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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 

( 

Available via the World Wide Web: 

www.gpo.gov/fdsys/browse/committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 
(II) 

COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Thomas E. Petri, Wisconsin 

Howard P. ‘‘Buck’’ McKeon, California 

Judy Biggert, Illinois 

Todd Russell Platts, Pennsylvania 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Bob Goodlatte, Virginia 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Scott DesJarlais, Tennessee 

Richard L. Hanna, New York 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Lou Barletta, Pennsylvania 

Kristi L. Noem, South Dakota 

Martha Roby, Alabama 

Joseph J. Heck, Nevada 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

George Miller, California, 

Senior Democratic Member 

Dale E. Kildee, Michigan 

Donald M. Payne, New Jersey 

Robert E. Andrews, New Jersey 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Lynn C. Woolsey, California 

Rube ́n Hinojosa, Texas 

Carolyn McCarthy, New York 

John F. Tierney, Massachusetts 

Dennis J. Kucinich, Ohio 

David Wu, Oregon 

Rush D. Holt, New Jersey 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Timothy H. Bishop, New York 

David Loebsack, Iowa 

Mazie K. Hirono, Hawaii 

Barrett Karr, Staff Director 

Jody Calemine, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

John Kline, Minnesota 

Bob Goodlatte, Virginia 

Todd Rokita, Indiana 

Larry Bucshon, Indiana 

Trey Gowdy, South Carolina 

Kristi L. Noem, South Dakota 

Dennis A. Ross, Florida 

Mike Kelly, Pennsylvania 

Lynn C. Woolsey, California, Ranking 

Donald M. Payne, New Jersey 

Dennis J. Kucinich, Ohio 

Timothy H. Bishop, New York 

Mazie K. Hirono, Hawaii 

George Miller, California 
(III) 

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 

(1) 

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. 
2 

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. 
3 

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. 
4 

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. 
5 

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:] 
6 
7 
8 

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 
9 

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. 
10 

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. 
11 

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. 
12 

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. 
13 

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 outcomebased 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 
14 

(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 
15 

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 re-
16 

quirements 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 standardmaking 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 
17 

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 
18 

1The 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. 

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. 

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 cal-
19 

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. 3TCIA also had substantive conversations with federal OSHA concerning Z133. Please see 

page 7 of this document. 

culate 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

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

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. 
20 

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 §1910.269, Electric 

Power Generation, Transmission and Distribution. Certain parts of this ‘‘vertical 
21 

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 thou- sands 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 
22 

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 
23 

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. 
24 

‘‘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. 
25 

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 
26 

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 ab-
27 

1Kasper 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’’). 2Letter 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.’’ 

surdly 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): 

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

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. 
28 

3Liberty 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.’’ 4Letter 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. 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. 

Workers’ compensation premiums are also only tenuously related to compliance 

with OSHA standards. For instance, the biggest factor in workers compensation 

costs is overexertion injuries3 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. 

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

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

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: 
29 

7Washington 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. 

[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

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 fed-
30 

8 U.S. Department of Labor Strategic Plan Fiscal Years 2011-2016, DRAFT for Stakeholder 

Review, August, 2010, p. 94. 9 Email from Jeffrey Lagda, Sr. Program Analyst, US DOL OIG, to Eric Frumin, April 29, 

2011. 

eral 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

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

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 
31 

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. 
32 

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. 
33 

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 na-
34 

tionwide 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. 
35 

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 
36 

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 
37 

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 safe-
38 

ty 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 §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 
39 

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. 
40 

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 
41 

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. 
42 

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-tocoast. 

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? 
43 

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 dif-
44 

ferent 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. 
45 

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. 
46 

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 
47 

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. 
48 

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 
49 

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? 
50 

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. 
51 

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. 
52 

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: 
53 

• 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. 
54 
55 
56 

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. 
57 

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. 
58 

[Additional submission of Chairman Walberg follows:] 
59 
60 

[Additional submissions of Ms. Woolsey follow:] 
61 

FEDERAL TO STATE 100% MATCH AWARDS—FY 2009–2011 

State FY 2009 Fed Award FY 2009 State Match FY 2009 State 100% FY 2010 Fed Award FY 2010 State Match FY 2010 State 100% FY 2011* Fed Award FY 2011* State Match FY 2011* State 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)). 
62 

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 
63 

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. 
64 
65 
66 
67 
68 
69 

[Additional submissions of Mr. Beauregard follow:] 
70 
71 
72 
73 

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 
74 

FY 2010 INSPECTION ACTIVITY—Continued 

State plans Federal OSHA 

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 Violation ................................................................... $871 $1,053 

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 factbased 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 
75 

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 §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 §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— 
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(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 incompliance 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 
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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:] 
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[Whereupon, at 11:27 a.m., the subcommittee was adjourned.] 

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