[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]



     IS OSHA UNDERMINING STATE EFFORTS TO PROMOTE WORKPLACE SAFETY?

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE

                     U.S. House of Representatives

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JUNE 16, 2011

                               __________

                           Serial No. 112-29

                               __________

  Printed for the use of the Committee on Education and the Workforce









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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN KLINE, Minnesota, Chairman

Thomas E. Petri, Wisconsin           George Miller, California,
Howard P. ``Buck'' McKeon,             Senior Democratic Member
    California                       Dale E. Kildee, Michigan
Judy Biggert, Illinois               Donald M. Payne, New Jersey
Todd Russell Platts, Pennsylvania    Robert E. Andrews, New Jersey
Joe Wilson, South Carolina           Robert C. ``Bobby'' Scott, 
Virginia Foxx, North Carolina            Virginia
Bob Goodlatte, Virginia              Lynn C. Woolsey, California
Duncan Hunter, California            Ruben Hinojosa, Texas
David P. Roe, Tennessee              Carolyn McCarthy, New York
Glenn Thompson, Pennsylvania         John F. Tierney, Massachusetts
Tim Walberg, Michigan                Dennis J. Kucinich, Ohio
Scott DesJarlais, Tennessee          David Wu, Oregon
Richard L. Hanna, New York           Rush D. Holt, New Jersey
Todd Rokita, Indiana                 Susan A. Davis, California
Larry Bucshon, Indiana               Raul M. Grijalva, Arizona
Trey Gowdy, South Carolina           Timothy H. Bishop, New York
Lou Barletta, Pennsylvania           David Loebsack, Iowa
Kristi L. Noem, South Dakota         Mazie K. Hirono, Hawaii
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania

                      Barrett Karr, Staff Director
                 Jody Calemine, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                    TIM WALBERG, Michigan, Chairman

John Kline, Minnesota                Lynn C. Woolsey, California, 
Bob Goodlatte, Virginia                  Ranking
Todd Rokita, Indiana                 Donald M. Payne, New Jersey
Larry Bucshon, Indiana               Dennis J. Kucinich, Ohio
Trey Gowdy, South Carolina           Timothy H. Bishop, New York
Kristi L. Noem, South Dakota         Mazie K. Hirono, Hawaii
Dennis A. Ross, Florida              George Miller, California
Mike Kelly, Pennsylvania











                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 16, 2011....................................     1

Statement of Members:
    Walberg, Hon. Tim, Chairman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     3
    Woolsey, Hon. Lynn, ranking minority member, Subcommittee on 
      Workforce Protections......................................     4
        Prepared statement of....................................     9

Statement of Witnesses:
    Beauregard, Kevin, chair, Occupational Safety and Health 
      State Plan Association (OSHSPA)............................    31
        Prepared statement of....................................    33
    Frumin, Eric, health and safety director, Change to Win......    22
        Prepared statement of....................................    24
    Gerstenberger, Peter, senior advisor for safety compliance 
      and standards, the Tree Care Industry Association..........    16
        Prepared statement of....................................    18
    Lewis, Elliot P., Assistant Inspector General for Audit, 
      Office of Inspector General, U.S. Department of Labor......    12
        Prepared statement of....................................    13

Additional Submissions:
    Mr. Beauregard:
        Letter, dated October 12, 2010, from Hon. David Michaels, 
          Ph.D., MPH, Assistant Secretary, Occupational Safety 
          and Health Administration, U.S. Department of Labor....    70
        Table, ``FY 2010 Inspection Activity''...................    73
        Press release, dated September 28, 2010..................    74
        Letter, dated May 13, 2011, to Mr. Michaels..............    75
        Chart, ``Federal OSHA and State Plan Funding FY2001-
          FY2011''...............................................    77
    Chairman Walberg:
        Letter, dated May 31, 2011, from Mr. Michaels............    58
        Questions submitted for the record.......................    78
        Response to questions submitted for the record...........    80
    Ms. Woolsey:
        Letter, dated June 14, 2011, from Ellen Widess, chief, 
          California OSHA........................................     5
        ``Performance Measurement and Management at DOL and 
          Within OSHA''..........................................    52
        Letter, dated June 15, 2011, from Michael A. Silverstein, 
          M.D....................................................    54
        Letter, dated May 31, 2011, from Mr. Michaels............    58
        Table, ``Federal to State 100% Match Awards--FY 2009-
          2011''.................................................    61
        Michaels, Hon. David, Ph.D., MPH, Assistant Secretary, 
          Occupational Safety and Health Administration, U.S. 
          Department of Labor, post hearing comments.............    62
        SHARP technical report, dated May 2011...................    64

 
                   IS OSHA UNDERMINING STATE EFFORTS
                      TO PROMOTE WORKPLACE SAFETY?

                              ----------                              


                        Thursday, June 16, 2011

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 10:05 a.m., in 
room 2175, Rayburn House Office Building, Hon. Tim Walberg 
[chairman of the subcommittee] presiding.
    Present: Representatives Walberg, Kline, Bucshon, Gowdy, 
Ross, Woolsey, and Payne.
    Staff present: Katherine Bathgate, Press Assistant/New 
Media Coordinator; Casey Buboltz, Coalitions and Member 
Services Coordinator; Ed Gilroy, Director of Workforce Policy; 
Benjamin Hoog, Legislative Assistant; Ryan Kearney, Legislative 
Assistant; Donald McIntosh, Professional Staff Member; Brian 
Newell, Deputy Communications Director; Krisann Pearce, General 
Counsel; Molly McLaughlin Salmi, Deputy Director of Workforce 
Policy; Linda Stevens, Chief Clerk/Assistant to the General 
Counsel; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, 
Professional Staff Member; Joseph Wheeler, Professional Staff 
Member; Kate Ahlgren, Investigative Counsel; Aaron Albright, 
Minority Communications Director for Labor; Kate Ahlgren, 
Minority Investigative Counsel; Tylease Alli, Minority Clerk; 
Daniel Brown, Minority Junior Legislative Assistant; Brian 
Levin, Minority New Media Press Assistant; Richard Miller, 
Minority Senior Labor Policy Advisor; Megan O'Reilly, Minority 
General Counsel; and Julie Peller, Minority Deputy Staff 
Director.
    Chairman Walberg. Good morning. A quorum being present, the 
committee will come to order.
    As I look around I see the leadership team here, all here. 
That means that didn't overindulge at the president's party 
last night.
    We can't say that about the rest of the people necessarily. 
But I hope not. Though all the cotton candy I had, I shouldn't 
be here either, I guess.
    I don't know how to control myself at a county fair. But it 
was a nice evening, and I am glad we can get back to work today 
though.
    I would like to welcome our guests, and thank our witnesses 
for sharing their thoughts and expertise on workplace safety 
with this subcommittee.
    This week's explosion at a chemical plant in southern 
Louisiana reminds us the cause of worker safety requires 
consistent vigilance. We are deeply grateful workers were not 
injured in the accident. And we hope its cause will quickly be 
determined so future incidents can be prevented.
    The Louisiana accident also underscores the diverse safety 
needs of our workforce. Certain jobs pose unique hazards and 
require different safety standards, demonstrating once again 
the need for federal policies that provide certainty and 
flexibility to our workplaces.
    The needs and priorities of businesses in my home state of 
Michigan may be very different than those in Washington, 
Tennessee, and Vermont or California. Job creators and workers 
in rural communities may face different challenges than the 
neighbors located in the nation's cities.
    Rules and regulations handed down by Washington must 
reflect this important reality. And that is why state 
occupational safety and health programs are so important.
    For more than 40 years, federal law has allowed states to 
assume responsibility for the health and safety of its 
workplaces. State plans are approved and monitored by the 
federal Occupational Safety and Health Administration.
    Today, 27 states and territories administer workplace 
safety programs and the results of their efforts are 
remarkable. According to the Occupational Safety and Health 
State Plan Association, participating states conducted more 
than 61,000 inspections and identified an estimated 130,000 
workplace safety violations.
    When compared to the federal safety program, state plans 
generally lead to more workplace inspections and result in more 
innovative safety solutions.
    State plans are not without faults or weaknesses, however. 
They strive to promote the best protections for their workers 
and abide by the federal requirements that they be at least as 
effective as federal safety standards.
    Unfortunately as is far too often the case with federal 
law, this catchy phrase has led to great confusion and 
frustration.
    As a report by the Department of Labor's inspector general 
illustrates, defining an effective plan has proven a difficult 
task for OSHA. In fact, the IG report found OSHA has not even 
evaluated its own enforcement program, which raises the 
question of how it could possibly measure the efficacy of state 
efforts.
    In recent years, OSHA has stepped up to its scrutiny of 
state plans. And in many ways, this is welcomed.
    We want to ensure every safety program is producing results 
and protecting workers. However, OSHA has not experienced the 
same level of scrutiny, which is why I will be asking the 
Government Accountability Office to conduct a comprehensive 
review of OSHA's enforcement program using the same standards 
of success OSHA used to evaluate state plans.
    As OSHA's scrutiny of the program has increased, so has the 
administration's demands. The hallmark of the program's success 
is its ability to easily adapt to the ever-changing needs of 
local workplaces.
    Dictating from Washington, D.C. what the workforce safety 
priorities should be for Sacramento, California, or Concord, 
New Hampshire will further drain scarce resources and undermine 
the success of these state efforts to protect workers.
    As the IG report states, and I quote--``OSHA required 
states to make program changes, but did not explain how the 
changes would improve effectiveness.''
    This makes little sense. Especially at a time when the 
federal government has failed to accurately determine the 
success of its own worker safety program.
    In conclusion, let me say that budgeting is about setting 
priorities. And we all know these are tough fiscal times.
    In recent years, Congress has short-changed the states, 
failing to meet its commitment to fully fund this program. The 
fault lies on both sides of the aisle. Working together, I am 
sure we can find waste and inefficiencies in the Department of 
Labor's budget that will help get our nation's fiscal house in 
order and strengthen our support for this program.
    Rather than undermining the success of state workplace 
safety, our goal as policy-makers should be to improve these 
important initiatives and encourage more states to take on the 
responsibility.
    If we do this, federal taxpayers will get a better return 
on their investment. But more importantly, workers will be 
better protected.
    I look forward to working with my colleagues on ways to 
strengthen state workplace safety programs.
    I would now like to recognize the ranking member, Ms. 
Woolsey, the senior democrat on the subcommittee, for her 
opening remarks.
    [The statement of Mr. Walberg follows:]

           Prepared Statement of Hon. Tim Walberg, Chairman,
                 Subcommittee on Workforce Protections

    Good morning. I would like to welcome our guests, and thank our 
witnesses for sharing their thoughts and expertise on workplace safety 
with the subcommittee. This week's explosion at a chemical plant in 
southern Louisiana reminds us the cause of worker safety requires 
constant vigilance. We are deeply grateful workers were not injured in 
the accident, and we hope its cause will be quickly determined so 
future incidents can be prevented.
    The Louisiana accident also underscores the diverse safety needs of 
our workforce. Certain jobs pose unique hazards and require different 
safety standards, demonstrating once again the need for federal 
policies that provide certainty and flexibility to our workplaces. The 
needs and priorities of businesses in my home state of Michigan may be 
very different than those in Washington, Tennessee, and Vermont. Jobs 
creators and workers in rural communities may face different challenges 
than their neighbors located in the nation's cities. Rules and 
regulations handed down by Washington must reflect this important 
reality.
    That is why state occupational safety and health programs are so 
important. For more than 40 years, federal law has allowed states to 
assume responsibility for the health and safety of its workplaces. 
State plans are approved and monitored by the federal Occupational 
Safety and Health Administration.
    Today, 27 states and territories administer workplace safety 
programs and the results of their efforts are remarkable. According to 
the Occupational Safety and Health State Plan Association, 
participating states conducted more than 61,000 inspections and 
identified an estimated 130,000 workplace safety violations. When 
compared to the federal safety program, state plans generally lead to 
more workplace inspections and result in more innovative safety 
solutions. State plans are not without faults or weaknesses; however, 
they strive to promote the best protections for their workers and abide 
by the federal requirement that they be ``at least as effective'' as 
federal safety standards.
    Unfortunately, as is far too often the case with federal law, this 
catchy phrase has led to great confusion and frustration. As a report 
by the Department of Labor's Inspector General illustrates, defining an 
effective plan has proven a difficult task for OSHA. In fact, the IG 
report found OSHA has not even evaluated its own enforcement program, 
which raises the question of how it could possibly measure the efficacy 
of state efforts.
    In recent years, OSHA has stepped up its scrutiny of state plans, 
and in many ways, this is welcomed. We want to ensure every safety 
program is producing results and protecting workers. However, OSHA has 
not experienced this same level of scrutiny, which is why I will be 
asking the Government Accountability Office to conduct a comprehensive 
review of OSHA's enforcement program using the same standards of 
success OSHA uses to evaluate state plans.
    As OSHA's scrutiny of the program has increased, so has the 
administration's demands. The hallmark of the program's success is its 
ability to easily adapt to the ever changing needs of local workplaces. 
Dictating from Washington D.C. what the workforce safety priorities 
should be for Sacramento, California, or Concord, New Hampshire, will 
further drain scarce resources and undermine the success of these state 
efforts to protect workers. As the IG report states, ``OSHA required 
states to make program changes, but did not explain how the changes 
would improve effectiveness.'' This makes little sense, especially at a 
time when the federal government has failed to accurately determine the 
success of its own worker safety program.
    In conclusion, let me say that budgeting is about setting 
priorities and we all know these are tough fiscal times. In recent 
years Congress has short-changed the states, failing to meet its 
commitment to fully fund this program. The fault lies on both sides of 
the aisle. Working together, I am sure we can find waste and 
inefficiencies in the Department of Labor's budget that will help get 
our nation's fiscal house in order and strengthen our support of this 
program.
    Rather than undermining the success of state workplace safety, our 
goal as policymakers should be to improve these important initiatives 
and encourage more states to take on this responsibility. If we do, 
federal taxpayers will get a better return on their investment, but 
more importantly, workers will be better protected.
    I look forward to working with my colleagues on ways to strengthen 
state workplace safety programs. I would now like to recognize Ms. 
Woolsey, the senior Democrat of the subcommittee, for her opening 
remarks.
                                 ______
                                 
    Ms. Woolsey. Thank you, Mr. Chairman.
    I truly appreciate the interest that this committee has in 
providing oversight of the agencies within our jurisdiction 
including OSHA.
    However, I am disappointed that the majority failed to 
invite OSHA, or schedule this hearing with sufficient advance 
notice so that they could be available to present their views 
on state plans, and the inspector general's report.
    Since this is the second hearing focused on OSHA, it would 
seem timely to invite Assistant Secretary Michaels to inform us 
on OSHA's initiatives, and also, Mr. Chairman, to allow him to 
respond to your concerns.
    Many states have advised us that they work well with OSHA, 
as they provide valued guidance and budget support. OSHA's 
oversight also identifies states that fail to adequately 
protect their workers.
    For instance, OSHA's reviews have found that South Carolina 
and Oregon have serious weaknesses. Their average penalties for 
serious violations are less than $300. That is 70 percent below 
the national average of $1,000, and does little to deter the 
kind of violations that could cause serious injury or death.
    OSHA also found significant weaknesses in my state of 
California. They found that the state's workforce safety plan 
impaired enforcement. In response, the legislature in 
California enacted, and the governor signed, corrective 
legislation.
    I would ask, by the way, unanimous consent to submit for 
the record, a letter that I received from Ellen Widess, the 
chief of Cal/OSHA, that is in strong support of the partnership 
between federal OSHA and the California State OSHA Plan.
    I would be lax in not noting that this is the largest state 
OSHA program in the country.
    And here is the letter.
    [The information follows:]
    
    
    
                                ------                                

    Chairman Walberg. Without objection, it will be included. 
There is no objection.
    Ms. Woolsey. Thank you.
    In 2009, OSHA commenced a review of the Nevada State Plan, 
after 25 workplace related deaths occurred over an 18-month 
period.
    It found that Nevada's inspectors were inadequately 
trained. And that the state had actively discouraged inspectors 
from issuing willful and repeat violations in fatality cases.
    Since then, Mr. Chairman, OSHA has completed in-depth 
reviews of 25 state OSHA programs, which hasn't happened since 
1991, following the deaths of 25 workers trapped in a fire at 
Imperial Food plants in North Carolina. As you commented, these 
are positive developments that the committee should be 
supporting.
    The Inspector General recently issued recommendations that 
it said would improve OSHA's evaluations of state workplace 
safety programs to better determine their effectiveness.
    On May 31st, OSHA provided a detailed written response to 
the IG report that outlines the steps OSHA is taking to develop 
effectiveness measures. OSHA stated that it will also continue 
to rely upon its existing activity measures to ensure that 
state plans are operating effectively and fulfilling federal 
grant requirements.
    Unfortunately, the work OSHA is doing to improve its state 
review program is in jeopardy because the majority's budget 
cuts funding for OSHA by 23 percent. Grants for state plans 
will be cut by $25 million from the request of $105 million.
    If this budget is approved for fiscal year 2012, OSHA will 
be really up a tree without a paddle. No it is----
    Chairman Walberg. Whatever you do in California.
    Ms. Woolsey. Yes, I think I was putting two things together 
here.
    But so, Ranking Miller and I recently asked GAO to assess 
the impacts of proposed budget cuts on the ability of state 
plans to carry out their mission, and whether some state plans 
may be forced to simply close down and turn their program back 
to federal OSHA.
    I also look forward to hearing from our witnesses--this is 
a great group--whether these cuts will undermine states' 
efforts to promote worker safety.
    So, Mr. Chairman, incredibly 4,551 workers were killed on 
the job last year alone. That is an average of 12 workers 
killed each day.
    Worker safety and health should not be a partisan political 
issue. And I look forward to working with you to ensure that 
we, and this committee, can make a better future for our 
workers.
    [The statement of Ms. Woolsey follows:]

  Prepared Statement of Hon. Lynn C. Woolsey, Ranking Minority Member,
                 Subcommittee on Workforce Protections

    Mr. Chairman, I appreciate the interest that this committee has in 
providing oversight of the agencies within its jurisdiction, including 
OSHA. However, I'm particularly disappointed that the majority failed 
to invite OSHA, or schedule this hearing with sufficient advance notice 
so that OSHA could be available to present its views on state plans and 
the Inspector General's report. While this is the second hearing 
focused on OSHA, it would seem timely to invite Assistant Secretary 
Michaels to inform us on OSHA's initiatives.
    Many states have advised us that they work well with OSHA, as they 
provide valued guidance and budget support. OSHA's oversight also 
identifies states that fail to adequately protect their workers. For 
instance, OSHA's reviews have found that South Carolina and Oregon have 
serious weaknesses. Their average penalties for serious violations are 
less than $300. That is 70 percent below the national average of 
$1,000, and does little to deter the kind of violations that could 
cause serious injury or death.
    OSHA also found significant weaknesses in California's state 
workforce safety plan that impaired enforcement; in response, the 
legislature enacted and the Governor signed corrective legislation. I 
would ask unanimous consent to submit for the record, a letter I 
received from Ellen Widess, the Chief of CalOSHA that is in strong 
support of a strong partnership between federal OSHA and the California 
State plan. I would note this is the largest state OSHA Program in the 
country.
    In 2009, OSHA commenced a review of the Nevada State Plan after 25 
workplace related deaths occurred over an 18-month period. It found 
that Nevada's inspectors were inadequately trained and that the state 
had actively discouraged inspectors from issuing willful and repeat 
violations in fatality cases.
    Since then, OSHA has completed in-depth reviews of 25 state OSHA 
programs, which hasn't happened since 1991, following the deaths of 25 
workers trapped in a fire at the Imperial Foods plant in North 
Carolina. These are positive developments that the committee should be 
supporting.
    The Inspector General recently issued recommendations that it said 
would improve OSHA's evaluations of state workplace safety programs to 
better determine their effectiveness. On May 31, OSHA provided a 
detailed written response to the IG report that outlines the steps it 
is taking to develop ``effectiveness'' measures. OSHA stated that it 
will also continue to rely upon its existing ``activity'' measures to 
ensure that State Plans are operating effectively and fulfilling 
federal grant requirements.
    Unfortunately, the work OSHA is doing to improve its state review 
program is in jeopardy because the majority's budget cuts funding for 
OSHA by 23 percent. Grants for state plans will be cut by $25 million 
from the request of $105 million, if this budget is approved for Fiscal 
Year 2012.
    Ranking Member Miller and I recently asked GAO to assess the 
impacts of proposed budget cuts on the ability of state plans to carry 
out their mission, and whether some state plans may be forced to simply 
close down and turn their program back to Federal OSHA.
    I also look forward to hearing from our witnesses whether these 
cuts will undermine states' efforts to promote worker safety.
    Mr. Chairman, incredibly, 4,551 workers were killed on the job last 
year. That is an average of 12 workers killed each day. Worker safety 
and health should not be a partisan political issue. I think we can do 
better in future Subcommittee hearings to assure that they are 
informative and balanced. Thank you.
                                 ______
                                 
    Chairman Walberg. I thank the gentlelady.
    And I would suggest that we should change that to up a tree 
without a noose. That is all I care about.
    OSHA, in reference to OSHA being here or not, OSHA did 
respond to the IG report back on May 31st. It is a matter of 
our record.
    They responded extensively to that. There was 7 days 
notice, which is within the committee rules for this hearing. 
And the minority is and was always able to call OSHA, and would 
certainly give that opportunity again.
    Ms. Woolsey. So would the gentleman yield on that 7 day----
    Chairman Walberg. I would yield.
    Ms. Woolsey. I know you did what the committee is expected 
to do under the rules.
    But the department, the Labor Department, has their own 
rule that in order to prepare adequately and do a good job when 
they come before the Congress, they really ask for 14 days 
notice.
    And we know that. We can do that.
    Chairman Walberg. We will do our best.
    But I am delighted we have witnesses here today that I 
think are a great panel for us to hear from.
    So pursuant to committee Rule 7C, all members will be 
permitted to submit written statements to be included in the 
permanent hearing record.
    And without objection, the hearing record will remain open 
for 14 days to allow questions for the record, statements, and 
extraneous material referenced during the hearing to be 
submitted for the official hearing record.
    It is now my pleasure to introduce our distinguished panel 
of witnesses.
    Elliot Lewis is the assistant inspector general for audits 
with the U.S. Department of Labor's Office of Inspector 
General.
    Mr. Lewis has been with the Office of Inspector General 
since 1991 serving in a variety of positions within the Office 
of Financial Management Audits.
    Before joining the federal government, Mr. Lewis was a 
partner at T.R. McConnell & Company, an accounting firm in 
Columbia, South Carolina.
    Mr. Lewis holds an undergraduate degree in accounting from 
the University of South Carolina.
    Thank you for being here.
    Peter Gerstenberger is a senior--and I hope I didn't 
destroy that name--a senior advisor for safety, compliance and 
standards at the Tree Care Industry Association, located in 
Londonderry, New Hampshire.
    At TCIA, Mr. Gerstenberger has produced safety training 
curriculum, training videos, and participated in national 
recognized standard setting initiatives nationwide.
    Mr. Gerstenberger holds a Bachelor of Science in biology 
from Grinnell College, and a Master's of Science from Iowa 
State University.
    Welcome.
    Eric Frumin is director of health and safety with Change to 
Win. Mr. Frumin is a leading National Trade Union spokesperson 
on issues of job safety, health, and disability, including 
OSHA's standard setting and enforcement, and occupational 
disease, and injury surveillance.
    Mr. Frumin has advised trade and unionists and governments 
in Asia, Africa, and Central and South America, and the U.N. 
Commission on Sustainable Development on health, safety, and 
environmental issues.
    Thanks for being here.
    And then, Kevin Beauregard is assistant deputy commissioner 
and assistant director, Occupational Safety and Health Division 
of the North Carolina Division of Occupational Safety and 
Health.
    Mr. Beauregard has been with North Carolina's occupational 
Safety and Health OSH division for the last 20 years, where he 
has held a variety of positions including safety compliance 
officer.
    Mr. Beauregard is a board certified safety professional, 
and certified public manager, and holds a Bachelor of Science 
in industrial technology from the University of Maryland.
    Mr. Beauregard is testifying on behalf of the Occupational 
Safety and Health State Plan Association.
    Before I recognize each of you to provide your testimony, 
let me briefly explain our lighting system which works with the 
stop lights in our republic.
    When you begin with, the light in front of you will turn 
green. When 1 minute is left, the light will turn yellow. And 
when your time is expired, the light will turn red, at which 
point I would ask you to wrap up as quickly as possible. Well, 
more than quickly as possible.
    We have votes that are coming here, and so we want to get 
this hearing in, and have opportunity for question from the 
panel--or from the committee to the panel as well.
    So I will try to work at being much more committed to 
keeping the time today for myself included.
    After everyone has testified, members will each have 5 
minutes to ask questions of the panel.
    And so, let us begin first of all with Mr. Lewis.

 STATEMENT OF ELLIOT P. LEWIS, ASSISTANT INSPECTOR GENERAL FOR 
 AUDIT, U.S. DEPARTMENT OF LABOR'S OFFICE OF INSPECTOR GENERAL

    Mr. Lewis. Mr. Chairman, members of the subcommittee, thank 
you for the opportunity to discuss the OIG's audit of OSHA's 
oversight of state plan programs.
    Protecting the health and safety of our nation's workers is 
one of the department's most important responsibilities. Under 
Section 18 of the Occupational Safety and Health Act, OSHA is 
responsible for ensuring that state plans are at least as 
effective as the federal program.
    Currently, 27 states and territories have been approved by 
federal OSHA to operate their own workers safety and health 
programs. Once OSHA approves a plan, the state assumes full 
responsibility for operating its safety and health program. 
However, OSHA remains responsible for ensuring that the state 
complies with the act.
    Mr. Chairman, our audit was conducted to determine whether 
OSHA ensured that state safety and health programs were at 
least as effective as the federal program. We concluded that 
increased accountability is needed at both the federal and 
state level, because neither OSHA nor the states have outcome-
based performance metrics to measure the effectiveness of their 
programs.
    As part of our audit, we surveyed all 27 state plans, as 
well as obtained information from OSHA national and regional 
officials.
    The survey of state plans found that all of the states 
believe that operating their own safety and health program 
allows for more flexibility in response to specific needs of 
the workplaces in their state. And 78 percent believe that 
their programs are more comprehensive than federal OSHA.
    Generally states believe their programs were effective 
based on their comprehensive knowledge of local employers. 
However as with OSHA, none of the states provided us with 
information to show that they have established the cause or 
relationship between their activities and reductions in 
injuries and illness.
    In monitoring state plans, OSHA reviews output data such as 
inspection counts, penalty amounts, measures for timeliness and 
completion of inspections, violation classification, timely 
adoption of standards.
    While these output measures may be appropriate, they do not 
necessarily measure the effect of these actions on actually 
achieving safety and health improvements. Effectiveness 
measures are needed to this end. In fact, 63 percent of states 
surveyed said that measures need to be more outcome rather than 
output-based.
    States voiced other concerns with OSHA's oversight of state 
plans. Forty-eight percent said that monitoring needs 
improvement with respect to consistency and communication.
    Most states believe that there is a moving target for what 
is expected of them, especially when there is a change of 
administration which results in a lack of clear expectations.
    Finally though, although 75 percent believe that 
recommendations made by OSHA were feasible, states did not 
always believe that the changes would result in improvements.
    Mr. Chairman, our audit found that OSHA has not defined 
effectiveness for health and safety programs whether they are 
operated by the states or at the federal level. This not only 
limits OSHA's ability to ensure its own program operates in an 
effective manner, but it also limits OSHA's ability to 
determine whether state plans are at least as effective as 
OSHA.
    Our audit recommended that OSHA define, measure, and 
monitor effectiveness. We recognize that defining and measuring 
effectiveness is difficult to do.
    However in order to meet the act's requirements, ensure 
that programs are having the greatest impact, and demonstrate 
the value of safety and health strategies, effectiveness must 
be defined and measured.
    We are pleased to note that OSHA recognizes the need to 
improve effectiveness measures and is already taking action to 
this end. OSHA has formed a task force with state plan 
representatives, and is working to define effectiveness.
    OSHA also stated that it is developing impact measures for 
both itself and the states. In addition, OSHA is conducting a 
multiyear study of 80,000 highest risk employers to determine 
how OSHA's interventions impact injury and illness outcome.
    The OIG believes that OSHA should continue working with the 
federal state task force to determine how effectiveness can be 
measured.
    In addition, OSHA may want to consider evaluating states 
with model plans to identify best practices that have resulted 
in successful program outcomes for possible implementation on a 
wider scale, and developing and pilot testing metrics in 
several states to see whether they actually measure safety and 
health program outcomes rather than outputs.
    In conclusion, Mr. Chairman, we believe there is room for 
greater accountability at the federal and state level in 
demonstrating the impact of safety and health programs funded 
by the taxpayers.
    Current program evaluation should be augmented with 
outcome-based performance measures. In our opinion, it is 
critical to measure the impact of specific program strategies 
on protecting the safety and health of our nation's workers 
regardless of whether a program is operated by the state or the 
federal government.
    Thank you for the opportunity to testify on our work. I 
would be pleased to answer any questions that you or any 
members of the subcommittee may have.
    [The statement of Mr. Lewis follows:]

Prepared Statement of Elliot P. Lewis, Assistant Inspector General for 
      Audit, Office of Inspector General, U.S. Department of Labor

    Good morning, Mr. Chairman and Members of the Subcommittee, I 
appreciate the opportunity to discuss our recent report on the 
Occupational Safety and Health Administration's (OSHA) monitoring of 
State Plan programs. As you know, the Office of Inspector General (OIG) 
is an independent entity within the Department of Labor (DOL); 
therefore, the views expressed in my testimony are based on the 
findings and recommendations of my office's work and not intended to 
reflect the Department's position.
Background
    Protecting the health and safety of our nation's workers is one of 
the most important responsibilities of the Department. The Occupational 
Safety and Health Act (OSH Act) of 1970 provides the mandate for OSHA 
to ensure the safe and healthy working conditions for working men and 
women by: setting and enforcing standards; providing training, 
outreach, and education; and encouraging continuous improvement in 
workplace safety and health. With few exceptions, the OSH Act covers 
most private sector employers and their employees in the 50 states and 
six territories, either directly through Federal OSHA or through an 
OSHA-approved state safety and health plan.
    Currently, 27 states and territories have been approved by Federal 
OSHA to operate their own worker safety and health programs. The OSH 
Act also authorizes OSHA to provide funding through Federal grants for 
up to 50 percent of state operational costs. In FY 2010, states were 
granted $104 million to develop and operate State Plans.
    Under Section 18 (c)(2) of the OSH Act, Federal OSHA is responsible 
for ensuring that State Plans are at least as effective as Federal 
OSHA. Once OSHA approves a plan, the state assumes full responsibility 
for operating its occupational safety and health program. However, 
Federal OSHA remains responsible for ensuring that the state complies 
with the OSH Act and may revoke approval of the State Plan if it does 
not.
    Mr. Chairman, our audit was conducted to determine whether OSHA 
ensured that safety and health programs operated under State Plans were 
at least as effective as the Federal OSHA program, as required by law. 
We concluded that increased accountability is needed at both the 
Federal and state level, because neither Federal OSHA nor the states 
have outcomes-based performance metrics to measure and demonstrate the 
causal effect of their programs on the safety and health of workers.
Audit Findings
    As part of our audit, we surveyed all 27 State Plans. We found that 
states generally believed their programs were effective. This belief 
was often based on their comprehensive knowledge of local employers. 
Many states indicated that they have created unique safety and health 
initiatives that reduce the number of workplace fatalities, injuries, 
and illnesses. States measure their own performance by measuring 
changes in the number of worker injuries and illnesses. However, as 
with the Federal OSHA, none of the states provided us with information 
to show that they have established a causal relationship between their 
activities and reductions in injuries and illnesses. It is important to 
consider that these rates can be impacted by external factors. These 
include economic conditions in the states, such as levels of employment 
and changes in the mix of industries.
    All of the states believe that operating their own safety and 
health programs allows for more flexibility in response to specific 
needs of the workplace in their state. We found that 78 percent (21 of 
27) of states also believe that their programs are more comprehensive 
than Federal OSHA. For example, 19 states believe that their health and 
safety standards exceed OSHA's regarding permissible exposure limits 
for hazardous substances. Further, all 27 states indicated that their 
State Plans had responded more quickly to local needs citing more 
aggressive whistleblower deadlines, more timely review of contested 
cases, and faster adoption of standards.
    Our survey found 75 percent of the states (20 of 27) believed that 
recommendations made by OSHA Federal monitors were usually feasible or 
very feasible. However, the states did not always agree that program 
changes required by OSHA would improve the effectiveness of their 
programs. One example they cited was OSHA's change to its penalty 
structure, which would significantly increase penalty amounts. OSHA 
required states to adopt either the Federal penalty structure or a 
similar one. States were reluctant to adopt this Federal policy, 
indicating that OSHA has not explained how higher penalties would 
result in more effective enforcement.
    In addition, 48 percent (13 of 27) of states believe that OSHA's 
monitoring of their state programs needs improvement, but only 3 (or 11 
percent) believed that a total revamp of OSHA's monitoring is needed. 
Fourteen states responded that OSHA's ``one-size-fits-all'' approach is 
not effective, noting deviations from the Federal program do not equate 
to a state being less effective. Eleven states noted that OSHA needs to 
be more consistent in monitoring and reporting results. Finally, 6 
states mentioned that improved communications are needed between the 
states and Federal OSHA.
    Many states believed that there is a large variance between what 
OSHA requests from them at one point in time to another, especially 
when there are changes in Administration. The survey indicated that 70 
percent (19 of 27) of states expressed concerns that this ``moving 
target'' approach regarding desired program performance resulted in a 
lack of clear expectations.
    Mr. Chairman, we recognize that there will be differences between 
state-run safety and health programs and Federal OSHA. We do not 
disagree that there can be more than one approach to safety; however, 
all programs must ultimately meet the mandate of the OSH Act. 
Effectiveness measures are needed to make this determination. In fact, 
in response to our survey, 63 percent (17 of 27) of states said that 
effectiveness measures need to be re-evaluated and made outcome, rather 
than output-based. A particularly good observation we received was that 
a national dialogue should be initiated to explore how best to measure 
improvements in worker safety and health programs, as opposed to 
measuring outputs such as citations and penalties issued.
    In addition, many states expressed concerns that their programs 
would be impacted by budget cuts. One state noted that its current 
fiscal crisis resulted in furloughs, which impacts their ability to 
meet program goals. Another noted that because of state budget 
reductions, it was unable to accept additional grant funds being 
offered by Federal OSHA to state programs due to the lack of matching 
funds from the state. Many also believed that there is a scarcity of 
qualified staff and a high turnover rate due to a lack of resources to 
fund competitive salaries. This is compounded by state hiring freezes 
that result in vacant positions and a significant decrease in the 
number of inspections, surveys, and other activities. These concerns by 
the states are all the more reason to know whether we are getting the 
most benefit from the resources invested.
    Mr. Chairman, our audit found OSHA has not defined effectiveness 
for health and safety programs, whether operated by the states or 
Federal OSHA. This not only limits OSHA's ability to ensure its own 
program operates in an effective manner but also to determine whether 
State Plans are, or are not, at least as effective as Federal OSHA. 
OSHA reviews individual State Plans by evaluating data such as 
inspection counts, penalty amounts, injury and fatality rate trends, 
measures for timeliness and completion of inspections, violation 
classification, and timely adoption of standards. While these measures 
may be appropriate, they do not necessarily measure the effect of these 
actions on achieving safety and health improvements.
    OSHA has taken steps recently toward improving oversight, but the 
approach continues to focus on State Plan program outputs. As mentioned 
in our audit, OSHA's Enhanced Federal Annual Monitoring and Evaluation 
(EFAME) process requires more on-site monitoring of compliance with 
Federal OSHA program structure and procedures. However, EFAME does not 
measure program effectiveness from an outcomes perspective.
Audit Recommendations
    Our audit contained four recommendations to OSHA. Specifically, we 
recommended that OSHA:
    Define effectiveness in terms of the impact of state programs on 
workplace safety and health.
    Design measures to quantify the impact of State Plans on workplace 
safety and health.
    Measure Federal OSHA program performance to establish a baseline to 
evaluate State Plan effectiveness.
    Revise the monitoring processes to include comparison of the impact 
of state and Federal programs.
OSHA Response
    In response to our audit, OSHA stated that it:
    Intends to continue to use appropriate activity measures to 
evaluate the effectiveness of state programs and ensure that they are 
meeting the requirements for State Plan approval and funding.
    Formed a task force with State Plan representatives and is working 
to define effectiveness and expand its scope to review appropriate 
impact measures.
    Is developing additional impact measures for both Federal OSHA and 
the states.
    Envisions a review of trends and compliance, violations, or 
discrimination rates as measures of impact within in its FY 2011-2016 
Strategic Plan.
    Mr. Chairman, we recognize that defining and measuring 
effectiveness of safety and health programs is difficult to do. 
However, in order to meet the OSH Act requirements that state programs 
be at least as effective as the Federal program, effectiveness must be 
defined and measured.
    OSHA noted in its response to our audit report that it is committed 
to defining and measuring effectiveness. Possible ways OSHA could do 
this include:
    Continuing to work through the Federal/State task force to 
determine how effectiveness can be measured.
    Evaluating states with model plans to identify best practices that 
have resulted in successful program outcomes for possible 
implementation on a wider scale.
    Developing metrics and pilot testing them in several states to see 
whether they are actually measuring safety and health program outcomes 
rather than outputs.
Conclusion
    In conclusion, Mr. Chairman, we believe that there is room for 
greater accountability at the Federal and state levels in demonstrating 
the impact of safety and health programs funded by the taxpayers. We 
believe that current program evaluation should be augmented with 
outcome-based performance measures. In our opinion, it is critical to 
measure the impact of specific program strategies on protecting the 
safety and health of our nation's workers--regardless of whether a 
program is operated by the state or the Federal government.
    Thank you for the opportunity to testify on our work. I would be 
pleased to answer any questions that you or any Members of the 
subcommittee may have.
                                 ______
                                 
    Chairman Walberg. Thank you, Mr. Lewis.
    We now recognize Mr. Gerstenberger.
    Welcome.

    STATEMENT OF PETER GERSTENBERGER, SENIOR ADVISOR TO THE 
   PRESIDENT FOR SAFETY, STANDARDS AND COMPLIANCE, TREE CARE 
                      INDUSTRY ASSOCIATION

    Mr. Gerstenberger. Chairman Walberg, Ranking Member 
Woolsey, and members of the subcommittee, on behalf of the Tree 
Care Industry Association and our 2,000 member companies across 
the United States, we thank you for the opportunity to share 
our experiences with state plans and with federal OSHA.
    My name is Peter Gerstenberger. As the Chairman mentioned, 
I am on the staff of TCIA. Incidentally, prior to 2003, TCIA 
was known as the National Arborist Association or NAA.
    I work with company owners and their employees on safety 
and compliance matters. I am the organization's liaison with 
federal OSHA and with select state plans. I have had the 
privilege of serving this organization for 25 years.
    Our members are companies engaged in commercial and 
residential tree trimming and removal, utility vegetation 
management, landscape maintenance, and related activities.
    Tree care is a high hazard industry. We estimate that our 
industry's fatality rate places us among the top 10, and likely 
among the top five most hazardous occupations in the country.
    Worker safety has been one of the central tenets of TCIA 
since its inception over 70 years ago. We were the original 
Secretariat of the ANSI Z133 Committee, and remain very active 
in the standard-making process.
    We direct the only credentialing program for safety 
professionals within our industry, and produce a wealth of 
bilingual safety training programs.
    Throughout my tenure, I have participated actively as a 
member of ANSI Z133, a standard developed through a consensus 
process by an accredited standards committee representing 
employers and employees, organized labor, equipment 
manufacturers, academia, and other stakeholders.
    And the Z133 standard captures the collective wisdom and 
experience of the entire profession, translating that body of 
knowledge into standards of safe practice.
    The Z133 Committee was first formed in 1969, predating 
OSHA.
    Our efforts have not been limited to our membership and the 
ANSI Committee. We have been fortunate to collaborate with 
federal OSHA as well as several state plan OSHAs. And each 
time, the result was some tangible safety benefit to the 
industry.
    Recently, our work with state plan OSHAs has been 
particularly fruitful. We have worked directly with California, 
Virginia, Maryland and Michigan to adopt more effective 
guidance for tree care operations.
    In the interest of time, I am going to highlight our recent 
experience with Virginia OSHA, comparing and contrasting them 
to our experience with federal OSHA.
    Since 2000, Virginia experienced 47 tree care related 
fatalities which comprised 9 percent of all occupational 
fatalities within the state. Considering the relatively small 
size of the tree care industry in that state, this is a 
disproportionately high number of fatal accidents.
    In 2001, TCIA approached the Virginia Department of Labor 
industry about the possibility of adopting a comprehensive 
regulation addressing tree trimming.
    We requested a regulation based on ANSI Z133 2000. 
Discussions with Virginia resulted in a commitment from the 
industry to make changes to the ANSI standard which culminated 
in the adoption of ANSI Z133 2006.
    On that point, let me digress from the Virginia OSHA story 
to point out that at the same general timeframe, TCIA was also 
having conversations with federal OSHA about wording in the 
Z133 standard for different reasons, but with the same end 
result.
    Z133 was strengthened from a regulatory perspective.
    Virginia OSHA initiated a rulemaking in 2007 with the 
assistance of a work group comprised of private and public 
sector representatives. The final regulation, just adopted 
recently, is based very closely on Z133.
    We submit that the situation in Virginia is a microcosm of 
the situation nationally as far as their industry is concerned.
    What we appreciate about the Virginia situation is that 
they saw high hazard industry where help was needed, and they 
took decisive and relatively swift action.
    Our efforts to engage federal OSHA have in some instances 
produced positive outcomes. For 12 years, our association's 
leadership worked directing with federal OSHA toward the 
promulgation of 29 CFR 1910.269, the Electric Power Generation, 
Transmission and Distribution Standard. Certain parts of the 
vertical standard regulate line clearance tree trimmers.
    The result of that collaboration in our estimation was an 
effective workable standard.
    Unfortunately, not all interactions with federal OSHA have 
resulted in positive outcomes. In that same general timeframe, 
OSHA was separately working on a vertical standard for the 
logging industry.
    And it wasn't until after that rule was promulgated that it 
was determined through letters of interpretation that the 
industry, our industry, should be regulated by that same rule.
    The end result was that absent our ability to have any 
input into that standard, that the resulting standard resulted 
in a very poor fit in terms of regulating our industry, and 
ensued from that was basically a 12-year running battle, verbal 
and legal, with OSHA over the applicability of that standard to 
our industry.
    Now we can't define what effective should mean for the 
committee, but we can certainly point to the aforementioned as 
an example of ineffective.
    Over the years OSHA has repeatedly petitioned and asked 
federal OSHA for a specific standard for our industry. At one 
point in time in 2008, we actually made it as far as being in--
noted as in the advance notice for proposed rulemaking for a 
separate standard.
    But then suddenly and inexplicably, we were dropped from 
the regulatory agenda.
    We rank state plans' effectiveness as measured by the 
receptiveness to either promulgate or revised regulations to 
improve safety in our industry as very good, and by contrast, 
federal OSHA, not quite as effective in that area.
    We have been, and we remain, more than willing to 
participate in further dialogue with OSHA and other 
stakeholders concerning this important measure.
    We thank you for the opportunity to be heard and happy to 
address any questions.
    [The statement of Mr. Gerstenberger follows:]

 Prepared Statement of Peter Gerstenberger, Senior Advisor for Safety 
      Compliance and Standards, the Tree Care Industry Association

    Testimony of Peter Gerstenberger Senior Advisor for Safety 
Compliance and Standards for the Tree Care Industry Association before 
the House Education and the Workforce Committee Subcommittee on 
Workforce Protections June 16, 2011
    Chairman Walberg, Ranking Member Woolsey and Members of the 
Subcommittee, on behalf of the Tree Care Industry Association (TCIA) 
and our approximately 2,000 member companies across the U.S., we thank 
you for the opportunity to testify today about our experiences with 
state plans and federal OSHA.
    My name is Peter Gerstenberger and I am the Senior Advisor for 
Safety, Compliance and Standards for the Tree Care Industry 
Association. I am responsible for the development of TCIA's safety and 
compliance training programs and the association's primary contact with 
company owners and their employees on safety/compliance matters. I also 
act as TCIA's liaison with OSHA and similar state entities and 
regularly work with these agencies in an effort to improve safety 
throughout our industry. I have had the privilege of serving TCIA in 
one capacity or another for more than 25 years. Throughout my tenure, I 
have participated actively as a member of the ANSI Z133 Committee, 
which develops the only consensus safety standard for tree care 
operations.\1\ The Z133 committee was first formed in 1969, pre-dating 
OSHA.
---------------------------------------------------------------------------
    \1\ The American National Standard's Institute (ANSI) Z133. 1-2006, 
Safety Requirements for Arboricultural Operations. Z133 was first 
published in 1972. It was revised in 1979, 1982, 1988, 1994, 2000 and 
2006. A revised standard is expected for 2011.
---------------------------------------------------------------------------
    TCIA's 2000 active members are companies engaged in arboriculture 
(tree care), tree trimming and removal, utility vegetation management, 
landscape maintenance and related activities. Tree care is a high-
hazard industry. Using estimates of our industry's size from reliable 
sources as well as our own market research, we calculate that our 
industry's fatality rate places us among the top 10, and likely among 
the top five most hazardous occupations in the country.\2\
---------------------------------------------------------------------------
    \2\ A recent report published by the Centers for Disease Control & 
Prevention (CDC) indicates that there are 190 fatal occupational 
fatalities among a group of workers that the Bureau of Labor Statistics 
(BLS) terms ``grounds maintenance workers.'' See Fatal Injuries Among 
Grounds Maintenance Workers--United States, 2003--2008. Morbidity and 
Mortality Weekly Report, May 6, 2011. Vol. 60, No. 17. Within this 
statistic, it is eminently clear that tree care activities and tree 
care workers were responsible for the majority of those fatal 
accidents. As benchmarks, consider the all-industry fatality rate put 
forth by BLS of 4.0 (per 100,000) and the GMW rate of 13.3. To 
calculate a comparable statistic for tree care, we need the number that 
has eluded everyone, namely the total number employed in tree care in 
the U.S. Industry sources suggest that this number is somewhere between 
150,000 and 300,000. Using the 63-fatalities-per-year-among-tree-
trimmers figure from the CDC report and not counting the workers from 
allied trades who died doing tree work, we estimate a fatality rate of 
between 21 and 42 per 100,000. For comparison's sake, according to the 
BLS CFOI, the 2009 fatality rate for construction laborers was 18.8 
with 229 total fatalities, and for farming, fishing and forestry 
occupations it was 25.8 with 239 fatalities.
---------------------------------------------------------------------------
    As a result, worker safety has been one of the central tenets of 
TCIA since its inception more than 70 years ago. We were the original 
Secretariat of the ANSI Z133 in 1969 and remain very active in that 
standard-making process. We also have consistently focused on assisting 
our members improve safety through education and training. As part of 
this effort, we direct the only credentialing program for safety 
professionals within our industry, produce a wealth of bilingual safety 
training programs, and offer employers a model illness and injury 
prevention program.
    Our efforts have not been limited to our membership and the ANSI 
committee, however. We also regularly engage regulators to effect safer 
working conditions for our members' employees as well as the multitude 
of small employers outside our membership. In this regard, we have been 
fortunate to collaborate with federal OSHA as well as several State 
Plan OSHAs in the past, and the result has been a tangible safety 
benefit to the industry in each instance.
    In recent years, our collaborations with state plans have been 
particularly fruitful. We have worked directly with State Plan OSHAs in 
California, Virginia, Maryland and Michigan to adopt more effective 
rules and guidance for tree care operations.
    Since 1993, Virginia experienced 59 non-logging, tree care-related 
fatalities, which comprised seven percent of all occupational 
fatalities within the state, with 47 of those, or nine percent of all 
occupational fatalities, occurring since 2000. For an industry of the 
relatively small size of the tree care industry, this is a very high 
number of fatal accidents.
    TCIA (then National Arborist Association) approached the Virginia 
Department of Labor & Industry (DOLI) about the possibility of adopting 
a comprehensive regulation addressing tree trimming in 2001. We 
requested a regulation based on ANSI Z133.1-2000. Developed through a 
consensus process by an accredited standards committee representing 
employers and employees, organized labor, equipment manufacturers, 
academia, and other stakeholders, the Z133 Standard captures the 
collective wisdom and experience of the entire profession, translating 
that body of knowledge into standards of safe practice.
    Discussions with the DOLI resulted in a commitment from the 
industry to make changes to the ANSI standard, which culminated in the 
adoption of the revised ANSI Z133.1-2006.\3\
---------------------------------------------------------------------------
    \3\ TCIA also had substantive conversations with federal OSHA 
concerning Z133. Please see page 7 of this document.
---------------------------------------------------------------------------
    Virginia OSHA (VOSH) initiated this rulemaking in 2007 with the 
assistance of a regulatory work group composed of private and public 
sector representatives. TCIA organized a small coalition of affected 
members to sit down with VOSH, other agencies and other affected 
parties to craft the standard language that very recently took effect 
in the Commonwealth.
    The purpose of the new regulation is to provide comprehensive 
protection to private and public sector employees and employers exposed 
to tree trimming hazards. The final regulation is based closely on ANSI 
Z133, with certain provisions such as the one for first aid/CPR 
training that are more stringent than either Z133 or OSHA general 
industry standards.
    VOSH estimates that on average over the last 10 years there were 
four fatal tree trimming accidents per year that could be prevented 
going forward if there is full compliance to the final regulation.
    California has had tree care-specific rules on its general industry 
safety orders (GISO) as well as its high voltage safety orders for 
quite some time. We are not aware of the full history of their 
promulgation other than the fact that they were based upon the extant 
consensus standards at the time.
    We began our collaboration with California OSHA (Cal/OSHA) in 2004. 
At that time there was a recognized and growing hazard associated with 
climbing into and removing trees killed or weakened by forest fires and 
pine beetle infestations in the State. Cal/OSHA reached out to the 
industry experts and even attended our conferences and trade shows to 
learn more. We participated in the development of an emergency 
regulation to allow tree workers to be hoisted by crane into the tree 
canopy when other methods were less safe or infeasible. Cal/OSHA 
immediately saw the logic of adopting this as permanent regulation, 
consistent with what had been recognized as an accepted safe work 
practice in Z133 since 1979. In 2005, that goal was realized.
    Currently, an advisory committee of our members, Cal/OSHA staff, 
and representatives from unions, utilities, municipalities, companies 
and other stakeholders are assisting Cal/OSHA with the revision of 
several outdated sections of its GISO pertaining to tree care 
operations. Once again, Z133 language is serving as the template. With 
these standards, Cal/OSHA's compliance field force will be better 
educated to look for the hazards likely to cause serious harm, and the 
smallest practitioner in the remotest corner of the State will have 
ready access to updated minimum standards for safety.
    In 2008, TCIA entered a formal alliance with the Michigan 
Occupational Safety and Health Administration (MIOSHA) and five other 
Green Industry organizations in Michigan to help protect the safety and 
health of Michigan's green industry workers. The MIOSHA program is part 
of the Michigan Department of Labor & Economic Growth (DLEG).
    MIOSHA launched a Tree Trimming Industry initiative in October 
2006, due to a series of fatalities involving tree trimmers in 
Michigan. MIOSHA sent letters and a fact sheet to 1,000 employers in 
the tree trimming and removal industry to raise awareness of the 
industry hazards and to offer training materials. MIOSHA also increased 
compliance efforts in the industry to encourage employers to protect 
their workers.
    This ground-breaking alliance was an outgrowth of that initiative. 
By forming this collaborative relationship, all partners pledged to 
work together to foster the highest standards, good work ethics and 
safe work practices for all professional sectors of the green industry.
    The goals of this alliance included, but were not limited to: 
Reducing accidents; providing training and education specific to the 
green industry and encouraging member participation; developing fact 
sheets, PowerPoint presentations, best practices case studies, and a 
website resource list to help employers and employees increase their 
knowledge of safety and health issues and to forge innovative 
solutions; and coordinating participation in forums, round table 
discussions, conferences, and reciprocal website links to assist 
employers with compliance and the development of safety and health 
systems.
    Just over three years after the alliance was signed, all those 
goals and more have been realized.
    As the economy continues to impact our industry, nowhere is the 
effect being felt more than in Michigan. In 2010, Michigan experienced 
seven occupational fatalities related to tree care. These fatalities 
included electrocutions, falls and struck-bys; and arguably all could 
have been prevented with more training. Therefore it was particularly 
gratifying for the Michigan Green Industry Association (MGIA, one of 
the Green Industry Alliance Partners) to be able to announce that it 
had been approved for a $20,000 grant from MIOSHA. The grant helped 
relieve some of the financial burden of training for numerous small 
employers while providing high-quality, tree care-specific safety 
training to 200 tree workers.
    In 2011 with MIOSHA's assistance, MGIA will again be able to help 
address unmet training needs with both electrical hazard awareness and 
CPR/first aid training programs.
    Very recently, Maryland OSHA initiated a rulemaking with the 
ultimate goal of promulgating a comprehensive vertical standard for 
tree trimming similar to Virginia's. TCIA attended a hearing in 
November 2010 and participated in a work group in December 2010 with 
other stakeholders to refine the first draft of a proposed standard 
that MOSH had created internally.
    We submit that the situation in States like Virginia, California, 
Michigan and Maryland is a microcosm of the situation nationally as far 
as our industry is concerned. As a result, we feel that similar 
collaboration with other state plans and federal OSHA can improve 
safety in our industry.
    Our efforts to engage federal OSHA have in many instances resulted 
in positive outcomes. For example, during a 12-year period, our 
association's leadership worked directly with federal OSHA toward the 
promulgation of 29 CFR Sec. 1910.269, Electric Power Generation, 
Transmission and Distribution. Certain parts of this ``vertical 
standard'' regulate the utility line clearance tree trimming industry, 
a specialized industry within our profession, employing tens of 
thousands in the U.S. The result, in our estimation, was an effective, 
workable standard that was and is responsive to the hazards of line 
clearance tree trimmers.
    We have also sought and received assistance from federal OSHA to 
train thousands of workers. In 2004-05, TCIA received a $197,000 
Harwood grant to provide a series of full-day regional, bilingual 
electrical hazards awareness workshops targeting small-employer 
businesses. Our program included a train-the-trainer component to 
leverage the resources from the grant. The grant enabled us to provide 
this vital training to 2,327 tree care workers. Once again in 2007-08, 
TCIA received $160,000 from OSHA to conduct electrical hazards 
awareness training through regional workshops. Another 1,513 tree care 
workers were trained.
    From 2002 through 2007 as we fulfilled our Harwood grant 
obligations, we continued to collaborate with a variety of arborist 
organizations to deliver electrical hazards training. In total, we 
estimate that more than 10,000 arborists received electrical hazards 
training using TCIA training materials in a five-year time span.
    In recent years, there has been an amazing transformation in the 
industry that we firmly believe is directly attributable to this 
training, and for which OSHA deserves some of the credit. In the 19 
years prior to the electrical hazards workshops, the percentage of all 
fatal accidents attributable to electrical hazards, as measured by 
OSHA, was 39 percent. By 2006, that statistic had dropped to 18 
percent, and a year later (the last year of our grant) it had dropped 
even further to 16 percent.
    While our most recent applications for Harwood grants have not been 
selected, we hope to receive future grants so we might build upon our 
past success.
    On February 11, 2003, TCIA entered an Alliance with federal OSHA. 
The Alliance was created to help solidify a relationship between both 
organizations which will result in enhanced dialog, information 
exchange, and the development of training materials. Both parties to 
the Alliance agreed that the ANSI Z133 Standard should be recognized as 
the leading authority for safe practices in the tree care industry, and 
that all training programs created should be consistent with this 
document. However, because the Z133 is a consensus standard, both 
parties agreed to review the Z133 document in order to ensure 
consistency with existing legal standards before developing such 
training programs based on its content. Therefore, in June of 2003, 
representatives of OSHA and the TCIA reviewed the content of the 2000 
revision of Z133.
    Our shared goal was to identify areas of the Z133 document that 
either appeared to be inconsistent with existing legal standards, or 
appeared to need clarification for better understanding. TCIA did not 
make any promises or commitments to OSHA that Z133 would be revised per 
the recommendations; nevertheless we did carry the recommendations to 
the Z133 committee and almost all were adopted in the next revision. 
Again this exercise was undertaken for the sole purpose of identifying 
the principles on which future training programs could be modeled. Our 
industry's consensus safety standard became stronger as a result.
    Unfortunately, not all interactions with federal OSHA have resulted 
in positive outcomes. In the same period that OSHA was working on 
1910.269, it was also separately working on a standard for the logging 
industry, 1910.266, that became a final rule in 1994-95. It wasn't 
until after the rule was promulgated that OSHA determined through 
letters of interpretation that the tree care industry should be 
regulated by it. By applying the standard to our industry after it was 
promulgated, we were denied any opportunity to have input into the 
standard. This has resulted in various inconsistencies and 
inefficiencies, including some of the final Logging Standards' 
requirements directly contradicting what had just become law in 
1910.269. What ensued was a running legal and verbal battle between 
OSHA and our industry over 10-plus years concerning the applicability 
of the Logging Standard that culminated in the current OSHA Directive, 
CPL 02-01-045, Citation Guidance Related to Tree Care and Tree Removal 
Operations.
    We cannot define what ``effective'' should mean for this committee; 
however, we can certainly point to the aforementioned as an example of 
ineffective. While the current federal directive provides some guidance 
on safety measures for our industry, it nonetheless is the product of 
an attempt by OSHA to cobble together various standards from general 
industry, as well as other industries, and apply them to tree care. In 
this manner, it is incomplete and inferior to standards such as those 
in Virginia and California, which address the unique hazards facing our 
industry and provide proactive guidance to employer, employees and 
enforcement officers.
    Over the years, TCIA has repeatedly engaged OSHA in an effort to 
address these deficiencies and obtain a specific standard for our 
industry, including a formal petition for rulemaking we filed in 2006. 
Support for an arboriculture standard also has come from various other 
stakeholders. Indeed, Members of Congress from both Chambers and both 
parties have intervened several times on this issue in support of a 
separate ``arborist standard'' based upon ANSI Z133, beginning when 
Cass Ballenger, the former Chair of this Subcommittee, suggested OSHA 
move forward with a separate standard more than 10 years ago. Those 
calls have been repeated by several Members of this Subcommittee over 
the years, including several current members, who have urged OSHA to 
move forward with a negotiated rulemaking.
    It appeared that we would get what we had been asking for when in 
September 2008 (Federal Register Vol. 73, No. 182. Thursday, September 
18, 2008. Pages 54118-54123) OSHA issued an advance notice of proposed 
rulemaking (ANPR) for tree care operations. They seemed to agree with 
our justification for a standard when they said, ``After analyzing the 
BLS and IMIS fatality and injury data, OSHA has decided to pursue 
rulemaking to address hazards in tree care operations. As the first 
step in the rulemaking process, OSHA is publishing this ANPR to gather 
data, information, and comment on hazards in tree care operations and 
effective measures to control hazards and prevent injuries and 
fatalities. In addition, OSHA is requesting comment on provisions a 
standard should include to effectively address those hazards. OSHA also 
will carefully consider the ANSI Z133.1 standard, as well as State 
occupational safety and health standards addressing tree care 
operations, in developing a standard.''
    It certainly appeared to us from the comments OSHA received on the 
ANPRM that there was broad base support for a standard from industry, 
individual arborists and other stakeholders.
    Despite the vast majority of commenters supporting a standard and 
for reasons we do not understand, OSHA has apparently decided not to 
pursue a rulemaking at this time and did not include this rulemaking on 
its last two regulatory agendas. OSHA's justification for not moving 
forward on a vertical standard for our industry has been that existing 
standards already provide adequate protections to workers in tree care, 
and that the Agency had higher priorities. We do not agree.
    Allow us to compare our industry's recent citation history with 
that of the logging industry. In fiscal 2009-10, 66 percent of the 
logging industry's citations were issued under its vertical standard 
and less than one percent were issued under OSHA's catch-all of the 
general duty clause.
    By contrast in our industry, 10 percent of our citations were 
general duty clause. We heard it expressed by a high-ranking OSHA 
official once that general duty citations were considerably more 
difficult to research and write, and were more frequently contested by 
the employer. Your committee may wish to ask OSHA about the relative 
``efficiency'' of general duty citations. Certainly efficiency is one 
measure of effectiveness.
    We cannot comment upon the effectiveness of State Plan's 
enforcement activities relative to federal OSHA's. We simply have no 
knowledge in that area. However, effectiveness as measured by certain 
State Plan's responsiveness to our efforts to improve safety in our 
industry is very good.
    We have been and we remain more than willing to participate in 
further dialogue and meetings with OSHA and other stakeholders 
concerning this important measure. Thank you for the opportunity to be 
heard in today's hearing, and I am happy to address any questions.
                                 ______
                                 
    Chairman Walberg. Thank you, Mr. Gerstenberger.
    Now, we recognize Mr. Frumin?
    Your microphone, please.
    Mr. Frumin. Yes, okay.
    Chairman Walberg. Thank you.

STATEMENT OF ERIC FRUMIN, HEALTH AND SAFETY DIRECTOR, CHANGE TO 
                              WIN

    Mr. Frumin. Chairman Walberg, Ms. Woolsey, Mr. Kline, thank 
you for the opportunity to testify here today.
    Every year thousands of workers die from injuries, tens of 
thousands die from job-related diseases, and hundreds of 
thousands are disabled.
    Under that cloud, this committee has the obligation to 
assure that the agencies that Congress created are effectively 
doing their part to help. And where necessary, force employers 
to protect their workers by complying with our nation's job 
safety laws.
    First, I must urge this committee in the strongest possible 
terms to reject the outrageous attempt by the Appropriations 
Committee to slash OSHA's budget by 23 percent.
    The states have told you that they are already severely 
underfunded. The fact is that the Congress essentially froze 
funding for the states throughout the Bush administration.
    It was only in the last 2 years that both federal and state 
OSHA finally saw the significant increases in their enforcement 
resources. If the committee is indeed concerned about efforts 
to undermine state OSHA programs, your first stop is with 
Chairman Rogers and his colleagues.
    Please stop this crippling attack on our nation's basic job 
safety and health enforcement effort.
    I would like to offer four other essential points.
    One, federal OSHA must continue to closely monitor state 
OSHA plans as required by law to ensure that they are minimally 
at least as effective as the federal program, and eventually 
fully effective.
    Two, any evaluation of effectiveness must include penalty 
levels for serious violations.
    Three, it would be a very serious mistake to rely primarily 
on injury and illness rates as performance measures for OSHA 
programs.
    And four, the Labor Department's efforts, as Mr. Lewis 
alluded to, to develop useful performance measures, are 
innovative and should be strongly supported.
    I am going to address these points in regard to what some 
of the other witnesses have said.
    First, what is the right balance between federal and state 
efforts?
    In 1970, the Congress required OSHA to approve state plans, 
when requested, but also to make a core continuing evaluation 
of how each state is carrying out such a plan, and to withdraw 
approval when the plan fails.
    In other words, Congress adopted very clear limits on the 
states' role and discretion.
    So when Mr. Beauregard or others complain about the, 
quote--``unequal''--unquote, partnership or make pointed 
references to protecting so-called states' rights, or imply 
that some other partnership is required, they are apparently 
not aware of the basic structure of the act.
    Over the last 40 years, we have repeatedly seen states that 
failed to perform, employers which flouted the law, and workers 
who suffered and died. And when that happened, the buck stopped 
at the desk of the U.S. Secretary of Labor, not with the 
governor and the state legislature.
    Let us face facts. The Congress acted in 1970 in major part 
because so many states have so badly failed to protect their 
own workers. And we have continued to see states fail since 
then.
    Mr. Chairman, Mr. Kline, listen to the words of Senator 
Peter Dominick, a republican leader on the Senate Labor 
Committee, who opposed a new central role for federal 
government from the legislative history.
    ``For the first time in modern history, the federal 
government is taking over the role of monitor of health and 
safety functions in almost every business throughout the 
country. There is a provision,'' he said, ``which will permit 
the states to regain some administrative control, but we should 
not be under any illusion, the federal government is going to 
be setting the standards.''
    Now we all know that OSHA has few tools to force states to 
correct even blatant failures, short of the chaos that comes 
from withdrawing the states' plan authority. Only in severe 
cases, like the 1991 outrage in North Carolina, has OSHA been 
able to use concurrent jurisdiction with the states' agreement.
    But that was only triggered because of a catastrophe. The 
OSHA Act promised protection to workers before job hazards cut 
short their lives and limbs.
    OSHA's recent enhanced review has now shown serious 
weaknesses in worker protection in Indiana and Hawaii and 
elsewhere. So we now ask, how will OSHA prevent Indiana and 
Hawaii from becoming the next North Carolina or Nevada, before 
workers are slaughtered by the dozen?
    Unfortunately, even some OSHA administrators did not follow 
this approach and allowed their own state monitoring efforts to 
deteriorate, as in Las Vegas. And we were relieved to see OSHA 
enhance its reviews. We hope they and the states can agree on 
an appropriate way to move forward and assure that these 
programs become fully effective.
    Lastly, I would like to point out that deterrence is 
absolutely key to any serious enforcement effort. Many 
inspections are done, but they are far too few given the number 
of employers, and deterrence is critical.
    Only the threat of serious inspection--serious sanctions 
will encourage the kind of voluntary compliance that states and 
federal OSHA expect. And that penalties like $300 in the state 
of South Carolina simply are not acceptable and must be 
stopped.
    Finally, we would like to point out that we cannot take 
seriously major complaints about OSHA's mandates that states 
participate in the National Enforcement Program. Let us look at 
the issue of combustible dust.
    The Chemical Safety Report Board reported----
    Chairman Walberg. Time has expired. I encourage you to wrap 
up quickly here.
    Mr. Frumin. I am.
    That in North Carolina, beginning with the 1980 incident, 
there were 12 serious incidents of combustible dust including 
the one in Kinston that killed six and injured 38.
    But OSHA only asks states to do five NEP inspections. We 
don't think that is too much.
    We thank you for the opportunity to testify, and be happy 
to answer any questions.
    [The statement of Mr. Frumin follows:]

     Prepared Statement of Eric Frumin, Health and Safety Director,
                             Change to Win

    Chairman Walberg, Ranking Member Woolsey, and members of the 
Subcommittee, thank you for the opportunity to testify today.
    I am Eric Frumin. I serve as the Health and Safety Director for 
Change to Win, and have worked in this field for 37 years. Change to 
Win is a partnership of four unions and 5 million workers, in a wide 
variety of industries, building a new movement of working people 
equipped to meet the challenges of the global economy in the 21st 
century and restore the American Dream: a paycheck that can support a 
family, affordable health care, a secure retirement and dignity on the 
job. The four partner unions are: International Brotherhood of 
Teamsters, Service Employees International Union, United Farm Workers 
of America, and United Food and Commercial Workers International Union.
    The effectiveness of the Federal and State agencies in setting and 
enforcing job safety and health standards is a critical question. Every 
year, thousands of workers die from injuries, tens of thousands die 
from job-related diseases, and hundreds of thousands are disabled. 
Under that cloud, this Committee has the obligation to assure that the 
agencies the Congress created are effectively doing their part to 
help--and where necessary, force--employers to take the basic steps to 
comply with our nation's job safety laws.
    We would like to offer four essential points:
    Federal OSHA must continue to closely monitor State OSHA plans, as 
required by law, and must also assure that they provide 
``satisfactorily effective enforcement'' programs.
    Any evaluation of effectiveness must include whether the penalty 
levels for serious violations provide adequate deterrence.
    It would be a serious mistake to rely primarily on injury/illness 
rates as performance indicators for OSHA programs.
USDOL efforts to develop useful performance measures should be 
        supported
    Federal OSHA must continue to closely monitor State OSHA plans to 
assure, as required by law, and must also assure that they provide 
``satisfactorily effective enforcement'' programs.
    This Committee has held many hearings over the 40 years of OSHA's 
existence regarding the agency's competence and direction. In the last 
Congress, the Committee adopted many proposals to modernize the OSHA, 
and sharply improve OSHA's ability to deal with negligent employers.
    One of those hearings focused specifically on the severe failures 
of a few state OSHA programs--notably including Nevada's abject failure 
to protect construction workers, which resulted in the needless deaths 
of 12 workers over an 18-month period in the Las Vegas building boom.
    While both the Congress and successive Secretaries of Labor have 
encouraged states to adopt their own OSHA programs, and 22 states/
territories have done so for the private sector economy, too little 
attention has been paid since the enactment of the OSHAct in 1970 to 
the adequacy of both those state programs and the federal actions to 
monitor those programs as required under Section 18(c) and 18(f), as 
well as by subsequent appeals court directives. And those repeated 
failures over the decades have resulted in abject failures by various 
state OSHA programs, with horrendous consequences for the citizens of 
those states.
    The most recent example, which sparked the welcome but long-overdue 
Federal detailed review of state plans, was the chaos which descended 
upon the massive City Center construction project in Las Vegas in 2008-
09. Construction is by definition a human creation. The ruthless pace 
of death and destruction there was no happenstance, no ``accident.'' It 
was the inevitable result of weak or non-existent safety management 
practices in a highly hazardous industry, creating serious problems 
which were neglected by a virtually toothless Nevada state OSHA 
program.
    It was scandalous that the huge contractors should have created the 
hazardous conditions in the first place, and that they were essentially 
abetted by the Nevada's failure. But these abject failures were also a 
predictable outcome of the years of an arm's-length, ``see no evil'' 
federal approach to its monitoring responsibilities under Sect. 18(c) 
and 18(f). Indeed, one must ask what would have happened had not an 
intrepid set of reporters and editors from the Las Vegas Sun dug deeply 
into this morass and so vividly exposed the contractors' and the 
state's failures.
    Fortunately, without even having a confirmed Assistant Secretary or 
Solicitor, Secretary Solis responded quickly to this dire situation. 
Federal OSHA closely scrutinized the Nevada program, and then, in an 
unprecedented but long-overdue action, announced the expansion of that 
scrutiny to all other state plans as well. That ``enhanced'' review has 
now been completed, and is the subject of this hearing.
    It is not the first time that this Committee has had to devote 
attention to the consequences of the failure of a state OSHA 
enforcement program and failed federal oversight. In the late 1980's, 
the NC OSHA program was in a shambles, starved of funds by a callous 
state legislature and ignored by a Federal OSHA which valued the 
appearance of state enforcement rather than its substance. When 25 
workers died and 54 were injured behind locked fire doors at the 
Imperial Poultry plant in Hamlet, NC, On September 3, 1991, the reality 
of NC's disgraceful program was revealed. With the state's inspection 
rate at about half the required level, the plant had never been 
inspected in 11 years. Federal OSHA announced that, with NC OSHA's 
acquiescence, it was undertaking concurrent enforcement in NC, to 
assure that Tarheel workers would not remain unprotected from such 
vicious neglect.
    As the funerals proceeded, then-Chairman Ford held an urgent 
hearing on the severe problems with the OSHA legislation, and continued 
his work on legislation to vastly improve the setting and enforcement 
of OSHA standards. That legislation was sadly never enacted, but it 
addressed many of the same problems that continue to undermine 
workplace safety in both the federal and State programs since then, 
including the severe weaknesses in many state programs.
    Mr. Chairman, Ms. Woolsey, it is worse than regrettable that the 
persistent and severe gaps in the OSHAct still include obstacles the 
Act's guarantee of effective state plans.
    We are not here to say that all state agencies are equally good or 
bad--or uniformly better or worse than the federal program. Some state 
programs have features that are far better than that which the 
Secretary of Labor, with her best efforts, has been able to undertake. 
For instance, farmworkers have been largely excluded from coverage and 
enforcement of basic job safety standards in Federal jurisdictions and 
most state plans. But California, Oregon and Washington have made major 
strides to protect them with both standards and enforcement. 
California, unique for its size and resources, has adopted job safety 
and health standards ahead of both the federal and other programs, just 
as California has stricter environmental rules. Other states have a 
variety of innovative laws, policies and programs which should serve as 
models for other states and federal OSHA.
    And both federal OSHA and many state agencies have suffered from 
serious underfunding--as the states have consistently reminded the 
Congress. Those funding problems continue today, especially with the 
collapse of legislated budgets in so many states following the 
financial crisis and the severe recession it sparked.
    And if the Budget Committee's allocations for FY 2012 are adopted, 
including a 23% cut in OSHA's annual budget, there will be a massive 
shortfall in funding and staffing for both federal and state OSHA 
programs. Indeed, if this Committee is seriously concerned about 
attempts to ``undermine State efforts to promote workplace safety,'' as 
the title of this hearing suggests, it would immediately call upon 
Chairman Rogers and your colleagues on the Appropriations Committee to 
significantly increase funding for state OSHA plans.
    But even with those all-too-familiar strengths and external 
obstacles, we continue to see state agencies which are apparently 
incapable of rising to the level of effectiveness which was clearly 
envisioned by the Congress when it adopted Section 18:
    (f) The Secretary shall, on the basis of reports submitted by the 
State agency and his own inspections make a continuing evaluation of 
the manner in which each State having a plan approved under this 
section is carrying out such plan.
    For instance, as a result of the extraordinary review undertaken in 
2010, OSHA revealed that the program in Hawaii was on the verge of 
collapse, much as OSHA had found in Nevada the prior year--and in NC 
twenty years before. Fed OSHA also found that various states were 
failing to assure compliance with the ``benchmarks'' for staffing 
required under federal law, even though those benchmarks would not 
themselves assure a fully effective state program given the continuing 
hazards and violations in these states.
    Any evaluation of effectiveness must include whether the penalty 
levels for serious violations provide adequate deterrence.
    The Fed OSHA review also identified state enforcement practices 
which on their face are patently questionable or worse. For instance, 
it is an article of faith in any statutory enforcement program 
including penalties that such penalties are essential to the deterrent 
function of the program. As we all know, there are far too few OSHA 
inspectors in either the Federal or State programs to assure regular 
inspections, even in highly hazardous industries. Deterrence is key.
    Yet many states continue to impose penalties for serious 
violations--ones capable of causing ``death or serious physical 
harm''--at levels far lower than those of either federal OSHA or other 
states. For instance, in 2009, Oregon's average ``current'' penalty 
(i.e., penalties remaining after settlements or appeals) was only $330. 
Incredibly, South Carolina's average ``current'' penalty was only $282. 
What model of deterrence does such weak performance convey to employers 
who are considering the risks of non-compliance?
    There is precious little guidance in the OSHAct regarding the role 
of penalties within the deterrence model. Last year, this Committee 
decided that the days of absurdly low penalties were over, and reported 
legislation to modernize OSHA's penalty provisions. As we all know, 
that legislation was opposed by the Chamber of Commerce and employers 
generally, such that it never even reached the full House for a vote. 
Today, the message to employers and workers continues to be very clear: 
the lives and safety of workers are worth less than that of wild horses 
in a federal park.
    However, the vital role of deterrence is a well-founded concept in 
federal and state enforcement programs. US Circuit Courts have 
repeatedly upheld penalties on the basis that they must offer some 
deterrent function,\1\ as described generally by EPA's enforcement 
policy (Policy On Civil Penalties, EPA General Enforcement Policy #GM-
21,'' US Environmental Protection Agency, Effective Date: Feb 16 1984):
---------------------------------------------------------------------------
    \1\ Kasper Wire Works v. Sec. of Labor, 268 F.3d 1123, 1132 (D.C. 
Cir. 2001) (OSH Act civil penalties designed to ``inflict pocket book 
deterrence''); Reich v. OSHRC, 102 F.3d 1200, 1203 (5th Cir. 1997) 
(``OSHA must rely on the threat of money penalties to compel compliance 
by employers'').
---------------------------------------------------------------------------
Deterrence
    The first goal of penalty assessment is to deter people from 
violating the law. Specifically, the penalty should persuade the 
violator to take precautions against falling into noncompliance again 
(specific deterrence) and dissuade others from violating the law 
(general deterrence). Successful deterrence is important because it 
provides the best protection for the environment. In addition, it 
reduces the resources necessary to administer the laws by addressing 
noncompliance before it occurs.
    If a penalty is to achieve deterrence, both the violator and the 
general public must be convinced that the penalty places the violator 
in a worse position than those who have complied in a timely fashion. 
Neither the violator nor the general public is likely to believe this 
if the violator is able to retain an overall advantage from 
noncompliance. Moreover, allowing a violator to benefit from 
noncompliance punishes those who have complied by placing them at a 
competitive disadvantage. This creates a disincentive for compliance.
    NC OSHA itself stated in its response to the Federal review:
    As federal OSHA and state procedures indicate, penalties are not 
designed as a punishment for violations but rather to serve as an 
effective deterrent and to provide an incentive toward correcting 
violations voluntarily prior to an enforcement inspection.
    In short, we firmly believe that penalty levels must be high enough 
to offer serious deterrence, and that the levels of penalties must be 
addressed in any serious evaluation of the effectiveness of state OSHA 
programs. Unfortunately, some leaders among state plans appear to have 
forgotten this basic precept. Last year, the Occupational Safety and 
Health State Plan Association (OSHSPA), for instance, attempted to 
claim that current low penalties are adequate, and professed ignorance 
of any documented relationship between penalties and compliance (i.e. 
the deterrent value of penalties). OSHSPA even suggested that non-
enforcement methods, such as compliance assistance, are more effective 
in stopping non-compliant employer behavior.\2\
---------------------------------------------------------------------------
    \2\ Letter from Kevin Beauregard, Chair, Occupational Safety and 
Health State Plan Association, to US Assistant Secretary of Labor David 
Michaels, August 16, 2010: ``State Plan States' experience has shown 
that an effective method to achieve greater compliance among small 
employers is by focusing on education and training while increasing the 
likelihood of an onsite inspection.''
---------------------------------------------------------------------------
    It is hard to believe in the 21st Century that such a claim would 
be seriously considered, but some OSHSPA leaders continue to challenge 
the fundamental principle of deterrence.
    We should expect that they will explain why they have refused to 
accept this fundamental principle. However, their suggestion that 
alternatives, such as the potential cancellation of government 
contracts and reduced workers compensation premiums to promote prompt 
compliance, is equally incredible. It is simply ludicrous to propose an 
alternative remedy that applies to only a small subset on employers, 
and is not authorized in OSHA or even proposed in legislation. Federal 
and state procurement procedures provide few if any actual penalties in 
the procurement decision-making for labor violations of any sort--never 
mind OSHA violations in particular. In addition, there are few such 
current mechanisms in state law, with only a handful of states even 
having such authority to implement such a practice--and at least, not 
in the timeframes envisioned under the OSHAct for compliance with life-
saving safety and health standards. In the absence of such a concrete 
mechanism, one can't simply jettison adequate penalties/deterrence 
until appropriate standards are included in government contracts or 
procurement procedures and an appropriate mechanism for judging 
compliance is established.
    Workers' compensation premiums are also only tenuously related to 
compliance with OSHA standards. For instance, the biggest factor in 
workers compensation costs is overexertion injuries\3\ and, as we all 
know, those are not addressed in OSHA standards. Workers compensation 
premiums are also typically calculated based on a rolling three-year 
average experience, so compliance in the short term in most industry 
sectors will have little or no short- or medium-term benefit for 
employers.
---------------------------------------------------------------------------
    \3\ Liberty Mutual Research Institute for Safety, 2010 Liberty 
Mutual Workplace Safety Index: ``Overexertion, which includes injuries 
related to lifting, pushing, pulling, holding, carrying, or throwing, 
maintained its first place rank, costing businesses $13.40 billion in 
direct costs. Consistent with past years, this event category accounted 
for more than one-quarter of the overall national burden.''
---------------------------------------------------------------------------
    Both of these potential tools were available to state job safety 
enforcers in the 1960's. These tools were judged by Congress as 
insufficient to stop the deaths and injuries on the job. Hence, the 
Congress passed the OSHAct specifically to create a joint federal/state 
regime of standards and enforcement that could sidestep these obstacles 
and deliver a credible inspection/penalty enforcement and deterrence 
program capable of getting employers' attention. And section 18 of the 
Act likewise requires a minimum set of standards and enforcement 
policies--including penalties--such that state-by-state competition 
would never be allowed to undermine the basic protective purposes of 
the law. As the Senate Report stated: ``In a state by state approach, 
the efforts of the more vigorous states are inevitably undermined by 
the shortsightedness of others,'' which underscores the ``inadequacy of 
anything but a comprehensive, nationwide approach.'' S. Rept. No. 91-
1282, at 4 (1970).
    It is also clear that there is certainly no consensus supporting 
the view expressed by the OSHSPA leadership. As one prominent state 
OSHA program said last year:
    * * * the average federal and state plan penalties for serious 
violations which carry the substantial probability of death or serious 
physical harm are embarrassingly low and widely recognized as having 
little deterrent impact.
    * * * there is a roughly five-fold variation from state to state in 
average penalties for all employer size groups. * * * This is a 
disturbing inconsistency that raises substantial concerns about equal 
expectations for employers and equal protection for employees. Even 
acknowledging that there may be some rational differences in 
enforcement strategy from state to state that would merit modest 
penalty variations these vast differences suggest that the opportunity 
given to states to establish their own penalty policies should be 
carefully limited. This unfortunate situation has resisted change for 
40 years and it seems time that OSHA exerted somewhat firmer 
control.\4\
---------------------------------------------------------------------------
    \4\ Letter from Dr. Michael A. Silverstein, Ass't. Director, 
Washington State Department of Labor and Industries, to US Assistant 
Secretary of Labor David Michaels, August 18, 2010.
---------------------------------------------------------------------------
Faulty reliance on injury/illness rates as performance indicators for 
        OSHA programs
    Some, including the Labor Department's Inspector General, have 
taken issue with the use of penalty levels--or other ``activity 
measures,'' like the percentage of Serious violations--as indicators of 
effective agency performance, preferring to rely heavily instead on the 
remarkably unreliable workplace injury/illness rates.
    This is a marked departure from the view that the IG took in 
another audit it conducted in 2010. At that time, it concluded:
    OSHA directives state that penalty reductions were designed 
primarily to provide an incentive toward correcting violations 
voluntarily. Furthermore, reductions were to be based on the general 
character of a business and its safety and health performance.
    However, OSHA has not effectively evaluated the use of penalty 
reductions for size, history, good faith, and informal settlements, and 
the impact on comprehensive corrections of workplace hazards.\5\
---------------------------------------------------------------------------
    \5\ US DOL Office of the Inspector General, ``OSHA Needs to 
Evaluate Penalty Reductions,'' Report No. 02-10-20110-105, Sept. 20, 
2010, p. 4.6 HIDDEN TRAGEDY: Underreporting of Workplace Injuries and 
Illnesses. A Majority Staff Report by the Committee on Education and 
Labor, U.S. House Of Representatives, June, 2008.
---------------------------------------------------------------------------
    In other words, the IG has confirmed the importance of penalties as 
deterrence, and the importance of insuring that OSHA takes care to 
reduce penalties only when justified by the facts and allowed by the 
statue. The IG's latest report fails to take into account this earlier 
finding, and the obvious relationship between statutory penalties and 
the effectiveness of either Federal or State OSHA enforcement programs.
    That said, the IG's recent report on OSHA's evaluation of state 
plans also acknowledges the difficulty of doing such evaluations. In 
their interviews with federal OSHA staff, IG staff observed that the 
required empirical outcome data simply was not available:
    [Federal OSHA does] not currently hav[e] extensive, quantitative 
performance measures to evaluate the State Plans. The officials agreed 
that many measures were by necessity activity-based because outcome 
data were lacking. Officials stated that activity measures provided 
valuable information on State program operations and were helpful proxy 
measures of effectiveness. (p. 6)
    Nor does the IG offer any recommendation for alternative measures 
other than what one state-plan administrator reportedly referred to as 
the ``gold standard for success'': worksite injury/illness data. One 
assumes that if legitimate, practical alternative measures were easily 
available, the IG would have found them, but it apparently did not.
    This Committee has recently looked carefully at the reliability of 
reported workplace injury/illness rates. It found what most workers 
understand very well: the underlying raw data for the nation's job 
injury/illness data system are simply not reliable.6 OSHA has said so, 
and is continuing to find employers who willfully violate the rules on 
injury/illness records. BLS has said so, and is supporting research to 
measure the undercount. It is time to simply stop the fiction that 
declining injury/illness rates are a source of comfort for this 
Committee, the Secretary of Labor or her counterparts across the 
nation.
    The same is true as well for fatality data. If state-based fatality 
rates were any guidance to the effectiveness of state OSHA plans, then 
the Wyoming plan, which had the highest fatality rates in the nation, 
should have be shut down years ago, and several other states considered 
for the same treatment.
    The simple reality is that within important limits, injury/illness 
data are useful at the establishment level for employers, unions and 
workers as only one part of an overall evaluation of the overall 
effectiveness of workplace job safety and health programs. These data 
are also useful to OSHA in targeting enforcement resources to those 
sites which are willing comply with the recording rules and report 
accurate numbers. But they are a far cry from an accurate measure of 
whether or not an entire compliance enforcement program is effectively 
addressing the range of issues it confronts when dealing with the full 
range of industries, employers and hazards in its jurisdiction.
    The risks of overreliance on injury rates were starkly revealed at 
BP's Texas City refinery, where a company large enough to know better 
used measures of slips, trips and falls to justify a disinvestment of 
hundreds of millions of dollars--a purposeful neglect which eventually 
cost the lives of 15 workers and the safety of hundreds. This is no way 
to run a railroad.
DOL efforts to develop useful performance measures should be supported
    The final missing piece to the challenge of effective measurement 
of performance is the on-going research by both federal OSHA and 
Washington State on the actual effectiveness of enforcement. The recent 
study (attached) by the Washington State's Safety and Health Assessment 
& Research and Prevention (SHARP) Program has clearly demonstrated that 
enforcement--including penalties--is an effective method for securing 
the changes in employer behavior by non-compliant employers, at least 
as reflected in the outcome of workers compensation claims:
            Impact of DOSH enforcement with and without citation on 
                    non-MSD compensable claims rates
    Inspections that result in citations for violations of safety rules 
would be expected to have greater impact due to the penalties which 
employers face. When we break out the impact of DOSH enforcement visits 
that result in citations from those that do not we find the following:
     Fixed-site industries: DOSH enforcement inspections that 
had no citation had only a 5.0% greater decrease in non-MSD compensable 
claims rates relative to employers with no DOSH activity. But DOSH 
enforcement inspections that had one or more citations had a 20.3% 
greater decrease in non-MSD compensable claims rates relative to 
employers with no DOSH activity.
     Non-Fixed-site industries: DOSH enforcement inspections 
without citation had a only a 3.1% greater decrease in non-MSD 
compensable claims rates relative to employers with no DOSH visits. But 
enforcement inspections with one or more citations had a 19.1% greater 
decrease in compensable claims rate relative to employers with no DOSH 
activity.\7\
---------------------------------------------------------------------------
    \7\ Washington State's Safety and Health Assessment for Research 
for Prevention (SHARP) Program, ``The Impact of DOSH Enforcement and 
Consultation Visits on Workers' Compensation Claims Rates and Costs, 
1999-2008,'' SHARP Technical Report Number: 70-5-2011, May 2011.
---------------------------------------------------------------------------
    It is unfortunate that there has been as little research on this 
question in the US as has been the case until now. Indeed, there have 
been multiple evaluations of federal OSHA's enforcement and 
consultation, and voluntary compliance programs by the Government 
Accountability Office which repeatedly concluded that the agency had 
not taken seriously its obligation to evaluate its policies and 
actions. Outside of Washington State, the same has largely been true 
for state OSHA agencies as well.
    Fortunately, the US Labor Department has, for the first time, taken 
very seriously the need to conduct such evaluations--as part of an 
overall evaluation effort within the federal government. The Department 
has its first Evaluation Officer in history, and the funding for such 
evaluations has tripled compared to recent prior years. Additional 
funding was secured through the Recovery Act funding. We understand 
that OSHA already has underway a critically-important empirical study 
of the effectiveness of its own enforcement activities within this 
context.
    DOL's 201-2016 Strategic Plan explicitly addresses the need to 
empirically identify, select, implement and evaluate new performance 
metrics, particularly for its enforcement agencies. Indeed, the 
evaluation effort described in the Department's Strategic Plan is 
unprecedented in OSHA's history, and envisions implementation of new 
baseline metrics in 2012. As the Plan states:
    For any given Federal program's reported performance, there are 
several factors (external independent variables) over which the agency 
has neither jurisdiction nor control that will affect the level of 
performance. Program evaluation aims to isolate the influence of the 
agency's performance from the influence of these external independent 
variables in order to reach a clearer understanding of the true impact 
of the agency. Even with the more sophisticated approaches to measuring 
worker protection outcomes, the ability to isolate the effects of an 
agency's activities or to measure the impact of an agency's activities 
(what would have happened, all else equal, in the absence of the 
agency) requires rigorous evaluation.
    Future program evaluations at the Department will focus on impacts 
more than ever before. While DOL has worked to develop a robust set of 
outcome goals and measures for this strategic plan, the information 
provided by these measures alone is limited. To truly understand 
whether their strategies are working, these outcome measures need to be 
linked to impacts. For example, to understand the impact of inspections 
on future compliance of an employer, one cannot just look at the number 
of repeat violators and conclude that because it is fewer than the 
number of employers first found to be out of compliance that the 
difference is the impact of the inspection on future compliance. Some 
of those employers may have come into compliance on their own even if 
they had not been inspected.\8\
---------------------------------------------------------------------------
    \8\ U.S. Department of Labor Strategic Plan Fiscal Years 2011-2016, 
DRAFT for Stakeholder Review, August, 2010, p. 94.
---------------------------------------------------------------------------
    The principles and methods for these evaluations has been further 
explained in great detail in DOL's companion document ``A New Approach 
to Measuring the Performance of U.S. Department of Labor Worker 
Protection Agencies'', June 28, 2010. It includes a discussion of the 
specific evaluation models appropriate for worker protection agencies, 
including how to deal with the issue of recidivism.
    It is unfortunate, to say the least, that the Inspector General did 
not take this substantial effort into account. In the face of literally 
decades of critiques concerning inadequate evaluation of its various 
programs, OSHA finally gets departmental support for a qualitative 
improvement in its evaluation effort--and the IG has written it off as 
irrelevant. When I asked the Inspector General whether or not it had 
reviewed either the Strategic Plan or the document on performance 
measures for enforcement agencies, the IG's only response was:
    ``No, we did not incorporate this into the audit. While we reviewed 
the measures, those measures had not yet been implemented and we did 
not evaluate the merits of the specific measures.'' \9\
---------------------------------------------------------------------------
    \9\ Email from Jeffrey Lagda, Sr. Program Analyst, US DOL OIG, to 
Eric Frumin, April 29, 2011.
---------------------------------------------------------------------------
    We hope that in light of this important new effort, the IG will 
reconsider its conclusions and recommendations, and provide the 
concrete assistance that beleaguered enforcement agencies like OSHA 
urgently need from oversight bodies like the IG--or from this 
Committee, for that matter. Constructive suggestions based on proven 
best practices are critical to organizational improvement in many 
spheres of activity, and enforcing labor standards is no different.
Conclusion
    Federal and state OSHA programs are critical components of our 
national system for preventing the unacceptable toll of worker death, 
injury and illness. While they can never replace the absolute necessity 
for good-faith investment by employers in effective management systems, 
they are the critical missing link when dealing with employers who fail 
to pay attention to their responsibilities. When employers abusively 
neglect their responsibilities, and when large companies engage in such 
neglectful conduct on a broad scale, the coordinated actions of federal 
and state enforcement agencies are absolutely critical to stopping such 
abuses. If the forty years have taught us anything, it is that only 
strict enforcement, backed up by adequate resources and the political 
will to use them, can make a dent in the daily toll of death, injury 
and disease from job safety violations and hazards.
Recommendations
    We strongly urge the Committee to support OSHA's efforts under 
Section 18 of the OSHAct to closely monitor the performance of its 
state partners, and to assure that both it and its state partners 
maintain ``satisfactorily effective enforcement'' programs--as required 
by the US Court of Appeals in 1978.10
    We also urge the Committee to assure that both federal and state 
OSHA programs receive the full level of resources required to protect 
American workers' health and safety on the job. The threats to OSHA's 
funding are acute, and you must not allow opponents of strong labor 
protections to use a severe economic recession as a pretext to reduce 
state resources for defending workers' lives and safety.
    I'll be pleased to answer any questions.
                                 ______
                                 
    Chairman Walberg. Thank you, Mr. Frumin.
    I recognize Mr. Beauregard?

  STATEMENT OF KEVIN BEAUREGARD, NORTH CAROLINA DEPARTMENT OF 
         LABOR, OCCUPATIONAL SAFETY AND HEALTH DIVISION

    Mr. Beauregard. Mr. Chairman, members of the committee, 
thank you for the opportunity to testify today and discuss 
issues of importance to members of the Occupational Safety and 
Health State Plan Association.
    Today, the 27 states and territories that operate a state 
plan program for workplace safety and health, work together 
through OSHSPA to address common issues and facilitate 
communicate between the states and OSHA.
    Over the past few years, OSHSPA members have grown 
increasingly concerned in regards to several issues that are 
significantly impacting the administration of our state plan 
programs.
    I will briefly highlight OSHSPA's issues and concerns 
associated with funding, state plan monitoring, the OIG report, 
National Emphasis Programs and penalties. Details of our 
concern are reflected in my written testimony.
    I want to be clear that the views expressed by me today, in 
my role as OSHSPA chair, are supported by the overwhelming 
majority of the OSHSPA membership.
    In regards to Mr. Frumin's testimony about state plans, 
OSHSPA, leadership, or North Carolina, I will be more than 
happy to answer any follow-up questions to set the record 
straight.
    Currently, state plans provide coverage to approximately 40 
percent of private sector workers nationwide, and more than 10 
million public sector workers. Additionally in 2011, state 
plans accounted for approximately 60 percent of all enforcement 
activity nationwide.
    However, state plans currently receive 18.6 percent of the 
total federal funding allocated for OSHA programs.
    In the past decade, OSHA's total funding, excluding state 
plans and State Consultation Programs has increased 
approximately 47.5 percent. In comparison, state plan total 
federal funding over the same time period has increased 
approximately 17.8 percent.
    The state plan increase includes a $1.5 million increase 
for the creation of the Illinois State Program. The remaining 
state programs have collected 16.1 percent federal funding over 
the past decade, and approximately 13 percent of that was 
realized in 2010.
    Due to the manner in which OSHA distributed the funding, 
some state plans received less than half of the allocated 13 
percent increase. State plans currently overmatched the federal 
grants by more than $71.5 million.
    This translates to states overall providing approximately 
63 percent of the funding versus 37 percent federal funding to 
ensure their programs are at least as effective as OSHA.
    State plan programs welcome constructive review and 
analysis of our operations. Properly conducted audits and 
program monitoring can be helpful for all federal and state 
programs in identifying strengths and weaknesses.
    The state plans do not and should not operate in a manner 
identical to OSHA. OSHA has often interpreted at least as 
effective to mean identical to OSHA which is becoming 
increasingly problematic.
    OSHSPA members would welcome the opportunity to work with 
OSHA in developing effective measures, and an effective 
auditing system that will better ensure that state plans and 
federal OSHA are equally accountable to the American workers 
and general public regarding overall program effectiveness.
    The recent OIG report concluded that, ``OSHA has not 
designed a method to determine that state plans are at least as 
effective as federal OSHA in reducing injuries and illnesses.''
    The same report recommended that OSHA should define 
effectiveness, design measures to quantify impact, establish a 
baseline, and revise their state plan monitoring process.
    The OIG report appears to validate many of the issues and 
concerns previously brought up by OSHSPA regarding OSHA's state 
plan monitoring process.
    OSHSPA fully supports OSHA's efforts to develop and use 
NEPs to address workplace hazards that pose a real and 
significant threat to employee and employer safety and health. 
And we encourage that memberships voluntarily participate as 
appropriate.
    However, OSHSPA has significant concerns about OSHA's 
decision to mandate that state plans adopt all of its NEPs. The 
OSH Act clearly indicates that state plans are charged by 
Congress to identify their needs and responsibilities in the 
area of occupational safety and health.
    OSHSPA disagrees with OSHA's interpretation on the matter, 
and will continue to take actions necessary to protect state 
rights associated with the administration or state plan OSHA 
programs.
    Last year, OSHA also informed state plans that it would be 
revising its penalty calculation procedures associated with 
citations, and that it intended to mandate that all state plans 
either adopt identical or very similar procedures that would 
result in substantial penalty increases.
    State plans were not consulted on this proposed change, nor 
did OSHA provide state plans with any empirical data which 
supported its rationale for adoption of these new penalty 
procedures.
    OSHSPA members expressed substantive concerns to OSHA about 
the potential negative programmatic and resource impacts that 
their new penalty calculation procedures would likely have on 
their programs.
    In closing, OSHSPA is fully supportive of credible and 
meaningful partnership with federal OSHA and we encourage 
Congress to support such a partnership to make it a reality.
    Our state plan programs are not merely an extension of 
federal OSHA. We represent distinct and separate government 
entities operating under dully elected governors or other 
officials. And in addition to the protocols provided by 
Congress and federal OSHA, also operate under state 
constitutions and legislative processes.
    Like OSHA, each state plan program is staffed with 
dedicated occupational safety and health professionals with 
years of valuable service. State plan programs are not looking 
for preferential or special treatment, but feel strongly that 
OSHA should work harder at establishing a true partnership with 
state plan programs, and be more cognizant of the effects that 
its unilateral policy decisions have on state plan programs.
    Thank you again for the opportunity to address state plan 
issues. And I welcome any questions.
    [The statement of Mr. Beauregard follows:]

             Prepared Statement of Kevin Beauregard, Chair,
     Occupational Safety and Health State Plan Association (OSHSPA)

    Mr. Chairman, Members of the Committee: Thank you for the 
opportunity to testify today and to discuss issues of importance to 
members of the Occupational Safety and Health State Plan Association 
(OSHSPA). Eleven members of this subcommittee represent States that 
have either comprehensive or public sector-only State Plan programs, so 
many of you are likely very familiar with many of the items that I will 
cover today. When OSHA was established, Congress specifically 
encouraged states to develop their own occupational safety and health 
programs and to provide enforcement and compliance assistance 
activities in their states. Section 18 of the Occupational Safety and 
Health Act (OSH Act) authorizes states to administer a state-operated 
program for occupational safety and health, provided the program is 
``at least as effective'' as federal OSHA. Congress envisioned a 
comprehensive national program that would provide safety and health 
protection in all U.S. States and Territories. Prior to the creation of 
OSHA, many states had already been operating programs to protect their 
workers.
    Today, the 27 States and Territories that operate a State Plan 
Program for workplace safety and health work together through OSHSPA to 
address common issues and facilitate communication between the States 
and federal OSHA. State programs have made major contributions in the 
area of occupational safety and health and have helped drive injuries, 
illnesses and fatalities to all-time low levels. It makes sense for 
State Plan Programs and OSHA to work together to develop strategies for 
making jobsites safer and to share methods that will work on both a 
national and state level.
    OSHSPA does not view occupational safety and health as a partisan 
issue. The OSH Act was established ``to assure safe and healthful 
working conditions for working men and women; by authorizing 
enforcement of the standards developed under the Act; by assisting and 
encouraging the states in their efforts to assure safe and healthful 
working conditions; by providing research, information, education and 
training in the field of occupational safety and health; and for other 
purposes.'' In order to meet the original intent of the OSH Act, OSHSPA 
firmly believes that a ``balanced approach'' within OSHA and State Plan 
Programs is required. We believe the most effective approach includes 
strong, coordinated programs that address education and outreach, 
consultation and enforcement. The lack of commitment to any of these 
three elements will eventually lead to an ineffective OSHA program.
    State Plan Programs and OSHA share common goals regarding 
occupational safety and health. Over the years we have formed many 
positive relationships and have achieved many successes through 
cooperation between OSHSPA members and OSHA staff as we worked side-by-
side on numerous projects and in response to nationwide catastrophic 
events. Those successes prove that OSHA has many positive attributes 
and talents to share with State Plans and, likewise, that State Plans 
have many positive attributes and talents to share with OSHA.
    One of the many benefits of State Plan Programs is the flexibility 
afforded States to address hazards that are unique or more prevalent in 
particular states, or are not already being addressed by OSHA. In many 
instances, State Plans have passed more stringent standards or 
additional standards that do not exist on the federal level, while OSHA 
labors through the standard adoption process that frequently takes not 
only years but decades. State Plan Programs have also developed 
innovative inspection targeting systems directly linked to Workers' 
Compensation databases, and special emphasis inspection programs 
covering such hazards as residential construction, logging, food 
processing, construction work zone safety, waste water treatment 
plants, overhead high voltage lines, and workplace violence. Many 
States sponsor annual State Safety and Health Conferences which bring 
training, networking and outreach to thousands of employees and 
employers and spread the word about the positive benefits of providing 
safe and healthful workplaces. OSHSPA publishes an annual Grassroots 
Workplace Protection report which highlights many of these unique and 
innovative state initiatives. Over the past few years, OSHSPA members 
have grown increasingly concerned in regard to several issues, 
addressed below, that are significantly impacting the administration of 
our State Plan programs.
Funding of State Plans
    There should be an expectation that employers and employees in all 
States be provided with comparable levels of occupational safety and 
health protections. While Congress envisioned that the partnership 
between federal OSHA and the State Plans would include federal funding 
of 50 percent of the costs, the federal percentage for State Programs 
has diminished significantly over the years. Currently, State Plans 
operate in 27 States and Territories providing coverage to 
approximately 40 percent of private sector workers nationwide and more 
than 10 million public sector workers. Additionally, in FY 2011 State 
Plans accounted for approximately 60 percent of all enforcement 
activity nationwide. However, in FY 2011, State Plans received only18.6 
percent of the total federal funds allocated for OSHA programs.
    Federal funding of State Plans as a subset of total OSHA funding 
has grown increasingly disproportionate over the last ten years. The 
total federal funding for OSHA in FY 2001 was $425.8 million (including 
$88.4 million for State Plan Programs), and total OSHA funding for FY 
2011is $557.4 million (including $104.2 million for State Plan 
Programs). In the past decade, OSHA's federal funding, excluding State 
Plan and State Consultation programs, has increased approximately 
47.5%. In comparison, State Plan total federal funding over the same 
time period has increased approximately 17.8%. The FY 2011 State Plan 
funding figure includes an additional $1.5 million for the creation of 
the Illinois State Plan program in FY 2009. If this funding is not 
included with the other State Plan increases, the remaining State Plan 
Programs collectively have only received a 16.1% federal funding 
increase over the past decade, and approximately 13% of that increase 
was received in FY 2010. Additionally, the FY 2010 funding increase was 
not distributed in an equal percentage across-the-board manner to all 
State Plans, but rather via an antiquated federal OSHA funding formula. 
As a result, many State Plans received less than half of the allocated 
13% increase. It is also important to note that the increase in FY 2010 
federal funding for State Plans was provided after numerous years of 
State Plans receiving little or no annual federal funding increases. 
State Plans are very appreciative of receiving the FY 2010 increase as 
it has helped offset some of the increases in program costs caused by 
inflation; however, as the figures above reflect, the State Plan 
increase is only a fraction of the federal OSHA increase over the same 
time period. OSHSPA's position is that it is important to provide 
adequate funding for both OSHA and State Plans to better ensure 
positive progress continues to be made in the areas of occupational 
safety and health.
    OSHSPA believes that it is also important to note that State Plan 
federal funding increases significantly trailed the rate of inflation 
during the 2000s. The State Plan line item of the OSHA Budget was not 
assessed a COLA increase when COLAs were distributed to OSHA and other 
federal agencies between 2001 and 2010. Anecdotal information indicates 
that State Plan grants have been treated in a fashion similar to 
``block grants'' or ETA grants even though State Plans have on-going 
personnel costs and specific ``benchmark'' position requirements for 
safety inspectors and industrial hygienists to maintain final approval 
status. This oversight has resulted in shifting 100% of the associated 
costs for any necessary COLA adjustments to State funding.
    OSHA added approximately 130 new inspectors in FY 2010 in addition 
to those positions that they added in FY 2009. Meanwhile, over the past 
few years many State Plans have been eliminating positions, holding 
positions vacant and furloughing employees due to state budget 
reductions and the lack of adequate federal funding. In addition, some 
states have been unable to send safety and health compliance officers 
to required training at the OSHA Training Institute (OTI) due to budget 
constraints. State funding reductions have impacted the ability of many 
State Plans to provide the required matching State funds, which results 
in equivalent federal funding reductions. In consideration of State and 
federal funding deficiencies, the requirement for 50% matching State 
funds should be waived whenever a State's funding decreases due to a 
balanced budget requirement. This would help to reduce the negative 
impact on occupational safety and health within State Plan 
jurisdictions facing reductions in both State and federal funding at 
the same time and/or in consecutive years.
    While the FY 2010 budget provided a one-time increase of 
approximately $11.9 million over previous years, State Plans still 
``overmatch'' the federal grants by more than $71.5 million. This 
translates to the States overall providing approximately 63% of funding 
versus 37% federal funding to ensure their programs are ``at least as 
effective as'' OSHA. Many State Plans provided a significant overmatch, 
yet received less than half of allocated FY 2010 State Plan federal 
funding increase. In addition, according to federal OSHA's State Plan 
``funding formula'' for FY 2010, 10 of the 27 State Plans had base 
grant awards that were underfunded by the amount of $5.7 million 
dollars. The existing OSHA ``funding formula'' distributes 
approximately one-half of newly appropriated funds to the underfunded 
State Plans and approximately one-half to all State Plans. This formula 
has been in place for years but has had limited success because of the 
lack of federal funding increases overall for State Plans over the last 
decade. In addition, changes in State demographics, populations and 
industries have rendered the existing funding formula inadequate.
Deficit Reduction Issues
    Much attention is currently being placed on the upcoming FY 2012 
federal budget to address a soaring national debt and increasing budget 
deficit. State Plans understand the need to control federal spending to 
a level that is sustainable. In the event that it is determined to be 
necessary to reduce OSHA's budget in FY 2012, State Plans respectfully 
request that Congress fully consider the disproportionate funding 
increases provided to State Plan OSHA programs over the past decade 
prior to making across-the-board line item decreases that will once 
again disproportionately affect State Plan occupational safety and 
health programs. Potential budget scenarios being discussed include 
rolling back agency federal funding to FY 2006 or FY 2008 levels. In FY 
2009, the public sector-only Illinois State Plan was officially 
recognized by OSHA and funded by Congress in the amount of $1.5 
million, which accounted for approximately 30% of the entire increase 
in the State Plan line item between the years 2001 and 2009. An across-
the-board rollback in the State Plan line item to the FY 2006 or FY 
2008 level would result in either the elimination of the Illinois State 
Plan program, or more likely, that the other 26 State Plans would have 
their budgets reduced sufficiently to adequately fund the Illinois 
State Plan. Either scenario would result in a disproportionate 
reduction in federal funding to State Plans.
    Additionally, if OSHA funding were to be reduced to FY 2006 or FY 
2008 levels in an across-the-board manner, it would have the effect of 
rolling back State Plan funding to mid-1990's levels. This would 
sharply curtail intervention activities and would likely have a severe 
detrimental impact on occupational safety and health nationwide. 
Although State Plans are certainly willing to make adjustments as 
necessary, we do not feel that a disproportionate burden should be 
placed on State Plans that will also likely have a disproportionate 
impact on occupational safety and health in the 27 State Plan States.
    There may be a time in the not so distant future when some States 
may opt out of having a State-administered program, simply due to the 
ever increasing burden of providing well beyond 50% of the program 
funding. If this comes to pass, the federal government will then need 
to allocate 100% of the funding to provide equivalent occupational 
safety and health protections in those states. To prevent this from 
occurring and based on the original intent of the OSH Act, the long 
term goal should be to fully fund at least 50% of the costs for all 
State Plan Programs.
    Although the number of employers and employees covered by State 
Plan Programs continues to increase in most states, the net resources 
to address workplace hazards in the State Plan Programs have declined 
due to inflation, state budget reductions, and lack of adequate federal 
funding from Congress. The potential impacts, if this trend continues, 
are reductions in employer/employee training and outreach, technical 
assistance, consultation services, and enforcement. This will have a 
major impact on our efforts to reduce injuries, illnesses and 
fatalities and will potentially lead to increases in all these areas 
after much progress has been made. A process must be established to 
accurately and fairly address the budgetary requirements of State Plan 
Programs. Insufficient federal funding poses the most serious threat to 
the overall effectiveness of both State Plans and federal OSHA. If the 
intent of Congress is to ensure OSHA program effectiveness, this issue 
must be adequately addressed. OSHSPA urges Congress to establish a 
process to accurately and fairly address the budgetary requirements of 
State Plan Programs.
OSHA's State Plan Auditing and Monitoring Process
    All members of OSHSPA are subject to regular federal OSHA 
monitoring activities as a condition of maintaining a State Plan 
Program and all States acknowledge responsibility for maintaining 
programs ``at least as effective as'' OSHA. There are different sized 
State Plan Programs throughout the United States with varying 
capabilities. Likewise, there are different sized federal area offices 
with varying capabilities in States under federal OSHA jurisdiction.
    In addition to regular monitoring activities on a local, regional 
and national level, there is also a rigorous State Plan approval 
process in place for any State or Territory that desires to have a 
State-run OSHA program. The approval process includes many minimum 
requirements and obligations that must be met to ensure that the 
eventual program is ``at least as effective as'' OSHA. Prior to 
achieving final State Plan approval, States must also meet mandatory 
benchmark staffing levels for safety and health enforcement officers. 
Although States are held to minimum staffing levels, there are no such 
staffing benchmarks applied to federal jurisdictions. Although the 
State Plans expect and accept that OSHA will conduct oversight and 
monitoring activities, the criteria and expectations applied need to be 
universal for both State and federal operations.
    In October 2009, the U.S. House of Representatives Committee on 
Education and Labor held hearings associated with the Nevada State Plan 
OSHA Program. While the Nevada State OSHA Program was the primary 
subject of the hearing, testimony provided by a number of participants 
pertained to oversight of all State Plan OSHA Programs. Subsequently, 
OSHSPA provided written testimony at the aforementioned hearing 
expressing concerns pertaining to the existing State Plan oversight 
process administered by OSHA.
    State Plan Programs are not opposed to OSHA monitoring their 
programs, and we welcome constructive review and analysis of our 
operations. Properly conducted, audits and program monitoring can be 
helpful for all federal and State programs in identifying both program 
strengths and weaknesses. OSHSPA believes that it is critical for any 
methodology utilized by OSHA to measure State Plan programs based on 
valid criteria that allows the States to operate in a way that is ``at 
least as effective as'' OSHA. The State Plans do not, and should not, 
operate in a manner identical to OSHA. Rather, they should continue to 
serve as laboratories of innovation for moving occupational safety and 
health issues forward and for fueling creative approaches to ensuring 
the occupational safety and health of workers.
    There should be an expectation that all federal and State 
occupational safety and health programs are administered in an 
effective manner. Specifically in regard to ``effectiveness,'' OSHSPA 
has indicated that, prior to conducting additional comprehensive State 
Plan monitoring activities, OSHA and the State Plans should work 
together to establish well-defined performance measures and goals for 
both State Programs and OSHA. OSHSPA has indicated that established 
benchmarks could include, but would not be limited to: minimum levels 
for staffing, federal/state funding, training, equipment, quality 
control, internal auditing and outcome measures for both State Plans 
and federal OSHA. Following the establishment of effectiveness 
criteria, it was recommended by OSHSPA that there be regular audits of 
both State Plan Programs and OSHA's national, regional and area offices 
against those established benchmarks. OSHSPA also believes that since 
OSHA will be conducting additional comprehensive monitoring activities 
of all State Plan Programs for ``effectiveness'' and quality control, 
it would be prudent for OSHA to conduct similar monitoring of its own 
offices to ensure that they are also operating in an ``effective'' 
manner.
    There is no specific definition or adequate guidance for the ``at 
least as effective as'' language contained in the OSH Act and this has 
caused significant issues in regard to OSHA's auditing and monitoring 
of State Plans. As a result, OSHA has often interpreted ``at least as 
effective as'' to mean ``identical to'' OSHA. State Plans have raised 
the issue that an inadequate definition of ``at least as effective as'' 
and the failure to establish valid program criteria that focus on 
outcomes rather than processes makes it infeasible to systematically 
and accurately evaluate either State Plan or OSHA effectiveness. This 
issue was specifically brought up by State Plans as early as 2002 when 
it was published in the Federal Register, Volume 67; Number 185, dated 
September 25, 2002. At that time, OSHA indicated that it agreed with 
``the principle that State Plan requirements are not required to be 
identical is an important statutory feature of the State Plan Programs. 
The language and structure of the part 1953 regulation acknowledge the 
important principle that State plan requirements need not be identical 
* * *.'' However, OSHA's changing position on the issue in subsequent 
years and its failure to resolve the matter has contributed 
significantly to monitoring and auditing deficiencies.
    Since OSHA's often interprets ``at least as effective as'' to mean 
``identical to'' in regard to measures, it has become a constantly 
moving, often unobtainable, target which compares mandated activity 
trends and policies within federal OSHA to those occurring within each 
State Plan. A primary concern is that OSHA has displayed a tendency to 
focus its oversight on activities, indicators, and measures that have 
not necessarily been directly linked to positive outcomes associated 
with occupational safety and health. Examples of such measures and 
indicators include: percent serious rate of violations cited, 
contestment rates, penalties assessed, penalties retained, and 
classification. Additionally, some of these items, if individually 
interpreted, can lead to conclusions that are not factually based or 
supportable in regard to program effectiveness.
    Despite the above mentioned concerns previously broached by OSHSPA, 
OSHA proceeded to conduct its FY 2009 and FY 2010 State Plan monitoring 
and auditing based on these inadequate indicators. Subsequently, OSHA 
issued State-specific 2009 Enhanced Federal Annual Monitoring and 
Evaluation (EFAME) Reports of all State Plan OSHA programs and will be 
following up with those recommendations for the FY 2010 FAME.
    Following the release of the 2009 EFAME reports, OSHSPA issued a 
press release that reiterated our concerns with the current monitoring 
and auditing process. It continues to be OSHSPA's position that our 
members would welcome the opportunity to work with OSHA in developing 
effective measures and an effective auditing system that will better 
ensure that State Plans and federal OSHA are equally accountable to the 
American workers and general public regarding overall program 
effectiveness. I am pleased to report that such a joint effort has been 
recently initiated.
Office of Inspector General Report
    On March 31, 2011 the U.S. Department of Labor, Office of Inspector 
General--Office of Audit (OIG), issued Report #02-11-201-10-105 
entitled ``OSHA HAS NOT DETERMINED IF STATE OSH PROGRAMS ARE AT LEAST 
AS EFFECTIVE IN IMPROVING WORKPLACE SAFETY AND HEALTH AS FEDERAL OSH 
APROGRAMS.'' This audit was performed partly in response to a special 
review that OSHA conducted of the Nevada State Plan OSHA program. OIG 
indicated the objective of their review was to answer the question: 
``Has OSHA ensured that State Plans operate OSH programs that are at 
least as effective as Federal OSHA?'' The OIG report indicates that 
``OSHA has not designed a method to determine that State Plans are at 
least as effective as Federal OSHA in reducing injuries and 
illnesses.'' Further, OIG made the following four recommendations to 
the Assistant Secretary for Occupational Safety and Health: 1) define 
effectiveness; 2) design measures to quantify impact; 3) establish a 
baseline using Federal OSH programs to evaluate State Plans; and 4) 
revise monitoring processes to include assessments about whether State 
Plans are at least as effective as Federal OSHA Programs.
    The OIG report appears to validate the issues and concerns 
previously brought up by OSHSPA regarding OSHA's State Plan monitoring 
process and it also supports the recommendations previously submitted 
by OSHSPA regarding how OSHA could address the issues and concerns.
Training of Enforcement Personnel
    It is the stated goal of the current administration as well as 
previous ones that there be more consistency and transparency between 
federal OSHA and State Plans, particularly in the way mandated federal 
regulations are enforced. Many State Plans do not send inspectors to 
needed courses taught at the OSHA Training Institute (OTI) due to out-
of-state travel costs and/or travel restrictions in times of budget 
tightening. OSHSPA requests consideration to create a separate State 
Plan training line item to allow 100% federal funding to be utilized 
for travel and training of State Plan personnel. In FY 2010, it was 
estimated that $3.1 million would cover individual OTI and State Plan 
internal training courses for State Plan personnel.
National Emphasis Programs (NEPs)
    OSHSPA fully supports OSHA's efforts to develop and use NEPs to 
address workplace hazards that pose a real and significant threat to 
employee and employer safety and health. Many State Plans have 
benefitted over the years from OSHA's identification and development of 
NEPs to address existing or emerging hazards that threaten the lives of 
America's working men and women. OSHSPA is more than willing to work 
with OSHA on the identification and development of NEPs and to 
encourage our membership to voluntarily participate in these programs 
as appropriate.
    The current administration has recently committed to including 
OSHSPA in the development process of NEPs; however, this does not 
adequately address concerns associated with its decision last year to 
mandate that State Plans adopt all of its NEPs. Specifically, OSHA has 
indicated that its interpretation of the OSH Act provides its agency 
with the legal authority to require State Plan participation in all 
NEPs (see attached letter from Assistant Secretary David Michaels dated 
October 12, 2010, and OSHSPA's May 13, 2011 response). OSHSPA disagrees 
with OSHA's interpretation on this matter and will continue to take 
actions necessary to protect States' rights associated with the 
administration of State Plan OSHA programs.
    OSHA's recent implementation of the National Emphasis Program (NEP) 
on Recordkeeping in FY 2010 is an example of a resource impact for 
State Plans resulting from OSHA's insistence that State Plans 
participate in its emphasis program. Congress provided OSHA with 
approximately $2 million dollars to address such Recordkeeping 
initiatives in 2009-2010 but provided no additional monies to State 
Plans. OSHSPA members voiced concerns, not only about OSHA mandating 
adoption of this NEP, but also to the targeting methods utilized for 
the NEP. After OSHA implemented this NEP, it was subsequently suspended 
many months later to address targeting deficiencies that were 
previously identified by OSHSPA members. Inspections under the 
Recordkeeping NEP can last hundreds or even thousands of hours, which 
takes away from other planned enforcement inspection activities. If 
Congress does not provide similar federal funding to State Plans, the 
initiative becomes an unfunded mandate for States, which are already 
significantly underfunded by Congress. Additionally, although an 
emphasis program may be deemed appropriate, it could divert attention 
from areas of greater need in an individual State Plan.
    The OSH Act of 1970 provides in Sec. 2(b) (11):

          ``(b) The Congress declares it to be its purpose and policy * 
        * * to provide for the general welfare, to assure so far as 
        possible every working man and woman in the Nation safe and 
        healthful working conditions and preserve our human resources--
                  (11) by encouraging States to assume the fullest 
                responsibility for the administration and enforcement 
                of their occupational safety and health laws by 
                providing grants to the States to assist in identifying 
                their needs and responsibilities in the area of 
                occupational safety and health, to develop plans in 
                accordance with the provisions of this Act, to improve 
                the administration and enforcement of State 
                occupational safety and health laws, and to conduct 
                experimental and demonstration projects in connection 
                therewith * * *'' (Emphasis added).

    As the OSH Act indicates, State Plans are charged by Congress to 
identify ``their needs and responsibilities in the area of occupational 
safety and health.'' OSHA's position that a State Plan must conduct 
inspections in a given industry constitutes federal micro-management of 
State resources and runs directly contrary to Congress's stated intent 
for the States to identify their own needs and responsibilities for 
assuring ``safe and healthful working conditions'' in their State.
    OSHSPA finds OSHA's position that a State Plan should use its 
limited resources to address a hazard that may admittedly be a priority 
elsewhere in the nation, but is not one in each State Plan, to be 
unsupportable. Further, it is OSHSPA's position that OSHA does not have 
the legal authority nor is it correct from a policy making standpoint 
to require State Plans to adopt NEPs.
Penalties
    On June 22, 2010, OSHA informed State Plans that it would be 
revising its penalty calculation procedures associated with citations 
and that it intended to mandate that all State Plans either adopt 
identical procedures or very similar procedures that would result in 
the same type of penalty increases. State Plan States were not 
consulted on this proposed change, nor did OSHA provide State Plans 
with any empirical data which supported its rationale for adoption of 
these new penalty procedures. The new penalty procedures were expected 
to increase assessed penalties an average of 350% over the existing 
averages. Some State Plans have lower penalty assessment averages than 
OSHA, and adopting the new OSHA procedures would have resulted in a 
much more drastic increase.
    OSHSPA members were not provided any information by OSHA to 
indicate that research or analysis was conducted to assess the 
potential negative effects that a penalty increase could have on 
employers, employees and the effectiveness of federal and State 
Programs. State Plan States expressed substantive concerns to OSHA 
about the potential negative programmatic resource impacts that the new 
penalty calculation procedures would likely have in areas such as 
increased informal conferences, increased settlement agreements, and a 
significant increase in the number of adjudicatory hearings. This is of 
particular significance to many States that are facing funding and 
personnel reductions. In addition to all other concerns expressed, 
State Plans indicated that a penalty increase during an economic 
downturn seemed ill-timed. Finally, State Plans have also expressed 
concerns about the manner and process that OSHA utilized in its revised 
procedures to determine the final assessed penalty.
    The overwhelming majority of OSHSPA members have very serious 
concerns about OSHA's unilateral development of a new penalty policy 
and its attempt to mandate that all State Plans adopt it.
Safety and Health Protections for State and Local Government Employees
    OSHSPA fully supports safety and health coverage for all State and 
local government employees and believes the best way to do this is with 
public sector State Plan coverage in all States. One impediment to such 
plans has been OSHA's stance that any State wishing to establish a new 
State Plan must work by itself through its own Congressional delegation 
to obtain federal matching funds. OSHSPA would encourage Congress to 
look for ways to encourage States to consider public sector-only State 
Plans, as recently occurred in Illinois.
Voluntary Protection Programs
    OSHSPA supports continued federal funding for Voluntary Protection 
Programs. VPP clearly demonstrates to employers and employees the 
tremendous value provided by a comprehensive health and safety program.
Closing Remarks
    Past and current OSHA administrations have routinely espoused the 
benefits of ``partnership'' between State Plan Programs and OSHA. 
OSHSPA is fully supportive of a credible and meaningful partnership 
with federal OSHA and we encourage Congress to support such a 
partnership to make it a reality. Our State Plan Programs are not 
merely an extension of federal OSHA; we represent distinct and separate 
government entities operating under duly elected governors or other 
officials and, in addition to the protocols provided by Congress and 
federal OSHA, also operate under State constitutions and legislative 
processes. State Plans are not just more ``OSHA offices'' and are not 
intended to be identical to federal OSHA, but rather were created to 
operate in such a manner as to provide worker protection at least as 
effectively as OSHA. Words such as ``transparency,'' ``partnership,'' 
``one-OSHA'' and ``one-voice'' have been circulating for years as the 
desired relationship between State Plans and OSHA. Since we all share 
the common goal of improving nationwide occupational safety and health 
conditions, this would appear to make perfect sense. However, in 
reality there has often been an unequal ``partnership'' between OSHA 
and State Plans, especially when it comes to policy development, 
funding, and program implementation. All too often, the ``one-voice'' 
is interpreted to mean ``federal OSHA's voice.''
    Like OSHA, each State Plan Program is staffed with dedicated 
occupational safety and health professionals with years of valuable 
experience. Although OSHSPA members' contributions could be a more 
integral part of the OSHA strategic planning process, our members are 
quite often excluded from providing critical input. Often State Plans 
are not brought into the discussion of important plans and policies 
that directly affect our programs until all the critical decisions have 
been made. The same can be said for OSHA's development of its 
regulatory agenda and legislative initiatives. State Plan Programs are 
not looking for preferential or special treatment, but feel strongly 
that OSHA should work harder at establishing a true ``partnership'' 
with State Plan Programs and be more cognizant of the effects that its 
unilateral policy decisions have on State Plan Programs.
    Together, State Plan Programs and OSHA can successfully improve 
workplace conditions and continue to drive down workplace injury, 
illness and fatality rates. We should always be working toward program 
improvement with the single goal of having a positive impact on 
nationwide occupational safety and health. Establishing an ``us versus 
them'' relationship between OSHA and State Plan Programs will do little 
to enhance nationwide workplace safety and health.
    OSHA, State Plan Programs and Congress need to join forces to best 
ensure that workplace injuries, illnesses and fatalities continue to 
decline nationwide. There should be a true partnership between OSHA and 
State Plan Programs to ensure all employers and employees are afforded 
equivalent workplace protections nationwide. Efforts should be made to 
ensure State Plan partners are included in the OSHA strategic planning 
and policy development process. OSHA should also work to complete 
national regulations in a timely manner. OSHA and State Plan Programs 
should be held equally accountable regarding performance, and matching 
federal funding should be provided to State Plans as Congress 
originally intended. These measures together will do more to enhance 
nationwide occupational safety and health than any other measures being 
considered at this time. Thank you again for the opportunity to discuss 
State Plan issues. I look forward to your questions.
                                 ______
                                 
    Chairman Walberg. Thank you.
    Claiming my time for questioning, Mr. Lewis, let me ask you 
if--I think a fairly straight forward question here.
    If federal OSHA were placed under scrutiny similar to that 
of the state plans, would it be deemed an effective program?
    Mr. Lewis. I am not sure that I can't give a simple answer 
to that. And I am not sure that I could give an answer to that.
    I mean, I think that was the gist of our audit that whether 
we looked at what the federal government is measuring and 
monitoring in their program, or what the states are. Neither 
really comes to a conclusion of what is effective.
    I mean, they are both at the federal level and at the 
states, they are looking at, you know, how the injury and 
illness rates are changing or dropping. But what we don't see 
is how have you established the actions that you have taken, 
whether in the federal program or the state. What impact did 
those actions have on that rate dropping?
    So, I can't----
    Chairman Walberg. So does that----
    Mr. Lewis. I can't tell you because OSHA, you know, 
couldn't tell you. They know for a fact, we took these actions. 
It has this impact.
    Chairman Walberg. Okay.
    Mr. Lewis. So the gold standard has not been met 
necessarily.
    Chairman Walberg. Correct. By the [inaudible] either.
    Okay. Thank you.
    Mr. Beauregard?
    Your testimony suggests that the state plans understand 
federal OSHA's oversight role of the individual programs. 
However, you make clear that the state plans believe that the, 
``at least as effective as'' does not mean identical to the 
federal OSHA.
    In your opinion, what are the appropriate measures for 
determining state plans' effectiveness? And illustration would 
be helpful.
    Mr. Beauregard. I believe there is many different things 
that can be utilized to determine effectiveness.
    But the bottom line when it comes to safety and health 
programs, whether it is an OSHA program or a state plan 
program, or a corporate program is--what are the outcome 
results?
    Are you reducing injuries and illnesses and fatalities?
    And in order to look at that, there are a number of things 
that you can look at. You can look at workers' compensation 
claims or payouts or increases. You can look at--in North 
Carolina, we have a Site-Specific Program that is adopted off 
of the OSHA program, the SST program.
    In that program, we actually analyze the difference--the 
impact that we have based on the before an OSHA intervention 
and after an OSHA intervention, and determine whether or not we 
have an impact.
    In a 5-year study, we have had over 40 percent reduction in 
injuries and illnesses--as those establishments that we have 
had some type of intervention activity with. And so I think 
that is a clear sign that there is effectiveness in the outcome 
of that program.
    There are certain mandated measures that I do think need to 
be looked at. I think you need to look at staffing. The state 
plans had benchmark requirements. The federal OSHA does not 
have benchmark requirements.
    As a result, state plans are able to do many more 
inspection activities than our federal counterparts in certain 
areas. And I can't say that is the case in all states, but I 
can certainly say it is the case in North Carolina.
    We do more enforcement activities in our state than OSHA 
does almost in their entire Region 4. And I do think that there 
is more than one way to have an impact on injury and illness 
rates, just as enforcement inspections and penalties have an 
impact, education and outreach training activities, 
consultations can also have an impact.
    But in regards to the actual outcome measures, I think you 
need to look at injury and illness rates, you need to look at 
fatality rates.
    It may surprise some if you go on federal OSHA site today 
and you look at fatalities nationwide, you look at state plan 
fatalities that occurred in state plans and fatalities that 
occurred in OSHA programs right now through April--mid-April, 
66 percent of the fatalities have occurred under federal 
jurisdictions, 33 percent under state jurisdictions.
    Catastrophes, 72.5 percent of the catastrophes that have 
occurred in this current year have occurred in federal 
jurisdictions.
    If you look at just simply fatalities and catastrophes, one 
would probably lead to the conclusion that the effectiveness 
issue probably needs to be looked at in the OSHA program as 
well.
    Chairman Walberg. Thank you.
    Mr. Gerstenberger, in your testimony you talk about--
written testimony, talk about the cooperative effort between 
the Michigan Occupational Safety and Health Administration, 
MIOSHA, and Tree Care workers and Michigan Green Industry 
Association.
    How has this cooperation helped protect those working in 
Michigan's tree industry, in specific ways?
    Mr. Gerstenberger. Specifically, our work in Michigan was 
sub regulatory. We weren't working to revise any regulations in 
the state.
    We worked through a variety of different outreach measures 
to reach the industry. Most recently, Michigan OSHA provided 
grants to a local organization known as the Michigan Green 
Industry Association.
    And we cooperated through the Michigan Green Industry 
Association to train arborists under that grant to reach them 
with very important information affecting some of the most 
pronounced hazards that we face in our industry. Hazards 
associated with tree felling.
    Going forward, I know Michigan Green Industry Association 
has already received another MIOSHA grant that will address a 
wide variety of hazards, again faced by----
    Chairman Walberg. So the flexibility can be helpful in----
    Mr. Gerstenberger. Absolutely.
    Chairman Walberg [continuing]. And working with the 
industry.
    Mr. Gerstenberger. Yes.
    Chairman Walberg. My time has expired. And I have got to 
bide by my own rules.
    So, thank you. And maybe the question will come up later.
    I turn to--I recognize the ranking member for questioning.
    Ms. Woolsey. Thank you, Mr. Chairman.
    Mr. Gerstenberger's testimony is absolute proof of why we 
need to have a representative from OSHA sitting at this table.
    Wouldn't you have liked to ask somebody from OSHA what they 
are doing or why aren't they doing something about the tree 
care industry's concerns?
    I would have.
    So we need these people at the table for these hearings.
    Mr. Frumin, is OSHA undermining state efforts to promote 
worker health and safety?
    Mr. Frumin. Hardly. I think they are making a reasonable 
attempt now, a better attempt than in the past, to assure that 
states are complying with their own plans.
    And more than that are properly training their staffs, 
properly identifying violations, and assessing penalties that 
amount to real deterrents. So, undermining it--hardly, no.
    Ms. Woolsey. Well, are they providing the support that the 
states should be able to count on for setting up state programs 
and helping the states measure up to the floor?
    I mean, this is what this is about. State programs have to 
meet this federal floor. And the states can do anything more 
that is appropriate, if they want to invest in it----
    Mr. Frumin. I am not aware of any states who have 
complained that the Feds, the federal OSHA has failed to help 
them establish state plans. That has been a consistent feature 
for 40 years. The Feds have helped states do that.
    Funding is always an issue. But, you know, that is a fact 
of life.
    And beyond that, I think we can hear from a number of 
states who have been appreciative of the assistance that the 
federal OSHA has given them in a whole host of areas.
    But it is more than that. It is also offering leadership. 
It is offering a national program when you have employers from 
coast-to-coast.
    We need to look at these employers or industries that 
operate throughout the country. We need to look at them in a 
consistent way.
    Some employers have some understanding of how to operate 
under a national program. That is why we have a federal law.
    Ms. Woolsey. Right, and before the federal law, before OSHA 
was part of the federal law, how did the states measure up?
    Were they doing a great job?
    Mr. Frumin. No. We have a federal law because the states 
failed, and the Congress realized it in frustration in 1970.
    It is not that there wasn't an argument about it. Some 
people said, well, we will let the states continue to do it. 
But it was obvious by that point, the states were failing left 
and right. The consequences were intolerable.
    Ms. Woolsey. So, what do you think will happen to the 
safety programs, both federal and state, if we have a 23 
percent cut in the OSHA budget?
    Mr. Frumin. Well in layman's terms, we can kiss it goodbye. 
There is no way any state or federal administrator can keep a 
reasonable enforcement program going with those kinds of budget 
cuts.
    It is really--it is beyond shortsighted. It is simply 
intolerable, and does not respect the needs of American workers 
and families and communities.
    Mr. Frumin. And employers for that matter.
    Ms. Woolsey. Right.
    Mr. Frumin. Who rely on strict enforcement to keep their 
costs down.
    Ms. Woolsey. Right.
    Well, Mr. Beauregard, what do you think of the 23 percent 
proposed reduction for fiscal year 2012 in the OSHA budget?
    Mr. Beauregard. I think if there is any significant 
reduction on either the state OSHA budgets or the federal OSHA 
budget, it will certainly have an impact on any type of 
activities that either in state plans or the federal OSHA can 
conduct.
    Quite frankly, none of us can sustain that type of a 
decrease. It would probably have a broader impact on the 
federal OSHA program because the states are supplying so much 
of the funding to the programs to begin with.
    Ms. Woolsey. That is true, that is true. But also, states 
can do more, so they are paying for the additional above the 
floor.
    Mr. Beauregard. Well, one of the issues is--Mr. Frumin 
brought up the North Carolina issue. Back when that tragedy--
and I agree, it was a terrible tragedy in regards to Imperial 
Foods' fire.
    The state of North Carolina was criticized substantially by 
not having enough inspections or enough activities.
    What happened after that was the state of North Carolina 
provided sufficient--more funding for the program.
    What didn't happen is the federal government didn't provide 
any funding for the program.
    And so as a result, since that time the state has put in $9 
million into the program, and federal funds haven't been there. 
And so we received about $2.5 million of federal funds.
    Had we received the entire amount, we certainly could have 
done a lot more within our state.
    Ms. Woolsey. Certainly.
    What do you think would happen to the state plans? Where 
would they go if they become underfunded and not able?
    Would they just turn everything right back to the Feds?
    Mr. Beauregard. You know, it is certainly a possibility. 
Right now there are many different size programs. There are 
many different demographics within different states. And so the 
programs themselves are of many different sizes.
    North Carolina runs one of the largest programs in the 
country. And currently we have twice the staff as they have in 
federal jurisdiction states such as Georgia.
    And so, we would probably have a much smaller program if we 
had significant reductions, but we would probably still have a 
program. Whereas, you may have a smaller state that may not be 
able to do that.
    Ms. Woolsey. Thank you, Mr. Chairman.
    Chairman Walberg. Gentlelady's time has expired.
    I recognize Chairman Kline.
    Mr. Kline. Thank you, Mr. Chairman.
    Thank you to our witnesses today.
    Mr. Gerstenberger, just a comment about your industry. I 
must admit that I am terrified every time I see folks in your 
industry at work.
    They did some work in our backyard. We have kind of a 
woodlot back there. Better them than me. Chain saws, 40-50 feet 
in the air, god bless you.
    Mr. Beauregard, I want to pick up a little bit on this 
funding issue, a lot of discussion about the proposed cuts and 
appropriations.
    But for the last 3 years, OSHA has received increases in 
its appropriation. And yet, you have indicated that maybe some 
of that money didn't come down to North Carolina, the states.
    Can you address that allocation of funds?
    Mr. Beauregard. I sure can.
    Historically over the last decade, the state plans have 
received very little federal funding increases. On an annual 
basis, OSHA's budget went off every year. But the state budget 
line item, because the states are one line item within the 
federal OSHA budget, the state line item didn't necessarily go 
up.
    We didn't receive cost of living increases when federal 
OSHA received cost of living increases. That becomes 
problematic for the states because our positions are funded 
both with state and federal funds.
    But when we don't receive the cost of living increase, it 
means that the states either need to go ahead and address that 
with more funding and overmatching funding, or not address the 
cost of living matter.
    And so as a result, it has become very imbalanced. The 
exception to that was a few years back.
    The OSHSPA saw the writing on the walls. And our members, 
you know, saw that they were going to be having difficulties 
with continual years and not receiving these increases. We 
began an educational campaign to let people know exactly what 
was happening.
    In 2010, we got a significant increase. And we were very 
appreciative of that. Overall, it was about 13 percent.
    However, that wasn't distributed equally among all the 
state plans. Federal OSHA has a funding formula which is quite 
out of date. And we brought that to their attention.
    And it hasn't been adjusted for demographics, or anything 
like that within the various states. And as a result, in that 
year that we received 13 percent, a state like North Carolina 
actually received 6 percent. So even though we are already 
overmatching over $6 million, we received a 6 percent increase 
in a year where everybody else within the OSHA program received 
a greater increase.
    In many states, I think, there was 15 states received less 
than a 13 percent increase. There were some states that 
received greater than a 13 percent increase.
    But that amount of funding that was distributed helped 
those states that were having issues. But it certainly was not 
enough for those states that had been severely underfunded.
    Mr. Kline. So your testimony here today representing your 
organization is that the money was distributed, was allocated, 
perhaps unfairly, and not very efficiently or effectively.
    Is that correct?
    Mr. Beauregard. OSHA has a funding formula that they 
developed a long time ago. And the purpose was to create parity 
among the states.
    The problem with it is the funding hasn't been there. And 
so there is even more disparity now than there was back when 
the formula was distributed.
    And they did distribute it in a manner they saw fit. But it 
wasn't necessarily help to many of the states.
    Mr. Kline. Okay, sounds a little confusing.
    Mr. Beauregard. It is.
    Mr. Kline. Let me move to--shocking that there could be 
something coming from a federal bureaucracy that would be 
confusing.
    Sorry, a little--okay. Sorry, just slipped out.
    Let me stay with you if I could here, Mr. Beauregard, that 
prior to this administration, the policy for the adoption of 
the National Emphasis Programs, by state plans, was that 
adoption was strongly encouraged but it wasn't mandatory.
    The state plans are now required to adopt these NEPs which 
I understand the state plans don't favor that requirement.
    Can you explain what the concern is over this mandate?
    Mr. Beauregard. That is correct. The majority of the state 
plans do not favor mandatory adoption. There are some state 
plans that don't appear to have an issue with it.
    The issue there is that we do think that OSHA over the 
years has developed some NEPs that were very valuable for both 
OSHA and some state plan states.
    The problem is that each state has different makeups and 
demographics, different industries. And what may be good for 
one area of the country may not be an emphasis for another area 
of the country.
    And by mandating the NEPs, first of all, OSHA is saying 
that even though you are overfunding your state, you are not 
receiving your 50 percent. We are going to tell you what to do 
with your own money that you are doing.
    But secondly, they may be reprioritizing where you need to 
focus your resources. And we may have more pressing needs in 
our state. But now that we have a mandatory NEP, we have to 
drop what we are doing there.
    And Mr. Frumin indicated that five inspections is not 
significant. Well, I tell you right now, there are over 11 
NEPs, and they keep coming out. They don't seem to go away.
    And so when you keep reallocating five inspections here, 
five inspections there, it does have an affect, particularly on 
the smaller programs that don't have the staffing.
    And so they are left with a decision that they address the 
things that they really think are problematic in their state, 
or they address things that OSHA has identified may be 
problematic in their state.
    Mr. Kline. Thank the gentleman, my time has expired.
    Chairman Walberg. Thank you.
    Recognize the gentleman from South Carolina, Mr. Gowdy?
    Mr. Gowdy. Thank you, Mr. Chairman for calling this hearing 
and also for your leadership on this issue, as well as that of 
the chairman of the full committee, Mr. Kline.
    Mr. Beauregard, I was noting that in the--I believe it is 
the grassroots publication, a partnership between Boeing and a 
company in my district, BE&K-Turner joint venture.
    And I want to thank you to the extent that you are also 
mentioned in this publication for highlighting that 
partnership. And hopefully if the state of South Carolina can 
keep dodging complaints and lawsuits by the NLRB, we can 
continue to create jobs through Boeing and other companies in 
South Carolina.
    Mr. Lewis, I think you also have a South Carolina 
connection. Is that right?
    Mr. Lewis. I do.
    Mr. Gowdy. Welcome.
    Mr. Lewis. Thank you.
    Mr. Gowdy. Can you--I heard South Carolina is maybe 
mentioned a couple of times by Mr. Frumin and by my colleague 
from California. Can you tell us what states are doing well and 
why?
    And to the extent South Carolina may need to improve, how 
we can.
    Mr. Lewis. Well, looking at the data that is being tracked 
for the state plan states, I don't remember the rankings of 
every state, but as I recall, pretty much across the board over 
the past number of years, there have been reductions both in 
injuries and fatalities.
    What I couldn't address would be why that is happening per 
se. And I think that was the concern in our audit.
    Are we sure we know even though fatalities have dropped, 
and injuries have dropped, what exactly was the cause of that, 
and, you know, to what extent was it the investment in our 
programs?
    And if we are doing something in the program that is not 
having the greatest impact, then let us shift those resources 
to something that is having a greater impact.
    Mr. Gowdy. So your research indicated that the number of 
accidents and injuries has dropped in South Carolina?
    Mr. Lewis. Yes, I believe across all the states that we 
have looked at, the data had--the indicators had dropped for 
all states.
    Mr. Gowdy. So despite some dissatisfaction with the size of 
the fines in South Carolina, we are doing a better job which 
would tend to rebut any notion that there is a connection 
between the size of the fine and people's willingness to do a 
better job providing for their workers' safety.
    Can you tell me what specific measures of success exist by 
which states can compare themselves to federal OSHA?
    Mr. Lewis. Well, I think the ultimate measure would be to 
look at--I mean, this is a program about health and safety in 
the workplace--would be to look at the conditions of health and 
safety in the workplace.
    What injuries do we have, illnesses, fatalities?
    So certainly seeing those drop, that is a measure of the 
goal we are trying to achieve. But again, the question is the 
success of the program, what was it we did in the program that 
achieved that success?
    Or did that success could come about for other reasons, you 
know, do the demographics in the state could have changed. The 
economy could have changed. The mix of industries, other things 
could have an impact on why those rates go down or go up.
    They are not attributable just to the programs we are 
running. And that is what we want OSHA to establish as best 
they can.
    You know, what is having an impact and what is not?
    Mr. Gowdy. Mr. Beauregard, training and outreach are two of 
the most important components to proactive safety. Can you 
describe how the state plans engage in training and outreach?
    Mr. Beauregard. Each state does some things differently 
regarding the training and outreach. So what I prefer to do is 
just explain how we do it in our state.
    And then if there are follow-up questions, answer those.
    We take training and outreach very seriously. We have a 
comprehensive training and outreach program.
    As a matter of fact, every single document that we have, 
and we produce, is available through a downloadable mechanism 
on our website. So you can actually download everything we have 
onto your PC or laptop or individual DVD.
    We have put together 60 PowerPoint presentations primarily 
for middle and small size employers that may not have the 
safety and health program. We put on webinars. We do outreach 
training activities. We do partnerships and alliances where we 
do training out in the field.
    We very strongly believe that training is a critical 
component of ensuring that you are reducing injuries, 
illnesses, and fatalities.
    The grassroots publication that you have, I think, outlines 
a lot of different training activities that are going on in 
other states. We do think that you need to have a strong 
training component which is where you should start when you 
identify a problem area.
    Then you should intervene with some consultation activity. 
And then you should follow it up with some enforcement 
activity.
    Mr. Gowdy. Thank you.
    Thank you, Mr. Chairman.
    Chairman Walberg. I thank the gentleman.
    And now we recognize----
    We will let him catch up here.
    I will recognize the gentleman from Indiana, Dr. Bucshon?
    Mr. Bucshon. Mr. Chairman, I yield back my time to you.
    Chairman Walberg. Well, I am glad I recognized you. Thank 
you, sir.
    Anything back from a doctor is great, as long as it is a 
good report, right?
    Let me turn to Mr. Gerstenberger and continue some question 
that I wanted to follow up on.
    Your testimony discusses the use of safety and health 
plans. Can you describe how these work to improve safety?
    And secondly along with that, do you have any concerns 
about OSHA's effort known as the I2P2 to regulate in this area?
    Mr. Gerstenberger. Certainly, a very good question.
    As an association, we embrace the concept of I2P2 if you 
will, or safety and health plans. Indeed, we produced a model 
safety and health plan for our members to use as a best 
practice.
    I think it can be problematic when looking at a regulation 
focusing on I2P2 in that it can become a little too restrictive 
or prescriptive as to how the program should be carried out.
    To be effective, a rule would have to be very flexible and 
dynamic to be able to be adapted to the variety of industries 
that it would regulate or the variety of businesses that it 
would regulate.
    Our program, as a best practice provided to our industry, 
obviously gives the employer the latitude to adjust to their 
particular situation.
    I think what would be most effective at the federal level 
if federal OSHA were to push out the various guidance it has 
around I2P2 or safety and health programs through compliance 
and outreach efforts in a manner to vet the outreach that it 
has before it considers promulgation of a rule.
    Very briefly as a model for such rule-making, the 
California program is not bad. It doesn't provide any 
particular problems for the industry.
    The problem in promulgating too inflexible of a rule or too 
prescriptive a rule is that it changes that small employer's 
focus away from safety for its workers toward citation 
avoidance, and just chasing things that could be regulatory out 
of compliance, as opposed to focusing on safety.
    So we would like to see a flexible and dynamic rule, 
obviously with a lot of guidance and outreach around it, such 
as the cases in California right now.
    Chairman Walberg. Thank you.
    Again, Mr. Gerstenberger, the Tree Industry Association has 
recognized that English--and of course in working with the 
employees we cross the language barrier in your industry.
    You have recognized that English is not the first language 
of a number of workers.
    Can you describe your industry's bilingual education and 
outreach in this area?
    Mr. Gerstenberger. Certainly, because we can have all the 
rules in the world, but if they are not understood, certainly.
    First and foremost, let me characterize the Hispanic 
component of our workforce.
    Across the country, across the board, the component of our 
workforce that is Hispanic is approximately 25 percent. And 
that varies considerably depending on what region of the 
country you are in. For instance in California, in many areas, 
it is almost 100 percent.
    Secondarily, it is very important to understand not only 
that the--do you have a component of your workforce that is 
Hispanic, but you need to know the ethnic origins of that 
Hispanic workforce, and for instance in our situation, the vast 
majority of that Hispanic workforce is from Mexico, Central 
America.
    The reason it is important to know that is to be able to 
address the idioms of the dialect, the very words and their 
meaning in translating your programs into Spanish.
    Beyond that, our method of addressing worker safety and 
health issues for the Hispanic workers is quite simple. We 
translate all our safety programs into Spanish using the 
appropriate dialect and idioms for the target audience.
    Among our employers--we distribute these programs through 
employers, and allow them to use them.
    It has proven to be quite successful. We have identified 
any of a number of bilingual trainers in our industry. And we 
utilize them at our trade shows and so forth, again to address 
the Hispanic workforce in our industry.
    So it is quite simple and straightforward.
    Chairman Walberg. Well, I applaud you for that effort.
    Mr. Gerstenberger. Thank you.
    Chairman Walberg. Because as I joked earlier, up a tree 
without a noose is good. And certainly the language, making 
sure that all is understood.
    I yield back my time, and recognize the gentleman from New 
Jersey, Mr. Payne?
    Welcome.
    Mr. Payne. Thank you, thank you very much. And thank you 
for calling this very important hearing.
    As OSHA's been an issue that has been discussed for decades 
and decades, we certainly have been moving towards trying to 
protect our workers with having health and safety regulations.
    I have a question, Mr. Frumin. The question of regulations, 
the question of sort of the carrot and the stick, you know, 
trying to get--and assist companies into having just better 
standards of safety is certainly approach of course.
    We found in a number of instances that many times there is 
noncompliance, and so we have to sort of have the stick 
approach.
    But I wonder in your opinion, how important are penalties 
in the overall enforcement scheme?
    Do penalties deter noncompliance, do you believe?
    Mr. Frumin. Sorry, thank you, Mr. Payne.
    Well, penalties are critical. That is not only a very 
important feature of this law. It was written into the laws. 
They are mandatory.
    First instance penalties, the Congress wasn't kidding when 
they made that decision. I am sure it was how they debated it 
at the time, Mr. Chairman. It is a very, very important feature 
of the law.
    But it is true of civil enforcements generally. Where would 
EPA be without its penalties? Where would FDA? Where would the 
Highway Patrol be?
    I mean let us not kid ourselves. Penalties are critical. 
This is a country or society that runs in part on money. And 
employers know how to count it.
    Unfortunately, you know, there are differences of views on 
that. And some people don't understand their responsibility to 
maintain penalties that are effective deterrents.
    And frankly, the penalties that are in the law now, we have 
learned, are too little. We continue to see employers large and 
small who are simply undeterred at all by the current penalty 
and enforcement structure.
    And it is necessary to raise those penalties both 
administratively as the administration is finally doing, but 
also legislatively as this committee has considered for the 
last 2 years.
    Mr. Payne. Continuing on that trend, are there are studies 
which show that OSHA inspections and penalties will lead to a 
decrease in the rate of workers' compensation claims?
    Mr. Frumin. Sure. We had a recent one. It is part of my 
testimony from the Department of Labor and Industry in 
Washington that shows a very substantial decrease in workers' 
compensation claims comparing OSHA visits with inspections, 
with citations versus those without.
    And these are very important findings, systematically done. 
I was glad to hear Mr. Beauregard describe their analysis. We 
have had too few of those analyses. We need to do a lot more of 
them.
    And I wish Mr. Lewis had been able to describe in greater 
detail the new analysis that the Labor Department itself is 
doing. This is unprecedented.
    We have never seen a department of--U.S. Department of 
Labor take so seriously the urgency of evaluating the actual 
impact of its enforcement efforts involving tens of thousands 
of workplaces over a period of time.
    I think it is disingenuous to say that there is no view 
about how to establish evaluation criteria that is in effect at 
the Labor Department. They are in the midst of a full-scale 
redesign of it. It is a public document.
    And I think they need to be given credit for that and be 
supported, so that in a couple of years when those results are 
in, we will finally see the kind of understanding that we need 
in order to move forward.
    Mr. Payne. Also as you mention, Mr. Beauregard, in his 
testimony objects to comparison, we show that states tend to 
cite half as many serious violations as compared with federal 
OSHA.
    Isn't a low rate of serious violations an indicator that 
states may be targeting the wrong facilities?
    Is it possible that this indicates states are writing down 
penalties to the point that they lack the wanted deterrent 
factor value?
    Mr. Frumin. Well, I can't speak for the states' motivation 
in arriving at such a small proportion of serious violations, 
but we did see in the federal review in a number of states 
where the state inspectors were simply not adequately 
classifying serious violations, and the mandatory penalties 
that come with them.
    There is a sharp disparity between states overall and some 
individual states and some individual states, and of course, 
federal practice as well, regarding the proportion of serious 
violations.
    Those are the violations that come with mandated penalties 
and it is critical that that be a key performance evaluation 
criteria going forward. What everyone thinks of looking at 
injury-illness data.
    If we are not looking at the basics of--and compliance, you 
know, we are missing the point.
    Mr. Payne. Thank you. My time has expired.
    I would hope that perhaps in the future we could have the 
head of OSHA at the hearing--might help to hear what the helm 
of the group thinks.
    All right, I yield back.
    Chairman Walberg. I thank the gentleman.
    And will reiterate that we are certainly open to that. And 
hope that they could help us with if indeed the concern is that 
they need 14 days as opposed to others that can appear in 7 
days notice, that we can work that out.
    But we do have the information from them. It is part of 
record in relationship to the report. And we will certainly 
have them in front of us in the future.
    I want to thank the witnesses for being here today. I think 
you have imparted a great amount of information on the whole 
cross spectrum of the issue to us.
    Appreciate your time and your attention to the time as 
well.
    And I express appreciation to my subcommittee members for 
their attention to the details here as well, and the questions 
that you supplied this morning.
    So now I would recognize the ranking member for any closing 
remarks that she might have.
    Ms. Woolsey. Thank you, Mr. Chairman.
    Two thoughts before I make my closing remarks.
    One, we have to recognize that regarding Mr. Beauregard's 
testimony, and he was absolutely right. The contribution from 
the federal government to the states' programs has not kept up 
with the rate of inflation, in the last--over 10 years, and 
that really cuts into what is going on.
    Under President Obama, it increased about 15 percent. And 
in the president's budget, he requests more.
    So, there is a recognition that we need to do more to 
assist the states.
    The other thought I had was the Inspector General's report 
actually supports what OSHA is doing now. It just came before--
actually your report says, OSHA should be establishing measures 
and the impact from the state and with their own department.
    And that is what they are doing. So, I think that is good 
news for us. In your report, we asked for it and it came out 
now.
    But it will fulfill itself. And thank you for that.
    So, we have learned that effective state plans are 
essential in protecting workers' health and safety. But we also 
know that the dramatic Republican budget cuts that are being 
considered for the Department of Labor/ Health and Human 
Services' appropriations bill will absolutely undermine 
workers' safety and health in the 27 state plans, as well as 
the department in general, including my home state of 
California.
    And many members of this committee, their states will be 
affected.
    Mr. Beauregard's testimony states, and I quote--
``Insufficient funding poses the most serious threat to the 
overall effectiveness of both state plans and federal OSHA.''
    And we agree with you.
    The chief of California State OSHA Plan, Ellen Widess, sent 
a letter that I entered into the record regarding their 
relationship with federal OSHA.
    And her letter makes two key points.
    ``Federal OSHA's standards and enforcement provide a 
uniform floor for all OSHA programs.'' I mean, this is from a 
state director.
    ``This ensures uniform protections for workers employed by 
multistate employers. It also discourages forum shopping by 
employers seeking a competitive advantage at a cost of less 
protection for their workers.''
    Secondly, she says, OSHA enhanced oversight found 
California law impeded the state from issuing enough serious 
violations. This resulted in state legislation clarifying the 
definition of serious violations, which was supported by both 
the labor and the employer community in California.''
    The state of Washington OSHA Plan has sent the subcommittee 
a letter answering the questions posed by this hearing. Their 
letter says, ``OSHA does not undermine states' efforts to 
promote worker health and safety.''
    Washington OSHA also contends that OSHA's National Emphasis 
Programs, which requires states to join federal OSHA in 
targeting inspection at high hazard industries such as oil 
refineries or metal foundries, is a legitimate exercise of 
federal authority.
    Mr. Chairman, OSHA was not included in this hearing; we 
have said it several times. And I thank you for saying you will 
make that effort next time.
    We have the summary of the Labor Department's evaluation 
initiative covering enforcement and compliance assistance, as 
well as OSHA's May 31st, 2011 response to the inspector general 
report.
    And I would like to ask unanimous consent to add these 
three items into the record.
    [The information follows:]

     Performance Measurement and Management at DOL and Within OSHA

     In 2010, the Department published its 5 year strategic 
plan. The plan emphasizes outcomes that DOL Agencies are trying to 
achieve.
     For worker protection agencies such as OSHA, this meant 
thinking beyond simply process and outputs, to how the Department will 
be able to measure whether it is making a difference in how employers 
behave and comply with the laws that the worker protection agencies 
enforce.
     The outcome measures for most worker protection agencies 
is a rate of compliance or a rate of violations in a particular 
industry or overall. In many cases, agencies have diverted resources 
from targeted investigations to investigations of randomly selected 
sites within a particular universe. Sampling and random inspections 
allow these agencies to draw conclusions about the larger universe they 
seek information on.
     Several agencies have also introduced measures of 
recidivism.
     OSHA has for many years tracked injury/illness and 
fatality data since improving the health and safety of workers is the 
ultimate long term goal of OSHA regulations. This is good outcome data 
because it looks at what is happening to workers. With the strategic 
plan they also introduced three new more intermediate outcome measures:
     Percent of serious, willful and repeat violations in high 
hazard general industry;
     Percent of serious, willful and repeat violations in large 
construction industry;
     Recidivism rate for serious, willful and repeat violations 
in high hazard general industry.
    The first two examine how employers are behaving and the last 
measure gauges how effective our inspections are at keeping employers 
in compliance.
     In addition, the Department's Chief Evaluation Office is 
funding 4 evaluations that look at the impact of certain interventions 
and strategies on employer behavior as related to compliance with the 
law.
     OSHA evaluation on the SST program intended to determine 
if there is a different effect on employer compliance when they receive 
a high hazard warning letter, versus when they receive both the letter 
and an inspection.
     OSHA evaluation on the effect of compliance assistance and 
consultation visits on rates of injury and illness.
     Wage and Hour evaluation on the effect of various types of 
remedies on employer behavior--lessons from this evaluation will be 
useful for all worker protection agencies.
     Wage and Hour evaluation of the effect of enterprise-wide 
enforcement versus traditional establishment enforcement on compliance.

                          Prepared by the U.S. Department of Labor.
                                 ______

                 


                                ------                                

    Chairman Walberg. Without objection.
    Ms. Woolsey. Thank you. And I yield back, Mr. Chairman.
    Chairman Walberg. I thank the gentlelady.
    And again, thank you for being part of this hearing today.
    A lot has been said, a lot more will be said on this issue.
    I think I would start by making it very clear that I and 
many others have a concern that we do have financial problems. 
We are a nation that is broke--beyond broke.
    We have gone two terms without a budget, addressing some of 
these issues, and, I think--and clarifying it.
    We, at this time in the House, are attempting to change 
that by having a budget. And that budget is dealing with the 
realities of a fact that we are broke.
    And this is not an issue of one side of the aisle or 
another. It has gone on for too long, that we have not 
established priorities to meet the pressing, important, and 
necessary needs of government.
    And so that affects all of our budget areas. And certainly 
affects the Department of Labor as well.
    I think the efforts right now are to make sure we really 
push ourselves to decide what is important and what is 
necessary. And that will be a difficult process. And mistakes 
will be made.
    But in the course of hearings like this and others, we will 
have the opportunity to hopefully ferret out those things that 
are absolutely necessary. And we would do ourselves great harm 
in not attending to those details.
    Offering flexibility, offering alternatives, pushing the 
envelope, suggesting new ways of handling it, those are, I 
hope, part of not only this subcommittee's process, but the 
Congress as a whole. Priorities are important.
    And we have not been attentive to establishing the key 
priorities. Instead we have accepted everything as a priority, 
so to speak.
    Efficiency has to be the requirement. But safety cannot be 
the--or loss of safety, be the outcome unnecessarily.
    The concept of fine versus fix has to be dealt with. I 
think where we can find, where we have examples of promoting as 
mentioned already without huge fines, with the focus being 
given on fixing it. And finding those ways, and accessing those 
ways from other experiences to promote those things.
    We are seeing that state OSHA in many cases has come of 
age. And the credibility with flexibility can be very helpful 
there.
    I think it is a true statement that some work, many 
situations of work, but some work is necessarily dangerous. It 
is necessarily dangerous. Whether it was when I worked at steel 
mills, and there was necessary danger in carrying out my job.
    However on the other side of the ledger, no work should be 
unnecessarily dangerous. And I guess that is the creative 
tension we have here, of trying to make sure that while we have 
dangerous situations of work and that danger is necessary, 
because the job has to be done, and it can't be done without 
some element of danger. Let us make sure that we have in place 
the ability to say that it is not unnecessarily dangerous.
    And that we can afford those things in a way that we can 
continue to encourage jobs and the growth in the economy that 
expands the opportunity. But we can also encourage the safety 
factor as well.
    So having said that, that will be our agenda. We will 
continue to work for that.
    We hope that all that desire to be at this table will come 
to the table and make all good effort to be here.
    And again, I say thank you for participating today.
    No further business coming before this committee, the 
committee stands adjourned.
    [Additional submission of Chairman Walberg follows:]
    
    
    
                                ------                                

    [Additional submissions of Ms. Woolsey follow:]

                                                                        FEDERAL TO STATE 100% MATCH AWARDS--FY 2009-2011
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                    FY 2009 Fed    FY 2009 State   FY 2009 State    FY 2010 Fed    FY 2010 State   FY 2010 State   FY 2011* Fed   FY 2011* State  FY 2011* State
                      State                            Award           Match           100%            Award           Match           100%            Award           Match           100%
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
ALASKA..........................................      $1,393,500      $2,090,512        $697,012      $1,429,400      $2,229,072        $799,672      $1,429,400      $2,088,496        $659,096
ARIZONA.........................................      $1,813,000      $1,814,251          $1,251      $1,813,000      $2,214,670        $401,670      $1,813,000      $2,129,093        $316,093
CALIFORNIA......................................     $23,013,900     $41,588,600     $18,574,700     $27,418,800     $39,501,000     $12,082,200     $27,418,800     $46,513,000     $19,094,200
CONNECTICUT.....................................        $614,000      $1,763,383      $1,149,383        $650,400      $1,636,449        $986,049        $650,400      $1,531,469        $881,069
HAWAII..........................................      $1,686,400      $1,686,400              $0      $1,538,000      $1,538,000              $0      $1,445,400      $1,445,400              $0
ILLINOIS........................................      $1,500,000      $1,500,000              $0      $1,500,000      $1,500,000              $0      $1,584,500      $1,584,500              $0
INDIANA.........................................      $2,188,000      $2,188,000              $0      $2,188,000      $2,188,000              $0      $2,188,000      $2,188,000              $0
IOWA............................................      $1,608,900      $2,890,350      $1,281,450      $2,066,500      $2,327,574        $261,074      $2,066,500      $2,256,279        $189,779
KENTUCKY........................................      $3,308,600      $5,810,600      $2,502,000      $3,505,100      $6,128,300      $2,623,200      $3,505,100      $5,968,400      $2,463,300
MARYLAND........................................      $3,916,600      $4,611,106        $694,506      $4,130,800      $4,560,756        $429,956      $4,130,800      $4,774,956        $644,156
MICHIGAN........................................      $9,893,100     $11,138,500      $1,245,400     $10,291,600     $11,387,000      $1,095,400     $10,291,600     $12,528,700      $2,237,100
MINNESOTA.......................................      $3,900,300      $4,805,084        $904,784      $4,123,300      $4,923,054        $799,754      $4,123,300      $4,936,981        $813,681
NEVADA..........................................      $1,132,400      $5,597,207      $4,464,807      $1,505,900      $5,067,950      $3,562,050      $1,505,900      $4,955,903      $3,450,003
NEW JERSEY......................................      $1,895,800      $3,272,479      $1,376,679      $1,984,700      $2,382,452        $397,752      $1,984,700      $2,758,208        $773,508
NEW MEXICO......................................        $828,000      $1,085,530        $257,530      $1,027,300      $1,027,300              $0      $1,027,300      $1,027,300              $0
NEW YORK........................................      $3,163,000      $4,257,000      $1,094,000      $3,827,300      $5,078,000      $1,250,700      $3,827,300      $5,078,000      $1,250,700
NORTH CAROLINA..................................      $5,180,700     $11,952,262      $6,771,562      $5,501,500     $12,354,071      $6,852,571      $5,501,500     $12,354,071      $6,852,571
OREGON..........................................      $5,105,700     $16,015,071     $10,909,371      $5,292,800     $15,780,509     $10,487,709      $5,292,800     $17,477,690     $12,184,890
PUERTO RICO.....................................      $2,438,800      $7,854,000      $5,415,200      $2,588,900      $5,641,069      $3,052,169      $2,588,900      $5,180,743      $2,591,843
SOUTH CAROLINA..................................      $1,734,200      $1,734,200              $0      $1,734,200      $1,734,200              $0      $1,734,200      $1,734,200              $0
TENNESSEE.......................................      $3,278,900      $4,999,981      $1,721,081      $3,977,100      $4,206,521        $229,421      $3,977,100      $4,206,523        $229,423
UTAH............................................      $1,300,200      $1,485,606        $185,406      $1,464,200      $1,464,200              $0      $1,579,200      $1,579,200              $0
VERMONT.........................................        $725,800        $725,800              $0        $725,800        $725,800              $0        $725,800        $725,800              $0
VIRGIN ISLANDS..................................        $201,000        $464,662        $463,662        $202,100        $465,238        $463,138        $202,100        $468,288        $466,188
VIRGINIA........................................      $3,319,800      $3,319,800              $0      $3,319,800      $3,319,800              $0      $3,319,800      $3,319,800              $0
WASHINGTON......................................      $6,901,600     $38,735,838     $31,834,238      $7,249,900     $32,780,939     $25,531,039      $7,249,900     $35,113,670     $27,863,770
WYOMING.........................................        $520,000        $784,598        $264,598        $548,700        $812,843        $264,143        $548,700        $884,808        $336,108
                                                 -----------------------------------------------------------------------------------------------------------------------------------------------
      Total Awards..............................     $92,562,200    $184,170,820     $91,808,620    $101,605,100    $172,974,767     $71,569,667    $101,712,000    $184,809,478     $83,297,478
  Funds for One-Time Only Distribution Reduction         $30,800  ..............  ..............      $2,787,900  ..............  ..............      $2,681,000  ..............  ..............
                                                 ----------------                                ----------------                                ----------------
      Total Appropriation.......................     $92,593,000  ..............  ..............    $104,393,000  ..............  ..............    $104,393,000  ..............  ..............
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
NOTES:        * Initial Awards.        Source: OSHA.


1. The Federal Award column consists of the base award and mandatories for that fiscal year. This column does not include any one-time only funds, deobligated funds or lapsed funds
  transactions.
2. The State share column consists of a dollar for dollar match of the final base award and 100% State funds for federal or state safety and health enforcement. These figures do not include
  one-time only awards.
3. Effective July 1, 2003, the required match for Virgin Islands is waived up to $200,000 in accordance with section 501(d) of Public Law 95-134, The Omnibus Insular Areas Act of 1977 (48 USC
  1469(d)).

                                ------                                


    Post Hearing Comments of David Michaels, Ph.D., MPH, Assistant 
    Secretary, Occupational Safety and Health Administration, U.S. 
                          Department of Labor

    Thank you for this opportunity to submit a statement to the record 
for the June 16 hearing, ``Is OSHA Undermining State Efforts to Promote 
Workplace Safety?''
    We were pleased to learn that all of the witnesses who testified 
agreed that OSHA was clearly not ``undermining'' state efforts to 
promote workplace safety. The two main witnesses on State Plans, Mr. 
Kevin Beauregard and Mr. Eric Frumin, both agreed that the factor that 
would contribute most to undermining the effectiveness of State Plans 
would be drastic cuts to the federal contribution to the State Plans' 
budgets.
    Section 18 of the Occupational Safety and Health Act of 1970 allows 
states to develop and enforce occupational safety and health standards 
in the context of an OSHA-approved State Plan. Twenty-seven (27) states 
and territories have sought and obtained approval for their State 
Plans--21 states and Puerto Rico have complete programs covering both 
the private sector and state and local governments; four states and the 
Virgin Islands have programs limited in coverage to public sector 
employees. Currently, State Plans deliver the OSHA program to 40% of 
the nation's private sector workplaces, with federal OSHA responsible 
for the other 60%.
    Section 18(c) of the Act requires OSHA to ensure that all aspects 
of the states' programs, but particularly their standards and 
enforcement programs, including the conduct of inspections, are at 
least as effective as OSHA's program, and that the State Plans have 
sufficient funding and qualified enforcement personnel to operate. 
Section 18(f) requires states to submit reports to federal OSHA, and 
federal OSHA is required to use those reports, as well as inspections 
of the State Plans, to determine whether states are effectively 
carrying out their plans.
    This oversight is essential to ensuring a consistent level of 
protection of the health and safety of workers throughout the United 
States, as Congress intended. States still have the flexibility to go 
beyond the floor that federal OSHA sets, as CalOSHA Chief Ellen Widess 
noted in a recent letter to Representative Lynn Woolsey.
    As OSHA's 2009 Special Report on Nevada and subsequent FY 2009 
Enhanced Federal Annual Monitoring and Evaluation (EFAME) reports on 
the other State Plans showed, federal OSHA needed to improve its 
procedures for conducting the oversight required by the Act. OSHA has 
recently made great progress in improving oversight of and 
communications with State Plans, including improved state plan 
participation in developing National Emphasis Programs and the 
extensive overhaul of how OSHA monitors state plans, communicates those 
findings, and follows up on implementation of corrective action plans. 
The heads of Washington and California OSHA programs have both 
confirmed the benefits of federal assistance and oversight in letters 
to Ranking Member Woolsey.
    We believe that this Federal/State Plan arrangement has been 
successful, with many states developing standards and enforcement 
methods that go beyond OSHA's standards and policies.
The Inspector General Report
    The Inspector General's report, ``OSHA Has Not Determined if State 
OSH Programs Are at Least as Effective in Improving Workplace Safety 
and Health As Federal OSHA' s Programs'' criticized OSHA for using 
activity measures instead of outcome or impact measures to determine 
the effectiveness of State Plans. While OSHA agreed in general with the 
need for better measures, we noted that attempting to determine the 
effectiveness of State Plans by relying exclusively on a system of 
impact or outcome measures is not only extremely problematic, but would 
not fulfill the more specific and extensive requirements of the 
Occupational Safety and Health Act of 1970.
    Ideally, OSHA would use outcome measures in conjunction with other 
measures to evaluate effectiveness. Developing such outcome measures 
has been recognized by the Inspector General and other experts in this 
area as highly difficult. While it is clear that the development and 
enforcement of standards, as well as compliance assistance, has 
contributed significantly to the drop in injuries, illnesses and 
fatalities over the last 40 years, it is difficult to determine the 
extent to which inspections, penalties or compliance assistance 
contributed to this reduction. Other factors such as changes in 
industry mix, the composition of the working population, and difficulty 
in accurately measuring certain outcomes all make the development of 
useful outcome measures extremely difficult.
    Despite these difficulties, OSHA is currently engaged in an 
unprecedented effort to evaluate the impact of its activities and 
develop outcome measures that could help measure the effectiveness of 
OSHA's enforcement program and other related efforts. For example, 
several studies are underway to look at the impact of penalties on 
compliance, letters related to OSHA's Site Specific Targeting Program, 
consultation activities and the benefits of enterprise-wide 
settlements. The results of these and other studies (which should be 
available in several years) will provide important guidance for the 
Department of Labor's enforcement agencies and State Plan partners.
    In addition, as OSHA awaits the results of those longer-term 
studies, OSHA is implementing several outcome measures in a more 
expeditious manner. For example, in the most recent strategic plan, 
OSHA has introduced three new more intermediate outcome measures:
     Percent of serious, willful and repeat violations in high 
hazard general industry;
     Percent of serious, willful and repeat violations in large 
construction industry;
     Recidivism rate for serious, willful and repeat violations 
in high hazard general industry.
    Finally, OSHA and the State Plans have launched a joint effort to 
determine what activity and outcome measures will best enable federal 
OSHA to determine the effective operation of State Plan programs. This 
effort, in addition to improved communication concerning National 
Emphasis Programs and other federal OSHA activities, is expected to 
significantly improve federal OSHA oversight over state plan activities 
and effectiveness as we move forward together to accomplish our joint 
mission of ensuring the safety and health of American workers.
    OSHA reviews an enormous amount of data on State Plans and our own 
program to gauge effectiveness. Because states participate in OSHA's 
data system, the same data is available on the State Plans as on the 
federal OSHA program, thus allowing direct and consistent comparisons. 
On the federal level, OSHA evaluates its enforcement program using a 
variety of statistics, including compliance rates, programmed 
inspections and fatalities resulting from certain factors. State Plans 
are evaluated on activity-based data, including inspection counts, 
violations characteristics, penalty amounts, injury and fatality rate 
trends, Integrated Management Information System (IMIS) and 
recordkeeping, measures for timeliness and completion of inspections, 
violation classification, staffing benchmarks, and timely adoption of 
standards. Monitoring these measures, combined with increased on-site 
evaluation of State Plan activities, evaluation of case files, faster 
follow-up of Complaints Against State Programs, and improved tracking 
of inspector training helps OSHA determine overall effectiveness. As 
noted above, as outcome measures are developed, OSHA's oversight of 
State Plan activities will improve.
    Thank you for this opportunity to submit these comments.
                                 ______
                                 
                                 
                                 
                                 
                                ------                                

    [Additional submissions of Mr. Beauregard follow:]

    
    
    
                                ------                                


                       FY 2010 INSPECTION ACTIVITY
------------------------------------------------------------------------
                                            State plans    Federal OSHA
------------------------------------------------------------------------
Total Inspections.......................          57,124          40,993
  Safety................................          45,023          34,337
  Health................................          12,101           6,656
  Employees Covered by Inspection.......       2,361,456       1,423,528
  Programmed............................          35,085          24,759
  Unprogrammed..........................          22,039          16,220
  Accident..............................           2,967             830
  Complaint.............................           8,986           8,027
  Follow-up.............................           2,641           1,096
  Other unprogrammed....................           7,445           6,267
  Construction..........................          22,993          24,430
  Maritime..............................              34             302
  Manufacturing.........................           9,462           7,917
  Other Industry........................          24,635           8,344
                                         ===============================
Total Violations........................         120,417          96,742
  Serious...............................          52,593          74,885
  Other-than-serious....................          65,031          17,244
  Willful...............................             278           1,519
  Repeat................................           2,054           2,758
  Failure-to-abate......................             460             334
  Average Current Penalty per Serious               $871          $1,053
   Violation............................
                                         ===============================
Total Current Penalties.................     $72,233,480    $183,594,060
------------------------------------------------------------------------
Source: U.S. Department of Labor, OSHA, FY 2010.

                                ------                                


          Occupational Safety & Health State Plan Association
                   Press Release, September 28, 2010

    The Occupational Safety and Health State Plan Association (OSHSPA), 
made up of 27 States and Territories that administer their own OSHA 
programs and work as partners with OSHA to ensure safe and healthful 
workplaces across the nation, fully supports regular auditing and 
monitoring of State-administered occupational safety and health 
programs. It is the organization's belief that appropriate auditing and 
monitoring can be a valuable tool to enhance program effectiveness and 
to support continuous program improvement. OSHSPA also believes that it 
is critical for the methodology that is used by OSHA to measure 
programs be consistent across the nation and to continue to allow the 
States to operate in a way that is at least as effective as OSHA. The 
State Plans do not, and should not, operate in a manner identical to 
OSHA. Rather, they serve as laboratories for moving occupational safety 
and health issues forward and fuel creative approaches to ensure the 
occupational safety and health of workers.
    OSHA has recently engaged in a process where enhanced federal 
monitoring of programs was conducted and has issued State-specific 2009 
Enhanced Federal Annual Monitoring and Evaluation (EFAME) Reports of 
State Plan OSHA programs. The reports contain a number of 
recommendations that may be useful to State Plan OSHA programs. 
However, OSHSPA believes that the scope, methodology, and evaluation 
criteria used by each of the ten federal OSHA regional offices were 
inconsistent and in some cases the report findings are misleading. 
Despite a last minute attempt to standardize the format of the reports, 
documentation and content still vary considerably. For several states, 
the executive summaries do not appear to clearly represent the audit 
findings contained in the associated report, nor do they clearly 
indicate positive aspects of the State Plan programs. Finally, although 
required by the guidelines established by the OSHA national office, 
some reports do not include a determination on whether a State 
continues to meet its State Plan requirements.
    A well-designed audit containing pertinent and valid criteria, 
administered consistently by a well-trained staff, and focused on 
outcomes rather than process, is critical if the end results are to be 
consistent and meaningful. Appropriate fact-based criteria must be 
established to measure quality and performance against valid 
established benchmarks. OSHSPA is concerned that some of the audits 
seem to place too much emphasis on OSHA's determination regarding 
whether or not specific state policies and procedures are identical to 
federal OSHA's. This ``identical procedure'' approach is in conflict 
with the provisions of the OSH Act that specifically allow for State 
Plan administration of an OSHA program utilizing alternative policies 
and procedures, as long as the State's standards and overall 
enforcement of those standards are at least as effective as federal 
OSHA's.
    Each State Plan program will respond to OSHA individually regarding 
its specific audit. Overall effectiveness of State and federal OSHA 
programs is paramount in ensuring that all workers nationwide have a 
safe and healthful workplace. OSHSPA members would welcome the 
opportunity to work with OSHA in developing effective measures and an 
effective auditing system that will better ensure that State Plans and 
federal OSHA are equally accountable to the American workers and 
general public, in regards to overall program effectiveness.
                                 ______
                                 
       Occupational Safety & Health State Plan Association,
                                      Washington, DC, May 13, 2011.
David Michaels, PhD, MPH,
Assistant Secretary for Occupational Safety and Health, U.S. Department 
        of Labor, 200 Constitution Ave, NW #2315, Suite 800, 
        Washington, DC 20210-0001.
Subject: Legal Basis of Requirement for Mandatory State Plan Adoption 
    of National Emphasis Programs

    Dear Assistant Secretary Michaels: Thank you for your detailed 
letter of October 12, 2010, responding to the Occupational Safety and 
Health State Plan Association's (OSHSPA) letter on the above subject of 
July 6, 2010.
    First, I wanted to express the appreciation of the OSHSPA Board of 
Directors and OSHSPA's membership as a whole for the discussions 
initiated on the broad issue of ``as effective as'' criteria for State 
Plans at the OSHSPA Board/Federal Steering Committee meeting in Chicago 
last month. The recent Office of Inspector General (OIG) report, 
entitled ``OSHA Has Not Determined if State OSH Programs Are At Least 
As Effective in Improving Workplace Safety and Health as Federal OSHA's 
Programs'', serves as a very timely and appropriate starting point for 
discussions of this issue, which lies at the core of State Plan 
monitoring and evaluation.
National Emphasis Programs (NEP)
    OSHSPA fully supports OSHA's efforts to develop and use NEPs to 
address workplace hazards that pose a real and significant threat to 
employee and employer safety and health in federal and state 
jurisdictions. Many State Plans have benefitted over the years from 
OSHA's identification and development of NEPs to address existing or 
emerging hazards that threaten the lives of America's working men and 
women. As stated in previous communications with your office, OSHSPA is 
more than willing to work with OSHA on the identification and 
development of NEPs and to encourage our membership to participate.
    However, for the reasons stated below, OSHSPA does not believe that 
OSHA has the legal authority nor is correct from a policymaking 
standpoint to require State Plans to adopt NEPs to maintain their ``as 
effective as'' status.
    The OSH Act is clear that State Plans must:
     adopt standards that are at least as effective as those of 
OSHA; and
     must meet other basic requirements such as adequate 
personnel, adequate funding, right of entry, and coverage of public 
sector employees.
    As you noted in your letter, OSHA regulations for State Plans 
further provide that whenever a ``significant change in the federal 
program would have an adverse effect on the `at least as effective as' 
status of the State if a parallel State change were not made,'' a State 
Plan change ``shall be required.''
    You have interpreted the above provision as requiring mandatory 
State adoption of NEPs ``when a pattern of serious injuries or 
incidents emerges that demonstrates a widespread hazard demanding 
attention by the nation's employers.'' You further mandate that ``A 
State may adopt the Federal program, or it may adopt an equivalent 
State program, if it can document how the State program is `at least as 
effective,' 29 CFR Sec. 1954.3(b)(4). In the latter case, it is 
essential that the States address all key components of the NEP in an 
``at least as effective'' manner'' (e.g., conduct a specified number of 
enforcement inspections within a set time frame).
    OSHSPA's first comment on OSHA's position with regard to NEPs is 
that it seriously questions how any State's program could be 
``adversely effected'' if it chooses not to adopt an NEP which only 
requires a State plan or a federal Area Office to conduct five or fewer 
inspections in a given industry per year--a frequent occurrence in 
NEPs. In a State Plan that conducts 3,000 inspections per year, your 
argument suggests that if the State fails to conduct 5 inspections, or 
16/100ths percent of the total, the State Plan will somehow not be ``as 
effective as'' the federal program. In practical terms, OSHSPA finds 
OSHA's position unsupportable. In legal terms, OSHSPA finds OSHA's 
position contrary to the OSH Act.
    The OSH Act of 1970 provides in Sec. 2(b)(11):

          ``(b) The Congress declares it to be its purpose and policy * 
        * * to provide for the general welfare, to assure so far as 
        possible every working man and woman in the Nation safe and 
        healthful working conditions and preserve our human resources--
                  (11) by encouraging States to assume the fullest 
                responsibility for the administration and enforcement 
                of their occupational safety and health laws by 
                providing grants to the States to assist in identifying 
                their needs and responsibilities in the area of 
                occupational safety and health, to develop plans in 
                accordance with the provisions of this Act, to improve 
                the administration and enforcement of State 
                occupational safety and health laws, and to conduct 
                experimental and demonstration projects in connection 
                therewith. * * *'' (Emphasis added).

    As the OSH Act indicates, State Plans are charged by Congress to 
identify ``their needs and responsibilities in the area of occupational 
safety and health.'' OSHA's position that a State Plan must conduct 
five inspections in a given industry per year constitutes federal 
micro-management of State resources and runs directly contrary to 
Congress's stated intent for the States to identity their own needs and 
responsibilities for assuring ``safe and healthful working conditions'' 
in their State.
    OSHSPA's second comment with regard to OSHA's position that 
``States address all key components of the NEP in an ``at least as 
effective'' manner'' is that OSHA's position is not supported by its 
own stated basis for the development of NEPs. For instance, if OSHA 
uses national data on injuries and incidents to support the development 
of the NEP, as your letter suggests, but a State has a level of 
injuries and illnesses in the industry that demonstrates there is no 
widespread hazard in the State, your position would still suggest that 
the State would have to conduct the NEP inspections anyway or risk 
being found to be not ``as effective as'' the federal program. OSHSPA 
finds OSHA's position that a State Plan should use its limited 
resources to address a hazard that may be a problem elsewhere in the 
nation, but is not one in a particular State, to be unsupportable.
    OSHA would also presumably take the position that if a State Plan 
chose to approach the particular hazard addressed by the NEP through 
Cooperative Programs first, the State Plan would still have to conduct 
enforcement inspections, even if the cooperative approach proved 
successful in the State. OSHSPA finds OSHA's position in this scenario 
to be unsupportable as well, and contrary to Congress's stated intent 
that State Plans ``conduct experimental and demonstration projects'' to 
address workplace hazards that impact the safe and healthful working 
conditions of employees and employers.
    OSHSPA's third comment is that OSHA's current position on NEPs runs 
contrary to and is inconsistent with its own position on determinations 
of ``as effective as'' with regard to State Plans. As part of quarterly 
and annual monitoring of State Plans, OSHA regularly evaluates the 
``effectiveness'' of State Plan inspection targeting systems by 
reviewing: in-compliance rates, not-in-compliance rates, percent 
serious rates, percent of programmed inspections with serious/willful/
repeat violations and violations per inspection. State Plans that have 
inspections statistics that significantly differ from federal OSHA in 
any of these areas are currently subject to receiving recommendations 
and corrective action plans. This has been highlighted in the two most 
recent Federal Annual Monitoring and Evaluation (FAME) reports issued 
by OSHA. OSHSPA can provide countless examples of State Plan annual 
evaluation reports where OSHA monitoring personnel have used such 
indicators as high in-compliance rates and low percent serious 
violation rates in planned inspections to conclude that a State's 
targeting system was inadequate or not ``as effective as'' OSHA's 
targeting system.
    NEP inspections are one part of a State Program's planned 
inspection targeting scheduling system and by making all NEPs 
mandatory, OSHA would be requiring every State Plan to focus 
enforcement activities in the areas covered by the NEPs. Based on your 
letter, OSHA would presumably take the position that a State Plan would 
still have to conduct planned enforcement inspections under the NEP, 
even if the State could demonstrate that previous enforcement and 
consultation inspections in the particular industry or emphasis area in 
their State resulted in high in-compliance rates and/or a low percent 
serious rate. Additionally, OSHA's current position on NEPs would not 
take into consideration state injury and illness rates pertaining to a 
particular industry or operation even if they were below the national 
average. OSHSPA finds OSHA's position that a State Plan should use its 
limited resources to address a hazard that may admittedly be a problem 
elsewhere in the nation, but is not one in each State Plan, to be 
unsupportable.
    OSHSPA's final comment is that OSHA's current position on NEPs 
could constitute an unfunded mandate to State Plans. OSHA's recent 
implementation of the NEP on Recordkeeping was the latest example of a 
resource impact for State Plans resulting from participation in an OSHA 
enforcement initiative that OSHA had determined was of such widespread 
significance and importance that all federal and State Plan Programs 
should be strongly encouraged to participate. That particular NEP was 
developed by OSHA without any State Plan participation early enough in 
the development process to identify any negative resource impacts on 
State Plan programs in time to address them up front. Additionally, 
OSHA received an appropriation of approximately one million dollars in 
FY2009 and FY2010 from Congress to implement its Recordkeeping 
initiative, but provided no such funding to the 27 State Plans. As you 
know, inspections under the Recordkeeping NEP can last hundreds or even 
thousands of hours, which takes away from other planned enforcement 
inspection activities. When such funding is not provided to State 
Plans, the initiative becomes an unfunded mandate for States, which are 
already significantly underfunded as it is.
    Based on the above, it is OSHSPA's position that OSHA does not have 
the legal authority nor is correct from a policymaking standpoint to 
require State Plans to adopt NEPs.
    On behalf of OSHSPA, I respectfully request that OSHA withdraw its 
requirement for mandatory State Plan adoptions of NEPs.
            Sincerely,
                                   Kevin Beauregard, Chair,
             Occupational Safety and Health State Plan Association.
                                 ______
                                 
                                 
                                 
                                ------                                

    [Questions submitted for the record and their responses 
follow:]



                                ------                                




                                ------                                

    [Whereupon, at 11:27 a.m., the subcommittee was adjourned.]

                                 
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