE THE RULES OF THE LEGISLATURE

In Kansas a bill becomes a law by being introduced into either the House or the Senate. The bill is referred to one or more committees of that chamber.  Hearings are held.  The legislation may be amended. The committee issues a report with either a pass or do not pass recommendation. The bill goes to the floor of the chamber, is placed on a calendar, gets debated, and passes or dies.  If it passes, the bill goes to the other chamber, is sent to committee, is reported out of committee, goes to the floor, gets placed on the calendar, is debated, and voted on.  If, while in the second chamber, the bill is amended, then the bill gets sent back to the originating chamber. 

The originating chamber can accept the amendments of the other body or reject them.  When those amendments are rejected the bill is sent to a conference committee to hammer out the differences,  The Conference Report goes to the second chamber. If they agree with the report the bill passes as amended in conference and gets sent back to the originating chamber where it is accepted or rejected.

The work of a "Conference Committee" resembles sausage making.  The conferees can cut and paste various slightly related bills into a final bill for passage.  Since the conferees have broad latitude the Kansas legislature has a rule applicable to each chamber.  Joint Rule 3 (f) provides that legislation crafted  into a conference report must first have passed in at least one chamber. 

In the waning hours of  the legislature anti-abortion forces bypassed Rule 3 (f).  Two House bills, neither of which passed either chamber, were grafted into HB 2075, an insurance bill.  Here is a brief history of the debacle.  

On May 12th the Kansas House of Representatives was opened by Chaplain Brubaker with a prayer asking that the legislature not force through legislation. At least that is what I took away from the prayer which is found on page 1182 of the Journal of the House.

Our Heavenly Father, I recently read how one might apply the principles of putting together a jigsaw puzzle to life and work. I pray these principles for our leaders today as they continue to wrap up the decisions of this session. Help them to not force a fit, if something is meant to be, it will come naturally. When things aren’t going well, encourage them to take a break. Things will look different when they return to it. Help them to look at the big picture. If they allow themselves to get hung up on small pieces it will lead to their frustration. Remind them that perseverance pays off. Every important puzzle goes together piece by piece. And lastly, may they recognize that anything worth doing will take time and effort. In Christ’s Name I pray, Amen.

The message fell on rocky soil.  The legislature was considering a bill on group insurance. This is a bill that has naught to do with abortion.  Or at least it was before anti-abortion legislators decided to tinker with the right of people to bargain for insurance coverage. 

House Bill 2075 was introduced by the House Committee on Insurance on January 24th. The action was taken by the Committee on Insurance at the behest of the Kansas Department of Insurance in response to a 2006 law requiring insurers to have antifraud initiatives reasonably calculated to detect fraudulent insurance acts. Those initiatives are not to be made public at the risk of tipping off potential fraudfeasors. HB 2075 would extend the sunset provision contained in this statute from July 1, 2011 to July 1, 2016.

There was nothing about abortion when HB 2075 was introduced.

On January 25th the House  sent the bill to the Committee on Insurance.  On February 22nd HB 2075 emerged from the Committee on Insurance with a recommendation for its passage.  Two days later the House, sitting as the Committee of the Whole, recommended passage of HB2075. on February 25th HB 2075 passed the Kansas House on a vote of 119 to 0.

March 2nd the Senate received and introduced HB 2075.  The next day HB 2075 was referred to the Committee on Financial Institutions and Insurance.  On March 14th the Committee on Financial Institutions and Insurance recommended passage of HB 2075 AS AMENDED.  Is this where the anti-abortion language was inserted?  No, and the anti-fraud provisions were dropped from the bill.

It seems that the Congress in passing the Dodd-Frank Wall Street Reform and Consumer Protection Act permitted the States to enter interstate compacts and establish procedures to allocate among the States the premium taxes paid to an insured’s Home State; and that each State adopt nationwide uniform requirements, forms, and procedures, such as an interstate compact, that provide for the reporting, payment, collection, and allocation of premium taxes for Non-Admitted Insurance.  Admitted insurance companies are licensed and regulated by a State's Department of Insurance.  Non-Admitted  insurance is available as a "surplus line" brokered through a specially licensed insurance agent.

On March 16th the Senate, sitting as the Committee of the Whole, passed over HB 2075 letting it retain a place on their calendar.  On March 21st the Senate, again sitting as the Committee of the Whole, took the measure through the paces and passed the bill as amended.  Here is the journal entry on passage of HB 2075:

HB 2075, AN ACT concerning surplus lines insurance; relating to the surplus lines insurance multi-state compliance compact; amending K.S.A. 40-246c and 40-246e and K.S.A. 2010 Supp. 40-246b and repealing the existing sections.

On the roll call the vote was 36 in favor, 3 opposed, with 1 member absent or not voting.  The bill passed the Senate, as amended. The bill moved to final passage, with a host of other bills, because the Senate declared an emergency. I don't recall any emergencies in Kansas on March 21st, other than the expiring legislative clock.

On March 28th the House "nonconcurred" in the Senate amendment to HB 2075. That means they wanted to go to conference committee to hammer out the differences between the two bills. The Speaker of the House appointed three members, Representatives Shultz, Hermanson, and Grant, to the conference committee.

On March 29th the Senate acceded to the House request for a conference and the President of the Senate appointed Senators Teichman, Masterson and A. Schmidt as conferees on the part of the Senate. 

Representative Clark Shultz.

Representative Clark Shultz is a Republican from Lindsborg, Kansas who has been in the legislature since 1997.

Representative Phil Hermanson

Representative Phil Hermanson is a Republican from Wichita, Kansas who has been in the legislature since 2009.

Representative Bob Grant

 Representative Bob Grant is a Democrat from Fort Scott, Kansas who has been in the legislature since 1991.

Senator Ruth Teichman

Senator Ruth Teichman, a Republican, has served in the Senate since 2001 and hails from Stafford, Kansas.

Senator Ty Masterson

Senator Ty Masterson, an Andover Republican, has served in the Kansas Senate since 2009.

Senator Allen Schmidt

Senator Allen Schmidt is a first term Democrat from Hays, Kansas.

The Conference Committee went into sausage making mode. The Senate amendments to HB 2075 were adopted in the language of HB2076. HB 2076 began its life as a bill about municipal pools. No, not the ones in which the kids swim, rather a vehicle where municipalities can pool their risk and obtain insurance. 

The Conference Committee inserted SB 14, the High Risk Pool for Children; SB 65, authorizing External Review Organizations for Health Insurance; and SB 85, Group Life policy requirements.  Then they deleted the provision that would have prohibited state employees (cafeteria benefits plans) from being eligible for coverage or reimbursement for elective abortions [originally introduced in 2011 HB 2293]. The Conference Committee Brief tries to explain.

The House Committee on Insurance amended the bill to include provisions that would require insurance policies issued or renewed on and after July 1, 2011, to exclude coverage for “elective abortions” (HB 2292, as introduced) and would prohibit state employees from using Flexible Spending Account dollars for elective abortions (HB 2293, as introduced).

Proponents of HB 2292 included Representative DeGraaf, Kansans for Life, and the Kansas Catholic Conference. Proponents of the bills generally indicated that the bill is intended to ensure that private citizens and businesses do not end up financing other person's abortions through premium payments. The proponents noted that seven states have passed similar legislation and individuals who want abortion coverage could purchase such coverage via a rider. A representative of Kansans for Life suggested an amendment to the definition of “abortion” in testimony.

Opponents of the bill included Planned Parenthood of Kansas and Mid-Missouri. The Planned Parenthood representative stated that the bill provides no consideration for the health of the mother and proposes an unworkable, impractical rider system. The representative also stated that, under the provisions of the Affordable Care Act, there are no taxpayer dollars that would be paying for elective abortion coverage in any private insurance plan sold in the exchange.

The Kansas Association of Health Plans submitted neutral testimony, stating that in a number of member plans, coverage is provided if this procedure is medically necessary and that decision is made by the provider. Further, some group plans have requested specific “opt-out” language (allows groups to opt-out of coverage for abortion, unless the life of the mother is at risk if she cannot carry to full-term or has an ectopic pregnancy). The representative's comments indicated that handling this opt-out clause or having a rider in the non-group market will make these policies difficult to administer.

Proponents of HB 2293 included Representative DeGraaf, Kansans for Life, and the Kansas Catholic Conference. Representative DeGraaf indicated that state employees have the option to set up a reimbursement plan tax-free for eligible expenses. The State of Kansas, as an employer, the Representative noted, can and should have the ability on behalf of taxpayers to outlaw the payment for and/or the reimbursement of costs associated with abortions by state employees under any State Employee Benefit Program.

Planned Parenthood of Kansas and Mid-Missouri appeared in opposition to HB 2293. The Planned Parenthood representative stated that the bill would ban state employees from using their own dollars, held in health savings accounts, to cover the cost of unreimbursed, legal medical care expenses and the bill seeks only to place more unnecessary burdens on women seeking abortion care.

Senator David Haley voted against adopting the Conference Report because the abortion language from HB 2292 and HB 2293 had never passed in either chamber of the Kansas legislature. He said:

MR. PRESIDENT: I vote “NO” on the conference committee report to HB 2075,
time-honored rules of the Kansas Legislature; specifically Joint Rule 3, Section F, of the Joint Rules of the House and Senate to, in this instance, insert new language (on
abortion based insurance policy riders) which has never passed either chamber is foul.....and cheats our honor. Sure, twenty-one of us can make a new rule here as we go along. But the eyes and ears of all law-abiding Kansans are watching and listening.
Perverting the rules of the Senate to subsidize any political agenda or issue cheapens the respect that each of us should demand of this body and this process. A “YES” vote on this measure dims the light in the chamber; tarnishes the gild. —DAVID HALEY

HB 2075 was passed by the Senate, the rules be damned, by a vote of 28 to 10.  One senator was present and passing and another one was absent or not voting.

HB 2075 was sent back to the House where it nearly died.  Representative Pete DeGraaf, [R-Mulvane], moved the House to adopt the conference committee report on HB 2075.  Representative Virgil Peck, [R-Tyro], offered a substitute motion to not adopt the conference committee report and that a new conference committee be appointed.  Peck prevailed and the new conferees were appointed. They are the same three who were previously appointed Schultz, Hermanson, and Grant.

Along comes Representative Rick Billinger, a first term Republican from Goodland.  Since Billinger voted for the  Peck motion he was able, under House Rule 2303, to offer a motion to reconsider the Peck motion.  Which he did. 

Topeka Democratic Representative Ann Mah took the floor on a point of order that HB 2075 violated Joint Rule 3 (f).  She was overruled by the Chair.  The Chair was sustained.  HB 2075 passed the House, the rules be damned, by a vote of 86 to 30.