[Senate Hearing 109-427]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-427
 
                         FOREST SERVICE WORKERS

=======================================================================

                                HEARING

                               before the

                SUBCOMMITTEE ON PUBLIC LANDS AND FORESTS

                                 of the

                              COMMITTEE ON
                      ENERGY AND NATURAL RESOURCES
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                                   TO

  REVIEW THE ROLE OF THE FOREST SERVICE AND OTHER FEDERAL AGENCIES IN 
PROTECTING THE HEALTH AND WELFARE OF FOREIGN GUEST WORKERS CARRYING OUT 
  TREE PLANTING AND OTHER SERVICE CONTRACTS ON NATIONAL FOREST SYSTEM 
  LANDS, AND TO CONSIDER RELATED FOREST SERVICE GUIDANCE AND CONTRACT 
                  MODIFICATIONS ISSUED IN RECENT WEEKS

                               __________

                             MARCH 1, 2006


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               COMMITTEE ON ENERGY AND NATURAL RESOURCES

                 PETE V. DOMENICI, New Mexico, Chairman
LARRY E. CRAIG, Idaho                JEFF BINGAMAN, New Mexico
CRAIG THOMAS, Wyoming                DANIEL K. AKAKA, Hawaii
LAMAR ALEXANDER, Tennessee           BYRON L. DORGAN, North Dakota
LISA MURKOWSKI, Alaska               RON WYDEN, Oregon
RICHARD M. BURR, North Carolina,     TIM JOHNSON, South Dakota
MEL MARTINEZ, Florida                MARY L. LANDRIEU, Louisiana
JAMES M. TALENT, Missouri            DIANNE FEINSTEIN, California
CONRAD BURNS, Montana                MARIA CANTWELL, Washington
GEORGE ALLEN, Virginia               KEN SALAZAR, Colorado
GORDON SMITH, Oregon                 ROBERT MENENDEZ, New Jersey
JIM BUNNING, Kentucky

                     Bruce M. Evans, Staff Director
                   Judith K. Pensabene, Chief Counsel
               Robert M. Simon, Democratic Staff Director
                Sam E. Fowler, Democratic Chief Counsel
                                 ------                                

                Subcommittee on Public Lands and Forests

                    LARRY E. CRAIG, Idaho, Chairman
                CONRAD R. BURNS, Montana, Vice Chairman

CRAIG THOMAS, Wyoming                RON WYDEN, Oregon
JAMES M. TALENT, Missouri            DANIEL K. AKAKA, Hawaii
GORDON SMITH, Oregon                 BYRON L. DORGAN, North Dakota
LAMAR ALEXANDER, Tennessee           TIM JOHNSON, South Dakota
LISA MURKOWSKI, Alaska               MARY L. LANDRIEU, Louisiana
GEORGE ALLEN, Virginia               DIANNE FEINSTEIN, California
                                     MARIA CANTWELL, Washington

   Pete V. Domenici and Jeff Bingaman are Ex Officio Members of the 
                              Subcommittee

                Frank Gladics, Professional Staff Member
                    Scott Miller, Democratic Counsel



                            C O N T E N T S

                              ----------                              

                               STATEMENTS

                                                                   Page

Bingaman, Hon. Jeff, U.S. Senator from New Mexico................     2
Craig, Hon. Larry E., U.S. Senator from Idaho....................     1
Dale, D. Michael, Executive Director, Northwest Workers' Justice 
  Project, Portland, OR..........................................    24
Ellis, David M., President, Renewable Resources, Barnesville, GA.    48
Jungwirth, Lynn, Executive Director, The Watershed Research and 
  Training Center, Hayfork, CA...................................    35
Lipnic, Victoria A., Assistant Secretary of Labor Employment 
  Standards Administration, Department of Labor..................     6
Moseley, Cassandra, Ph.D., Ecosystem Workforce Program, Institute 
  for Sustainable Environment, University of Oregon..............    28
Rey, Mark, Under Secretary for Natural Resources and the 
  Environment, Department of Agriculture.........................     2
Wood, Cindy, Chief Executive Officer, Wood's Fire & Emergency 
  Services, Inc., Portola, CA....................................    39

                                APPENDIX

Responses to additional questions................................    51


                         FOREST SERVICE WORKERS

                              ----------                              


                        WEDNESDAY, MARCH 1, 2006

                               U.S. Senate,
          Subcommittee on Public Lands and Forests,
                 Committee on Energy and Natural Resources,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:32 p.m., in 
room SD-366, Dirksen Senate Office Building, Hon. Larry Craig 
presiding.

           OPENING STATEMENT OF HON. LARRY E. CRAIG, 
                    U.S. SENATOR FROM IDAHO

    Senator Craig. Good afternoon, everyone. I would like to 
welcome you to the Public Lands and Forests Subcommittee's 
hearing on issues related to enforcement of labor, health and 
safety laws that are a part of all Forest Service planting and 
thinning contracts. Today, testimony will be provided by the 
Department of Agriculture's Under Secretary of Natural 
Resources and the Environment, Mark Rey. Mark, welcome to the 
committee again. You were here yesterday, weren't you? That's 
what I thought, deja vu all over again. Okay. And the 
Department of Labor's Assistant Secretary for Employment 
Standards Administration, The Honorable Victoria Lipnic.
    Ms. Lipnic. That's correct.
    Senator Craig. Nice to have you here, Victoria.
    Ms. Lipnic. Thank you.
    Senator Craig. I see that each of you have a number of 
people who are accompanying you to help answer questions that 
the members might be asking, so please feel free to have them 
come up to the table if necessary. Or based on space, you can 
rotate according to the questions. Anyway, I want to welcome 
Senator Bingaman, who is not yet here, but will be. He is the 
Energy and Natural Resources ranking member, and has an 
expressed interest in this. I know Senator Bingaman is keenly 
aware of the problems and concerns and sees this as a unique 
problem.
    Congress has been forced to address this or similar issues 
about once a decade. And while we have made some progress, it 
is not sufficient or occurring quickly enough by most 
everyone's opinion. I'm not going to belabor the issue that 
revolves around the use of migrant workers who do much of this 
type of work, other than to say that evidence suggests we 
continue to have great difficulty enforcing the health and 
safety, immigration and labor laws of this country when it 
comes to these contracts. I know that some progress has been 
made on the issue of undocumented workers over the last decade, 
but all evidence suggests that much more progress needs to be 
made on the enforcement of the health and safety laws and other 
labor laws and rules. I would hope the Federal agencies will 
find ways to do a much better job than they have managed over 
the last decade.
    At the same time, I think we all have to understand that 
these are not the only jobs that these migrant workers 
participate in, and our Federal agencies are stretched fairly 
thin when it comes to this type of employment work. Their job 
is further complicated by the isolated nature of the work. It 
is my hope that we can all work together to improve the 
situation rather than participating in finger pointing and the 
blame game. I would note that these problems have occurred 
during both Democrat and Republican administrations, and I 
would hope we can find ways to make improvements on a 
bipartisan basis.
    I will maintain the 5-minute clock on testimony and 
questions of the committee, and we'll make both your written 
and oral testimonies a part of the hearing record. I urge each 
of you to resist the urge to read your testimony during today's 
oral presentations because your full testimony will be a part 
of the record. When Senator Bingaman gets here, he'll have the 
opportunity to make his opening remarks and offer any 
questions.
    So, let us move to our first panel. Again, Mark--and that's 
Mark Rey, Under Secretary of Natural Resources and the 
Environment--welcome before the committee. We'll start with 
you.

 STATEMENT OF MARK REY, UNDER SECRETARY FOR NATURAL RESOURCES 
AND THE ENVIRONMENT, DEPARTMENT OF AGRICULTURE, ACCOMPANIED BY 
                         SALLY COLLINS

    Mr. Rey. Thank you, Mr. Chairman, and thank you for the 
opportunity to testify today on the role of the Forest Service 
in protecting the health and welfare of foreign guest workers 
carrying out service contract work on National Forest land. If 
you want, I can suspend.
    Senator Craig. Why don't you, if you would. Thank you very 
much. Senator Bingaman has just arrived. Jeff, I've made my 
opening comments. We'll turn to you for that purpose, and then 
we'll allow Mark to proceed with his testimony.

               STATEMENT OF HON. JEFF BINGAMAN, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Bingaman. Mr. Chairman, thanks for having the 
hearing. I don't really have anything earthshaking to add here. 
I do think it's an important set of issues and one that I 
continue to hear about, and I know you do, and I appreciate the 
witnesses coming and talking to us about it. Thanks.
    Senator Craig. Thank you much. Mark, please proceed.

 STATEMENT OF MARK REY, UNDER SECRETARY FOR NATURAL RESOURCES 
AND THE ENVIRONMENT, DEPARTMENT OF AGRICULTURE, ACCOMPANIED BY 
                        SALLY COLLINS--
                           Continuing

    Mr. Rey. The Department of Agriculture and the Forest 
Service are committed to the safety and health of visitors and 
workers on national forests and will continue to act quickly to 
address any problems that may arise in these areas.
    Federal law allows foreign citizens to temporarily come to 
the United States to perform jobs where U.S. workers may be in 
short supply. The law establishes categories for temporary work 
visas, H-2A for agricultural workers and H-2B for 
nonagricultural, nonprofessional workers. About 15,000 to 
20,000 of the H-2B workers are forestry workers.
    Several Federal and State agencies have responsibilities 
for the many aspects of the temporary guest worker program. In 
order for employers, including potential Forest Service 
contractors, to hire foreign guest workers, they must get a 
certification from the Department of Labor stating that 
qualified workers are not available in the United States and 
that the foreign worker's employment will not adversely affect 
wages and working conditions of similarly employed U.S. 
workers.
    The Forest Service has an important role in implementing 
the laws that apply to H-2B workers because forestry service 
contractors often hire foreign guest workers to do the 
thinning, tree planting, brush clearing and other types of work 
on not only national forests, but on privately owned forests as 
well.
    On November 18, 2005, the Chief of the Forest Service 
issued a letter to Agency leadership stating his expectations 
on what Forest Service contracting officers and inspectors must 
do when they recognize health and safety violations which 
present an imminent threat to workers, such as not using 
appropriate safety apparel and equipment. When these situations 
occur, agency personnel must take action just as they would 
with Forest Service employees. If contractor employees do not 
have appropriate safety apparel or equipment, the inspectors 
are not to let them work. The Chief also instructed them to 
document and report observed violations in the areas of safety, 
housing, transportation and wages to the appropriate oversight 
agencies. He shared his expectation that documentation of 
violations should be a factor--and will be a factor--in 
evaluating future bids and awarding future contracts. Violators 
can be banned from future awards by the oversight agencies in 
cases of repeat violations.
    Provisions and requirements developed by the oversight 
agencies within the Department of Labor and the Department of 
Homeland Security to implement the guest worker protection laws 
were previously incorporated by general reference into the 
service contracts awarded by the Forest Service.
    On January 4, 2006, the Director of Acquisition Management 
at the Forest Service issued mandatory clauses for Forest 
Service contracts, expressly stating these provisions and 
requirements. These clauses include specific language regarding 
camp facilities and personal protective equipment requirements 
and specific oversight agency requirements that employers of 
foreign guest workers must fulfill, such as certification of 
adequate housing, proper documentation of legal status and 
properly registered and inspected vehicles for transportation. 
Adding the language directly to the service contracts will 
produce two major results: First, increase follow-up action by 
Forest Service contract inspectors when health and safety 
violations are observed will occur; and second, will have 
greater ability to hold contractors accountable by enforcing 
express language in our contracts.
    The Director of Acquisition Management also required 
regional foresters and station directors to assure every active 
tree planting and thinning contract was visited by the 
contracting officers onsite within 3 weeks of the commencement 
of work. If unacceptable conditions are observed, the work will 
be suspended and a report will be made to the appropriate 
regulatory agency.
    Additional coordination with the oversight agencies has 
also been very productive. The Forest Service has provided the 
Wage and Hour Division and OSHA with a list of this year's 
projects that could involve foreign guest workers. 
Additionally, we will shortly sign, with the Department of 
Labor regulatory agencies, a memorandum of intent to outline 
our joint work in the coming season. And shortly, my 
counterpart from the Department of Labor will review the 
activities underway at the department.
    In addition to workers that are performing services under 
contract to the Forest Service, some of the incidents that have 
been publicized in the recent past have been people who are 
operating under special-use permits. We're reviewing the 
Special-Use Permit Policy to see how and the best way to 
install additional protections there, although not all of the 
requirements, such as the Service Contract Act wage 
requirements, will apply to individuals working under special-
use permits on the National Forest System.
    With that, I'd be happy to defer to the Department of 
Labor.
    [The prepared statement of Mr. Rey follows:]
 Prepared Statement of Mark Rey, Under Secretary for Natural Resources 
               and Environment, Department of Agriculture
    Mr. Chairman and Members of the Subcommittee: thank you for the 
opportunity to testify before you today on the role of the Forest 
Service in protecting the health and welfare of foreign guest workers 
carrying out service contract work on national forest land. The 
Department of Agriculture and the Forest Service are committed to the 
safety and health of visitors and workers on National Forests. We have 
and will continue to act quickly to address any problem that may arise 
in these areas.
                               background
    Federal law allows foreign citizens to temporarily come to the 
United States to perform jobs where U.S. workers may be in short 
supply. The law establishes categories for temporary work visas: H-2A 
for agricultural workers and H-2B for nonagricultural, nonprofessional 
jobs such as travel agents, restaurant workers, janitors and forestry 
workers. The focus of my testimony today is on the requirements 
applicable to the employment of H-2B workers. There is a 66,000 person 
per year limit on the number of foreign workers who may receive H-2B 
status and this limit is regularly reached early in the year. H-2B 
workers already working in this country do not count against the 
current year cap so the actual number of H-2B foreign guest workers in 
this country could be much higher. About 15,000 to 20,000 are forestry 
workers.
    Several federal and state agencies have responsibilities for the 
many aspects of the temporary guest worker program. The Department of 
Homeland Security (DHS) and the Department of Labor (DOL) have primary 
oversight for the program. Other agencies, including the Forest 
Service, are involved where H-2B guest workers are employed by 
contractors.
    In order for employers--including potential Forest Service 
contractors--to hire foreign guest workers they must get a 
certification from DOL stating that qualified workers are not available 
in the U.S. and that the foreign worker's employment will not adversely 
affect wages and working conditions of similarly employed U.S. workers. 
The employer then petitions DHS to hire guest workers.
    Additionally, the employer seeking to hire foreign guest workers 
must offer at least the prevailing wage for the occupation in the area 
of intended employment. Worker protection provisions that apply to U.S. 
workers also cover foreign guest workers. Workers may file complaints 
under these worker protection laws with local DOL Wage and Hour 
Division offices.
    The Federal worker protection laws that apply to H-2B forestry 
workers are: 1) the Migrant and Seasonal Agricultural Worker Protection 
Act provides requirements for housing, transportation and working 
conditions for migrant and seasonal workers; 2) the Service Contract 
Act provides for minimum wages and other benefits for those workers 
under federal service contracts; 3) the Occupational Safety and Health 
Act contains specific workplace safety requirements; and 4) the Fair 
Labor Standards Act provides minimum wage, overtime, and child labor 
requirements. DOL is responsible for enforcing these laws and has 
agreements with some states such as California to administer and 
enforce a state occupational safety and health program for the 
Department. In addition, states will enforce their own labor 
requirements if these offer greater protection to foreign guest workers 
than the federal requirements.
           forest service responsibilities and actions taken.
    The Forest Service has an important role in implementing these laws 
because forestry services contractors often hire foreign guest workers 
to do thinning, tree planting, brush clearing and other types of work 
on national forests. Safety and respectful treatment are core values in 
the way the Forest Service conducts day to day business, and the Forest 
Service is often the agency with the most direct contact with foreign 
guest workers. I commend the Sacramento Bee for bringing attention to 
the issues that some foreign guest workers face as they perform work in 
this country. It is important that these issues do not escape the 
attention of the various agencies responsible and we have already taken 
action to strengthen our respective agency roles.
    On November 18, 2005, the Chief of the Forest Service, Dale 
Bosworth, issued a letter* Agency leadership stating his expectations 
on what Forest Service Contracting Officers and inspectors must do when 
they recognize health and safety violations which present an imminent 
threat to workers such as not using appropriate safety apparel and 
equipment. When these situations occur, agency personnel must take 
action, just as they would with Forest Service employees. If contractor 
employees do not have appropriate safety apparel or equipment, the 
inspectors are not to let them work. The Chief also instructed them to 
document and report observed violations in the areas of safety, 
housing, transportation and wages to the appropriate oversight agency. 
He shared his expectation that documentation of violations should be a 
factor in evaluating future bids and awarding future contracts. 
Violators can be banned from future awards by the oversight agencies.
---------------------------------------------------------------------------
    * The letter has been retained in subcommittee files
---------------------------------------------------------------------------
    Chief Bosworth designated the Director of Acquisition Management in 
the Washington Office as the Forest Service contact with the 
appropriate staff of oversight agencies, DOL, OSHA and United States 
Citizenship and Immigration Service (USCIS). The Director has already 
met with OSHA and with the DOL Wage and Hour Division's Director of 
Enforcement Policy to discuss coordination and specific actions each 
agency can take to address the issues of health, safety, and wage 
payments concerning foreign guest workers.
    Provisions and requirements developed by the oversight agencies 
within DOL and DHS to implement guest worker protection laws (the 
Migrant and Seasonal Agricultural Worker Protection Act, the Service 
Contract Act, the Fair Labor Standards Act, and the Occupational Safety 
and Health Act) were previously incorporated by general reference into 
the service contracts awarded by the Forest Service. On January 4, 
2006, the Director of Acquisition Management issued mandatory clauses 
for Forest Service contracts, expressly stating these provisions and 
requirements. These clauses include specific language regarding camp 
facilities and personal protective equipment requirements and specific 
oversight agency requirements that employers of foreign guest workers 
must fulfill such as certification of adequate housing, proper 
documentation of the legal status of foreign workers, and properly 
registered and inspected vehicles for transportation. Adding the 
language directly into the service contracts is expected to produce two 
major results: 1) increase follow-up actions by Forest Service contract 
inspectors when health and safety violations are observed; and 2) 
provide greater ability to hold contractors accountable by enforcing 
language in the contracts.
    The Director of Acquisition Management also required Regional 
Foresters and Station Directors to ensure every active tree planting 
and tree thinning contract was visited by the Contracting Officers on 
site within 3 weeks of the commencement of work. Based on these visits, 
the regions and stations will submit a report to the Washington Office 
regarding the status of housing, transportation and working conditions 
for employees of forestry contractors. If unacceptable conditions are 
observed the work will be suspended and a report will be made to the 
appropriate agency.
    Coordination with the oversight agencies has been very productive. 
The Forest Service has provided the Wage and Hour Division and OSHA 
with a list of this year's projects that could involve foreign guest 
workers. The agencies have also exchanged point of contact information 
for our respective field organizations. As a result, for example, a 
Forest Service contract inspector in Oregon has the point of contact 
information for the OSHA and Wage and Hour Division in their area to 
report potential violations of the law.
    The Wage and Hour Division and CAL-OSHA have conducted training in 
California for Forest Service Contract Administrators and private 
sector contractors concerning legal requirements regarding the 
employment of H-2B workers. OSHA and Wage and Hour are developing 
training material to raise awareness of ``red flags'' that may indicate 
problems with the employment of H-2B workers. The Forest Service is 
also providing this training material to employees involved with 
foreign guest workers.
                                summary
    The Department-and the Forest Service are committed to the health 
and safety for all visitors and workers on the National Forests and 
Grasslands, and that includes foreign guest workers. We will continue 
to closely coordinate with the oversight agencies responsible for 
administering this program to ensure foreign guest workers will have 
safe and healthy working and living conditions.
    This concludes my statement, I would be happy to answer any 
questions that you may have.

    Senator Craig. Again, Victoria, let me welcome you, 
Assistant Secretary, Employment Standards Administration, 
Department of Labor.
    Ms. Lipnic. Thank you, Mr. Chairman.
    Senator Craig. Please proceed.

    STATEMENT OF VICTORIA A. LIPNIC, ASSISTANT SECRETARY OF 
   EMPLOYMENT STANDARDS ADMINISTRATION, DEPARTMENT OF LABOR, 
                 ACCOMPANIED BY MICHEAL GINLEY

    Ms. Lipnic. Thank you for the opportunity to appear before 
the committee today as a member of this panel. You have invited 
us to testify on the role of the Department of Labor in 
protecting foreign guest workers employed on tree planting and 
other service contracts, often called reforestation contracts, 
on National Forest lands. And as you suggested, Senator, my 
written statement is submitted for the record, and I will do my 
best to summarize.
    Senator Craig. And I read it. I don't always get to all 
written statements. Yours is a very thorough explanation of 
procedure and process. Thank you.
    Ms. Lipnic. Thank you very much, and I want to credit my 
staff in the Wage and Hour Division for putting a lot of work 
into that.
    A complete picture of the Department of Labor's role with 
these foreign guest workers involves mentioning two other 
agencies within the Department--the Occupational Safety and 
Health Administration and the Employment and Training 
Administration. And there are representatives from those 
agencies here today. I am also accompanied by Michael Ginley, 
who is the Director of our Office of Enforcement Policy in the 
Wage and Hour Division, which is a part of the Employment 
Standards Administration.
    Although reforestation work is found in many national 
forests, the challenges of enforcement in the forestry industry 
as to labor standards are not confined to one area, but our 
testimony today will focus largely on our experiences in 
California. I would add that Mr. Ginley has first-hand field 
experience on this issue, having served as the District 
Director of our Wage and Hour Office in Sacramento during the 
1990's.
    The challenges of ensuring that the employment of workers 
on reforestation contracts complies with the applicable legal 
protections are many, but, as you certainly know, they are not 
new to the Department of Labor, and we share a strong 
commitment with the Forest Service to find a lasting solution 
to meeting the historical challenges of protecting these 
workers.
    Certainly, as was well documented in the Sacramento Bee 
series, reforestation work is often hard, dangerous and 
involves a significant amount of travel, and I think that 
series by and large reflects the experience of the Wage and 
Hour Division in the field.
    As you know, reforestation guest workers are admitted as 
temporary non-immigrants under the H-2B provisions of the 
Immigration and Nationality Act. As you alluded to, Senator, 
there are many issues related to immigrant workers. Certainly, 
among those that we find as to the forestation work and in 
other areas, particularly in low wage areas, there is a high 
dependence on the employers, and that often instills a strong 
reluctance on the part of the workers to complain to the 
Department of Labor, or to any other agency for that matter, 
about mistreatment, or in our case in particular, about the 
underpayment of wages.
    Federal reforestation contracts are primarily subject to 
the employee protections that are offered by a number of 
statutes within the jurisdiction of the Department of Labor. 
They include, first and foremost, the Fair Labor Standards Act, 
which is the fundamental protection that provides wage 
protection to most U.S. workers; the Migrant and Seasonal 
Agricultural Worker Protection Act, which requires, among other 
things, that workers are paid their wages when they are due, 
that there is compliance with Federal and State safety and 
health housing standards, and in compliance with vehicle safety 
standards. Under MSPA, the contractor must obtain a certificate 
of registration from the Department of Labor to operate as a 
farm labor contractor.
    The Service Contract Act applies to contracts for 
reforestation in excess of $2,500 with the Forest Service, and 
it requires the reforestation contractors to pay the 
reforestation workers the Service Contract Act prevailing wages 
and fringe benefits that are determined by the Department of 
Labor.
    The Occupational Safety and Health Act, which is 
administered by OSHA at the Department of Labor, regulates 
safety and health conditions in private industry or in the 
States through an OSHA-approved State plan, and certainly under 
Homeland Security regulations under the Immigration and 
Nationality Act. The INA requires employers filing petitions 
for H-2B non-immigrant workers with the United States 
Citizenship and Immigration Services to include a labor 
certification from the Secretary of Labor that qualified U.S. 
workers could not be found to fill the job.
    One thing I'll mention in particular about OSHA, it's 
important to involve the States in developing any of the safety 
and health plans to ensure enforcement and training assistance 
is coordinated among the Federal agencies and the States since 
a significant number of the identified national forests are in 
State Plan States, and OSHA works vigorously with the State 
Plan States to make sure that that happens.
    Wage and Hour is the enforcement agency responsible for 
ensuring compliance with the FLSA, with MSPA, with the field 
sanitation requirements under OSHA and with the prevailing wage 
and fringe benefit requirements of the Service Contract Act.
    I'll just mention quickly that Wage and Hour generally 
conducts its investigations in two ways: One is if we receive 
complaints from workers, then we are required to do 
investigations; the other way that we achieve compliance and do 
everything we can to achieve compliance is through directed 
investigations. Wage and Hour has a very sophisticated 
operational plan every year that directs our enforcement 
resources, and we have a number of initiatives that have been 
in the planning stages over the last couple of years in the 
forestry area, and I can talk about those further in the 
questions and answers. Thank you.
    [The prepared statement of Ms. Lipnic follows:]
Prepared Statement of Victoria A. Lipnic, Assistant Secretary of Labor 
        Employment Standards Administration, Department of Labor
    Mr. Chairman and Distinguished Members of the Subcommittee: thank 
you for the opportunity to appear before you today as a member of this 
panel. You have invited us to testify on the role of the Department of 
Labor (DOL) in protecting foreign guest workers employed on tree 
planting and other service contracts (often called ``reforestation 
contracts'') on national forest lands. A complete picture of the 
Department of Labor's role with these foreign guest workers involves 
mentioning two other agencies within the Department--the Occupational 
Safety and Health Administration and the Employment and Training 
Administration--and there are representatives from those agencies here 
today. I am also joined on the panel by Michael Ginley, the Director of 
the Office of Enforcement Policy of the Wage and Hour Division (WHD), 
which is part of the Employment Standards Administration within the 
Department of Labor. Although reforestation work is found in many 
national forests and the challenges of enforcement in the forestry 
industry are not confined to one area, our testimony today will focus 
on our experiences in the national forests of California.
    The challenges of ensuring that the employment of workers on 
reforestation contracts complies with applicable legal protections are 
many, but they are not new to the Department of Labor. We share a 
strong commitment with the USDA Forest Service (FS) to find a lasting 
solution to meeting the historical challenges of protecting these 
workers.
    Before explaining these challenges and detailing our responses I 
will first describe the:

   Nature of reforestation work in national forests;
   Typical characteristics of reforestation guest workers;
   Federal laws applicable to reforestation in national 
        forests; and
   The different agencies responsible for enforcing these laws.
            nature of reforestation work in national forests
    Reforestation work is hard, often dangerous work and involves a 
significant amount of travel. The duties are physically demanding, the 
pressure to work quickly is intense, the environment is often cold and 
wet, and the housing and eating arrangements are sometimes poor.
    The average reforestation contract on a unit of the National Forest 
System (NFS) involves small crews of approximately 15 workers who clear 
brush and undergrowth and/or plant seedlings on remote tracts of NFS 
land. The contracts usually last several weeks and require constant 
movement to new tracts of NFS land. Travel to the contract sites is 
time consuming and frequently occurs on unimproved roads early or late 
in the day.
    Reforestation contractors are typically small, and could very well 
be underfinanced businesses. They often struggle to make timely payment 
of payrolls, as they must wait for FS payment before paying their 
workers. Many of these contractors are former reforestation workers. 
The contractors often pay their workers on piece rate, and do not keep 
the required accurate record of employee hours actually worked.
           characteristics of the reforestation guest workers
    Reforestation guest workers are admitted as temporary nonimmigrants 
under the H-2B provisions of the Immigration and Nationality Act (INA).
    The H-2B workers' continued presence in this country is entirely 
dependent on the willingness of the sponsoring employer to continue 
their employment. If this employment is lost, the workers must leave 
the country. The reforestation workers are typically dependent on their 
employer for all transportation and are left to their own devices to 
secure housing and food. This dependence instills a strong reluctance 
to complain to DOL--or any other agency--about mistreatment or 
underpayment of wages by their employer.
    The H-2B reforestation workers typically do not speak English, and 
are often illiterate in their native language. They are largely 
ignorant of the application of U.S. wage and hour and safety laws. The 
workers typically reside in remote locations with little if any access 
to community or government resources to assist them with work-related 
problems.
 federal laws applicable to reforestation work in the national forests
    Federal reforestation contracts are primarily subject to the 
employee protections offered by a number of statutes within the 
jurisdiction of DOL. They are:
Fair Labor Standards Act (FLSA)
    The FLSA requires the reforestation contractor to:

   Pay no less than the federal minimum wage ($5.15 per hour), 
        free and clear, for all hours actually worked;
   Pay time and one half the workers' regular rate of pay for 
        all hours actually worked over 40 in a seven day work week;
   Limit the occupations and hours of employment for children 
        under 18 years of age in accordance with federal child labor 
        regulations;
   Maintain an accurate record of hours worked and wages paid.

    The FLSA does not typically treat time spent traveling to the first 
work site of the day, or back at the end of the day, as compensable 
hours of work.
    The FLSA requires that wages be paid free and clear. Employees may 
not be required to pay for the employer's business expenses--such as 
providing tools, equipment or fuel--to the extent that such payment 
will reduce the employees' wages below the minimum wage.
Migrant & Seasonal Agricultural Worker Protection Act (MSPA)
    The MSPA requires the labor contractor to:

   Pay workers their wages when due, and give workers itemized, 
        written statements of earnings for each pay period, including 
        any amount deducted and the reasons for the deduction.
   Comply with federal and State safety and health housing 
        standards when the contractor owns or controls a facility or 
        real property used for housing the reforestation workers. A 
        written statement of the terms and conditions of occupancy must 
        be posted at the housing site where it can be seen or be given 
        to the workers.
   Assure that vehicles they use or cause to be used to 
        transport the reforestation workers are properly insured, 
        operated by licensed drivers, and meet applicable federal and 
        State safety standards.
   Inform the workers in writing about the terms and conditions 
        of employment, including the work to be performed, wages to be 
        paid, the period of employment, and whether State workers' 
        compensation or State unemployment insurance will be provided.
   Obtain a certificate of registration from DOL to operate as 
        a Farm Labor Contractor (FLC). In addition, specific 
        authorization must be obtained for all housing provided (if 
        owned or controlled) and each vehicle used to transport the 
        reforestation workers. The contractors must carry proof of this 
        registration and show it to workers and any other person with 
        whom they deal as contractors.
   Display a poster where it can be seen at the job site which 
        sets forth the rights and protections of the workers.
   Keep complete and accurate payroll records for all workers.

    An FLC's registration status with DOL can be verified by calling 
the WHD's toll free number 1-866-4USWAGE (1-866-487-9243).
    MSPA posters are available by either calling the toll free number 
or by visiting the WHD home page http://www.dol.gov/esa/whd/ and 
scrolling to the Quick Finder for Printed Publications.
The Service Contract Act (SCA)
    The SCA applies to contracts for reforestation services in excess 
of $2,500 with the FS. It requires the reforestation contractors to:

   Pay the reforestation workers the SCA prevailing wages and 
        fringe benefits determined by DOL to be prevailing in the 
        locality for the class of service worker being employed;
   Notify the reforestation workers of the prevailing wage and 
        fringe benefit requirements applicable to their work.

    The reforestation workers must be paid the SCA required prevailing 
wages and fringe benefits free and clear. The contractors may not 
require the workers to pay for the employers' business expenses--such 
as providing tools, equipment or fuel--to the extent that such payment 
will reduce the employees' wages below the applicable SCA prevailing 
wage.
Occupational Safety & Health Act (OSH Act)
    The OSH Act is administered by the Department's Occupational Safety 
and Health Administration (OSHA). Safety and health conditions in most 
private industries are regulated by OSHA or the States through an OSHA-
approved State plan. Nearly every employee in the nation comes under 
OSHA's authority with some exceptions such as miners, some 
transportation workers, certain public employees (except in some State 
Plan States), and the self-employed. In addition to the requirements to 
comply with the regulations and safety and health standards prescribed 
under the OSH Act, employers subject to the Act have a general duty 
requirement to provide work and a workplace free from recognized, 
serious hazards.
    OSHA's mission is to help promote and assure workplace safety and 
health and reduce workplace fatalities, injuries and illnesses. OSHA, 
along with its State partners, achieves its mission through workplace 
enforcement of applicable laws, standards, and regulations, 
inspections, consultation services, compliance assistance, outreach, 
education, cooperative programs, and issuance of standards and 
guidance.
    The Occupational Safety and Health Act encourages States to 
administer their own occupational safety and health programs under 
State plans approved by the Secretary. States with approved plans 
(referred to as ``State plan States'') operate under the authority of 
State law and are responsible for occupational safety and health 
protection in that State. State plan States adopt standards at least as 
effective as Federal OSHA's, enforce these standards in a manner 
similar to Federal OSHA, provide on-site consultation services and 
conduct outreach and compliance assistance.
    Twenty-two States have received Secretarial approval to administer 
their own occupational safety and health program which covers most 
private sector employment in their States as well as State and local 
government employees. (Four additional States cover only public sector 
employees through their State plans.) California administers an 
approved State plan and the California Department of Industrial 
Relations is the agency responsible for addressing the work place 
safety and health issues of the guest workers employed on tree planting 
and other service contracts on the national forest lands in California.
Field Sanitation
    The OSH Act field sanitation standards establish minimum standards 
for field sanitation in covered agricultural settings. Covered 
employers are required to provide:

   toilets;
   potable drinking water;
   and hand-washing facilities.

    Further, employers must provide each employee reasonable use of the 
above.
    Authority for enforcing these field sanitation standards has been 
delegated to WHD in all States where Federal OSHA generally has 
authority, and in certain State plan States.
Immigration and Nationality Act (INA) Relevant Visa Category: H-2B
    Department of Homeland Security regulations implementing the INA 
require employers filing petitions for H-2B non-immigrant workers with 
the United States Citizenship and Immigration Services (USCIS) to 
include a labor certification from the Secretary of Labor that 
qualified United States workers could not be found to fill the job. In 
the case of reforestation activities, employers must file an 
application for labor certification with the State Workforce Agency 
serving the geographic area. A contractor planting or thinning trees in 
a California forest, for example, would file with the local office of 
the California Employment Development Department between 60 and 120 
days before the work is scheduled to begin.
    In each case, the State agency follows guidance from DOL to 
determine the appropriate wage rate for the occupation listed, 
supervise and guide the employer's recruitment of U.S. workers, and 
ensure completion of other requirements of the H-2B program. The State 
forwards completed applications to the DOL Employment and Training 
Administration (ETA), which reviews the record in its entirety, 
including documentation from the State and the employer, to determine 
whether and when to issue a certification. The employer then uses ETA's 
certification in support of its petition with USCIS for guest workers.
    The INA provides no authority to the DOL to enforce the wage rate 
identified for the H-2B workers. The INA was amended by the Save Our 
Small and Seasonal Businesses Act of 2005, which, among other things, 
provided the Secretary of the Department of Homeland Security with 
authority to impose certain sanctions when sponsoring employers have 
committed a substantial failure to meet any of the conditions of the H-
2B petition or made a willful misrepresentation of a material fact in 
such petition. 8 U.S.C. 1184(c)(14)(A).
        department of labor agencies and their enforcement roles
Occupational Safety and Health Administration (OSHA)
    Federal OSHA and its State plan partners are responsible for 
enforcing OSHA standards and providing compliance assistance and 
training to reforestation employers. Enforcement programs of both 
Federal OSHA and State agencies include planned inspections as well as 
unplanned inspections that are conducted in response to employee 
complaints, accidents, fatalities, and catastrophes. Planned 
inspections target serious workplace hazards or dangerous industries. 
Unplanned inspections are typically in response to an employee 
complaint, a referral from another government agency, or a fatality or 
catastrophe in the workplace. The nature of reforestation work and 
those typically performing it makes conducting either type of 
inspection difficult. Employees engaged in this work rarely complain to 
OSHA for a variety of reasons. Additionally, work is not performed at 
fixed workplaces and the length of a job is relatively short. 
Therefore, locating these employers is often difficult.
    The safety and health issues facing these workers depend on the 
task they are performing. For example, employees performing brush 
clearing operations are exposed to cuts and contusions from both the 
material they are removing, such as branch whip-back, and the equipment 
they are using. This necessitates the use of appropriate personal 
protective equipment, such as eye and face protection, hand protection, 
and appropriate footwear. Employees performing tree thinning are 
exposed to cut hazards created by chain saw use, overhead hazards from 
falling objects, such as felled trees and branches, and slips and falls 
from working on uneven terrain. These conditions also require adequate 
personal protective equipment, such as leg protection, head and face 
protection, and appropriate footwear. When performing these tasks it is 
critical that employees follow safe work practices. Employees who work 
in remote reforestation sites must have first aid available in the 
event of injury.
    Federal OSHA works closely with its State Plan partners to develop 
effective strategies to address the safety and health issues of guest 
workers. It is important to involve the States in developing those 
plans to ensure that enforcement, training and assistance is 
coordinated among the various federal agencies and the States since a 
significant number of the identified national forests are in State Plan 
States. OSHA's State plan partners are well-positioned to address the 
conditions faced by reforestation workers. For example, California OSHA 
has recently participated with Federal and State Wage and Hour 
officials and the FS to present a series of three training sessions for 
FS contracting officers and forest service contractors. Oregon has 
promulgated a standard which specifically applies to forestry 
activities in addition to logging. Finally, many States have developed 
effective outreach materials designed for non-English speaking workers.
    In summary, this is a complex problem for OSHA and the affected 
State Plan States. The solutions require effective coordination and 
cooperation between the OSHA partners and with the WHD and the FS.
Employment and Training Administration (ETA)
    Under the H-2B visa program, ETA is responsible for review of H-2B 
labor certification requests. DOL oversight of worksite enforcement is 
provided by WHD and OSHA.
Employment Standards Administration, Wage and Hour Division (WHD)
    The WHD is the enforcement agency responsible for ensuring 
compliance with the minimum wage and overtime requirements of the FLSA; 
the wage, registration disclosure, housing and transportation 
requirements of MSPA; the OSHA field sanitation standards in non-State 
plan States; and the prevailing wage and fringe benefit requirements of 
the SCA. The WHD seeks compliance with these requirements through a 
combination of enforcement and compliance assistance. There are some 
unique problems associated with enforcement regarding reforestation 
contractors. But first, let me explain the enforcement process 
generally, and some of the statute-specific differences.
WHD Enforcement Process
    The WHD conducts investigations of employers on two bases:

   Receipt of a complaint alleging violations;
   Directed investigations where there is no complaint but the 
        potential for violations is high due to the nature of the work, 
        the vulnerability of the workers, or the industry.

    WHD investigators will identify themselves and present official 
credentials at the opening of an investigation. They will explain the 
investigation process and the types of records required during the 
review.
    A typical investigation consists of the following steps:

   Examination of records to determine which laws or exemptions 
        apply. These records include, for example, those showing the 
        employer's annual dollar volume of business transactions, 
        involvement in interstate commerce, MSPA registration status 
        and work on government contracts. Information from an 
        employer's records will not be revealed to unauthorized 
        persons.
   Examination of payroll and time records, examination of 
        employer-provided housing and transportation (MSPA) and taking 
        notes or making transcriptions or photocopies essential to the 
        investigation.
   Interviews with certain employees in private. The purpose of 
        these interviews is to verify the employer's payroll and time 
        records, to substantiate housing and/or transportation 
        violations, to identify workers' particular duties in 
        sufficient detail to decide which exemptions apply, if any, and 
        to confirm that minors are legally employed. Confidential 
        interviews are normally conducted on the employer's premises. 
        In some instances, present and former employees may be 
        interviewed away from the worksite to protect confidentiality 
        and WHD takes aggressive action to correct any employer 
        retribution under the anti-discrimination protections of FLSA 
        Section 15(a)(3).
   When all the fact-finding steps have been completed, the 
        investigator will ask to meet with the employer and/or a 
        representative of the firm who has authority to reach decisions 
        and commit the employer to corrective actions if violations 
        have occurred. If back wages are owed to employees because of 
        minimum/prevailing wage or overtime violations, the 
        investigator will request payment of back wages due; if housing 
        and/or transportation violations have occurred, the 
        investigator will note the violations and, depending on the 
        severity of the violations, will seek appropriate corrective 
        action.
FLSA Enforcement
    Although the WHD makes every effort to resolve the issue of 
compliance and payment of back wages at an administrative level, the 
FLSA also provides for the following enforcement actions:

   An employee may file suit to recover back wages, and an 
        equal amount in liquidated damages, plus attorney's fees and 
        court costs.
   The Secretary of Labor may file suit on behalf of employees 
        for back wages and an equal amount in liquidated damages.
   The Secretary may obtain a court injunction to restrain any 
        person from violating the law, including unlawfully withholding 
        proper minimum wage and overtime pay.
   Civil money penalties may be assessed for child labor 
        violations and for repeat and/or willful violations of FLSA 
        minimum wage or overtime requirements; employers who have 
        willfully violated the law may face criminal penalties, 
        including fines and imprisonment.
   Employees who have filed complaints or provided information 
        during an investigation are protected under the law. They may 
        not be discriminated against or discharged for having done so. 
        If they are, they may file suit or the Secretary of Labor may 
        file suit on their behalf for relief, including reinstatement 
        to their jobs and payment of wages lost plus monetary damages.
MSPA Enforcement
    MSPA provides for the assessment of civil money penalties, 
revocation of the contractor's certificate (including authorization to 
house, transport or drive), criminal sanctions, fines and imprisonment.
MSPA Transportation Enforcement
    Enforcement of MSPA transportation requirements is a critical 
element of WHD reforestation investigations, helping to prevent 
recurrence of recent horrific accidents involving the transportation of 
migrant workers. The enforcement of MSPA transportation requirements 
begins with the application for a Farm Labor Contractor (FLC) or Farm 
Labor Contractor Employee (FLCE) Certificate of Registration. On the 
application form, the applicant must indicate whether transportation 
will be provided to the workers and provide a Vehicle Identification 
and Mechanical Inspection Report for each vehicle to be used. The forms 
used for the vehicle inspection require identifying information on the 
person and establishment/garage making the inspection and the form must 
be ``properly completed and signed, certifying that the vehicle meets'' 
the applicable MSPA vehicle safety requirements.
    In addition, evidence of compliance with the insurance requirements 
and financial responsibility requirements of MSPA must be submitted. 
MPSA requires not less than $100,000 per seat in insurance coverage 
(maximum $5,000,000 per vehicle) or worker's compensation coverage 
along with a $50,000 property damage policy or a vehicle liability 
certificate of coverage showing that passenger hazard is included.
    Further, any FLC or FLCE who drives a vehicle transporting workers 
must be listed on the application and provide driver license 
information and a copy of his or her driver's license. The application 
package must include a Doctor's Certificate form completed by a 
licensed doctor that indicates the applicant meets minimum physical 
requirements to drive a motor vehicle.
    An approved FLC or FLCE Certificate of Registration indicates if 
the contractor is authorized to drive. It will list each authorized 
vehicle by make, model and partial VIN (vehicle identification number); 
the number of authorized seats (as provided on the application); and 
the date the certificate expires.
    During an investigation of an FLC, the WHD investigator will 
determine if the FLC is involved with transporting the workers--the 
regulatory language looks to one who uses or causes a vehicle to be 
used. If the FLC is found to be using or causing a vehicle to be used, 
the investigator will check if the contractor is properly registered, 
is authorized to use the specific vehicle, and has the proper insurance 
in place.
    In addition, the WHD investigator will document by observation and 
interviews the number of workers being transported, the identity of the 
vehicle (make, model, and VIN) and the driver (and whether the driver 
is properly licensed and carrying the Doctor's Certificate), current 
license tag, and whether the vehicle possesses a current State vehicle 
inspection sticker (if required in the State in which the vehicle is 
registered). The investigator will also perform a visual inspection of 
the vehicle--looking for whether headlights are broken or missing; 
whether seating is broken, missing, or inadequate; whether windows are 
broken, missing or boarded up; whether tires are badly worn or 
defective; or whether windshields are cracked, broken or missing.
    Any serious violations posing imminent danger to the occupant are 
brought to the attention of the FLC and immediate correction is sought. 
WHD investigators do not have authority to stop vehicles and do not 
have authority to require a labor contractor to cease using a vehicle. 
In such circumstances, the WHD investigator would need to enlist the 
cooperation of the appropriate State or local authority, such as the 
highway patrol. WHD investigators are trained to contact the 
appropriate authorities to ensure the safety of the workers.
    In addition to seeking correction of the safety violations, WHD can 
assess civil monetary penalties and, if warranted, seek to revoke the 
labor contractor's certificate of registration.
SCA Enforcement
    When the WHD identifies monetary violations of the SCA, Federal 
contract funds may be withheld by the contracting agency to insure 
payment of SCA back wages. Employers who violate the SCA may also lose 
their Federal contracts and be declared ineligible for future contracts 
for a specified period (debarment). The WHD has debarred 13 
reforestation contractors in the last decade.
    representative wage and hour activities in the pacific northwest
    As I mentioned at the outset, the issues associated with 
enforcement of the worker protections for the temporary guest workers 
doing reforestation work are not new to the DOL, although some of the 
issues associated with enforcement are unique. For example, securing 
timely correction of significant reforestation safety, transportation 
and housing violations is only possible if DOL investigators are 
present when and where the workers are employed, housed and 
transported; further, special language skills are critical to securing 
evidence of the violations from the workers. Transportation enforcement 
raises particularly unique issues, given the limited authority vested 
in WHD investigators to intervene when unsafe transportation is found. 
Cooperation with State and local law enforcement officials, as is 
effectively done in California with the California Highway Patrol, is 
one means of resolving this issue.
    WHD offices in California and the Northwest have consistently 
worked with their counterparts in the FS in an effort to protect 
reforestation workers. For example, in February 2005, the WHD 
Sacramento District Office provided labor law training to 40 FS 
contracting officers representing the 17 national forests in 
California. The Seattle District Office regularly works with the FS 
offices in Idaho, Montana and Washington to ensure compliance with 
labor laws, and has effectively secured debarment of serious violators 
under the SCA. The Portland District Office has participated for 
several years in quarterly interagency ``Farmer Forest'' meetings with 
the federal and State Forest Service, the Oregon Bureau of Labor and 
Industry, and Oregon OSHA to facilitate joint efforts in achieving 
compliance.
Compliance Assistance
    The DOL educates employers on compliance responsibilities in 
addition to taking independent enforcement actions. This approach is 
based on the long-held agency belief that the vast majority of 
employers want to comply with worker protections laws, but many do not 
know all of the legal requirements. The best preventative approach for 
these employers is clear, pertinent, readily-available guidance in 
multiple media. DOL is constantly working to provide guidance to 
employers via the telephone (toll free numbers), internet, and hard 
copies. This guidance includes an interactive, Web-based tool, called 
elaws Advisors, which provides around-the-clock assistance on the 
application of many DOL laws. Active outreach programs also include 
numerous speeches, seminars and training sessions provided to employer 
groups and industry associations.
    The DOL also seeks to educate employees of their rights under 
federal laws in the language they understand, to provide tools that 
will help them protect their rights and to give the information needed 
to involve the agency in correcting violations.
    Finally, the DOL actively seeks partnerships with worker advocacy 
groups, industry associations, agencies at all levels of government, 
and other entities that will help us educate employers and employees on 
achieving compliance with wage and hour laws.
                               challenges
    Although there is an ongoing relationship on a regional level 
between the Department of Labor and the Forest Service, DOL agencies 
and the FS continue to work to reinvigorate the process by which we 
identify and overcome challenges to ensuring protection of guest 
workers employed in our national forests. These challenges and our 
current and planned solutions are:

          Challenge: Educating reforestation contractors, who are 
        largely ignorant of their responsibilities for compliance when 
        they are awarded reforestation contracts.
          Solution: The FS, WHD, and the California occupational safety 
        and health program (Cal-OSHA) have worked to develop a multi-
        prong approach to educating contractors before contract work 
        begins. For example, WHD provided training for FS contractors 
        in California in 2000. Planning began again in FY 2005 for a 
        renewed effort as part of a WHD reforestation initiative for 
        implementation prior to the beginning of the 2006 planting 
        season. This training was offered to all contractors who were 
        awarded 2006 contracts in central and northern California 
        national forests. The training seminars were sponsored by the 
        FS, the WHD, Cal-OSHA and the California Highway Patrol and 
        held in January, 2006. The majority of contractors attended the 
        seminars, in no small part because they were advised of the 
        enforcement agency plans to investigate approximately 50% of 
        the contractors this season.
          The WHD and Cal-OSHA trained FS contracting officers in 
        California in January, 2006. This training, which is being 
        considered as a template for future training sessions in 
        national forests across the country, provided contracting 
        officers with the knowledge needed to educate contractors on 
        site.
          Reforestation contractors are provided with a complete 
        package of WHD guidance to facilitate their compliance with 
        worker protection laws.
          Challenge: Finding reforestation workers while they are 
        working on the reforestation contracts is critical to 
        identifying and correcting violations, given the short duration 
        of the contracts; the remote, constantly changing work sites; 
        the temporary residence of the workers in this country; the 
        typically poor/nonexistent recordkeeping practices of the 
        contractors; and the need to personally inspect/document 
        safety, housing and transportation violations when they occur.
          Solution: The FS is providing the WHD and Cal-OSHA with the 
        identity of contractors who have been awarded reforestation 
        contracts, the approximate start date and location of the 
        contract, and contact information on the FS staff responsible 
        for each contract.
          Challenge: Educating employees on their rights and how to 
        contact the appropriate agencies, despite significant trust, 
        language and literacy barriers, to correct violations.
          Solution: The WHD is developing ``worker rights cards'' 
        specific to reforestation employment in English and Spanish; 
        working with various entities to distribute these cards and 
        facilitate the filing of timely complaints; has initiated plans 
        with the Department of State to provide these cards to workers 
        upon approval of their non-immigrant visa; and is pursuing a 
        Spanish language Public Service Announcement and other methods 
        to reach reforestation workers.
          The WHD, Cal-OSHA and the Forest Service will share the 
        multilingual capabilities of each agency to better communicate 
        with reforestation workers.
          Challenge: Lack of complaints from reforestation workers 
        requires an effective targeting program that will facilitate 
        effective enforcement.
          Solution: Establishing an effective investigation targeting 
        program, such as is being done in California later this year 
        when targeted investigations will be scheduled of approximately 
        50% of the reforestation contractors.
          Using the list of future contracts provided to DOL by the FS, 
        along with prior WHD and FS experience with the contractors, to 
        target investigations for maximum effectiveness. Provide 
        training to FS Contracting Officers (as was done earlier this 
        year in California), in identifying minor safety/health and 
        wage/hour issues which can be corrected on-the-spot, and those 
        more serious issues that must be referred to the WHD or Cal-
        OSHA for resolution. On-the-spot correction of minor labor law 
        violations by contracting officers, as established in recently 
        expanded FS contract language and field instructions, will 
        significantly increase compliance with these laws. This new 
        initiative will be covered in more detail in the FS testimony.
          Challenge: Improve timely communication between the FS, Cal-
        OSHA and the WHD to insure effective interventions.
          Solution: The FS, Cal-OSHA and the WHD are sharing updated 
        nation-wide contact lists of appropriate agency contacts, 
        encouraging regular, local/regional meetings when appropriate, 
        and have established a national level working group to 
        periodically coordinate and implement joint efforts to protect 
        reforestation workers.

    The dedicated men and women in the field who are charged with 
enforcing U.S. worker protection laws understand the challenges and 
difficulties of their assignment. On a national level, we are committed 
to working together and in the field we will work with any entities 
willing to help meet the enforcement challenges we have discussed 
today.
    Mr. Chairman, this concludes my prepared statement. We would be 
pleased to answer any questions that the Subcommittee may have.

    Senator Craig. Victoria, thank you.
    Mark, this is the fourth or fifth time that Congress has 
held a hearing related to enforcements of laws, regulations, 
contract provisions for agencies' planting and thinning 
contracts since 1980. While some progress has been made, and 
we've talked about that, I think there are still many questions 
to be looked at and to be concerned about. Both in 1993 and in 
the year 2005, the Sacramento Bee wrote articles basically 
saying that Forest Service representatives had pointed out that 
other agencies have the responsibility to enforce health and 
safety and wage law and regulations. Understanding these 
charges to your service contracts, why should Congress think 
that your employees are going to take this issue seriously at 
this time if the fairly standard answer in the past has been 
it's somebody else's responsibility?
    Mr. Rey. I think this situation is analogous to the 
situation of certifying the safety of our large air tankers. We 
operated for a period of time under the assumption that the FAA 
certificate with those tankers assured their safety for aerial 
firefighting, and we learned that wasn't the case. So, we 
adapted to do the certification ourselves. Here again, I think 
some of our contract officers were under the misapprehension 
that they didn't have a specific responsibility. Now we know 
that, and they know that they have that specific 
responsibility. It's been made express in the contract, made 
express in the direction that they've been given by the chief, 
and it will be express in their performance reviews.
    Senator Craig. Okay. Let's take that a step further then. 
If one of your law enforcement officers, contracting officials 
or supervisors or line officers happened upon a Forest Service 
forest account crew of temporary employees working without the 
proper safety equipment or working in an unsafe manner, what 
would you expect them to do?
    Mr. Rey. What they will do is terminate work on the 
contract until the safety problem is corrected. They'll also 
indicate to the Department of Labor regulatory agencies that 
there's been a safety violation so that that goes on the record 
of the contractor.
    Senator Craig. How would you expect the line officer to 
deal with a direct supervisor or crew boss or a crew found to 
be working in violation? You've just answered that maybe. 
Suspend the work? Stop the crew?
    Mr. Rey. Our only regulatory instrument in terms of 
immediate effect is to stop work on the contract. Now that the 
contract has express terms of compliance with the various 
worker protection requirements, there should be no doubt in the 
contractor's mind why he's being told to stop work.
    Senator Craig. Is there any reason that the Forest Service 
couldn't hire the H-2B-type workers to work on regional 
thinning, planting and brush or disposal crews to ensure the 
work is getting done in a safe and legal manner instead of the 
contract nature that we've had in the past?
    Mr. Rey. Well, the reason we use contractors for this 
portion of this work is that the work is temporary in nature 
and widely distributed throughout the National Forest System, 
so it's not the kind of work we would hire permanent employees 
to undertake.
    Senator Craig. You still believe that that's, for the 
circumstances and the situation, the better approach?
    Mr. Rey. We still believe that, but we still believe that 
we have a responsibility to assure the safety of these workers. 
One thing that is changing, though, is--well, two things that 
are changing that are worthy of note--one is we are moving much 
more heavily into best-value contracting, and we will be 
looking at the question of repeated worker safety violations as 
part of the criteria in evaluating what the best value will be 
from a particular contractor. There's been some view that doing 
low-bid contracts or competitive-bid contracts has fostered a 
situation where these kinds of worker safety problems are more 
common. By moving more heavily into best-value contracting, I 
think we're going to reduce the significance of that factor. 
The second thing that's changing is that we're doing this kind 
of work more and more commonly in long-term landscape scales, 
stewardship contracts. And I think with that, what we'll have 
is longer-duration contracts with multiple tasks, which will 
probably encourage much more worker stability from the contract 
work force.
    Senator Craig. Well, I was about to ask a similar question 
to what you are suggesting, some are temporaries, moving around 
as the season changes, not unlike fire crews that we know have 
to be mobile because of where fire seasons start and end up. I 
mean, there are some analogous situations that would suggest 
that maybe summer temporaries might fit that definition.
    Mr. Rey. Except that this particular kind of work isn't 
usually done in the height of summer, and most of our summer 
temporaries are people who have obligations during the balance 
of the year, either as students or faculty or teachers or that 
sort of thing. This is mostly a spring task because that's the 
season we do most of our tree planting.
    Senator Craig. Well, with tree planting, that is the case, 
yes. Thank you. I've got some other questions. Let me turn to 
Senator Bingaman.
    Senator Bingaman. Thank you very much. Let me give you a 
perspective on this, and you can react, Secretary Rey, or any 
or the rest of you. See if I'm right about this. The way I see 
it, we wrote these laws, the Congress wrote these laws and 
passed them before we got to the circumstance we're now in. And 
the circumstance we're now in, there's a commitment by many of 
us in the Congress, and I think the administration and others, 
to do a multi year, maybe multi decade, effort at proper forest 
restoration or thinning work because that's going to be 
required in order to deal with the fire risk that we see.
    I was in Ruidoso last week in my home state of New Mexico. 
And you go around there, and they've done a lot of thinning 
around that community, but there's an awful lot more to be 
done. And you can almost plan a career working at that if you 
decided that that was what you were going to do. That is a 
different circumstance than used to exist where it was much 
more, you know, here's a short-term project, we need somebody 
to come in here and do something. My perspective is that a lot 
of this forestry contracting work is very local. I mean, they 
say all politics is local. Most forestry contracting work is 
local. There are some communities where there are people that 
are ready and willing to take that kind of work and pursue it, 
and there are others where there just isn't anyone.
    The thing that confuses me is, as I understand it, many of 
these forestry contractors go ahead and apply for their H-2B 
workers. They go ahead and indicate that they need foreign 
guest workers and put in their application before they even 
know where they're going to have contracts or if they're going 
to have contracts. Isn't that sort of crazy? I mean, shouldn't 
we first at least know where we're going to have the work done 
before we determine whether or not we need to go outside the 
country to bring people in to do the work?
    Mr. Rey. Well, we're not the only ones doing the 
contracting, so, you know, they're doing this work on virtually 
all ownerships. And so, what our plans are as far as Federal 
land management are concern is only about 30 to 40 percent of 
their overall market. But with regard to our plans, I think you 
make a point that's very accurate. At least in the thinning and 
forest restoration area, we're moving to longer-term, larger-
scale contracts, and that will result in, I think, more local 
hiring occurring because people can sort of build a program--a 
business plan that extends for several years on the basis of 
those longer-term contracts. I think that's going to change the 
nature of the contract work force, both the length of the 
contract and the fact that the stewardship contracts often have 
multi tasks, often tasks that are done in different parts of 
the year, which lend a greater degree of stability to the 
enterprise than, say, a typical small-scale tree-planting 
contract that either we or some forest products company may be 
looking for a contractor to do.
    Senator Bingaman. And what are the requirements that we put 
on as--say we are going to let a contract out near Ruidoso or 
northern New Mexico or somewhere to do some work on the 
national forest, what do we require that contractor to show us 
by way of proof that he or she, whoever that contractor is, has 
genuinely tried to hire local people to do this work?
    Ms. Lipnic. Senator, that largely falls within the 
Employment and Training Administration's certification for the 
H-2B contractors, and there is a process by which the 
contractor applies to the Department of Labor. First, they 
submit an application through the State Workforce Agency. That 
application is put together, including the determination about 
the worker availability. Ultimately, that file is reviewed by 
the Employment and Training Administration at the Department of 
Labor. That is not my agency at the department, and I can 
certainly get more specifics, but we have someone here from ETA 
who could probably address it in greater detail.
    Senator Bingaman. Well, I guess my concern--and I see my 
time's up, Mr. Chairman, but my concern is that if, in fact, 
these contracts are local--and so you've got one in Ruidoso, 
New Mexico, on the outskirts of the town there, they want to do 
some thinning or some planting of trees, or whatever they want 
to do--or up by Truchas, New Mexico, or whatever, is there any 
kind of determination made by the Department of Labor or by the 
Forest Service or by anyone else that the contractor who 
they're getting ready to hire to do that work has actually 
tried to hire local people to do that work?
    Ms. Lipnic. Well, part of the requirement under the 
Employment and Training Administration regulations is that they 
have to have looked at the availability of U.S. workers. That 
is something that goes into the determination.
    Senator Bingaman. But for that contract, or is that just in 
a very general sense?
    Ms. Lipnic. They have to recruit for the U.S. workers, and 
then there has to be a local labor market test. So, they 
actually would have to----
    Senator Bingaman. Local labor market test, what does that 
mean?
    Ms. Lipnic. As to the availability of the U.S. workers.
    Senator Bingaman. So, they have to determine that there is 
a shortage of people willing in that local community to do that 
work?
    Ms. Lipnic. Yes, sir.
    Mr. Rey. And then, when it gets to us, one of the criteria 
that we use in determining best value is whether the contractor 
is going to produce some local employment, but it's only one 
criteria of several that are used in best-value evaluations for 
best-value contracting.
    Senator Bingaman. Mr. Chairman, I've used more than my 
time. Thank you.
    Senator Craig. Let me come right off from where the Senator 
is questioning as it relates to the test with the contractor. 
It's my general understanding, in looking at contractor's lists 
and where they work and all of that, that some are operated or 
home-officed in one State, but they're doing work in another 
State. How diligent is the Department in determining that they 
actually made the test for labor availability in the labor 
environment in which they are working instead of contracting 
from?
    Ms. Lipnic. My understanding, Senator, is that they 
actually have to look at that local labor market and look at 
the test there. Now ultimately, that's reviewed by the State 
Workforce Agency and then reviewed by the Employment Training 
Administration. So, my understanding is that that is a 
requirement and that they have to look at that. Again, this is 
not my agency specifically at the Labor Department, so I can 
certainly double check on that. The labor market test is 
conducted locally even though the crews can certainly move 
around.
    Senator Craig. Yeah. Well, I have a bit of familiarity with 
H-2B workers, and there are a variety of categories in Idaho 
beyond just this. Categories where H-2Bs are employed. It is my 
sense, in looking at that employment over time, that there 
grows a general belief that the type of worker they're looking 
for doesn't exist, and they become dependent upon the H-2B 
employee. And I'm just curious as to how thorough and rigorous 
the test is or if it simply becomes a process now to gain 
access to the H-2B worker. That's not to suggest that they are 
available and untested at the local level because in most 
instances, it is my belief they are probably not. At the same 
time, observing several employers in my State who've become 
increasingly dependent on H-2B, it is that they are dependent 
upon them. It appears to me they are not seeking outside that 
particular category or market for an employee of the type that 
would fit that job description.
    Ms. Lipnic. Senator, I couldn't speak too specifically as 
to that. I can tell you that, again, the Employment and 
Training Administration would ultimately have to evaluate the 
work in the certification that was suggested by the State 
Workforce Agency.
    Senator Craig. Okay. Well, I'll come back to you in a 
moment. Ms. Collins, I would like to ask you a couple of 
questions if I may. The Chief and Director of Acquisition 
Management, Ron Hooper, sent out memos to the field on the 
issue we're addressing here today. The Chief's November 18, 
2005, memo said, amongst other things, ``I expect expertise and 
immediate action. Contract administrators must be able to 
recognize health and safety violations. When these situations 
occur, they must take action, and don't let them work.''
    Mr. Hooper's January 4, 2005, memo said, ``Please ensure 
that these provisions are included in all service contracts. 
Finally, please ensure that all service contract files within a 
written statement to the effect of the contracting officer, the 
contracting officer's representative or the contract inspector, 
has reviewed these requirements on these provisions with the 
contractor and has conducted at least one inspection of 
existing and new service contracts to ensure compliance with 
these provisions when applicable.'' And my question to you is 
how many contracts have your inspector or contracting officers 
reviewed, shut down or found to have failed to live up to the 
new service contract provisions since the reference memos went 
out?
    Ms. Collins. Well, we are in just the first part of March, 
and our contracting is just starting right now, so we don't 
have any active contracts going on right now.
    Senator Craig. At this moment?
    Ms. Collins. At this moment. Now, we will start including 
these in the new contracts that are coming out this year. We 
have about 240 contracts that will be part of our program this 
year. All of them will have those provisions in, and then at 
that point, we'll--when we have active contracts going on, all 
of that will start happening.
    Senator Craig. Okay. You now have a significant amount of 
experience with best-value contracts or the stewardship 
contracting. Would we get better performance that better 
enforces health and safety and other labor laws if we shifted 
all service contracts to a best-value contract process?
    Ms. Collins. We have some great experience with best value, 
and stewardship contracting is a good example of that, that we 
have been doing for the last couple of years. And most of our 
service contracts use best value now already. What we are 
assuring through this process is that the kinds of issues we're 
dealing with and the cases we're talking about here today will 
be incorporated in those best-value determinations. So, it's 
not just what's the least cost contract or the low-bid 
contract, but its things like do they come in within budget, 
did they perform well, did they get the work done that we 
wanted done in a quality way, and were they meeting the 
provisions of the contract that you just laid out at the 
beginning of this question.
    Senator Craig. Okay. Victoria, I noted that like many large 
Federal departments, many times the right hand doesn't know 
what the left hand is doing. Has the Department taken any steps 
to ensure that departments within your agency have access to 
each other's data and that other agencies from other 
departments have access to the data to help them recognize the 
bad actors and to withhold contracts from those identified as 
continually violating to live up to the health and safety labor 
laws of our country?
    Ms. Lipnic. Senator, first, as to the relationship between 
the Labor Department and the Forest Service, which is certainly 
critical to this issue, I'll give you the example of our 
Sacramento, California office, which has had a long-standing 
relationship with the Forest Service. On a regular basis, the 
Forest Service will contact our district office in Sacramento 
and ask for any history of violations that we may have, 
particularly as to MSPA violations, the Migrant and Seasonal 
Agricultural Worker Protection Act. We actually have a form 
that we will fax back to them with the violations, and that 
would include lists of ineligible farm labor contractors.
    Within the Department, we maintain, on the Department's 
website for MSPA violations, all of the ineligible farm labor 
contractors and certainly any contractors that have been 
debarred, which is the ultimate sanction, particularly in the 
Service Contract Act. Those are maintained on the GSA website 
as to Service Contract Act debarments. That information is 
readily available from the Department. Also, we do have an 
exchange of information with the Forest Service.
    Senator Craig. When you identify a company that has 
repeated violations of health, safety and wage requirements, do 
you contact the land management agencies to let them know what 
your investigators are finding out?
    Ms. Lipnic. To the best of my knowledge, as a general 
matter, I believe the answer to that is no. Now, that's why it 
is critically important that we have the kind of relationships 
that we have with the contracting agencies, whether it's the 
Forest Service or any other contracting agency for labor 
standards violations, that those relationships exist at a 
district-office level or at a regional-office level so that 
that kind of information can be shared. We do have that 
relationship in the Sacramento office with the Forest Service. 
And in other offices around the country, it's probably not as 
good as it should be, but the Under Secretary and I have talked 
about this and have a commitment to have that kind of 
relationship, driven from the top down, to make sure that the 
practices in our Sacramento office will be incorporated 
nationwide.
    Senator Craig. Thank you.
    Senator Bingaman.
    Senator Bingaman. Let me just try to sort out two issues 
here--one is to what extent local contractors are hired to do 
this work. They're contracted with by the Forest Service to do 
this work. Is it possible, in my State of New Mexico, to get a 
listing, say, of last year, how many contracts were let and how 
much of that went to local contractors versus out-of-State 
contractors to do Forest Service work?
    Mr. Rey. Sure, we can get you that list.
    Senator Bingaman. Okay. And the second issue is to--whether 
it's a local contractor or a contractor from another State, the 
question is whether that work is actually being done by foreign 
guest workers or whether that work is being done by residents 
in that community that have been hired. And again, is that 
something we could get an indication?
    Mr. Rey. Yes.
    Senator Bingaman. Because you would know, I mean, as to 
each of the contracts that you let, not only who the contractor 
is, but whether or not they're doing the work with foreign 
guest workers.
    Mr. Rey. That's correct.
    Senator Bingaman. If I could get that for New Mexico, that 
would be helpful in determining whether there's a serious 
problem or whether this is just sort of an anecdote that I hear 
about when I travel around and isn't really based in a whole 
lot of fact.
    Mr. Rey. We can get you those.
    Senator Bingaman. I hear complaints about both. I hear 
complaints by people saying our local contractors can't get 
these jobs because people are coming in from Idaho or from 
wherever and taking these jobs, these contractors are. And then 
I also hear that local workers can't get hired even though they 
like the jobs, because there are foreign guest workers that are 
brought in. So, if you could help with that, that would be 
great. I'm also curious how these prevailing wages are 
determined. Maybe that's the Department of Labor's job. How do 
you determine the prevailing wages?
    Ms. Lipnic. Senator, there is an entire Wage Determination 
Office within the Wage and Hour Division that determines the 
prevailing wages through use of surveys, whether it's the 
Davis-Bacon Act or Service Contract Act, and I think I'll 
actually defer to Mr. Ginley, who is probably far more expert 
at this than I am.
    Senator Bingaman. But when you use prevailing wages in this 
context, it's the same as you use in the Davis-Bacon context? 
Is that right?
    Mr. Ginley. Yes, Senator, it is.
    Senator Bingaman. Okay.
    Mr. Ginley. We established the prevailing wage for the type 
of work in that vicinity for the classification of workers. 
Now, under the service contracts, it's basically one 
classification of workers, unlike Davis-Bacon, which of course 
have multiple classifications. Also, we'll set prevailing 
fringe benefit requirements that must be paid on this contract.
    Senator Bingaman. And what are those? I mean typically, 
what kind of fringe benefit?
    Mr. Ginley. Typically, it will be something like $2.32 an 
hour toward health and welfare benefits. So, if a worker works 
40 hours, that amount of money times $2.32 is contributed 
toward health and welfare benefits. Although all of this 
doesn't typically happen in these temporary contracts. If they 
work for a sufficient period of time, they typically get paid 
vacation, a week after a year or something of that nature. But 
typically, these contracts are very short.
    Senator Bingaman. And you do monitoring to be sure that 
those wages are actually paid and that those benefits are 
actually provided?
    Mr. Ginley. Yes, Senator, we do. When we do an 
investigation of one of these contractors, we do the 
investigation under both MSPA, the Migrant and Seasonal 
Agriculture Worker Protection Act, which has protections for 
housing, transportation, notification, and under the Service 
Contracts Act, for the prevailing wage requirements and for the 
fringe benefit requirements.
    Senator Bingaman. Okay. Am I right that there are 
protections that the law puts in place for H-2A workers, 
agricultural guest workers, that do not apply in the case of H-
2B workers?
    Mr. Ginley. You're correct, Senator.
    Senator Bingaman. And what are those distinctions?
    Mr. Ginley. Well, the H-2A provisions require, for 
agricultural workers, and we're not talking about agricultural 
workers here with the reforestation industry, H-2A agricultural 
workers must be paid a prevailing wage also. It has to be the 
higher of the two--actually, the prevailing or the adverse 
effect wage rate. There are certain transportation guarantees. 
Housing must be provided and certain other conditions of 
employment that do not come with H-2B status. There are no such 
requirements for H-2B workers.
    Senator Bingaman. Well, I can certainly understand that it 
might make sense to not have the same requirements for H-2B 
workers in a lot of different fields. I've wondered, though, 
the kind of work we're talking about here is pretty close to 
agricultural work.
    Mr. Ginley. Yes, Senator, it obviously is. The definitions 
used follow the statutory definitions. H-2A work is all work 
considered agriculture, under either the IRS code definitions 
or the Fair Labor Standards Act definitions, which both exclude 
forestry work. Also, the application of MSPA, which is 
typically applied to agricultural workers, is required because 
of a national injunction placed on the Department by the 9th 
Circuit in the 1980's, requiring that we apply MSPA, enforce 
MSPA, for the predominantly manual reforestation work done in 
the forests.
    Senator Bingaman. Okay, so am I understanding that your 
view is that the requirements for H-2A generally make sense in 
the case of H-2B forestry workers?
    Mr. Ginley. It's what the law requires, Senator. I'm not 
sure how to respond to what makes sense. We enforce the law as 
written. The H-2B provisions of the INA do not have those 
requirements, although the work, of course, has some similarity 
to the work done by traditional H-2A agricultural workers.
    Senator Bingaman. Okay. Thank you very much, Mr. Chairman.
    Senator Craig. Well, thank you all very much. We'll stay 
tuned and watch with the new regulations in place from the 
Forest Service side. As you know, the Judiciary Committee is 
starting markup on a major immigration bill tomorrow. And we 
will focus on that intently as it relates to the impact on H-
2As, H-2Bs and certainly others and what other adjustments will 
need to be made specific to the Forest Service and the kind of 
work that is--none of us dispute the critical nature of it and 
the importance of it, but we also want to make sure that proper 
hiring practices are utilized and people are being treated 
appropriately. Thank you all very much.
    Ms. Collins. Thank you very much.
    Senator Craig. All right. We would like to introduce our 
second panel. Michael Dale, Northwest Workers' Justice Project 
from Portland, Oregon; Lynn Jungwirth, Watershed Research and 
Training Center of Hayfork, California; Cassandra Moseley, 
Institute for Sustainable Environment, University of Oregon, 
Eugene; and Cindy Wood, Wood's Fire and Emergency Services of 
Portola, California. I thank all of you for being here. I can 
see by definition you've all traveled a bit. And Lynn, it's 
good to see you again. Michael, we'll start with you. Please 
proceed.

  STATEMENT OF D. MICHAEL DALE, EXECUTIVE DIRECTOR, NORTHWEST 
              WORKERS' JUSTICE PROJECT, PORTLAND, 
                             OREGON

    Mr. Dale. Thank you, Senator, and thank you to the 
subcommittee for the opportunity to testify. I am going to 
depart quite a bit from my written testimony and try to respond 
to some of the questions that were suggested by the earlier 
testimony today and then also summarize.
    Senator Craig. Well, your written testimony will be a part 
of the record, so please proceed as you see fit.
    Mr. Dale. I wanted to address a couple of the questions 
that came up earlier. From the perspective of a long time--
first, migrant legal services, and then since, in a private 
nonprofit, I've been representing reforestation workers for 
nearly 30 years. On the question of the regulations of H-2B 
workers and H-2A workers and the relative requirements, 
actually, when it--at one point, there was only H-2. And in the 
Immigration Reform and Control Act of 1986, the two programs 
were split with some of the regulations for H-2A written into 
the statutes, others to be developed by the Secretary, as part 
of an immigration reform bill that basically wanted to put the 
H-2A regulations in statute. The understanding at that point 
was that similar regulations for H-2B would be developed by the 
Department of Labor that would reflect the differences between 
other kinds of employment potentially possible under H-2B and 
agricultural employment. That's quite appropriate. What the 
Department of Labor did, in fact, was they simply adopted about 
one page of regulations that says that they'll follow the 
statute, and in following the statute, they'll be guided by the 
H-2A regulations. And that's it. There are no detailed 
regulations governing H-2A and H-2B--I'm sorry, governing H-2B 
workers. And it would be appropriate--one of the suggestions I 
made in my testimony is to develop detailed recommendations 
with respect to regulations of H-2B workers now that the 
program has been in existence for nearly 20 years. And they 
ought to include a number of the kinds of things, at least for 
forestry workers, that are included for agricultural workers.
    Second question, this question about where is recruitment 
done for H-2B workers. Actually, there is local recruitment, 
but the local recruitment where you have what's called an 
itinerary application--this is an application that proposes to 
move a crew from place to place to place. The recruitment 
that's required is fairly minimal, far less than is required of 
H-2A agricultural employers, and it is only in the local area 
where the itinerary begins. So, if you're talking about--I 
first got involved in this in the late 1990's because we were 
seeing H-2B workers brought to Oregon where the only 
recruitment was done in a small rural town in Mississippi 
because that's where the itinerary started. We did get an 
agreement from the Department of Labor that they would only 
permit itineraries within one DOL region, but nonetheless, it 
would not be the case that there is recruitment of local people 
in each place that contracts occur, and I'm fairly certain 
that's still the standard.
    Moving to my recommendations, I would start by prefacing it 
with this: I was going to read, actually, a section of a multi-
part expose of the forestry industry. That was not the 
Sacramento Bee, it was actually the Idaho Statesman Journal 
from 1980, but the lead could have been the lead to the Bee 
Series. Simply to say that these have been persistent, nagging 
problems, we have had occasional spasms of attention being 
given to them. And things improve for a period of time, and 
then the attention dies away. And there's something in the 
institutional culture of these agencies that says I'm a 
forester, I deal with trees, I don't deal with labor, and 
there's quite a bit of insularity. So, my suggestions are made 
at trying to figure out how to institutionalize the obviously 
good faith and genuine intent of the leadership of the agencies 
now so that we don't find ourselves back in the same position 
in another 5 years.
    First of all, it seems to me there needs to be more 
cooperation between the agencies. It has to be ongoing. It has 
to be institutionalized. And we're suggesting that Congress ask 
the Department to create an interagency working group that 
periodically reports back to this committee or other 
appropriate committees so that you have some continuing focus 
and some reason for people to continue to pay attention to 
these questions. Many of the fatalities in forestry work come 
from vehicle crashes where we haven't had seatbelts. The 
Department of Labor has authority to require seatbelts under 
the Migrant and Seasonal Agricultural Protection Act.
    I would suggest that they do that or be urged to do that by 
Congress. Finally, one of the reasons that H-2B workers are 
exploited is that they don't have access to very good remedies 
with respect to how to get to court. H-2B workers, even though 
they're working legally in the United States, even though they 
are paying taxes, are not permitted to be represented by 
programs and legal services that receive any Federal funding. 
There's really not any justification, and that change alone 
would have as much effect on this industry as anything that 
could be done. Thank you very much.
    [The prepared statement of Mr. Dale follows:]
      Prepared Statement of D. Michael Dale, Executive Director, 
            Northwest Workers' Justice Project, Portland, OR
    Mr. Chair, members of the Subcommittee, thank you for the 
opportunity to speak with you today concerning the protection of 
reforestation workers on public lands. I spent twenty-five years as a 
migrant legal services lawyer, and directed the Oregon migrant program 
for most of that time. A key aspect of our work concerned the 
exploitation and abuse of workers on our national forests and BLM 
lands. Since its inception in 2003, the Northwest Workers' Justice 
Project has been providing legal assistance to reforestation workers in 
Oregon, Idaho and elsewhere who have been struggling to enforce their 
right to decent conditions and fair pay.
    Although some progress has been made, I must say that, overall, the 
treatment of workers who replant, thin and maintain national forests 
has been shameful. I have represented workers who were not paid the 
required Service Contract Act rate, did not get paid overtime, were 
unlawfully charged exorbitant fees for recruitment, transportation, 
housing, food, and even for the chain saws needed for their work and 
the gasoline for the saws, or were not paid at all. My clients have 
slept in the cold of winter in the mountains in equipment trailers, or 
under a plastic tarp. Some were abandoned in the mountains without food 
or transportation by their employer. Saddest of all, I have represented 
the families of workers who died in vehicle accidents on icy mountain 
roads in unsafe vehicles.
    The latest attention focused on this work by articles in the 
Sacramento Bee has only begun to scratch the surface of the misery that 
some of those who contract with the United States inflict. I welcome 
the changes being made by the Forest Service in its contracting 
procedures. But with all due respect for obviously sincere good 
intentions, it is important to note that we have been here before. 
Every few years there have been similar exposes--a few years ago, it 
was a segment on Prime Time Live. These episodes have inevitably been 
followed by a flurry of activity, with renewed statements of intent to 
do better. However, as the focus of public attention faded, so, sadly 
did the focus of enforcement activity. To make a truly significant 
difference in the industry will require sustained, purposeful effort. 
In this light, I propose the following:
        proposed reforms to improve h-2b forestry worker safety 
                         and working conditions
The Secretary of Labor should issue a regulation requiring seat belts 
        and identification for vehicles transporting forestry workers 
        and other migrant and seasonal agricultural workers
    On September 10, 2002,14 H-2B forestry workers were killed when the 
van in which their employer was transporting them to work toppled off a 
bridge in Maine. In two separate accidents in Washington state over the 
past two years, seven Guatemalan workers from the same tiny village 
were killed as they were driven over icy roads to pick brush on forest 
service lands. Motor vehicle accidents are the number one cause of 
fatal injuries among agricultural workers. These accidents have a 
common theme--they frequently involve exhausted drivers in overloaded, 
unsafe vans driving over long distances on foggy, icy, or windy 
mountain roads. In eight of the fourteen accidents reported in the 
Sacramento Bee series, ``The Pineros,'' five or more workers lost their 
lives in a single accident.
    Under the Migrant and Seasonal Agricultural Worker Protection Act, 
the Secretary of Labor is authorized to issue regulations to improve 
the safe transportation of migrant and seasonal agricultural workers. 
29 U.S.C.  1841. (The Migrant and Seasonal Agricultural Worker 
Protection Act protects reforestation workers.) The act authorizes the 
Secretary to make reasonable regulations, considering the numbers of 
workers transported, the distance over which they are transported, the 
type of vehicle involved and the type of roads over which they are 
transported. In order to protect the health, safety and lives of these 
workers, the secretary should amend these regulations.
    Currently, federal law requires that vehicles meet a number of 
specific safety measures, including that there be a seat for each 
passenger. Nonetheless, these regulations do not require seat belts. 
Many forestry workers are killed in transportation accidents because 
they are ejected from the vehicle due to the lack of seat belts. In the 
most recent accident in Washington state, a worker was killed after 
being ejected from the van and run over by an oncoming truck. A 
particularly tragic accident involving 13 workers in California led the 
legislature in that state to pass a law in 1999 requiring seat belts. 
The Florida legislature is currently considering similar legislation. 
Under the California program, all vehicles used to transport farm 
workers are required to be labeled that they are ``Farm Labor'' 
vehicles so that the State Highway Patrol can specifically inspect them 
for compliance with the seat belt and other safety provisions.
    The Secretary's regulations also leave a simple escape route for 
employers seeking to abdicate responsibility for the vans in which 
their workers are transported, by providing that transportation which 
is not ``specifically directed or requested'' by an agricultural 
employer is exempt. The California state ``raitero'' (driver) law is 
more specific in that it covers any vehicle used to transport workers 
``to render personal services in connection with the production of any 
farm products to, for, or under the direction of a third person.''
    We urge the Congress to recommend that the Secretary of Labor 
utilize her authority to issue a regulation under the Migrant and 
Seasonal Agricultural Worker Protection Act, requiring that: 1) 
vehicles used to transport forestry and other migrant and seasonal 
agricultural workers be equipped with a seat belt for each passenger; 
and 2) be identified on the outside of the vehicle as a ``Agricultural 
Labor'' vehicle.
Creation of a joint task force between DOL and U.S. forest management 
        agencies that reports to Congress
    One problem is that the DOL lacks the capacity really to monitor 
forestry contracts. Crews are in remote areas, hard to find, and hard 
to reach. BLM and USFS have contract compliance people that are 
regularly checking on the contracts and often encounter labor 
violations; however, they don't have much training on wage and hour 
laws, and more importantly, they do not usually see enforcement of the 
labor standards aspects of Service Contract Act contracts as being a 
significant part of their jobs. What makes sense is to instill a sense 
of obligation for the workers in the forest management agencies, and to 
institutionalize collaboration with the Wage and Hour Division. To do 
that on an ongoing basis, Congress could call for creation of a joint 
task force with periodic reports back to Congress on progress made. As 
noted above, similar concerns have been raised in the past; however the 
higher standards were lost with the decline in public scrutiny. 
Accordingly, ongoing reporting on a periodic basis is important in 
order to maintain scrutiny. Further, the effort needs to be 
sufficiently sustained in order to break down an institutional culture 
that sees efficiency in getting the trees planted and thinned as being 
paramount over labor considerations.
DOL should adopt regulations imposing H-2A-like standards in the H-2B 
        program
    DOL could take some additional steps to strengthen enforcement. 
When the H-2B program was created, DOL was supposed to develop 
regulations modeled after the H-2A regulations. This was never really 
done, and the result is a lack of standards for H-2B workers. DOL 
should be encouraged to fulfill this obligation now. For the most part, 
the H-2A regulations should be the model, with consideration for the 
special aspects of forestry. However, forestry workers should not be 
encompassed within the H-2A program, as this would destroy the 
protections that they have under the Migrant and Seasonal Workers 
Protection Act.
DOL and the forestry agencies should hold repeat offenders responsible 
        for their actions
    Both DOL and the forestry agencies need to be willing to take 
strong action against repeat offenders of labor standards. At one time, 
the Forest Service agreed to subject contract bids that were 
significantly below the agency's estimate to special scrutiny to assure 
that the lowest bidder is a responsible one. It is unclear if they 
still do this, but blatant abusers of workers are awarded contracts 
year after year. They should be debarred by the DOL, and should not be 
viewed as being capable of performing the contract by the contracting 
agencies. One of the contractors in the Pineros series who had been 
sued for holding workers in peonage was still defended by a Forest 
Service official as being a great contractor because he produced 
quality results for the Forest Service.
    Further, the Forest Service and BLM need to take steps to change 
the culture of those agencies so that contract officers know that 
enforcing the service contract's labor protections is just as important 
as getting the work done. Training, evaluation and promotion should 
take this factor into equal consideration, and the agencies' 
expectations in this regard must be clearly and consistently 
communicated. The steps taken by the Forest Service are a good 
beginning, but the obligation of agency line staff to follow through 
must be reinforced over time.
The DOL should ensure that the H-2B program is used as intended--only 
        when there is a shortage of U.S. workers
    The H-2B program is abused in forestry in a number of ways that 
should be addressed by DOL. The program is supposed to be used to 
provide a way to obtain needed workers for existing jobs where an 
employer can't find U.S. workers available at a time and place needed 
for a specific job. Many forestry contractors, though, apply for H-2B 
workers before they know what contracts they will have. The workers are 
recruited and brought here on speculation that contracts will be 
awarded. Then, it may turn out that expected work is not available. 
This leads to underemployment of the workers, and commonly, to use of 
the workers in other jobs which pay less than the forestry wage and 
which are not authorized work. Since forestry jobs are covered by the 
Migrant and Seasonal Agricultural Protection Act, forestry contractors 
are required to give recruited workers a disclosure statement 
describing the particular work and pay arrangements they are offering. 
H-2B procedures require contractors to attempt to recruit U.S. workers 
for the work for which foreign workers are sought prior to admission of 
the visa workers. DOL could require that forestry contractors supply a 
copy of their recruitment disclosure statement detailing promised work 
with their H-2B application to help ensure that the contractor actually 
has a specific need for workers.
Forestry Workers should be given access to legal services provided by 
        the Legal Services Corporation
    Ultimately, agency enforcement of labor standards can only go so 
far. Workers need to have the ability to take steps to protect 
themselves, and often will need specialized legal assistance to do so. 
H-2B workers are working in the United States legally as ``guest'' 
workers at the invitation of the United States, under guarantees of 
labor protections designed to protect them, and importantly, to protect 
the wages and working conditions of U.S. workers. Yet, they are 
excluded from eligibility for representation by legal services programs 
that receive any funding from the Legal Services Corporation. Often, 
they find that there is no other legal representation available to 
them. There is no rational basis for this exclusion, and its 
elimination would do more to improve the conditions of H-2B forestry 
workers than any other step that Congress could take.
    A final recommendation concerns what DOL and the forestry agencies 
should not do. Some of the contractors on national forests use workers 
who are not properly authorized to work in the United States. In past 
efforts to clean up the reforestation industry much of the emphasis has 
been on turning such workers in to the immigration authorities. This 
practice has been highly counter productive. Ultimately, given the 
isolation of the work, enforcement of labor standards in the woods 
depends upon the cooperation of exploited workers. A policy that leads 
workers to conclude that the only response to complaints will be that 
they will be turned over to ICE will not foster the needed cooperation 
and openness; rather, it will only drive abuse farther underground and 
leave Pineros even more dependent on those who would exploit them.
    Thank you for your consideration of these comments.

    Senator Craig. Michael, thank you. I would hope that we 
don't register this hearing as an occasional spasm.
    Mr. Dale. No, this is the beginning of the real solution.
    Senator Craig. All right, thank you. That makes my day feel 
a bit better.
    Cassandra, please proceed.

  STATEMENT OF CASSANDRA MOSELEY, Ph.D., ECOSYSTEM WORKFORCE 
              PROGRAM, INSTITUTE FOR SUSTAINABLE 
               ENVIRONMENT, UNIVERSITY OF OREGON

    Ms. Moseley. Thank you, Mr. Chairman, and thank you for the 
opportunity to let me come today and share some of my thoughts 
on the working conditions of forest workers.
    I want to begin by commending Tom Knudson and the 
Sacramento Bee for what I think is outstanding reporting on the 
plight of forest workers, and I also want to applaud the Forest 
Service for its rapid response to the issues raised in the 
``Pineros'' series. I would argue, however, that although the 
Forest Service is on the right track, the agency seems to be 
interpreting the problem too narrowly and therefore is at risk 
of failing to address some of the systemic problems that face 
forest workers and contractors.
    Over the past several years, I've been studying the working 
conditions of forest workers. And today, I want to share some 
of those results and offer some ideas about how things might be 
improved. The Sacramento Bee series focuses primarily on H-2B 
workers, and that's been a lot of the discussion today, but 
forest workers can also be U.S. citizens, non-citizens with 
green cards, and they also are frequently people without 
permission to work in the United States. And all of these 
workers can suffer from labor law violations and poor job 
quality, and I want to suggest some of the problems that we 
found in our recent studies.
    According to data from the Oregon Employment Department, 
half of forestry services workers in Oregon earn less than 
$4,400 a year, and more than 85 percent earned less than the 
Federal poverty level for a family of four in 2003. The wages 
that workers actually receive may well be less, particularly 
for undocumented workers. Undocumented workers are sometimes 
recruited by people who take part of their wages, something 
between $1 and $4 an hour in exchange for continued employment. 
Another practice is to pay workers for 8-hour workdays even if 
they work more. And although some workers are employed nearly 
all of the year, most work part time erratically and 
seasonally. And if you squish all their work into a period of 
time, they work about--the average forest worker in Oregon 
works the equivalent of about 3 full-time months. It's 
tempting, then, to think that these might be the summer jobs of 
college students, but that's not the case. Most are Hispanic 
workers, and half of the forestry services workers in Oregon 
also work in jobs outside of forestry.
    Our studies also suggest that many workers felt that they 
could not report on-the-job injuries for fear of being fired, 
and we also heard frequent reports of crew bosses who required 
forest workers to work all day without breaks for lunch or 
water. There are undoubtedly a number of causes of these 
working conditions in the various policies and practices of 
Federal procurement and labor law, but I want to highlight 
three major institutional causes of these working conditions 
that I think will have to be tackled if real progress is going 
to be made. Those are accomplishment targets and budget 
allocation processes in the Forest Service, de facto use of 
low-bid contracting, and the lack of labor law enforcement. 
Some of these themes have already come up today.
    The Forest Service's budget and staff advancement has long 
been tied to accomplishment targets. Meeting targets in one's 
area increases budgeting and staffing. It leads to promotions. 
Units that don't meet targets or fail to do so or do so at too 
high of a cost suffered from budget cuts. This focus on 
maximizing natural resource accomplishments creates few 
institutional incentives for attending to job quality of 
contracted work forests or ensuring that contractors follow 
labor laws.
    The pressure of meeting targets is compounded by a history 
of low-bid contracting. Until the 1990's, the Forest Service 
and the Bureau of Land Management, as most Federal agencies, 
were required to award contracts to the lowest bidder. In the 
1990's, the Federal procurement laws changed, and the agencies, 
the Forest Service and the BLM, began to be able to negotiate a 
contract. This is what we've been referring to as best-value 
contracting. But our interview with contractors and workers 
found that many--and the Forest Service does use best-value 
contracts most of the time, but interviews with contractors and 
workers felt that--most felt that the most important criteria 
was still price. They felt that price was the most important 
factor and that in this environment, they had to compete 
against contractors who were willing to cut corners on quality 
and break the law in order to offer the lowest bid.
    The Forest Service has typically viewed enforcement as the 
responsibility of the Department of Labor, but this enforcement 
with the Department of Labor as the primary--maybe the only--
actor is very difficult because of the remoteness of work 
sites. Of the roughly 85 forest workers we interviewed in 
Oregon, virtually no one had ever seen someone from the 
Department of Labor or the Oregon Bureau of Labor Industries 
when they were working in the woods, and contractors complain 
that they face unfair competition from businesses that are 
breaking the law.
    So, my written testimony presents several recommendations, 
but I'm just going to focus on one here, and that is that the 
system of enforcement and accountability needs to be 
overhauled. And I think today we've heard some of the beginning 
steps of that from the Forest Service's perspective, but we 
need a system where the Forest Service and the Bureau of Land 
Management participate actively in enforcing labor law. Yes, 
they cannot issue citations, but they can play other vital 
roles because they are the ones who are regularly in contact 
with contractors and workers in the field. We need a system 
where Forest Service staff report and correct problems with 
working conditions as quickly as they address the land 
management components of contract compliance. The agency needs 
staff who understand that it's their job to collect and report 
information about how the workers are being treated. The agency 
needs to provide staff with direction and training to ensure 
that they can identify labor law violations and know that they 
are responsible for reporting suspected problems to the 
Department of Labor. The agency needs bilingual inspectors and 
contracting officer representatives who can talk directly to 
workers. And to echo your recommendation, they need to have a 
mandated relationship with the Department of Labor.
    So, let me stop by saying 13 years ago, theSacramento Bee 
ran a series about the working conditions of forest workers. 
Then, the emphasis was on undocumented workers. Today, it's on 
H-2B workers, but the working conditions were no different. My 
hope is that in 13 years, the Bee won't have to run another 
series about forest workers because by then, high-quality jobs 
in our Nation's forests will become commonplace. Thank you.
    [The prepared statement of Ms. Moseley follows:]
  Prepared Statement of Cassandra Moseley, Ph.D., Ecosystem Workforce 
 Program, Institute for a Sustainable Environment, University of Oregon
    Mr. Chairman and Members of the Subcommittee:
    Thank you for the opportunity to testify before you today. I am 
pleased to be able to contribute to this timely issue. Tom Knudson's 
``Pineros'' series in the Sacramento Bee has brought to light troubling 
and all-too-common problems with the way the work of federal forest 
management is accomplished.\1\ Today's hearing is particularly 
important because the working conditions in our nation's forests affect 
not only the lives of workers and their families, but also the 
viability of small rural businesses and the integrity of forest 
ecosystems. It presents an important opportunity to discuss our current 
understanding and explore solutions to the challenges of creating 
quality jobs for forest workers and economic opportunities for public 
land communities.
---------------------------------------------------------------------------
    \1\ Tom Knudson, ``The Pineros: Men of the Pines,'' Sacramento Bee 
, November 13, 2005. http:/www.sacbee.com/content/news/projects/
pineros/.
---------------------------------------------------------------------------
    I am on the faculty of the University of Oregon, where I direct the 
Ecosystem Workforce Program in the Institute for a Sustainable 
Environment. Founded in 1994, the Ecosystem Workforce Program seeks to 
help build a high-skill, high-wage forest and watershed restoration 
industry in the Pacific Northwest. The Ecosystem Workforce Program does 
this by providing technical assistance to rural communities and their 
agency partners, and by undertaking applied research and policy 
education related to community-based forestry and federal forest 
management.
    Over the past five years, I have undertaken a series of studies on 
how Forest Service and Bureau of Land Management (BLM) restoration 
contracting creates rural community benefit, and on the working 
conditions of federal contract forest workers. As part of these 
studies, my collaborators and I have interviewed forest workers and 
contractors and analyzed federal contracting and state employment data. 
We have examined these issues in general terms as well as under 
specific programs including the National Fire Plan, the Northwest 
Forest Plan, and stewardship contracting.
    Much of my work has been focused on the Pacific Northwest, but the 
work of other scholars such as Josh McDaniel and Vanessa Casanova make 
clear the challenges are not limited to a single part of the 
country.\2\
---------------------------------------------------------------------------
    \2\ Josh McDaniel and Vanessa Casanova, ``Forest Management and the 
H2b Guest Worker Program in the Southeastern United States: An 
Assessment of Contractors and Their Crews,'' Journal of Forestry 103, 
no. 3 (2005); Josh McDaniel and Vanessa Casanova, ``Pines in Lines: 
Tree Planting, H2b Guest Workers, and Rural Poverty in Alabama,'' 
Southern Rural Sociology 19, no. 1 (2003).
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                     a forest restoration workforce
    Our nation's forests and watersheds have significant restoration 
and maintenance needs, including decaying forest roads, degraded stream 
and forest habitat, and overstocked stands in need of thinning to 
reduce wildfire risk and restore fire-adapted ecosystems. These needs 
present an opportunity to create high-skill, high quality jobs to 
benefit rural communities, small businesses, and forest workers. For 
over a decade, community forestry advocates and their federal agency 
partners have sought to combine the ecological need for high quality 
restoration with the economic need for high quality jobs to contribute 
to the well-being of public land communities. The hope has been that 
communities could replace lost logging and milling jobs with jobs 
restoring national forests and other public lands.
    The notion of creating community benefit through federal forest 
management dates back to the founding of the Forest Service. It can be 
found in Gifford Pinchot's writings as well as in 20th century 
legislation including the New Deal, the Sustained Yield Management Act 
of 1944, and the National Forest Management Act of 1976. Several times 
since 2000, Congress has encouraged the Forest Service to create 
community benefit through forest restoration as part of the National 
Fire Plan, Secure Rural Schools and Communities Self Determination Act, 
and through stewardship contracting authorities. In addition, Congress 
has enacted numerous labor laws, including the Service Contact Act, 
Contract Work Hours and Safety Standards Act, and the Migrant and 
Seasonal Agricultural Workers Protection Act, which were designed to 
create quality jobs for federal contract workers.
                    contract forest work and workers
    Forest restoration work involves a wide variety of tasks, from 
maintaining forest roads, restoring streams to create fish habitat, and 
collecting native grass seed, to planting trees after logging or 
wildfires, and thinning overstocked stands to improve habitat and 
reduce fire hazard. The primary way that restoration work is performed 
on national forest and other federal forest lands is through service 
contracts and, increasingly, stewardship contracts. The federal 
government awards restoration contracts to businesses that, in turn, 
hire workers to undertake restoration and maintenance activities.
    Labor-intensive forest workers those who plant trees, thin 
overstocked stands, pile brush, and fight fires--come from a variety of 
ethnic backgrounds. Typically, they are Hispanic and white and, to a 
lesser extent, Native American and African American. Although the 
Sacramento Bee ``Pineros'' series focused primarily on H2-B workers, 
forest workers can be U.S. citizens, non-citizens with resident alien 
papers, H2-B guest workers, and those without permission to work. In 
the Southeastern U.S., contractors seem to make more use of H2-B 
workers, whereas contractors in the Pacific Northwest appear to rely 
more heavily on undocumented workers.
             challenges of creating rural community benefit
    Despite the direction to create rural community benefit and to 
protect workers from exploitation, the Forest Service and other federal 
land management agencies have had difficulty systematically creating 
rural community benefit with their procurement contracting program. The 
main way that the agencies create community benefit in public lands 
communities is when they award contracts to local firms (as opposed to 
distant firms hiring local workers).\3\ In the Pacific Northwest, the 
Forest Service and BLM frequently award equipment intensive contracts 
such as forest road maintenance and stream restoration to local 
businesses. But contracts that involve labor-intensive activities such 
as thinning, tree planting, and brush piling tend to be awarded to 
urban-based businesses that have access to large pools of low-cost 
labor and are able to travel long distances inexpensively.\4\ The 
authority to consider local benefit as part of best value (such as with 
the National Fire Plan) can have some positive impact, but it is 
unclear how frequently it is used.\5\ In addition, partnerships between 
local non-profit organizations and the BLM and Forest Service can be 
used to create local benefit from restoration work using grants and 
agreements authorities.\6\
---------------------------------------------------------------------------
    \3\ Steverson Moffett et al., ``Assessing Community Benefits from 
Land Management Activities on National Forests,'' (Washington, D.C.: 
Pinchot Institute for Conservation, forthcoming).
    \4\ Cassandra Moseley and Stacey Shankle, ``Who Gets the Work? 
National Forest Contracting in the Pacific Northwest,'' Journal of 
Forestry 99, no. 9 (2001). Cassandra Moseley, ``Procurement Contracting 
in the Affected Counties of the Northwest Forest Plan: Twelve Years of 
Change,'' (Portland, OR: USDA Forest Pacific Northwest Research 
Station, 2005).
    \5\ Cassandra Moseley and Nancy Toth, ``Fire Hazard Reduction and 
Economic Opportunity: How Are the Benefits of the National Fire Plan 
Distributed?,'' Society and Natural Resources 17, no. 8 (2004).
    \6\ Mark Baker, ``Socioeconomic Characteristics of the Natural 
Resources Restoration System in Humboldt County: A Partial View,'' 
(Taylersville, CA: Forest Community Research, 2004).
---------------------------------------------------------------------------
               poor working conditions for forest workers
    As recent news articles and academic research make clear, many 
forest workers, especially those that perform labor-intensive 
activities such as firefighting, tree planting, and thinning, face 
dangerous working conditions, irregular employment, low wages, 
exploitation, and inadequate training. Guest workers and undocumented 
workers are most vulnerable to exploitation, but studies also suggest 
that citizens and resident aliens can also suffer from labor law 
violations and poor job quality.
    For example, in 2003, the median wage among forestry services 
workers in Oregon was $11.97 per hour, but half of workers earned less 
than $4,355 all year.\7\ More than 85% of workers earned less than the 
federal poverty level for a family of four (see figure 1).\8\ Wages 
that workers actually receive may well be less, particularly for 
undocumented workers, because workers are sometimes hired through 
``subcontractors'' who recruit workers on behalf of contractors. These 
``subcontractors'' may take part of workers wages ($1.00-$4.00 per 
hour) in exchange for continued employment. Our studies suggest that 
these workers are also paid for 8 hours of work per day even if they 
work more. Travel time is rarely paid except when firefighting.
---------------------------------------------------------------------------
    \7\By contrast, the median wage for loggers was $17,810 in 2003.
    \8\In 2003, the federal poverty rate for a family of four that 
included two children was $18,660. Ecosystem Workforce Program, Working 
Paper #10, Job Quality in Logging and Forestry Services in Oregon, 
forthcoming.
---------------------------------------------------------------------------
    Labor-intensive forest work is also quite seasonal and erratic 
(figure 2).* The average worker was employed the equivalent of three 
months a year, compared to six months for loggers. But, this is not 
simply the work of college students with summer jobs. Most are Hispanic 
immigrants and half of forestry service workers in Oregon also work 
outside of forestry. They are commonly employed by temporary agencies, 
restaurants, and in agriculture, and typically earn even less than they 
do when working in the woods.
---------------------------------------------------------------------------
    * Figures 1 and 2 have been retained in subcommittee files.
---------------------------------------------------------------------------
    Although official accident rates are lower for forest workers than 
for loggers, our studies also revealed that many workers felt that they 
could not report on-the-job injuries for fear of being fired. In 
addition, we heard frequent reports of crew bosses who push their 
employees to work very quickly and require that they work without 
stopping for breaks or lunch. Performing physically demanding, 
dangerous work under these circumstances only increases the likelihood 
of accidents. Crew van accidents are all too common and have resulted 
in fatalities because drivers were tired, under the influence of drugs 
or alcohol, or driving unsafe vehicles.
    Although many excellent contractors work for the federal 
government, others forge fire fighter qualification documents (red 
cards) and fail to pay workers legally-mandated wages or overtime, 
supply safe vehicles, and provide medical care for on-the-job 
injuries.\9\ These working conditions harm workers, contractors, rural 
communities, and national forest ecosystems.
---------------------------------------------------------------------------
    \9\ In addition to the ``Pineros'' series see, Alex Pulaski, ``Fire 
Crew Crackdown Proposed,'' Oregonian, January 29, 2003; Alex Pulaski, 
``State Tightens Fire Crew Enforcement,'' Oregonian, September 22 2002.
---------------------------------------------------------------------------
                        institutional challenges
    Although there are numerous labor laws in place to protect forest 
workers, they are not as effective as they could be because of the ways 
in which the Forest Service and the BLM structure and award contracts 
and oversee project implementation. Land management agencies face 
budget constraints, output-based accomplishment targets, and a culture 
of efficiency that encourages staff to minimize administrative costs 
and contract prices, sometimes to the detriment of other objectives, 
including job quality and community benefit.
Accomplishment Targets and Budget Allocations
    The Forest Service's budget and staff performance evaluations and 
advancement have long been tied to accomplishments targets. Meeting 
targets in one's area of contracting means increased budget and 
staffing as well as promotion. Programs and management units that fail 
to meet their targets or do so at too high a cost have their budgets 
cut. The focus on maximizing natural resource accomplishments--e.g. 
volume, acres, miles--creates few institutional incentives for 
attending to the job quality of its contracted workforce or ensuring 
that its contractors strictly follow labor and immigration laws. When 
targets measure only the quantity of outputs, without consideration of 
the quality of those activities, community benefit, or treatment of 
workers, the incentives to accept the lowest-price bid are strong. With 
declining budgets for federal forests and national direction to do more 
with less, incentives to ignore impacts on communities, contractors, 
and workers become even stronger.
Low-Bid Contracting
    The pressure of meeting targets is compounded by a history of a 
low-bid contracting system in the federal land management agencies. 
Until the mid-1990s, the Forest Service and BLM, as with most federal 
agencies, were required to award contracts to the lowest bidder almost 
regardless of the quality of they work that they performed. In the mid-
1990s, federal procurement laws changed and the Forest Service and BLM 
became able to use negotiated contracts, which allows the agencies to 
consider best value to the government when awarding contracts. Now, 
they could consider factors such as past performance, technical 
capability, key personnel, and, under some circumstances, benefit to 
the local community. Best-value contracting has created an opportunity 
to ensure that restoration work would be high quality, workers would be 
treated well, and rural communities would benefit.
    Although best-value contracting has created an opportunity for 
federal agencies to consider factors other than price when awarding 
contracts, our interviews found that many contractors still felt that 
they were primarily operating in a low-bid contracting environment. 
That is, price was still the most important criterion in awarding 
contracts.
Lack of Labor Law Enforcement
    Numerous laws including the Service Contract Act, Davis-Bacon Act, 
Migrant and Seasonal Agricultural Workers Protection Act, and the 
Contract Work Hours and Safety Standards Act are in place to protect 
forest workers from exploitation; however little enforcement of these 
laws occurs. The Forest Service typically views enforcement as the 
responsibility of the Department of Labor or state labor agencies. But 
enforcement led by the U.S. Department of Labor or state labor 
departments can be difficult because of remote worksites. In our 
interviews with roughly 85 forest workers in Oregon, no one had seen 
staff from the U.S. Department of Labor or the Oregon Bureau of Labor 
and Industries while working in the woods.
Consequences
    These pressures have created a system that rewards contractors who 
cut corners to offer the lowest prices. When contracts involve 
significant physical labor, contractors' options for cutting costs lie 
primarily in increasing the speed at which people work and reducing 
wages. Strategies for cutting costs include not paying over time, 
paying below the required minimum wage, and paying some people under 
the table to reduce worker compensation and tax costs. At first blush, 
low-price contracting appears to save the government money. In reality, 
however, it costs the American taxpayer when poor quality work has to 
be redone, when taxes are underpaid, and when poorly paid workers have 
to apply for food stamps and other public assistance or seek medical 
care in emergency rooms without insurance.
             forest service response to ``pineros'' series
    The Forest Service offered a rapid response to the ``Pineros'' 
series by directing its contracting officers to insert new clauses in 
their labor-intensive service contracts to clarify contractors' 
obligations. This is helpful because it can make contractors more aware 
of relevant laws and shows that the Forest Service does want 
contractors to follow the law. However, it presumes that the major 
problem facing contract workers is ignorance of the law on the part of 
contractors. Although contractors may be ignorant of some issues, it is 
not the central cause of the problems facing forest workers.
    The Forest Service's response does little to address larger 
systemic problems. In the words of one contractor, ``the agencies, by 
their action and inaction have played a major role in the creation of 
an `underclass industry' among service contract workers.'' \10\ These 
new contract clauses do little to address the lack of contractor and 
agency accountability because they do little to improve the lack of 
viable enforcement mechanisms. Nor, do they address the larger 
institutional issues such as accountability targets, direction to do 
more with less, and culture of efficiency that encourages the agency to 
practice low-bid contracting.
---------------------------------------------------------------------------
    \10\ Statement of Celia Headley, Subcommittee on Forests and Public 
Land Management, Committee on Energy and Natural Resources, To Conduct 
Oversight on the Administration's National Fire Plan, 107th Congress, 
1st Session, March 29, 2001.
---------------------------------------------------------------------------
                            recommendations
    The following recommendations for improving the working conditions 
of forest workers were developed in collaboration with community-based 
forestry and forest worker organizations, based on their experiences 
working in the woods, and my research of federal restoration 
contracting and the working conditions of federal contract forest 
workers.
Systemic Change
    1. The Forest Service and BLM should participate actively in 
enforcing labor laws by involving inspectors, contracting officer 
representatives, and contracting officers in labor law compliance. 
Forest Service contracting officer's representatives and inspectors 
already visit these sites, and are responsible for overseeing other 
components of project implementation. The agencies should provide staff 
with direction and training to ensure that they understand their roles 
and responsibilities. Inspectors and contracting officer 
representatives should be directed to report suspected problems to the 
Department of Labor for enforcement action. They should also report 
problems to agency contracting staff to ensure that these problems are 
taken into account when awarding future contracts.
    2. The Forest Service and BLM should make full use of best-value 
contracting authorities to reward contractors who perform high quality 
work, treat their workers well, train their workers, and provide rural 
community benefit.
    3. To reduce the pressure to accept below-cost bids and increase 
incentives for the agency to investigate potential labor law 
violations, the Forest Service and BLM should establish outcome-
oriented accomplishments targets and performance measures that 
incorporate ecological and socioeconomic goals, including tracking 
progress towards creating durable, high-quality jobs.
Short term steps--Congress
    1. Congress should strengthen the payroll reporting requirements 
under the Service Contract Act to be similar the reporting requirements 
of the Davis-Bacon Act. The Davis-Bacon Act requires that contractors 
regularly file certified payroll with state labor departments. This 
effective and efficient process has provided clear, consistent 
information to settle wage complaints or undertake enforcement actions.
    2. Congress should direct the Forest Service and the BLM to end the 
practice of awarding contracts at prices that are lower than 20% below 
the government estimate.
Short term steps--Forest Service and BLM
    1. The Forest Service's National Partnership Office should convene 
a series of meetings between workers, contractors, rural community 
organizations, contracting officers, National Forest System managers, 
and other relevant federal staff to develop and implement concrete 
improvements in the Forest Service's procurement system.
    2. The Forest Service should commission a study on how the agency 
uses best-value contracting. Although the Forest Service typically uses 
negotiated contracts that allow for consideration of best value, many 
of the contractors we interviewed felt that they were still operating 
in a low-bid contracting system. Further knowledge of how best value is 
actually being used could help the agency provide better direction and 
training.
    3. The Forest Service and BLM should create ombudsmen who can hear 
the concerns of workers, contractors, citizens, and agency staff about 
labor law and other contracting issues and act as an advocate to 
facilitate action when problems arise. Currently, it is difficult for 
many types of people to report suspected labor law violations.
    Thank you for the opportunity to comment on the difficult 
challenges facing the federal land management agencies, forest workers, 
and rural communities in creating quality jobs restoring our nations' 
forests.

    Senator Craig. Cassandra, thank you very much. Lynn, please 
proceed. But in opening your statement, how deep is the snow in 
Hayfork?
    Ms. Jungwirth. Actually, we have a lot of rain, but the 
snow is gone.
    Senator Craig. The snow is gone, okay.

STATEMENT OF LYNN JUNGWIRTH, EXECUTIVE DIRECTOR, THE WATERSHED 
           RESEARCH AND TRAINING CENTER, HAYFORK, CA

    Ms. Jungwirth. The snow is gone, so we're good. Thank you 
for letting me come today and speak to these issues that are 
important to the forest communities and the forest workers. I 
think that my written testimony has a lot in it, and it's going 
to be in the record, so I would really like to build upon the 
testimony and the discussion that I've heard here today.
    Senator Craig. Sure.
    Ms. Jungwirth. We can talk about enforcement, and the 
Forest Service is sincere in wanting to enforce these labor 
laws. And I'm sure the Department of Labor is sincere, but this 
problem's been going on for 30 years, so I'm ready for a new 
model. So, I don't want this to be one more spasm, I want this 
to be the start of a new solution. And I think we're at a 
perfect juncture in history to look at a new model for 
contracting the work of stewarding the public's lands. The old 
model was sort of built on that industrial forestry model, and 
you had specialized mobile crews that moved up and down the 
landscape. And they did a lot of regeneration harvest, and they 
needed a lot of reforestation. Well, that's squeezed down now. 
A lot of that work is gone. And all of a sudden, you need a 
work force that is multi-skilled. You need a work force that 
can do reforestation and thinnings and can go out and do data 
surveys and can work with wildlife and can work as a partner to 
the Forest Service because the Forest Service on-the-ground 
troops are diminishing, and they are going to need those 
semiprofessional skills replaced and some of their professional 
skills.
    We have an opportunity now to engage in a discussion about 
if we can create quality jobs that have a career path, that 
have longevity, that can keep families healthy, and those 
communities healthy, and the Forest Service healthy. I think we 
can. I think some of those models were established during the 
early years of the Northwest Plan. On the Willamette National 
Forest, they packaged their service contract differently. They 
put multi-skills into a contract instead of single-skill, 
short-duration over a big landscape. They know how to do that. 
When they put the training programs and the training curricula 
together, those were project-based. They put those together so 
that people could work and be trained with these new skills 6 
months at a time, a 6-month job for somebody who does this kind 
of work. Six months of not having to be laid off is a 
tremendous--it's just a tremendous benefit, and it's a gift. 
So, they knew how to do that. They figured out how to do that 
for those training programs.
    I think Senator Bingaman's right. I think we can do this. I 
think we can make the change. You need different skills. You 
need different kinds of partners with your Forest Service. 
Their budgets are going down. And my recommendation is you work 
with the enforcement for the short-term. Don't let them take 
bids--don't let them accept bids that are more than 20 percent 
below their estimate. They know that the worker is paying for 
that work if it's going that low. But then package these bids 
differently, package this work differently. Create a 
professional work force, and we'll have good stewards for the 
public land forever. Thank you.
    [The prepared statement of Ms. Jungwirth follows:]
Prepared Statement of Lynn Jungwirth, Executive Director, The Watershed 
               Research and Training Center, Hayfork, CA
    Mr. Chairman and Members of the Subcommittee: Thank you for the 
opportunity to provide information to your hearing on these public land 
workforce issues. I believe these issues are of the utmost importance 
to the future of public land management, the future of public land 
communities, and the future of the United States Forest Service and 
Bureau of Land Management.
    I've been asked to comment on two parts of the workforce issues 
before you today:

   Will the Forest Service response to the Pineros issues, as 
        presented in the letter from the Chief, be sufficient to 
        address the problem of exploitation of the workforce?
   Will enforcement of the Service Contract Act wage provisions 
        and the worker safety laws help local workers and contractors 
        access service contract work on the public lands?

    In addition to these two questions, I will also address how the 
business relationship between the land management agencies and local 
communities could be improved to protect workers from exploitation and 
increase local job opportunities.
    My organization, the Watershed Research and Training Center, sits 
in the small town of Hayfork, California in the middle of the Trinity 
National Forest. In 1994 our Center began building local capacity to 
help make the shift from a timber driven economy to an economy 
accommodating ``ecosystem management'' and the Northwest Plan for the 
Recovery of the Northern Spotted Owl. In partnership with the Trinity 
National Forest and Shasta Community College, we developed and 
implemented a forest-worker training program to ensure that local 
workers could compete for jobs related to ecosystem management. Each 
graduate of the program earned certification as an Ecosystem Management 
Technician. Our training program also focused on providing technical 
assistance to workers and contractors interested in starting businesses 
focused on providing restoration-service work on public lands. This 
required providing training in business planning, financial management, 
and learning to navigate the federal bureaucracy related to competing 
for service contract work.
    The local businesses and workers we have trained and partnered with 
over the last decade have performed more than $8 million dollars worth 
of work doing forest restoration, fuels reduction, and small diameter 
thinning projects on the Trinity National Forest. Of that $8 million 
dollars approximately $2.4 million was raised from private 
philanthropic sources by my organization. Our efforts over the last 
decade to build community and business capacity made it possible for 
local enterprises to offer a workforce that is skilled and capable of 
providing the needed work to restore healthy forests and maintain 
biodiversity, clean water, clean air and fire risk reduction.
    The Watershed Center is a non-profit organization and does not 
contract with the federal agencies. We perform work through grants and 
agreements that usually have cost-share requirements ranging from 20 to 
100 percent. Non-profits are not allowed to compete for Forest Service 
or Bureau of Land Management service contracts. We are, however, a 
worker-based organization, started by forest and sawmill workers who 
lost their livelihood when national policy shifted from commodity 
production to ecosystem management.
       sufficiency of the forest service response to the problem
    I applaud the agency's quick response to the public outcry 
regarding the treatment of workers. As someone who collaborates and 
works closely with the Forest Service, I know there is a sincere desire 
to protect workers. However, the remedy proposed by the agency is not 
adequate. To simply attach copies of existing laws to contract 
documents and a promise that contracts will be broken if contractors 
are found to be breaking the law will not change the system that 
created this problem in the first place. The response is lacking in two 
ways: first, it fails to create a reliable system of accountability; 
and second, it does not address the main contributing factors to worker 
exploitation, which are low-bid contracting and contract packaging.
    In 2001, Celia Headley testified before this Subcommittee on a 
related topic. In her testimony she provided an example that so clearly 
illustrates the problem with the contracting system, that it bears 
repeating:

          ``The Forest Service puts out a contract for thinning and 18 
        companies put in bids. Fourteen of the bids are at least 40% 
        under the government estimate for the work. The Forest Service 
        awards the contract to the lowest bidder. At this point, one of 
        several things usually happens. In order to accomplish the work 
        at such a low price, the contractor can:

                  1. Demand unreasonable production and unpaid overtime 
                from the workers;
                  2. Pay less than the stated contract minimum wage; or
                  3. Declare only a percentage of the workers on the 
                books, thereby avoiding worker's compensation, 
                unemployment, and state and federal tax payments.''

    Now, five years after that testimony, we are still in a situation 
where no one really knows what happens because the only entities in a 
position to monitor these issues are the agencies issuing the 
contracts, and they have no visible system in place to monitor wages or 
worker's compensation compliance. I have been told several times that 
``it is the agency's job to get the biggest bang for the buck for the 
American taxpayer,'' and ``it is not our problem if the contractor 
chooses to underbid; we have to cut costs per acre,'' and ``we can't 
protect these contractors from themselves.''
    Congress must address the connections between output-based targets, 
demands for financial efficiency, and the creation of a contracting 
system that overlooks worker safety and wage issues.
Creating systems for prevention and accountability
    The Forest Service should consider responses to the problem that 
are proactive and create clear systems of accountability. To prevent 
worker exploitation before it occurs, the agency might put into place 
the following safeguards:

   Disqualify bids that come in appreciably lower than the 
        government estimate;
   Notify contractors that a system of random inspections of 
        wage and safety conditions will be put in place and make the 
        system visible;
   Package contracts in ways that diminish the need for a 
        mobile workforce; and,
   Provide internal incentives and rewards for structuring 
        contracts that will help establish forest work as a high-skill 
        profession and a workforce with a career path.

    To create an effective accountability system, the Forest Service 
should consider the following steps:

   Set a goal of monitoring some percentage of the contracts 
        awarded, such as no less than 10 percent;
   Develop a system for Service Contract Act (SCA) wages that 
        is similar to Davis-Bacon requirements with certified payroll; 
        and,
    Increase the number of Contracting Officer Representatives 
        in the field and require them to match daily diary entries to 
        actual wages paid.

     changing the business relationship between the forest service 
                         and local communities
    As to whether or not enforcement of wage and safety considerations 
will help the local workforce access work I have this response: yes, 
and no. Let me explain through an example.
    When we started our worker training program for forest and sawmill 
workers who lost their jobs, we looked at the kind of work the agency 
would need to do on the forest as its direction shifted to ecosystem 
management, and then we trained these workers to do it. They learned to 
do field work, fuels reduction, forest thinnings, habitat restoration, 
road surveys, fish surveys, habitat surveys, GPS, GIS, riparian 
protection, road upgrading and decommissioning, culvert replacement, 
etc. These skills should have positioned these workers to be 
competitive for forest management projects aimed at restoring and 
maintaining biodiversity, clean water, clean air and natural processes 
across the landscape. We also offered assistance in starting small 
contracting businesses.
    The first business we helped decided to compete for a reforestation 
contract. He had run crews before and had local people who wanted to 
work for him. We helped him get his workers compensation insurance and 
provided him technical assistance in preparing his offer to the federal 
government. He bid $311/per acre. The job went to an out of area 
contractor who bid $197/acre. The government estimate was $300. The 
contracting officer said he had to take the lowest bid. The next time 
this local contractor tried to bid on a local reforestation job he was 
told that the work was going to be given to an IDIQ (Indefinite 
Delivery, Indefinite Quantity) contract. This occurred even though the 
work was being offered under the requirements of a best-value contract 
where price is supposed to be only one of several evaluative criteria.
    Based on this experience, the business decided that trying to 
compete for reforestation contracts was not economically viable and 
decided to focus on competing for contracts related to fuels reduction 
and thinning. The good news was that the National Fire Plan required 
that best-value contracts consider benefits to local communities and 
the business was successful in capturing an initial fuels reduction 
contract. The bad news was that pressure on the agency to treat as many 
acres as possible at the lowest cost led to the agency packaging a 
similar contract into a large IDIQ format. This contract format gave a 
structural bias to a large, out-of-town company that was somehow able 
to bid $300 less per acre then the local contractor. It just so 
happened that these two projects were right next to each other. The 
local contractor kept a daily diary of both his crew and their crew. If 
the IDIQ contractor was paying the SCA wage and the required workers 
compensation and unemployment rate, he must have gone broke on that 
job. When we inquired about this with the Forest Service, they 
explained that maybe the IDIQ contractor lost a little on that job but 
made it up with another one and, anyway, it was not their job to police 
the contractors.
    So it was suggested we train our people for more technical work. We 
did. Our crews became very proficient at surveying for the snails, 
lichens, and plants required in the survey and manage requirements of 
the Northwest Plan. They worked alongside Forest Service biologists on 
actual projects. They received the highest accolades for the 
professional quality of their work. When they formed a business to bid 
on agency contracts for survey and manage work, they were told that the 
work had been packaged into an IDIQ contract and gone to a company 
based in Canada with an office in the State of Washington who would be 
working up and down the West Coast. We called the Canadian-owned 
company's office in Washington State and told them we had a trained 
crew that knew the local forest and wanted to sub-contract with them. 
They said no.
    There would be a local workforce to do this work and the need for 
H2B workers would diminish if the agency could change its business 
relationships with public land communities.
    I asked a contractor about the H2B program and how effective it was 
at solving the labor shortage. The reply was, ``we don't have a labor 
shortage, we have too many workers and too many contractors, and that's 
why people work for nothing.''
    If the playing field gets leveled in terms of wages and compliance 
but the Forest Service continues to package contracts that spread the 
work out in a three or four state region, you are going to prevent a 
local workforce and forest industry from developing. The practice of 
creating multi-state contracts for large quantities of work will 
undermine the development of a place-based workforce that can perform 
the needed restoration and long-term maintenance necessary, especially 
in the frequent fire forests of the West. Losing a place-based, local 
workforce has further ramifications on the availability of skilled 
workers in fire emergencies and actually drives up the cost of wildfire 
suppression.
    We know low-bid contracting and IDIQ contracting were built for 
efficiency, and we endorse efficiency. We also have seen that 
concentrating on efficiency in individual programs can create an 
overall inefficiency in the system.
                    recommendations and conclusions
    I would like to provide several recommendations for the Forest 
Service as they explore alternatives responses to these issues. These 
recommendations are based both on my own experience and on discussions 
with community-based forestry partners and the Rural Voices for 
Conservation Coalition.
    The Forest Service should establish both short-term and long-term 
processes for protecting forest workers and creating a system of 
offering work on public lands that is effective and efficient at 
meeting ecological, social, and economic goals. Evaluating economic 
efficiency without consideration of the effectiveness of meeting 
ecological and social goals may well drive up overall costs and reduce 
the agency's ability to properly care for the resources.

          1. We would like the agency to convene, through the National 
        Partnership Office, a series of meetings with workers, 
        contractors, rural community organizations, contracting 
        officers, and other relevant federal staff to develop concrete 
        ways to implement changes in the procurement system to help 
        avoid creating an underclass of forest workers and create a 
        legitimate industry.
          2. When a bid comes in 20% lower than the government 
        estimate, it should be disqualified.
          3. Move to a system of ``best-value'' contracting that 
        includes rewarding contractors who do high quality work, treat 
        their workers properly, and provide worker training.
          4. Contracting officer's representatives and inspectors, who 
        visit these sites already, should be required to record worker-
        days and other information.
          5. Explore using a system like the Davis-Bacon certified 
        payroll to increase compliance.
          6. Procurement contracts should be packaged for long duration 
        employment--multiple months or seasons-and multi-skill sets. 
        Contracts should provide business and employment for fewer 
        workers over longer periods of time.
          7. Build on existing models from the Pacific Northwest for 
        worker training and contract packaging.

    In closing, I would like to reflect for a moment on quality jobs. 
Quality jobs for forest workers are critical to sustaining both healthy 
forests and healthy communities. One of the goals of my organization is 
to create quality jobs for forest workers who work on public lands. We 
believe a quality job in the forest has six characteristics. It should:

          1. Pay family-supporting wages and health benefits.
          2. Last multiple seasons and years.
          3. Have opportunities for advancement.
          4. Include a safe and healthy workplace.
          5. Provide skill training and reward trained workers.
          6. Allow people to work near where they live.

    In considering forest workers and quality jobs, wage and safety 
issues are only the tip of the iceberg. An overarching issue is that 
federal procurement has made these jobs miserable in terms of wages, 
working conditions, and continuity of work. Meanwhile, the shrinking 
federal budgets for service work on the federal forests have put 
greater pressure on the agencies to increase acres treated per dollar. 
It is the forest worker who has been squeezed in this process. 
Undocumented workers have been exploited and local workers have been 
eliminated, unable to compete on this uneven playing field. Service 
contracting has become a game and the race is to the bottom.
    Thank you for the opportunity to share my perspective and 
experience with this important issue.

    Senator Craig. Well, thank you. Based on what I know about 
what's going on out there on the landscape right now and the 
new requirements in the Healthy Forest Act and a lot of things 
that we're looking at, your statement fits. Maybe we do need to 
look at a new approach or a new paradigm as to how this work 
gets done, and it's certainly the character of the U.S. Forest 
Service's professional staffs that have changed significantly 
over the years in their ability and their understanding. Thank 
you.
    Cindy Wood, welcome.

STATEMENT OF CINDY WOOD, CHIEF EXECUTIVE OFFICER, WOOD'S FIRE & 
         EMERGENCY SERVICES, INC., PORTOLA, CALIFORNIA

    Ms. Wood. Good afternoon. Thank you for the opportunity to 
be here. We've got eight inches of snow up in Portola as of 
last night,
    Senator Craig. What's your altitude?
    Ms. Wood. Pardon?
    Senator Craig. What's your altitude?
    Ms. Wood. We're at 5,500 feet, so you know it's stepping up 
higher.
    Senator Craig. Probably getting rain today then, aren't 
you?
    Ms. Wood. I agree with Lynn's suggestions as far as 
contracting changes. I'm going to take bits and pieces of 
everything that I've heard here and add on to what I've 
developed here. I speak on behalf of NWSA, the National 
Wildfire Suppression Association, formed in 1991, representing 
200 professional contractors with six chapters throughout the 
United States along with affiliate member associations 
throughout the United States providing the full complement of 
firefighting services, catering and showering units, support 
services, heavy equipment and management services for wildfires 
and national emergencies such as shuttle recovery, hurricane 
cleanup and disaster relief. These are the cross-trained people 
that are now starting to integrate into thinning services, 
fuels reduction services.
    In recent years, the contract fire industry has become an 
efficient and increasingly vital resource for providing best-
value services and wildfire suppression and fuels reduction 
services in order to stabilize the roller-coaster income of our 
industry and to offset the huge costs of training, employee 
safety, equipment, uniforms, attrition, insurance, equipment 
purchases, maintenance and upgrades, all striving to meet or 
exceed specifications set by the agencies they contract with.
    Several members of the California Chapter of NWSA have had 
the most recent experience with the issues of health and 
welfare of foreign guest workers, and in the bigger picture of 
things, how the exploitation of these workers has devalued 
best-value contracts to ridiculously low levels where we cannot 
compete. It affects the local economy of communities that were 
to benefit from the fuels reduction work to be done in their 
local areas, employment levels and money spent in the form of 
rents and groceries. Support is leaving with the foreign guest 
workers and the companies that are usually from out of the 
area.
    The area of service I service is located in the Herger-
Feinstein Quincy Library Group Forest Recovery Act, a project 
area in Plumas County. I shared with you in the written 
testimony our personal experience. While bidding on projects in 
the HFQLG area, the California association members noticed a 
major increase of awards to that same forest guest worker 
contractor that I had severed relationships with. We started 
analyzing costs and then came up with the conclusion something 
was just not right. Firestorm, a provider of a 20-person fire 
crew in the community of Quincy, opened their books to us over 
a 5-year period to do cost comparisons for thinning work. 
Bottom line, one man would have to thin three acres a day. 
That's an impossibility.
    Senator Craig. Yes.
    Ms. Wood. More and more work was lost. Firestorm had to 
close their Quincy operations this year where they had employed 
approximately 240 employees over a sample 5-year period. This 
meant a loss of local employment opportunities, loss of local 
income, increased local income and money spent within Quincy 
for rents, utilities, groceries, et cetera, with a payroll in 
excess of $2 million. Over $50,000 in company-paid rent for 
office, utilities and miscellaneous expenses will be gone for 
this small mountain community. Wood's Fire closed and sold its 
Truckee station and reduced overhead expenses in order to 
prepare itself to ride through what looks to be a rough road 
ahead for us.
    Firestorm and Wood's Fire made a power-point presentation 
to the Quincy Library Group regarding the trends we were seeing 
for a race to the bottom for healthy forest work in late 
January this year. The group was aghast, concerned and 
apologetic. They had been pressuring the local Plumas National 
Forest to get more acres for each dollar. They had no idea of 
the repercussions.
    Firestorm, Wood's Fire and NorthTree Fire International met 
with the Plumas National Forest supervisor. We gleaned a lot of 
information from that meeting of the pressures this local 
forest supervisor faced with both the local and national 
overhead level to get more acres for the dollar at any cost, 
even at local small business survival. How is that the best 
value? I learned that there is no value to having a local fire 
contractor doing work on the forest and available for a quicker 
fire response to the forest. It is worth absolutely nothing. It 
is not contractually a consideration. I learned that 
exploitation of forest guest workers and forest work objectives 
is tolerated because of the bottom line: Dollars.
    Assumptions are made in the contracting process that once a 
company has addressed all the narratives of providing local 
communities with jobs and increased moneys spent in the work 
areas, that it will happen. This process falls far short in the 
actual implementing of such opportunities. There are no 
failsafes to assure that any of this is done. Final decisions 
on the awards of service contracts are made solely on price. 
Since our foreign guest worker company comparison does not meet 
muster when everything is laid out, we can only assume that 
corners are being cut. The signs are all there when looking at 
the track record of this company for labor wage, OSHA, and 
workers' compensation violations since the mid-1990's.
    If it is happening in our little area, you know it is 
happening elsewhere, confirmed by our national membership of 
NWSA. Forest agencies are charged with the implementation of 
forest work, so naturally, I would assume that violations are 
being seen by agency managers, our front line of defense. The 
NWSA has outlined solutions and recommendations for your 
review. We also have shared this with the Director of 
Acquisition Management in a face-to-face meeting recently in 
Reno, Nevada, at our national conference. It is still our 
concern, from the Forest Service Chief's memo, that a system 
for checks and balances still needs to be addressed, both in 
the field and in the contracting devices. This is not a new 
problem, nor does the solution require changes in laws and 
regulation, just implementation, steadfastness to the task and 
consistency.
    It is also the fear of our organization and the 
professional contracting sector that local accessible 
businesses will be harassed, put under the microscope and 
driven out of business with overregulation instead of pursuing 
the nomadic foreign guest worker companies that are our 
problem. The foreign guest workers are just trying to attain 
the American dream just as my great-great-greatgrandparents 
did. It needs to stop in a swift and fair manner so that the 
history of indentured servitude never repeats itself in our 
global community. The professional contracting community wants 
to be able to compete on a level playing field for work they 
are interested in doing. There is room for all of us. Thank you 
for listening to my testimony.
    [The prepared statement of Ms. Wood follows:]
Prepared Statement of Cindy Wood, Chief Executive Officer, Wood's Fire 
      & Emergency Services, Inc.; Director, California Chapter & 
      Representative of National Wildfire Suppression Association
    Mr. Chairman, members of the committee, thank you for the 
opportunity to present the following testimony. My name is Cindy Wood 
and I am the Chief Executive Officer of Wood's Fire and Emergency 
Services, Inc. (Wood's Fire) specializing in wildland firefighting 
equipment, personnel, project and prescribed burning services and fuels 
reductions services locally and nationally since 1986. My business is 
located in the central Sierras of California and Nevada with stations 
in Portola and Truckee, CA, Reno, NV, and Prescott, AZ. Wood's Fire is 
a California Small Business Administration-certified, woman-owned, 
minority, small business.
    My testimony is on behalf of the National Wildfire Suppression 
Association (NWSA) and the California Chapter of NWSA that have 
extensive experience in these issues. The NWSA has been in existence 
since 1991 and represents more than 200 contractors with six chapters 
throughout the United States. In addition, it has affiliate members 
including the Northwest Contract Firefighters Association, the Oregon 
Firefighting Contractors Association, the Northern Rockies Wildfire 
Contractors Association, and the Western Forest Fire Services 
Association.
    NWSA's members provide fire crews, engines, water tenders, 
showering units, catering units, tree fallers, dozers, and other 
resources to help battle wildfires across the United States. NWSA 
members have also been used by the Federal Emergency Management Agency 
(FEMA) for other national emergencies such as the Shuttle Recovery, 
hurricane clean up and other disaster relief.
    In recent years, the contract fire industry has become an 
efficient, increasingly vital resource to federal, state and local 
wildfire suppression officers and public land managers. This is 
evidenced in the expansion of national ``Best Value'' engine and crew 
contracts, which represent a more formalized relationship between the 
government and the fire suppression contractor. A feature of these 
contracts is clearly defined standards and inspections.
    NWSA's primary goal is to support and assist its members to be 
successful in their areas of contracting expertise and provide services 
that meet or exceed national standards. Another goal is to achieve 
national recognition as a professional organization, or cooperator.
                         purpose of the hearing
    The purpose of today's hearing is to review the role of the Forest 
Service and other Federal agencies in protecting the health and welfare 
of foreign guest workers carrying out tree planting and other service 
contracts on National Forest System lands, and to consider related 
Forest Service guidance and contract modifications issued in recent 
weeks.
    As a regional and national contractor pre-qualified to bid on fuels 
reduction projects, I am bidding against, working with and completing 
work after companies utilizing foreign guest workers have completed 
their assigned tasks. The traces left behind of their nomadic lives are 
evident in the forest.
    My company and several other local companies and community 
businesses within the Herger-Feinstein Quincy Library Group Forest 
Recovery Act (HFQLG Act) project area in Plumas County are dealing with 
the short and long term effects of the exploitation of foreign guest 
worker companies. Money that should have been spent housing and feeding 
these guest workers is taken out of the local community. Contract 
awards are at ridiculously low prices and we cannot compete with these 
nomadic contractors as we comply with all training, insurances, and 
federal and state regulations. We have opened dialogue on a local and 
national level with the U.S. Forest Service and the Quincy Library 
Group to bring the situation of the ``Pineros''--men of the pines--to 
light and discuss possible solutions.
                         historical background
    Starting in the 1970's there was a big push by industry and 
agencies for education and compliance in the reforestation industry. It 
was not until the agencies and industry worked together towards a 
solution that there was some success. However, due to the nomadic 
nature of many of the non-compliant companies, a large number evaded 
the regulatory agencies giving them an incredible competitive advantage 
with their pricing schedules. Compliant companies were then subjected 
to over-regulation and driven out of business or no longer able to be 
competitive.
    The effect of the spotted owl has been dramatic on the 
reforestation industry resulting in a huge downsizing. Many of the 
companies that once did only reforestation are now moving into the 
fuels management and fire industries. Along with this transition have 
come some of the practices that are now plaguing the industry. Many 
established and new compliant companies have hired local workers who 
have been displaced by the spotted owl and slowing logging industry. 
Many wildland fire services companies began bidding on fuels reduction 
and forest services contracts to reduce the attrition and costs of 
keeping employees available for fire emergencies. The training and 
regulatory costs for this industry is staggering.
    In any industry there are companies that abide by the rules, those 
who sometimes adhere, and others who evade the rules every chance they 
get. The forestry, fuels and fire industry is no exception.
                         why is this happening?
    Agency personnel are not fully trained, equipped or empowered to 
recognize, report and respond to the signs of foreign guest worker 
exploitation. Direction for checks and balances has not been 
implemented.
    Language barriers make it impossible to communicate to workers 
directly about their conditions.
    Lack of enforcement for existing State and Federal labor 
regulations and laws is minimal due to mobility and the nomadic nature 
of the companies exploiting the foreign work force.
    Payroll deductions for the use of tools and even personal safety 
equipment to complete the forest work in addition to recruitment or 
management fees, mileage and lodging is common. This borders on 
indentured servitude.
    Contractual verbiage needs to address and initiate compliance tools 
within the contract vehicle.
    Agencies are pressured to produce results quickly and at the lowest 
cost possible, at the sacrifice of American workers and small business.
                             my experience
    I run a well trained, flexible and small local work force that 
strives to provide a quality product at a good value to my customers on 
federal and non-federal lands. Mediocrity or minimal work performance 
is unacceptable by me or my husband who is Chief of Operations. We 
employ up to 22 local young men and women with a cadre of very seasoned 
managers. We are a niche company that adapts itself to the needs of the 
working fire environment in the most modem sense. We are striving to 
make a difference in our community by making it Fire Safe with fuels 
reduction services and we protect it when fires are a danger.
    I can speak of the Pineros/foreign guest worker issues based on 
first hand experience. My company, Wood's Fire, once subcontracted to 
another company that utilized foreign guest workers to perform project 
burn work on the Plumas National Forest. Wood's Fire was subcontracted 
to provide the expertise and management for the burn operation.
    During the course of the project, my managers witnessed many 
instances of practices by the prime contractor that were questionable 
at best if not non-compliant with applicable regulations. These 
included: unhealthy sleeping conditions for foreign guest workers in 
the field when it was freezing or snowing; unacceptable foot attire; 
and transport vehicles lacking proper license and other certification 
information. Only after my managers brought the sleeping conditions to 
the attention of the prime contractor was lodging provided for the 
foreign guest workers.
    From day to day we had a revolving door such that we did not know 
from one day to the next what foreign guest workers would be working. 
The project managers and supervisors from the prime contractor's 
company stayed the same but the foreign guest workers would change. 
Without proper documentation, particularly fire qualifications for who 
was working on any given day, it became difficult to ensure safety and 
performance. Also, at one point, the prime contractor dismissed the 
Burn Boss, one of my managers, from the burn operations. This decision 
to reduce the prime contractor's costs put my company in a very 
difficult situation because I was ultimately liable for any escape of 
the burn operations. This concern was compounded by the fact that the 
prime contractor refused to provide proof of workers compensation and 
liability insurance after I had already provided my insurance 
documents. So my assumption was the prime contractor did not have 
proper insurance.
    These problems combined with communication and chain-of-command 
problems led my company to terminate its work with the prime 
contractor. At that time we also notified the appropriate agency 
contracting officer representative.
    To demonstrate how these practices stifle competition, I've 
included the following table:

 
----------------------------------------------------------------------------------------------------------------
                                                                    Compliant  Contractor      Non-Compliant
                                                                   -----------------------       Contractor
                          Task                              Acres                         ----------------------
                                                                      Unit       Total       Unit
                                                                      Price                  Price      Total
----------------------------------------------------------------------------------------------------------------
Thin, lop, scatter......................................    474       $98.50   $46,689.00    $57.78   $27,387.72
Thin....................................................    102       354.12    36,120.24     46.00     4,692.00
Thin & pile.............................................     77       442.65    34,084.05    198.00    15,246.00
                                                         ----------          -------------          ------------
                                                            653                116,893.29             47, 325.72
                                                         ----------          -------------          ------------
Total Difference                                                                                      $69,567.57
                                                                                                    ------------
Total Difference/Acre                                                                                    $106.54
                                                                                                    ------------
----------------------------------------------------------------------------------------------------------------

    This table shows the difference between actual bids on the Pull 
Plug Pre-Commercial Thinning project on the Modoc National Forest. The 
``Compliant Contractor'' bids are courtesy of Firestorm Wildland Fire 
Suppression, Inc., a local contractor in Quincy and Chico, California. 
Firestorm was agreeable to opening its books to demonstrate how hard it 
is to compete with non-compliant contractors.
                               solutions
    The National Wildfire Suppression Association believes the issues 
surrounding the Pineros do not require any new laws or regulations. 
What is required is better utilization of existing contracting 
authorities and greater enforcement by the agencies to both address the 
needs of foreign guest workers as well as protect local jobs.
    More specifically, the vast majority of these types of service 
contracts are an Invitation for Bid (IFB) or a Request for Quote (RFQ). 
Both of these are awarded based solely on the lowest cost bid.
    NWSA would like to see the agencies instead use the Best Value 
Request for Proposals (RFP) or Best Value Indefinite Delivery 
Indefinite Quantity (IDIQ) contracts for this type of work. The RFP and 
IDIQ are both existing contract vehicles and would lend themselves to 
the new Stewardship Contracting authority.
    NWSA believes that using RFPs and IDIQs will provide the agency 
better means to assess the bidder's actual business. Such assessments 
may include but not be limited to financial ability, experience, past 
performance, technical qualifications, and the ability to provide local 
jobs.
    One of the purposes of this hearing is to comment on Forest Service 
guidance and contract modifications issued in recent weeks. I would 
like to offer some very specific comments in this regard.
    On November 18, 2005, Forest Service Chief Dale Bosworth sent a 
memo to the field regarding ``foreign workers on H2B seasonal work 
visas'' and how ``Concerns have arisen about some contractors 
exploiting these workers and about the health and safety conditions 
they work under.'' The Chief is only hitting a part of the problem. 
That is, these concerns are not exclusive to H2B seasonal workers. In 
fact, I would submit that this is not where the problem lies. Instead, 
the greatest exploitation comes from those contractors that do not 
abide by the rules including the H2B rules.
    Also in the Chief's memo, he makes three key points: (1) on matters 
beyond the responsibility of the Forest Service, e.g. immigration law 
or OSHA regulations, that the agency personnel are to ``promptly report 
the situation to the appropriate oversight agency and to document the 
notification''. (2) on matters within the Forest Service's scope, e.g. 
safety equipment, the Chief says ``don't let them work''. and (3) 
documented violations must be a factor in evaluating future bids and 
awarding future contracts.
    I will comment on these three points. First, point (1) above is 
simply passing the buck. If the Forest Service representative knows 
enough to promptly report the situation, they should also be stopping 
all work. Prompt reporting to the appropriate oversight agency does not 
ensure prompt investigation by the oversight agency and thus the 
contractor is allowed to continue working.
    The second point should be a given. If the Forest Service 
representative sees a safety violation or something similar, they can 
and should immediately stop all work. As the Chief said in his memo, 
this is nothing more than just as ``we would [do] with our own 
employees.''
    We agree entirely with the Chief's third point that documented 
violations, whether arising from (1) or (2) above should be a prominent 
factor in evaluating future bids and awarding future contracts. We also 
feel the only way the Forest Service can do this is to move away from 
the IFB and RFQ to the RFP and IDIQ Best Value contract vehicles.
    There is one last comment on recent contract modifications I'd like 
to make. On January 4, the Director of Acquisition Management sent a 
memo to the field with new provisions for service contracts. We have 
reviewed these provisions and support adding them to the contracts. It 
is our interpretation that these provisions articulate worker safety, 
lodging and other existing requirements. By including these in all 
service contracts, all parties will be working from the same set of 
information. We also believe by including these provisions, the agency 
representatives will be better empowered to enforce existing 
regulations.
                            recommendations
``Inspect What You Expect''
    Contractually set up a system for checks and balances for Contract 
Officer Representative (COR) and contracting office to utilize in their 
``tool box''.

          1. Notification of Lodging & Food facilities for foreign 
        guest worker (FGW) companies.
          2. Notification of Work Schedule and the Work Area to COR 
        daily to be able to track and catch non-compliant companies
          3. Defined work hours to be negotiated (i.e.: daily start 
        time, weekend/holiday exemptions)
          4. Employee verification to address matters of Homeland 
        Security, for example:
                  a. Photo Id
                  b. Social Security
                  c. Work Visas
                    i. *To be carried in the field by FGW company 
                representative at all times with their copy of contract 
                specifications. This is mandated in the fire fighting 
                community, why not in this environment.
          5. Changes in project staffing would use same protocol
          6. Development of checks and balances in the initial contract 
        award work place
                  a. Verification of employee id's, work visas with 
                existing data bases being implemented now by the Forest 
                Service with the fire community
                  b. Employee Disclosures as stated by U.S. Department 
                of Labor
                  c. Contractor verification of all insurances, review 
                of class codes for Workers Comp Insurance
                  d. Disclosure of I.N.S., D.O.L. suspensions, fines, 
                resolutions of findings by contractor with cross check
                  e. Company Ownership disclosure on all contractors 
                and subcontractors to assure violators are not forming 
                new companies
          7. Agency Law Enforcement Officers (LEO) be cross trained by 
        I.N.S. or other specific agency to perform spot checks.
          8. COR or LEO need to communicate in the language of the FGW 
        at the project site to conduct interviews or have a bilingual 
        individual on contract to help with this need. Possible 
        bilingual ratio to crew workers development
          9. Assure all required postings are on the job site
          10. Assure all company vehicles are marked with the proper 
        ID/Company designation as outlined by D.O.L./I.N.S.

                               in closing
    Recently I discussed this situation with my parents and asked them 
about my family's experience with migrant labor. Coming from a Mexican 
and French heritage with my ancestors legally migrating across the 
Mexican Border into Arizona and California in the 1900's as workers in 
the agriculture, ranching and mining industries or to escape being 
killed during revolutions, they found the information deeply disturbing 
and unacceptable. As children, when school was out they went on family 
working vacations and picked nuts and apricots and were never subjected 
to the conditions that the Pineros and other foreign guest workers 
endure now trying to attain the ``American Dream''.
    I concur with my parents. These people are being exploited and it 
needs to stop in a fair and swift manner. It is my fear and the fear of 
private industry that history will repeat itself with the over-
regulation of professional, capable and compliant companies. That the 
nomadic contractor practices of the past will slip thru the regulatory 
cracks and local small businesses and communities will suffer. We only 
want a fair chance to compete. Long term stability for the industry is 
the result of better written contracts and enforcement of existing 
rules. It will provide a better product to the agencies that are 
stewards of our natural resources and better protection to the worker.

    Senator Craig. Cindy, thank you.
    Michael, you work in areas other than forestry, do you see 
similar problems in those areas, and do you see the same 
problems with getting the Department of Labor and Homeland 
Security to engage in the enforcement that they are expected to 
provide?
    Mr. Dale. Because most other areas that I work in aren't 
way up in the woods, the problems are less complex. Having said 
that, the enforcement personnel available to Wage and Hour 
Division has fallen pretty consistently through Republican and 
Democratic administrations ever since I've been a lawyer to the 
point where the capacity to really engage in effective 
enforcement is really quite limited.
    I'm glad you brought up the question about the Department 
of Homeland Security. One of the things that I didn't mention 
is something that we should not do in response to this re-
airing of the issues, and that is that the Department of 
Homeland Security has its work to do with respect to folks who 
are not in the country in a proper status or working here 
without worker authorization. Past response in some of the 
earlier spasms--I described maybe inaptly.
    Senator Craig. We'll let that stand. That's probably 
appropriate.
    Mr. Dale. Past response has been to enhance collaboration 
and reporting of workers found to be in unlawful status or 
suspected of being in unlawful status in forestry crews, and 
that's counterproductive because what it means is--I mean, it--
think of the situation. If you are here working illegally, 
you're still protected by U.S. wage and hour laws and need to 
be, or no one's protected because it enhances the race to the 
bottom. There you are in the mountains, pretty much subject to 
the contractor's whim with respect to not only your job but 
your very food and transportation to get home. I've represented 
workers that were abandoned in the mountains because of 
complaints that they had made about working conditions. Who are 
you going to turn to if the word is out that if you go to the 
Forest Service guys, if you talk to anybody from the Bureau of 
Land Management, the net result is you're going to be deported? 
Who are you going to go to? And if we want to drive these 
practices farther underground, make people evermore dependent 
upon people that are not very nice and would exploit workers, 
then the way to do that is make the price of speaking to the 
Forest Service be a trip home.
    Senator Craig. Well, I think that's appropriately said. My 
time is getting limited here, so let me ask just one question 
of each of you, if I can. Cassandra, if we converted this 
program to one in which the agency had to hire workers, and 
that meant not as many of these H-2B workers were utilized, 
would that be helpful?
    Ms. Moseley. Can I just ask for clarification? Do you mean 
hire other workers directly, as in Federal employees?
    Senator Craig. That could be an alternative, yes.
    Ms. Moseley. Workers who work for the Federal Government 
are protected very well. Many of them have union 
representation. They have systems of appeal, ombudsmen. They 
have benefits. Their laws are not broken very often. And so, 
job quality for Federal workers is in a whole different world 
from contract forest workers. And so, yes, if we employed 
people directly, their job quality would probably improve. Not 
everybody wants to work for the Federal Government, so maybe 
people would make different choices. To work for the Federal 
Government, you have to be a U.S. citizen, so it would not 
provide as many opportunities for non-citizens as the contract 
work does.
    Senator Craig. Lynn, both you and Cassandra have made it a 
point to suggest that a conversion to best-value contracting 
for this work would be helpful. Why do you think this change 
will result in better enforcement of health, safety and wage 
laws and regulations?
    Ms. Jungwirth. Well, we think that best value can help, but 
currently, in the system, best value can have several criteria. 
It usually has price, experience, track record, what your 
technical proposal looks like, and then that sort of local 
benefit criteria.
    Typically, in the Forest Service, the weighting is 50 
percent or 51 percent or 70 percent price and then minor 
percentages for those other things. So, if they use best value, 
but the lowest price is always the best value, it won't work. 
Best-value contracting that actually has honest criteria and is 
weighted properly can help, but if you don't repackage these 
into multi-task, multi-skills, across the season, you're going 
to run into the same kind of problem. So, it's a systemic 
problem. It's the system's problem. It's not just an 
enforcement problem. We'd like to encourage you to encourage 
the Forest Service to work with all of us at this table to come 
up with a way to solve this.
    Senator Craig. Thank you, Lynn.
    Cindy, what steps have the associations that represent the 
companies that participate in these planting and thinning 
contracts taken to weed out some of the bad actors that have 
been described at this hearing?
    Ms. Wood. Well, we do our own order of self policing and 
generating enough pressure on a noncompliant company to come to 
compliance on a one on one. If they don't do that, then we will 
report them. It's a fact of life we can't compete with these 
current conditions at all. And we've made suggestions--I mean, 
the private sector is an extremely creative entity. And if you 
want to catch a noncompliant officer, what better area to ask 
than the industry that tries to find all the different 
loopholes and creative ways to make money? So, we developed 
this toolbox for out in the field that we put into the 
narrative, and that's an area to get started with.
    There is also a new program that the Forest Service is 
implementing in the fire sector that is called ETIS. It is the 
Equipment and Training Inventory System. And within that 
automated system is a way to have the contracting office input 
information about noncompliant or exemplary reviews about the 
work that a contractor does. I would suggest something like 
that be implemented within these new contracting vehicles.
    Senator Craig. Well, thank you all very much. We are 
certainly going to stay tuned to this. And as I say, we may, in 
the course of the year, see a whole new set of standards or 
principles out there embodied in this new immigration law that 
will impact these kinds of programs from the title on down, if 
you will. And so, I think that's going to behoove us from the 
implementation of a new law itself, if we get there, to the 
breakdown as to category and specifics, monitor these 
approaches very closely, and you out there on the ground with 
the eyes and ears, you have will be very helpful to us in doing 
that. So, we thank you very much, and we're glad you came, and 
the committee will stand adjourned.
    [Whereupon, at 3:53 p.m., the hearing was adjourned.]

    [The following statement was received for the record:]

                               Renewable Resources,
           A Division of Renewable Forestry Services, Inc.,
                                    Barnesville, GA, March 6, 2006.
Hon. Jeff Bingaman,
Ranking Member, Committee on Energy and Natural Resources, U.S. Senate, 
        Washington, DC.
    Dear Senator: My company was the first to get H2B visas back in 
1996. This was only after I spent over one hundred thousand dollars in 
three years pushing the U.S. Department of Labor to grant the labor 
certification (form ETA-750) and then INS to approve the petition (form 
I-129) from which the visas are issued.
    On Tuesday, March 2nd your committee held a hearing regarding 
abuses within the H2B visa system. have vast experience in this 
industry and would like to clarify some points as well as make some 
critical recommendations for the new immigration bill currently being 
debated. I started planting trees in the Rocky's when was 18; the year 
was 1977, before the invasion of undocumented labor from Latin America. 
Tree planting and related environmental rims have been my soul source 
of income for my entire adult life.
    Yes, the forest industry, because it is a subculture within America 
and is generally isolated due to the remote rural location of the 
worksites continues to be an avenue of abuse. Much of the present day 
abuse is by Mexican crew leaders and Mexican contractors against their 
own people. In some segments there is almost a rite of passage. 
Therefore your strongest solution to end this abuse is to simply 
mandate that industrial tree farmers as well as the U.S. Forest Service 
are simply joint employers of this workforce. It took 20 years--20 
years, Senator--to get the U.S. Forest Service to require and verify 
proof of Workers Compensation Insurance among its contractors. I don't 
know of any other population with in our society that has suffered this 
blatant discrimination and abuse in modern times. It is this historical 
abuse that demands such an aggressive definition of employment, Without 
it abuses will continue as the Department of Labor and Homeland 
Security's Immigration Services lacks the in-house workforce to police 
the industry.

          1. Forest Service districts that are found to violate the law 
        should pay penalties and remediation out of their district 
        budgets. If Congress enacted such a bold step where the 
        district's money was at risk if abuses occur the abuses could 
        stop immediately.
          2. If you multiple to million undocumented workers  $8.00 an 
        hour  40 hours per week  FICA tax 15.6%  52 weeks a year you 
        generate $25.9 billion. You can see that we as a Nation are 
        losing tax revenue that could completely fund the retiring Baby 
        Boomers Social Security Trust Fund; resolving this critical 
        issue of fulfilling the retirement needs of our aging 
        Americans. As a Nation We do not know what the actual FICA loss 
        is but assume that this figure is 50% accurate it's a lot of 
        money and Mexico is no longer the impoverished third world 
        country it was twenty-five years ago when this situation first 
        got started.
          3. The question of amnesty should be answered with an 
        affirmative, it worked back in 1984 in the Food Security Act 
        and legalized a work force that kept America competitive and 
        gave both small and big business the productive legal labor it 
        needed. A reasonable fee should be charged, such as $500.00 for 
        filing the paper work and another $500.00 upon approval, but 
        rather than granting a Resident Mien status, issue a new H2B 
        visa. Make this visa a special visa to note that the individual 
        was in the U.S. when the visa was issued, for example H2B-US1, 
        and make the visa good for two years, Then put a very simple 
        stipulation on it, that if a holder of this visa class is 
        arrested and convicted of a felony they are then deported and 
        banned from entering the U.S. for a decade. the same punishment 
        should apply for habitual DUI and drug offenders.
          4. Another point that needs to be clarified is what an H2B 
        visa entitles a person to. An area of current misunderstanding 
        centers on disability insurance. Regardless of what the law 
        says, the social Security administration will not grant SSI to 
        an H2B worker who becomes disabled while residing legally in 
        the U.S. If the disability is thru no fault of the employer, no 
        workers comp coverage is available and some situations are 
        difficult to determine. When this occurs the fundamentals of 
        our Nation should afford this worker's disability coverage, 
        have enclosed a video tape profiling the story of Benjamin 
        Mendez who was one of the first Mexicans to ever receive an H2B 
        visa. A very honorable hard working family man who was struck 
        down by a flu germ his body could not defend itself against. He 
        now resides in Mexico, blind with two dysfunctional kidneys and 
        is dependant upon family charity and support from my wife and 
        I. Benjamin's only daughter Maria was later smuggled into the 
        U.S. to work illegally in a factory to help support her mother 
        and father by family members working in a meat processing 
        plant. While in the U.S. she married and had two children who 
        are legally U.S. citizens yet Maria remains an illegal alien to 
        this date.

    This situation and many similar to it are the results of our 
dysfunctional immigration policies, and an everyday reality creating 
unhealthy social situations that will only hurt our great Nation as 
time moves forward. Please make sane reform a top issue!
    In closing, I am submitting this letter and ask that it be 
submitted into the Congressional Record as additional testimony on the 
hearing that was held on March 1st, 2006, which was organized by 
Senator Jeff Bingaman. This information was requested by Senator Staff 
Member Scott Miller.
            Towards a more perfect Union,
            I am Sincerely Yours,
                                            David M. Ellis,
                                                         President.

                                APPENDIX

                   Responses to Additional Questions

                              ----------                              

       Responses of Cindy Wood to Questions From Senator Bingaman
    Question 1. As I understand it, the Department of Labor certifies 
that there is a shortage of available labor in a given area before H2B 
visas are issued to an employer wishing to work in that area. However, 
the H2B contractors reportedly compete with local contractors for 
Forest Service reforestation projects, which seems to call into 
question the Department's determination that there was a shortage of 
labor. Do you have any insight into how the Department of Labor's 
process for certifying a shortage of available labor falls short? Do 
you have any suggestions on how it can be improved?
    Answer. The issue is not so much local contractors competing with 
the H2B contractors for Forest Service reforestation contracts. 
Instead, it is the local contractors competing with those contractors 
that use undocumented workers. The latter group of contractors is not 
using the H2B program. Illegal alien issue along with abuses in the H2B 
program makes it difficult to compete in the market place.
    Having said that, some H2B companies set up business in small rural 
towns where there is not a labor force. Idaho has their share of H2B 
companies who use small Idaho towns as fronts. Once the H2B contractors 
obtain visa's for their work force they are not monitored and then move 
workers into larger towns jobs following awarded contracts all across 
the country and are no longer confined to the labor shortage area that 
the visa's were issued for.
    Many of us in the west are in Hub Zones, areas that SBA has 
designated with higher unemployment rates, therefore are not lacking in 
a labor force. We could employ more full time employees rather than lay 
them off after the Wildfire season has passed, if we could augment with 
forestry work. There are many good contractors that have a lack of work 
for their good employees.
    The H2B workers use this program as a means to enter the country 
and then stay after they have finished their job or their visa expires. 
These workers begin working illegally for other contractors that then 
abuse them by working and paying them ``under the table'' as a 
``favor'' or under the fear of being turned in to immigration.
Suggestions:
    The Department of Labor needs to follow up on the intent of the 
companies that use the small rural communities as a front.
    Tracking system: Are work visa's bar coded to facilitate tracking 
much the same as FedEx or Rental Car Industries use, to track how a 
worker is being utilized? Long range benefits could track 
inconsistencies with visas, reduce paperwork, reduce abuse of one visa 
being utilized by many workers etc.
    EATIS: List authorized H2B workers attached per contract award with 
special number attached to each documented or H2B worker. This would 
help track for example: training, annual refreshers, proper insurances, 
company information, company officers or owners and contract 
performance.
    **Tracking systems are only as good as the agencies that put them 
in place, oversee them and maintain oversight. All should be accessible 
to the agencies that need to check that accurate information is being 
inputted i.e.: proper social security & visas numbers. These should 
also be integrated with the ORCA/CCR databases already in place. 
Centralized or linked databases will make oversight less time consuming 
for contracting and enforcement offices.
    Receipt of jobs announcement: copy of advertisement, date and by 
what means--via internet, newspaper, magazine, trade show, bulletin 
board; where it was flown, for how long and for what type of job.
    Continued efforts toward compliance of Job Clearance Order/Worker 
Contracts disclosures.
    In addition, the U.S. Forest Service should be required to put 
hiring locals in their best value contacts. Put a high value for 
awarding contracts to local entities. Public Law 106-291 has a 
requirement for hiring locals.
    Question 2. Similarly, the Department of Labor makes a 
determination of the prevailing wage in a given area. However, in many 
instances, that wage reportedly falls short of what is fair or 
adequate. Do you have any insight into how the Department of Labor's 
process for determining a prevailing wage falls short? Do you have any 
suggestions on how it can be improved?
    Answer. The Department of Labor sends out wage surveys to companies 
in the industry. The Department should solicit a broader group to get 
accurate wage information and they should do it more frequently. For 
example, I have been informed by NWSA members, one contractor, has been 
solicited by the Department only twice in 27 years.
    One current requirement that helps address this problem is the 
certified payroll and daily work schedules. Though this is time 
consuming to the contractor, it is a necessary step to help address 
this issue. This does not stop the abuse of paying workers cash, paying 
workers 6 hours on the time card and certified payroll but work them 9 
in order to avoid paying the prevailing wage. DOL and the agencies need 
to work hand in hand to enforce the laws and rules that are currently 
in place.
    Raising wage determinations for the specific work will not solve 
the problem. It will just give further advantage to companies who pay 
under the table; skew hours, or otherwise circumvents the system. The 
companies who are above board will put those rates in their costs and 
the companies that pay under the table will have a further competitive 
advantage. In addition, high wage determinations cause moral problems 
for long-term employees who see beginners starting at high wages. 
Unless there is strict enforcement and monitoring with field personnel 
and paper trails, raising wages will have the opposite effect of the 
desired result.
    The Department of Labor will have trouble controlling wage abuse 
unless they hire undercover agents to go into the companies. History 
has shown the Department will just audit companies who have legitimate 
business sites.
    Many companies in this industry do not know all the items they must 
comply with. The education process can be painful and costly but well 
worth the effort. Pressure from educated companies to comply with 
regulations with non-compliant companies is sometimes all that is 
needed, however knowledgeable COR's that can recognize warning signs of 
non-compliant companies will be extremely important. COR's will need a 
support system to be able to report issues to the regulating agency ie: 
e-mail or phone number in a timely basis and be empowered to stop work 
if the situation requires it. Head counts & unannounced visits should 
be implemented at odd hours. Implement the help of federal agency 
L.E.O.'s to back up the COR.
    Question 3. The Forest Service contract clauses issued on January 
4, 2006, require contractors to train their employees in the safe 
operation and use of equipment, but it doesn't appear that there are 
any standards or certifications to ensure that all the workers are 
appropriately trained. Should the agencies develop a uniform training 
and certification program so the Forest Service can verify that 
appropriate training has been provided and so the contractors know what 
is expected of them? I note that the Forest Service already does this 
in the context of wildland fire fighting and that British Columbia 
reportedly has instituted training and certification of its 
reforestation crews.
    Answer. We already do more wildfire training than Canada. You can 
have all the rules you want but without enforcement the ones who cheat 
get the competitive advantage. That is how these companies have 
proliferated over the years. Creating new regulations simply 
exacerbates this problem.
    Workers Compensation and OSHA already requires us to do training on 
all types of work we do. Certainly OSHA could be part of the compliance 
monitoring. However, like the other regulatory agencies OSHA also goes 
the path of least resistance and audits or inspects those companies 
with legitimate business locations. Adding more regulation to combat 
abuses is not necessarily the answer and could actual increase the 
problem. Rather, enforcement of existing laws, along with a 
collaboration effort with overseeing agencies. Combined with an 
aggressive education program to the industry we feel that industry 
would respond in a positive way. Failure to respond immediately to the 
situation will result in many legitimate businesses going out of 
business, which hurts the taxpayer, all the workers and the agencies 
trying to manage our forests.
                                 ______
                                 
   Responses of Cassandra Moseley to Questions From Senator Bingaman
    Question 1. As I understand it, the Department of Labor certifies 
that there is a shortage of available labor in a given area before H2B 
visas are issued to an employer wishing to work in that area. However, 
the H2B contractors reportedly compete with local contractors for 
Forest Service reforestation projects, which seems to call into 
question the Department's determination that there was a shortage of 
labor. Do you have any insight into how the Department of Labor's 
process for certifying a shortage of available labor falls short? Do 
you have any suggestions on how it can be improved?
    Answer. As I understand it, when a contractor would like to hire 
H2-B workers, they must place an advertisement in the newspaper where 
the work will start. They do not have to advertise in the communities 
near national forests or private lands where they will work 
subsequently. Thus, contractors can acquire visas for H2-B workers 
based on a lack of availability workers in the location where their 
work season starts. Subsequently, they can move H2-B visa holders to 
work on contracts far from those initial locations, even if there would 
be an abundance of workers in those locations. Unless the workers in 
those subsequent locations happen to read the newspaper in initial 
location, they have no way of knowing about the availability of those 
jobs. Contractors should be required to advertise more broadly, 
including in the locations where they expect to work throughout the 
work season, not just where they begin working.
    The pre-certification job advertising requirements are inadequate 
in another way as well. Contractors are only required to advertise for 
short periods of time and in a limited manner. Consequently, even in 
starting locations where there would be adequate workers, these workers 
may not hear about the jobs or have time to apply. The advertising 
requirements should be expanded to ensure that available workers learn 
about the job opportunities and have time to apply.
    In addition, contractors can request H2-B workers before they 
actually have contracts in place. This means that they may be bringing 
workers to the United States for jobs that may not materialize. When 
these jobs do not appear or when there are gaps in employment, H2-B 
workers may end up needing to take jobs outside of the provisions of 
their visa.
    Question 2. Similarly, the Department of Labor makes a 
determination of the prevailing wage in a given area. However, in many 
instances, that wage reportedly falls short of what is fair or 
adequate. Do you have any insight into how the Department of Labor's 
process for determining a prevailing wage falls short? Do you have any 
suggestions on how it can be improved?
    Answer. In the case of forestry services and fire suppression, the 
federal government is seeking to replace government jobs with contract 
jobs. Consequently, prevailing wage should be no less than the wage 
that workers would have been paid had they been working for the 
government directly.
    Despite the fact that contractors move across the country to work, 
wage determinations can vary considerably from place to place. For 
example, the wage set for thinning in the Southwest is about $3/hour 
less than in the Pacific Northwest. Wage determinations should be 
revised upward in places where wages are out of line with the higher-
wage parts of the country. The wage that a federal worker would have 
been paid should be a minimum standard for the prevailing wage across 
the country.
    In addition, the prevailing wage should rise at least as fast as 
the rate of inflation. This has not been the case over the past decade 
or more.
    The Department of Labor (DOL) periodically falls behind in it wage 
determinations. DOL did not change wage determinations in the Pacific 
Northwest in forestry services for several years. Nationwide, fire-
related wage determinations had been out of line with what state and 
federal wildland fire fighters were being paid.
    Finally, the ``health and welfare'' determination should be 
examined to determine if it is sufficient to cover the costs of 
purchasing health care for a worker and his or her family, given the 
rapid rise of health insurance costs. This number needs better pegged 
to rising health insurance costs so that workers would have sufficient 
funds to purchase health insurance for their families.
    Question 3. The Forest Service contract clauses issued on January 
4, 2006, require contractors to train their employees in the safe 
operation and use of equipment, but it doesn't appear that there are 
any standards or certifications to ensure that all the workers are 
appropriately trained. Should the agencies develop a uniform training 
and certification program so the Forest Service can verify that 
appropriate training has been provided and so the contractors know what 
is expected of them? I note that the Forest Service already does this 
in the context of wildland fire fighting and that British Columbia 
reportedly has instituted training and certification of its 
reforestation crews.
    Answer. It would be a good idea to create certification and 
standards for safety training. Whenever forest workers are using 
chainsaws, they face significant risks from chainsaw injuries and 
falling limbs and trees. Safety training should also include training 
to reduce long-term injuries such as hearing loss associated with 
chainsaw use without hearing protection and repetitive motion back 
injuries associated with tree planting.
    Although I agree that safety standards and certifications for 
training are a good idea, safety training is not the only type of 
training is needed if we are to have with high quality restoration 
performed and high quality jobs for forest workers. When community-
based forestry groups advocate for training, they envision training 
that is holistic and comprehensive. Workers not only need to know how 
to work safely in the woods, but they also need to understand basic 
ecological principles, how to make decisions that result in ecological 
improvements, and be able to perform a wide variety of activities and 
tasks. Required training on safe work practices and protection would be 
a good start towards this larger term goal.
                                 ______
                                 
     Responses of Lynn Jungwirth to Questions From Senator Bingaman
    Question 1. As I understand it, the Department of Labor certifies 
that there is a shortage of available labor in a given area before H2B 
visas are issued to an employer wishing to work in that area. However, 
the H2B contractors reportedly compete with local contractors for 
Forest Service reforestation projects, which seems to call into 
question the Department's determination that there was a shortage of 
labor. Do you have any insight into how the Department of Labor's 
process for certifying a shortage of available labor falls short? Do 
you have any suggestions on how it can be improved?
    Answer. They appear to be asking to verify a shortage instead of 
affirming existing supply. The Forest Service could verify existing 
supply by looking at the number of responses to their bid 
solicitations, then they could trigger an H2B request if their needs 
are not met. The local ngos we work with usually do a labor and 
workforce survey for their local National Forests, this helps 
contracting officers know how to package their solicitations for local 
businesses if they choose to.
    Question 2. Similarly, the Department of Labor makes a 
determination of the prevailing wage in a given area. However, in many 
instances, that wage reportedly falls short of what is fair or 
adequate. Do you have any insight into how the Department of Labor's 
process for determining a prevailing wage falls short? Do you have any 
suggestions on how it can be improved?
    Answer. They need to look across the state borders because the 
people who do the work in Oregon, for instance, are also doing the work 
in California, the Department should compare state rates from time to 
time because the market area is clearly the same.
    Question 3. The Forest Service contract clauses issued on January 
4, 2006, require contractors to train their employees in the safe 
operation and use of equipment, but it doesn't appear that there are 
any standards or certifications to ensure that all the workers are 
appropriately trained. Should the agencies develop a uniform training 
and certification program so the Forest Service can verify that 
appropriate training has been provided and so the contractors know what 
is expected of them? I note that the Forest Service already does this 
in the context of wildland fire fighting and that British Columbia 
reportedly has instituted training and certification of its 
reforestation crews.
    Answer. We developed an Ecosystem Workforce Training Program, 
certificated through the local community college in conjunction with 
the Forest Service and contractors and jointly funded with DOL job 
training dollars. This program created multi-skilled workers. It was 
our attempt to create a high skilled, high wage work force that could 
live and work locally. We found this did not work because of the way 
the agency packaged the work for large, mobile, single skilled crews. 
This curricula is developed and has been used
    In several counties in California and Oregon. Be very careful how 
you structure this certified training, it has to be bi-lingual and 
accessible and preferably would be for multiple skill sets. Otherwise 
you just further institutionalize keeping workers in dead-end jobs with 
no options for growth. However, certified training is dangerous (look 
at the red card forgery issues in fire suppression) so we need to find 
a way to keep this honest. March 8, 2006
                                 ______
                                 
        Responses of Elaine Chao to Questions From Senator Craig
    Question 1. The Chief and Director of Acquisition Management, Ron 
Hooper, sent out memos to the field on the issues we are addressed at 
the March 1st hearing. The Chief's November 18th, 2005 memo said, 
amongst other things, ``I expect expertise and immediate action. 
Contract Administrators must be able to recognize health and safety 
violations . . . When these situations occur they must take action [and 
not] let them work. ``Mr. Hooper's January 4th, 2005 memo said: 
``Please ensure that these provisions are included in all service 
contracts,'' . . . ``Finally, please ensure that all service contract 
files include a written statement to the effect that the Contracting 
Officer, the Contracting Officer's Representative, or the contract 
Inspector has reviewed the requirements of these provisions with the 
contractor and has conducted at least one inspection of existing and 
new service contracts to ensure compliance with these provisions when 
applicable.''
    Please provide a work plan for each region that will ensure the 
inspections called for in Mr. Hooper's letter are accomplished.
    Answer. In the preface to your questions, you reference the 
November 18, 2005 letter from the Forest Service (FS) Chief Dale 
Bosworth and a related January 4, 2006 memorandum from the FS Director 
of Acquisition Management, Ronald E. Hooper. The Chief's letter 
directed the FS Contract Administrators to recognize health and safety 
violations and to take action when such situations occur. Mr. Hooper's 
memorandum directs FS Contracting Officers to include health and safety 
provisions in service contracts, to include a written statement in the 
file that the requirements of these provisions have been reviewed with 
the contractor, and to conduct at least one inspection of the existing 
and new service contracts to ensure compliance of these provisions. The 
November 18, 2005 and January 4, 2006 communications were internal FS 
directives and do not involve Department of Labor personnel. Therefore, 
the Department of Labor has referred this questions to the FS, which 
will respond under a separate cover.
    Question 2. What steps will you take to check that the Contracting 
Officers and Inspectors have complied with the direction in Mr. 
Hooper's January 4th, 2005 memo? Please provide for the Committee 
documentation of the accomplishments as of the end of June and the end 
of the fiscal year.
    Answer. As discussed in our response to the first question, this 
question concerns internal FS policies and practices. Accordingly, the 
Department of Labor has referred this question to the FS for response 
under a separate cover.
    Question 3. In the event an inspector, Contracting Officer's 
Representative, or Contracting Officer fails to enforce the worker 
health and safety provisions of a contract, what personnel actions will 
be taken against them? What steps will you take against your Line 
officers in the District, Forests, or Regional Offices in which the 
violations occur?
    Answer. As discussed in our response to the first question, this 
question concerns internal FS personnel policies and operating 
procedures. Accordingly, the Department of Labor has referred this 
question to the FS for response under a separate cover.
    Question 4. The Forest Service has a significant amount of 
experience with best value contracts through the Stewardship 
Contracting; would we get better performance and better enforcement of 
health and safety and other labor laws if we shifted all Service 
Contracts to a ``best value'' contract process?
    Answer. As discussed in our response to the first question, this 
question concerns internal FS operating procedures and expertise. 
Accordingly, the Department of Labor has referred this question to the 
FS for response under a separate cover.
    Question 5. What specific steps has the Forest Service taken with 
the Department of Labor and Homeland Security to ensure you have 
authority to utilize and access their databases prior to awarding 
contracts?
    Answer. The Department of Labor has provided the FS with the links 
to information posted on-line regarding Occupational Safety and Health 
Administration inspection history and the Migrant & Seasonal 
Agricultural Worker Protection Act (MSPA) ineligible farm labor 
contractor list maintained by the Wage and Hour Division (WHD) of the 
Employment Standards Administration. In addition, the WHD and the FS 
have established procedures for communication between local offices, 
which allows the WHD the ability to provide the FS with the 
registration status of farm labor contractors and information on closed 
investigations.
      Responses of Elaine Chao to Questions From Senator Bingaman
    Question 1. The Forest Service contracts require contractors to 
comply with the Department of Labor's vehicle safety standards, but, as 
I understand it, those standards do not require seatbelts and they do 
not address transportation of equipment, for example. Is the Department 
planning to improve those regulations?
    Answer. The applicable vehicle safety standards referenced are part 
of MSPA that is enforced by the WHD. MSPA applies to migrant or 
seasonal agricultural workers employed in predominantly manual forestry 
activities, including but not limited to, tree planting, brush 
clearing, precommercial tree thinning and forest firefighting per the 
9th Circuit Court of Appeals (Bresgal v. Brock, 833 F.2d 763). The MSPA 
regulations at 29 CFR  500.104(1) and at 29 CFR  500.105(b)(3)(vi)(D) 
require that seating be securely fastened to the floor. The MSPA 
regulations contain no specific standard requiring the provision of 
seat belts for the transportation of workers as mandatory seat belt 
usage is addressed by state law.
    MSPA general vehicle safety obligations at 29 CFR  500.100(a) 
require the farm labor contractor (or agricultural employer or 
agricultural association) which uses or causes a vehicle to be used to 
transport MSPA-covered workers ensure that such a vehicle conforms not 
only to safety standards prescribed by the Secretary but also ``with 
other applicable Federal and State safety standards.''
    Our research regarding seat belt usage required by states shows 
that forty-nine states and the District of Columbia have mandatory 
safety belt laws and in most states, these laws cover front-seat 
occupants only. Seat belt laws in eighteen jurisdictions cover all rear 
seat occupants.
    A Wage Hour Advisory Memorandum (enclosed)* providing guidance on 
MSPA vehicle safety reiterated the statutory and regulatory language 
that vehicles must conform with other applicable Federal and State 
safety standards, such as State seatbelt law. Therefore, we believe 
that existing regulations provide authority to enforce current state 
laws regarding seat belt usage.
---------------------------------------------------------------------------
    * Retained in subcommittee files.
---------------------------------------------------------------------------
    In regard to the second part of the question, the above guidance 
also addressed MSPA-covered vehicles when towing trailers, a common 
means for such contractors to move equipment. Further, the existing 
regulations at 29 CFR  500.105(b)(2)(vii) require any load to be 
adequately secured, which includes equipment being carried inside the 
vehicle. In addition, as noted above, we believe our existing 
regulations provide authority to enforce any current applicable Federal 
or state laws that provide safety requirements for the transportation 
of equipment.
    Question 2. The Forest Service typically has multiple bidders on 
reforestation projects. Can you explain how it can happen that the 
Department of Labor certifies that there is a shortage of available 
labor for purposes of the H2B program in a given area when the H2B 
contractor later competes with numerous local businesses for contracts 
in that same area?
    Answer. As with other employers seeking to hire foreign workers 
under the H-2B temporary visa program, employers performing 
reforestation activities who request a labor certification from the 
Department of Labor must first test whether there are U.S. workers 
qualified and available to fill those positions. At the initial stage 
of the H-2B labor certification process, the state workforce agency in 
the area of intended employment supervises employer recruitment of U.S. 
workers. The Department of Labor's Employment and Training 
Administration (ETA) reviews each labor certification application 
forwarded by the state to ensure that the record supports an employer's 
decision not to hire U.S. workers applying for positions covered by the 
application. If the record supports the employer's decision then ETA 
certifies that there is a shortage of available labor in the relevant 
geographic area to fill the vacancies at the time the employer is 
hiring.
    Labor availability is determined based on the number of qualified 
individuals who apply for the specific positions advertised by an 
employer.\1\ For example, an employer may advertise for ten (10) 
positions for tree thinners or planters. Two qualified U.S. workers may 
apply for those positions, leaving eight (8) positions unfilled. Once 
it is determined that qualified U.S. workers are unavailable, ETA 
certifies that there is a legitimate need to fill these eight job 
openings with foreign workers.
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    \1\ 20 CFR  655.3(a)-(b) (general H-2B recruitment requirement), 
and Employment and Training Administration, General Administration 
Letter No. 01-95 (outlining procedures for state processing and, in 
Section V, Federal determination of availability). While the WHD does 
investigate reforestation contractors, it does so under other 
applicable statutes, such as MSPA, the Fair Labor Standards Act, and/or 
the Service Contract Act.
---------------------------------------------------------------------------
    Reasons for unavailable qualified U.S. workers include, but are not 
limited to: 1) there are no qualified U.S. workers available in the 
occupation in the area of intended employment; 2) all qualified U.S. 
workers in the occupation in the area of intended employment already 
are employed by the other companies; and 3) the sponsoring employer 
(the one completing the application for labor certification) already 
employs U.S. workers in the occupation in the area of intended 
employment, but needs additional workers to fill vacancies.
    Question 3 Many observers have suggested that the Department issue 
regulations providing H2A-like protections for H2B forestry workers. 
Why hasn't the Department issued such regulations, and is it 
considering doing so at this point?
    Answer. The Department of Labor has no direct enforcement authority 
of the H-2B provisions. However, the Immigration and Nationality Act, 
as amended by the Save Our Small and Seasonal Businesses Act of 2005, 
provides the Department of Homeland Security with authority to impose 
sanctions on employers, including civil money penalties and debarment 
from the program, for certain types of violations of the H-2B petition 
attestations. In addition, the Department of Labor's ETA issued a 
proposed rule last year to change the procedures for issuance of H-2B 
visas and to provide for post-adjudication audits of attestions.
    While the WHD does investigate reforestation contractors, it does 
so under other applicable statutes, such as MSPA, the Fair Labor 
Standards Act, and/or the Service Contract Act.
                                 ______
                                 
       Responses of Mike Johanns to Questions From Senator Craig
    Question 1. Please provide the Committee with a detailed plan for 
enforcing the direction from the Chief and Ron Hooper on this issue.
    Answer. The requirements to include the specific contract clauses 
will be monitored through our established internal control audits of 
the field units which are conducted in accordance with each Region's 
Internal Control Plan. The results are documented and reviewed during 
Washington Office audits of the Regions. This area will receive special 
emphasis during these audits. We will update the committee on these 
results as these audits proceed.
    Question 2. Please develop an analysis of the cost of hiring H2B 
workers during the planting and thinning seasons to perform the 
planting and thinning work currently accomplished through your service 
contract program. Assume the crews will work in a manner similar to how 
the fire crews work and assume that we would like to accomplish similar 
amounts of work as are currently being accomplished through your 
service contracts.
    Answer. This is a very complex issue. We presently don't have the 
data necessary to perform the requested analysis. However, we will be 
studying reforestation activities under the OMB Circular A-76 process 
in the Fiscal Year 2008. This process establishes Federal policy 
regarding the performance of commercial activities. The purpose of this 
process is to set forth the procedures for determining whether 
commercial activities should be performed under contract with 
commercial sources or in-house using Government facilities and 
personnel.
    Question 3. Given the extraordinary unemployment costs the Forest 
Service is now paying for fire fighters (after the fire season is 
over), is there any reason that the agency couldn't use the fire crews 
to accomplish some of this planting and thinning work?
    Answer. Fire crews are typically seasonal or contract crews and the 
Agency trend is to increase the use of contract crews. For example, 
this year we have in place national fire engine and crew contracts. 
These crews are not available except for fire crew contract duties.
    Fire season and reforestation work occur at the same time of year, 
therefore the seasonal fire crews would likely not be available for 
reforestation work. Also, it would be inefficient and costly to move 
fire crews around the country to conduct reforestation activities.
      Responses of Mike Johanns to Questions From Senator Bingaman
    Question 1. On August 12, 1993, Chief Robertson issued a memorandum 
with an attached action plan addressing ``Labor and Immigration Policy 
on Labor Intensive Contracts. ``Much of the Forest Service's recent 
response to this issue is a reiteration of the 1993 memo and action 
plan.
    Is Chief Robertson's memo and attached action plan still in effect, 
and, fnot, when and why was it withdrawn or superseded?
    Answer. Chief Robertson's 1993 memo primarily addressed the legal 
status of these workers. Once this issue appeared to be addressed, and 
was not a reoccurring problem, the agency addressed other priorities 
and events.
    Question 2. Can you explain what plan the Forest Service has to 
ensure that Chief Bosworth's directives are not ignored a few years 
from now?
    Answer. The Forest Service has established an ongoing working 
relationship with the Department of Labor, mandatory contract clauses, 
mandatory training for contract officers, and a process to monitor 
compliance. The Chief and Director of Acquisition Management, Ron 
Hooper, sent letters to the field outlining their expectations 
regarding the health and safety of contract workers and contract 
administration.
    Question 3. The contract clauses issued on January 4, 2006, require 
contractors to train their employees in the safe operation and use of 
equipment, but it doesn't appear that there are any standards or 
certifications to ensure that all the workers are appropriately 
trained.
    Should the agencies develop a uniform training and certification 
program so the Forest Service can verb that appropriate training has 
been provided and so the contractors know what is expected of them? I 
note that the Forest Service already does this in the context of 
wildland fire fighting and that British Columbia reportedly has 
instituted training and certification of its reforestation crews.
    Answer. We do not believe training and certification is necessary 
for this type of contracted work. As with other contract work, the 
solution lies in monitoring, enforcing, and reporting potential 
violations to the appropriate agencies. These are the areas we are now 
emphasizing.
    Question 4. In his testimony, Mr. Rey referred to the development 
of new performance measures to help evaluate employees' performance in 
addressing the issues discussed at this hearing. Please explain what 
measures have been implemented or are being considered and how they 
will be used to encourage performance.
    Answer. Contracting Officers' and Contract Administrators' 
performance evaluations will include compliance with the Chief's 
November letter and Mr. Hooper's January letter. This includes not only 
their activities directly related to contract administration but also 
their relationship and communications with the Department of Labor 
representatives.
    Question 5. What percentage of Forest Service hazardous fuel 
reduction and reforestation projects in recent years are contracted to 
local businesses and NGOs?
    Answer. The Forest Service has contracted the analysis because the 
data is not centralized. We will provide the information in late 
summer.
    Question 6. What percentage of Forest Service hazardous fuel 
reduction and reforestation projects in recent years have been carried 
out under IDIQ contracts?
    Answer. Approximately 75 percent of fuel reduction and 
reforestation work in recent years has been carried out under IDIQ type 
contracts.
    Question 7. In recent years, what percentage of Forest Service 
hazardous fuel reduction and reforestation projects utilizing best-
value contracting authority were awarded to the lowest qualified bid?
    Answer. Forest Service policy is that all hazardous fuel reduction 
and reforestation contracts be awarded on a best-value basis. Based on 
annual reviews of field units it is reasonably accurate to say that 100 
percent of these contracts are awarded on a best-value basis. On 
occasion even a best-value decision results in award to the lowest 
priced offer.
    Question 8. Does the Forest Service need any additional authority 
to expand the current role that best value contacting plays in ensuring 
that contractors perform high quality restoration, that contractors 
that treat workers poorly or have a history of labor and safety 
violations are disfavored, and that contractors that provide structured 
training for their employees and create local benefit for public lands 
communities are rewarded?
    Answer. No additional authority is required to accomplish these 
goals.
    Question 9. The Forest Service developed a database in the 1990s to 
track contractors with repeat violations of labor and safety laws. Why 
was that database discontinued?
    Answer. The database referenced was not a FS database but rather 
one that Health and Human Services developed and operated. The FS has 
created a database which will track potential violations of Department 
of Labor regulations. We will use that information as part of the 
responsibility determination during the award process for future 
contracts.
    Question 10. Does the Forest Service have a process in place to 
make sure that a contractor is not using H2B workers in places not 
listed on the relevant itinerary that the Department of Labor approves?
    Answer. As part of the award process, the contractor must provide 
written verification that he is authorized by the Department of Labor 
to hire H2B workers. This authorization would indicate the specific 
location in which the H2B workers could be employed and this would have 
to be consistent with the location of the project.
    Question 11. The Forest Service contracts require contractors to 
comply with the Department of Labor's vehicle safety standards, but 
those standards do not require seatbelts and they do not address 
transportation of the equipment, for example. Absent improvements in 
the Department of Labor's regulations, shouldn't the Forest Service 
require contractors to meet specific vehicle safety and transportation 
standards that address the unique risks involved in transporting crews 
for reforestation and restoration projects?
    Answer. The Forest Service has the authority to include these 
vehicle safety requirements in the technical specifications of the 
contract. Our new contract provisions do precisely what the Committee 
suggested by this question.
    Question 12a. The witnesses included in their testimony a number of 
recommendations to address the problems addressed in the hearings, 
which are paraphrased below. Please respond to each recommendation, 
including whether you support the recommendation or have specific 
concerns with it.
    The agency should convene, through the National Partnership Office, 
a series of meetings with workers, contractors, rural community 
organizations, contracting officers, and other relevant federal staff 
to develop concrete ways to implement changes in the procurement system 
to help avoid creating an underclass of forest workers and create a 
legitimate industry.
    Answer. The FS convened an oversight group for this purpose on 
March 22, 2006 and is in the process of developing membership of 
working groups, procedures, and goals and objectives. We will continue 
to implement this suggestion.
    Question 12b. The Forest Service should automatically disqualify 
bids that are 20% or lower than its estimate.
    Answer. The GAO has clearly established that the FS cannot 
arbitrarily establish some percent below which award will not be made. 
We will however ensure that all minimum Service Contract Act (SCA), 
Occupational Safety and Health Act (OSHA), and Migrant and Seasonal 
Agricultural Worker Protection Act (MSPA) requirements can be complied 
with at the price offered as a minimum.
    Question 12c. Contracting officer's representatives and inspectors 
should be required to record worker-days and hours.
    Answer. It would not be feasible or appropriate for contracting 
officer's representatives or inspectors to record worker-days and hours 
at each worksite given the dispersion and remoteness of the sites. 
Establishing this requirement would unnecessarily duplicate a current 
SCA requirement applicable to the contractor. Moreover, MSPA requires 
contractors to provide payroll records to the Forest Service.
    Question 12d. The agency should explore using a system like the 
Davis-Bacon certified payroll to increase compliance.
    Answer. The SCA requires contractors to keep the same payroll 
records as Davis-Bacon. Moreover, MSPA requires contractors to provide 
payroll records to the Forest Service.
    Question 12e. Procurement contracts should be packaged for long 
duration employment--multiple months or seasons and multi-skill sets. 
Contracts should provide business and employment for fewer workers over 
longer periods of time.
    Answer. The oversight group established in March will be looking at 
ways to implement this recommendation.
    Question 12f. There should be Notification of Lodging & Food 
facilities for foreign guest worker companies.
    Answer. This is accomplished during the pre-work meeting.
    Question 12g. There should be Notification of Work Schedule and the 
Work Area to COR daily to be able to track and catch non-compliant 
companies.
    Answser. This is accomplished during the pre-work meeting.
    Question 12h. Defined work hours should be negotiated with the 
Forest Service CO or COR (i.e.: daily start time, weekend/holiday 
exemptions).
    Answer. This is accomplished during the pre-work meeting.
    Question 12i. The agency should verb employee identification and 
work visas with existing databases that are being implemented by the 
Forest Service for its wildfire suppression program.
    Answer. The Department of Homeland Security and, to a lesser 
extent, the Department of Labor each has responsibilities related to 
employers verifying that employees are eligible to work in the US. The 
FS database tracks violations. The Agency works with the other agencies 
to ensure contractors are certified to utilize H2B workers. The FS fire 
databases do not track work visa status of contracted employees.
    Question 12j. The agency should verify that contractors have 
appropriate insurance coverage.
    Answer. This is accomplished during the pre-work meeting.
    Question 12k. Agency Law Enforcement Officers should be cross-
trained by DHS and DOL to perform spot checks.
    Answer. DOL is working with FS to make informational materials and 
training on OSHA and WHD requirements available to FS contracting 
officers.
    Question 12l. The Department of Labor, Forest Service, and 
BLMshould create a joint task force to report to Congress on the 
agencies' efforts to address the problems discussed at the hearing.
    Answer. The Forest Service and DOL are working together closely in 
areas of training, monitoring and inspection, and referrals for 
enforcement.
    Question 12m. The agency should create an ombudsman who can 
investigate concerns of workers, contractors, citizens, and agency 
staff about labor and safety violations.
    Answer. Rather than create another role and process we feel we now 
adequately have addressed violations of labor laws and safety 
requirements.

                                    

      
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