```

[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]

 
     EXAMINING VOLUNTARY EMPLOYER COMPLIANCE PROGRAMS THAT IMPROVE 
                     OCCUPATIONAL SAFETY AND HEALTH

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

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                                 of the

                         COMMITTEE ON EDUCATION
                           AND THE WORKFORCE
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                              May 12, 2005

                               __________

                           Serial No. 109-15

                               __________

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

 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
            Committee address: http://edworkforce.house.gov

                                 ______

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                COMMITTEE ON EDUCATION AND THE WORKFORCE

                    JOHN A. BOEHNER, Ohio, Chairman

Thomas E. Petri, Wisconsin, Vice     George Miller, California
    Chairman                         Dale E. Kildee, Michigan
Howard P. ``Buck'' McKeon,           Major R. Owens, New York
    California                       Donald M. Payne, New Jersey
Michael N. Castle, Delaware          Robert E. Andrews, New Jersey
Sam Johnson, Texas                   Robert C. Scott, Virginia
Mark E. Souder, Indiana              Lynn C. Woolsey, California
Charlie Norwood, Georgia             Ruben Hinojosa, Texas
Vernon J. Ehlers, Michigan           Carolyn McCarthy, New York
Judy Biggert, Illinois               John F. Tierney, Massachusetts
Todd Russell Platts, Pennsylvania    Ron Kind, Wisconsin
Patrick J. Tiberi, Ohio              Dennis J. Kucinich, Ohio
Ric Keller, Florida                  David Wu, Oregon
Tom Osborne, Nebraska                Rush D. Holt, New Jersey
Joe Wilson, South Carolina           Susan A. Davis, California
Jon C. Porter, Nevada                Betty McCollum, Minnesota
John Kline, Minnesota                Danny K. Davis, Illinois
Marilyn N. Musgrave, Colorado        Raul M. Grijalva, Arizona
Bob Inglis, South Carolina           Chris Van Hollen, Maryland
Cathy McMorris, Washington           Tim Ryan, Ohio
Kenny Marchant, Texas                Timothy H. Bishop, New York
Tom Price, Georgia                   John Barrow, Georgia
Luis G. Fortuno, Puerto Rico
Bobby Jindal, Louisiana
Charles W. Boustany, Jr., Louisiana
Virginia Foxx, North Carolina
Thelma D. Drake, Virginia
John R. ``Randy'' Kuhl, Jr., New 
    York

                    Paula Nowakowski, Staff Director
                 John Lawrence, Minority Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                   CHARLIE NORWOOD, Georgia, Chairman

Judy Biggert, Illinois, Vice         Major R. Owens, New York
    Chairman                         Dennis J. Kucinich, Ohio
Ric Keller, Florida                  Lynn C. Woolsey, California
John Kline, Minnesota                Timothy H. Bishop, New York
Kenny Marchant, Texas                John Barrow, Georgia
Tom Price, Georgia                   George Miller, California, ex 
Thelma Drake, Virginia                   officio
John A. Boehner, Ohio, ex officio

                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on May 12, 2005.....................................     1

Statement of Members:
    Norwood, Hon. Charlie, Chairman, Subcommittee on Workforce 
      Protections, Committee on Education and the Workforce......     1
        Prepared statement of....................................     3
    Owens, Hon. Major R., Ranking Member, Committee on Education 
      and the Workforce..........................................     4
        Prepared statement of....................................     6

Statement of Witnesses:
    Migliaccio, Frank L., Jr., Executive Director of Safety and 
      Health, International Association of Bridge, Structural, 
      Ornamental and Reinforcing Iron Workers....................    18
        Prepared statement of....................................    20
    Morikawa, Dennis J., Esq., Morgan, Lewis & Bockius LLP, 
      Washington, DC.............................................    23
        Prepared statement of....................................    24
    Pressly, David, Incoming President, National Association of 
      Homebuilders, Washington, DC...............................    13
        Prepared statement of....................................    14
        Response to questions submitted for the record...........    45
    Turnipseed, Jon, M.S., CSP, Safety Program Manager, City of 
      San Bernardino Municipal Water Department, San Bernardino, 
      CA.........................................................     8
        Prepared statement of....................................    10

Additional materials supplied:
    American Industrial Hygiene Association, Statement submitted 
      for the record.............................................    42

     EXAMINING VOLUNTARY EMPLOYER COMPLIANCE PROGRAMS THAT IMPROVE 
                     OCCUPATIONAL SAFETY AND HEALTH

                              ----------                              

                         Thursday, May 12, 2005

                     U.S. House of Representatives

                  Subcommittee on Workforce Protections

                Committee on Education and the Workforce

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:33 a.m., in 
room 2175, Rayburn House Office Building, Hon. Charlie Norwood 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Norwood, Biggert, Kline, Marchant, 
Price, Drake, Owens, and Woolsey.
    Staff present: Kevin Frank, Professional Staff Member; Ed 
Gilroy, Director of Workforce Policy; Donald McIntosh, 
Legislative Assistant; Jim Paretti, Workforce Policy Counsel; 
Molly McLaughlin Salmi, Deputy Director of Workforce Policy; 
Deborah L. Samantar, Committee Clerk; Kevin Smith, Senior 
Communications Advisor; Loren Sweatt, Professional Staff; Margo 
Hennigan, Minority Legislative Assistant; Marsha Renwanz, 
Minority Legislative Associate; Peter Rutledge, Minority Senior 
Legislative Associate/Labor.
    Chairman Norwood. A quorum being present, the Subcommittee 
on Workforce Protections of the Committee on Education and the 
Workforce will come to order. We're meeting today to hear 
testimony on examining voluntary employer compliance programs 
that improve occupational safety and health.
    Under Committee rule 12(B), opening statements are limited 
to the Chairman and the Ranking Minority Member of this 
Subcommittee. Therefore, if other Members have statements, they 
may be included in the hearing record. With that, I ask 
unanimous consent for the hearing record to remain open 14 days 
to allow Members statements and other extraneous materials 
referenced during the hearing to be submitted to the official 
hearing record.
    Without objection, so ordered.

 STATEMENT OF HON. CHARLIE NORWOOD, CHAIRMAN, SUBCOMMITTEE ON 
WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE

    Chairman Norwood. Today's hearing will examine voluntary 
employer compliance programs that improve occupational safety 
and health. We will explore the voluntary efforts employers and 
workers are undertaking to improve workplace safety. Our 
witnesses are from a broad spectrum of the safety and health 
community. I want to thank you for being here and sharing your 
information and time with this Committee.
    I've heard employers say many times that, actually from my 
own first-hand knowledge, that OSHA regulations are too complex 
and difficult to understand. Clearing up this regulatory jungle 
has been one of my top priorities since coming to Congress in 
1995, and continues to be so today. I believe a regulatory 
jungle is an apt description for the myriad of OSHA rules, 
regulations, gigantic documents, and interpretive letters that 
employers must come to understand. With all of these documents 
and the increased use of outside materials that are 
incorporated by reference, the small businessman, and that was 
what I was, is quite literally being choked by the underbrush 
of government regulations.
    Small businesses want to comply with the nation's health 
and safety laws--frankly, because it makes very good sense to 
do so. It pays to do so. However, OSHA must simply find a way 
to simplify the process to ensure that businesses are operating 
in a safe manner.
    Proactive and voluntary compliance with agency health and 
safety regulations, after all, is far more effective than the 
``gotcha'' enforcement tactics that drive businessmen and women 
into the bunker and away from agency cooperation. Fortunately, 
OSHA has already recognized the need for compliance assistance, 
and Secretary Chao, in my opinion, is to be commended for a 
vision and leadership in this regard. The cooperative 
strategies that have been implemented in the past 5 years, we 
are beginning to see positive results, and result is all that 
really counts, the bottom line far fewer people or more people 
being made safe and healthy by what we're trying to do. That's 
the whole point of all of this.
    In March 2004, the Government Accountability Office, GAO, 
evaluated these results in a study of voluntary compliance and 
found that safety improvements were being made by companies 
involved in OSHA's compliance programs, programs that have 
contributed to the safest workforce in our nation's modern 
history.
    Indeed, one of the key recommendations from GAO during the 
course of its study was to urge Congress to gather more data on 
the utility of the voluntary compliance programs. It is my hope 
that we can begin that process today, through the holding of 
this hearing.
    During today's proceedings we will also hear about 
voluntary efforts employers are making to work with private 
consultants and industrial safety specialists to actually 
foster a safer workplace. This is an important story that needs 
to be told. After all, it is a simple fact that OSHA will never 
have the resources to visit every American workplace to ensure 
compliance. We can wish for that until the cows come home. This 
government will never have enough inspectors to go into every 
small business in this country. Once we recognize that, then we 
have to go down the road to find another, more sensible, way to 
try to solve the problem.
    Given that fact, we should encourage employers to 
proactively take steps to ensure that workplaces are safe, 
healthy, and OSHA-compliant. I especially look forward to our 
witnesses shedding additional light on these issues. Employers 
should be congratulated for their proactive efforts in 
implementing comprehensive safety and health programs. Further, 
they should be encouraged to invite OSHA to their work sites 
and engaged the agency and compliance assistance without fear 
of reprisals from Federal bureaucrats. That is critical to 
this.
    However, I think there's still resistance to cooperative 
programs for fear that the government is only looking to punish 
and not to praise. We can have another hearing and go over all 
the examples we know about. Given my own experience with the 
``gotcha'' tactics the agency employed in unfairly citing my 
business many, many years ago, I can certainly understand that 
fear. But that fear should not prevent this Committee from 
further examining the potential of voluntary compliance, and 
that is exactly what we are going to do today.
    There are many proposals to expand compliance programs and 
encourage employers to implement comprehensive, safe, and 
healthy programs and to leverage OSHA's existing resources. 
Today we will examine some of these proposals and weigh the 
employers' exposure when they work with OSHA, and hear the 
positives and the negatives of going beyond compliance.
    I look forward to the testimony of our distinguished panel 
of witnesses, and I am very eager to learn how current law 
encourages or discourages employers from taking these very 
crucial steps.
    With that, I would like to recognize my good friend from 
Brooklyn for any opening statement that he may wish to make.
    [The prepared statement of Chairman Norwood follows:]

   Statement of the Hon. Charlie Norwood, Chairman, Subcommittee on 
    Workforce Protections, Committee on Education and the Workforce

    Good Morning, the Subcommittee on Workforce Protections will now 
come to order.
    Today's hearing, Examining Voluntary Employer Compliance Programs 
that Improve Occupational Safety and Health, will explore the voluntary 
efforts employers and workers are undertaking to improve workplace 
safety. Our witnesses are from a broad spectrum of the safety and 
health community, and I welcome them here today.
    I have heard employers say many times, and know from my own 
firsthand knowledge, that OSHA regulations are too complex and 
difficult to understand.
    Clearing up this regulatory jungle has been one of my top 
priorities since coming to Congress in 1995, and it continues to be 
today.
    I believe that ``a regulatory jungle'' is an apt description for 
the myriad OSHA rules, regulations, guidance documents, and 
interpretive letters that employers must come to understand.
    With all these documents, and the increased use of outside 
materials that are incorporated by reference, the small businessman is 
quite literally being choked under the ``brush'' of onerous government 
regulations.
    Small businesses want to comply with our nation's health and safety 
laws because it pays for them to do so.
    However, OSHA must find a way to simplify the process to ensure 
that businesses are operating in a safe manner.
    Proactive and voluntary compliance with Agency health and safety 
regulations, after all, is far more effective than ``gotcha'' 
enforcement tactics that drive business men and women into the bunker 
and away from Agency cooperation.
    Fortunately, OSHA has already recognized the need for compliance 
assistance, and Secretary Chao is to be commended for her vision and 
leadership in this regard. Through cooperative strategies implemented 
in the past five years, we are beginning to see positive results; and 
results are all that count.
    In March 2004, the Government Accountability Office (GAO) 
illuminated these results in a study of voluntary compliance, and found 
that safety improvements were being made by companies involved in 
OSHA's compliance programs; programs that have contributed to the 
safest workforce in our nation's modern history.
    Yet one of the key recommendations from GAO during the course of 
its study was to urge Congress to gather more data on the utility of 
the voluntary compliance programs. It is my hope that we can begin that 
process today by holding this hearing.
    During today's proceedings, we will also hear about voluntary 
efforts employers are making to work with private consultants and 
industrial safety specialists to foster a safer workplace.
    This is an important story that needs to be told. After all, it is 
a simple fact that OSHA will never have the resources to visit every 
American worksite to ensure compliance.
    Given that fact, we should encourage employers to proactively take 
steps to ensure their workplaces are safe, healthy, and OSHA-compliant.
    I especially look forward to our witnesses shedding additional 
light on this issue.
    Employers should be congratulated for their proactive efforts in 
implementing comprehensive safety and health programs.
    Further, they should be encouraged to invite OSHA to their worksite 
and engage the Agency in compliance assistance without fear of 
reprisals from federal bureaucrats.
    However, I believe there is still resistance to cooperative 
programs for fear that the government is only looking to punish, not to 
praise.
    Heck, given my own experiences with the ``gotcha'' tactics the 
Agency employed in unfairly citing my business not too many years ago, 
I certainly understand that fear.
    But that fear should not prevent this Committee from further 
examining the potential of voluntary compliance, and that is exactly 
what we are going to do today.
    There are many proposals to expand compliance programs, encourage 
employers to implement comprehensive safety and health programs, and to 
leverage OSHA's existing resources.
    Today we will examine some of those proposals, weigh an employer's 
exposure when they work with OSHA, and hear the positives and negatives 
of going beyond compliance.
    I look forward to the testimony of our distinguished panel of 
witnesses, and am eager to learn how current law encourages--or 
discourages--employers from taking these steps.
    With that I would like to recognize my good friend from New York 
for any opening remarks that he may have.
                                 ______
                                 
    Mr. Owens. Thank you very much. Mr. Chairman, I have a 
written statement for the record that I would like to have 
submitted in its entirety.
    Chairman Norwood. So ordered.

STATEMENT OF HON. MAJOR R. OWENS, RANKING MEMBER, SUBCOMMITTEE 
   ON WORKFORCE PROTECTIONS, COMMITTEE ON EDUCATION AND THE 
                           WORKFORCE

    Mr. Owens. I would like to make a few modifications by 
saying at the outset that let us not go to extremes, from one 
extreme to the other. You're proposing extreme voluntary 
compliance and you're going to surrender completely to the 
voluntary process. We've never had adequate inspections and 
have sought to get some kind of reasonable percentage of 
businesses and industries inspected. We are, as a result of the 
emphasis on voluntary compliance, allotting less and less 
resources to the existing feeble system of inspections. 
Voluntary compliance in this day and age seems certainly to 
have no evidence in other sectors to recommend it.
    You know, we have for a long time left corporations to take 
care of their own business in terms of their books. We have 
Enron, you know, voluntary. We have WorldCom. We have the drug 
problem in the baseball, football, and basketball sectors, and 
they are all saying that we have taken care of it by voluntary 
compliance. Every day more and more evidence indicates that 
where you have human beings, a great proportion of them are 
going to be honest and you can depend upon them to comply and 
to seek to do what is right.
    But there is a percentage, always, that will violate the 
normal and seek to swindle others. It is like corruption--where 
there is intelligence, there is corruption. All we can hope in 
this society is to have enough regulation, enough inspection to 
hold the corruption to a minimum, and to minimize the 
suffering.
    That's the real purpose here. Everybody wants to--I mean 
most Americans, they file their income taxes properly and they 
seek to obey the law. But nobody would propose that we don't 
have any tax audits. The very existence of a tax audit and the 
possibility that there may be tax audits helps to keep the 
situation reasonably under control in terms of a minimal amount 
of dishonesty and corruption.
    So we shouldn't go to extremes and go overboard, as we are 
here, in the area of pushing voluntary compliance. Let's be 
more reasonable and look at voluntary compliance as an adjunct 
and extension of what exists already, instead of what is 
actually happening--that is, there is an effort to replace it, 
to use voluntary compliance to replace what exists already. As 
we increase voluntary compliance, we decrease the resources for 
inspections.
    With that said, let me switch to the topic I was told would 
be the focus of this hearing, and that's an overall look at 
voluntary programs to assist employers in achieving OSHA 
standards for safety and health. According to the official GAO 
report that you requested, and you quoted at great length, in 
the 108th Congress, OSHA has an exemplary track record in 
providing a range of voluntary employer compliance options. 
Thirty years ago, OSHA established the State Consultation 
Program, which provides smaller companies in hazardous 
industries on a voluntary basis with free and confidential 
individualized worksite safety assessments as well as workable 
solutions. This voluntary employer compliance program is 
available in all 50 states, with OSHA footing the bill. In 
fiscal year 2003, OSHA sent $53 million--more than 10 percent 
of its entire budget--to state governments to carry out these 
voluntary consultations.
    The 2004 GAO report also highlighted three other voluntary 
employer compliance programs administered by OSHA. They include 
the Voluntary Protection Program, Strategic Partnerships, and 
Alliances. I do not have the time here to summarize the 
business targets and cornerstone principles of each of these 
voluntary programs. However, I wish to draw attention to the 
central finding in this GAO report. GAO emphasized that 
although OSHA's voluntary employer programs show promise, each 
must be carefully evaluated before any of them are expended.
    GAO repeated numerous times that to date, the data used to 
assess program outcomes has been entirely anecdotal. In fact, 
GAO felt so strongly about this that they put this central 
finding in the report's title. The reports title is ``OSHA's 
Voluntary Compliance Strategies Show Promising Results, but 
Should Be Fully Evaluated before They Are Expanded.''
    GAO also documented that between 1996 and 2003, the 
percentage of OSHA's budget devoted to voluntary compliance 
efforts increased by 8 percent, whereas that designated for 
enforcement decreased by 6 percent.
    I want to remind my colleagues on the other side of the 
aisle that OSHA's enforcement efforts are a key statutory 
requirement. The Occupational Safety and Health Act of 1970 
clearly states at the outset that the Secretary of labor shall 
set mandatory workplace safety and health standards and shall 
enforce them effectively. Thus, volunteer programs are an 
adjunct to OSHA's central mission of setting and enforcing 
occupational safety and health standards.
    As I said before, it should not be a substitute. We should 
not go to extremes of moving the mandatory statutory 
requirements in favor of experimenting with voluntary programs.
    Let me point out that both corporate lobbyists and AFL-CIO 
members agree about the condition of OSHA's chronically 
underfunded inspection system. Both cite a statistic that given 
current funding and current staffing levels at OSHA, it would 
take 108 years--given the situation as it is now--it would take 
108 years to inspect every workplace in America. So, Mr. 
Chairman, I request that the next Subcommittee hearing be 
focused on ways to reinvigorate OSHA's enforcement apparatus, 
from reconfiguring the targeted inspection process to stepping 
up citations and penalties for repeated safety violators.
    Mr. Chairman, let me close by reminding everyone that we 
have a serious corporate manslaughter problem in this country. 
Even by conservative estimates, a worker is killed on the job 
every 96 minutes as a result of an employer's gross negligence 
and safety lapses. As we will hear from our witness Mr. 
Migliaccio, who represents millions of workers in the building 
and construction trade unions, we know how to prevent these 
deaths. We know how to prevent trench collapses where workers 
are suffocated and free falls from construction sites.
    Part of the blame here must be laid at the congressional 
doorstep. Every year in the appropriations process, we exempt 
businesses with 10 or fewer employees from targeted OSHA 
inspections. Yet as we will learn, more than half of all 
construction fatalities occur in these small businesses.
    I welcome Mr. Migliaccio to this hearing. I look forward to 
hearing his testimony and that of the other witnesses. I yield 
back the balance of my time, Mr. Chairman.
    [The prepared statement of Mr. Owens follows:]

   Statement of Hon. Major R. Owens, Ranking Member, Subcommittee on 
    Workforce Protections, Committee on Education and the Workforce

    Mr. Chairman, this is a small Subcommittee with a membership of 
only 5 Democratic Representatives and 7 Republican Representatives. In 
representing our Congressional districts and constituencies, we 
routinely disagree on legislative matters and policy issues within this 
Subcommittee's jurisdiction.
    It is our sworn duty as Members of Congress to do just that--uphold 
the U.S. Constitution, represent our respective constituencies, and 
vote according to individual conscience. But hearings in this 
Subcommittee should not become ``caveat emptor'' or ``minority members 
beware'' scenarios. We ought to be able to get our signals straight on 
whether a hearing is to be an oversight session on a given topic or a 
legislative hearing about specific bills.
    Especially in light of our small size, we ought to be able to have 
clear communication channels about that. Now it was my understanding--
and that of all the Members on this side of the aisle--that this was to 
be an oversight hearing on voluntary employer compliance approaches to 
occupational safety and health. In reviewing the written testimony last 
night of witnesses selected by your side of the aisle, however, this 
appears to have morphed into a hearing about specific bills to amend 
the Occupational Safety and Health (OSH) Act. Mr. Chairman, we need 
some truth-in-advertising here. By all means, you have the prerogative 
as Chair to call a legislative hearing at any time. But it is only fair 
to disclose that fact in advance to Members on this side of the aisle, 
so we can prepare ourselves and the one witness we are granted 
accordingly.
    That said, let me switch to the topic I was told would be the focus 
of this hearing--voluntary programs to assist employers in achieving 
OSHA standards for safety and health. According to the official GAO 
report you requested in the 108th Congress, OSHA has an exemplary track 
record in providing a range of voluntary employer compliance options. 
Thirty years ago, OSHA established the State Consultation Program, 
which provides smaller companies in hazardous industries on a voluntary 
basis with free and confidential individualized worksite safety 
assessments as well as workable solutions. This voluntary employer 
compliance program is available in all 50 States, with OSHA footing the 
bill. In fiscal year 2003, OSHA sent $53 million dollars--more than 10 
percent of its entire budget--to state governments to carry out these 
voluntary consultations.
    The 2004 GAO report also highlighted 3 other voluntary employer 
compliance programs administered by OSHA. They include the Voluntary 
Protection Program, Strategic Partnerships, and Alliances. I do not 
have the time here to summarize the business targets and cornerstone 
principles of each of these voluntary programs. However, I wish to draw 
attention to the central finding in this GAO report. GAO emphasized 
that although OSHA's voluntary employer programs show promise, each 
must be carefully evaluated before any of them are expanded.
    GAO repeated numerous times that to date, the data used to assess 
program outcomes has been entirely anecdotal. In fact, GAO felt so 
strongly about this that they put this central finding in the report's 
title: ``OSHA's Voluntary Compliance Strategies Show Promising Results, 
but Should Be Fully Evaluated before They Are Expanded.''
    GAO also documented that between 1996 and 2003, the percentage of 
OSHA's budget devoted to voluntary compliance efforts increased by 8 
percent, whereas that designated for enforcement decreased by 6 
percent. I want to remind my colleagues on the other side of the aisle 
that OSHA's enforcement efforts are a key statutory requirement. The 
OSH Act of 1970 clearly states at the outset that the Secretary of 
Labor shall set mandatory workplace safety and health standards and 
shall enforce them effectively. Thus, voluntary programs are an adjunct 
to OSHA's central mission of setting and enforcing occupational safety 
and health standards.
    Let me point out that both corporate lobbyists and AFL-CIO members 
agree about the condition of OSHA's chronically underfunded inspection 
system. Both cite a statistic that given current funding and current 
staffing levels at OSHA, it would take 108 years to inspect every 
workplace in America. So, Mr. Chairman, I request that the next 
Subcommittee hearing be focused on ways to reinvigorate OSHA's 
enforcement apparatus, from reconfiguring the targeted inspection 
process to stepping up citations and penalties for repeated safety 
violators.
    Mr. Chairman, let me close by reminding everyone that we have a 
serious corporate manslaughter problem in this country. Even by 
conservative estimates, a worker is killed on the job every 96 minutes 
as a result of an employer's gross negligence and safety lapses. As we 
will hear from our witness Mr. Migliaccio, who represents millions of 
workers in the building and construction trade unions, we know how to 
prevent these deaths. We know how to prevent trench collapses where 
workers are suffocated and free falls from construction sites. Part of 
the blame here must be laid at the Congressional doorstep. Every year 
in the appropriations process, we exempt businesses with 10 or fewer 
employees from targeted OSHA inspections. Yet as we will learn, more 
than half of all construction fatalities occur in these small 
businesses. I welcome Mr. Migliaccio to this hearing. I look forward to 
hearing his testimony and that of the other witnesses.
                                 ______
                                 
    Chairman Norwood. Thank you very much, Mr. Owens. We will 
begin with our panel of distinguished witnesses, and I would 
like to introduce all of you, and then Mr. Turnipseed, we will 
start with you.
    Our first witness today is Mr. Jon Turnipseed, the safety 
program manager for the city of San Bernardino Municipal Water 
Department. Mr. Turnipseed is also a certified safety 
professional, certified safety supervisor, and certified 
occupational hearing conservationist, and we do welcome you, 
Mr. Turnipseed.
    Next, we're going to hear from Mr. David Pressly, the 
president of Pressly Development Company and the incoming 
president of the National Association of Homebuilders. The 
Pressly Development Company builds single-family homes and 
light commercial projects. Mr. Pressly has been involved in the 
home building industry for more than 25 years.
    Our next witness will be Mr. Frank L.--all right, I'm going 
to try--Migliaccio, is that--say it out loud for me?
    Mr. Migliaccio. Migliaccio.
    Chairman Norwood. Well, you're most welcome, and with your 
permission, I will call you Frank and you can call me Charlie.
    [Laughter.]
    Chairman Norwood. Frank is Executive Director of Safety and 
Health of the International Association of Bridge, Structural, 
Ornamental and Reinforcing Iron Workers, and you're most 
welcome.
    And finally, we will hear from Mr. Dennis Morikawa. How did 
I do?
    Mr. Morikawa. You can call me Dennis.
    Chairman Norwood. OK.
    [Laughter.]
    Chairman Norwood. That will work, you can call me Charlie. 
That will be fine. A partner at Morgan Lewis and specializing 
in employment law. Dennis assists his clients with OSHA 
Voluntary Protection Programs and represents clients in a 
variety of matters regarding the Occupational and Safety Health 
Act. He is also the author of several articles regarding 
occupational safety and health and employer compliance.
    Now, before our witnesses start with their testimony, I 
want to remind our Members that we will ask questions after the 
entire panel has testified. In addition, the Committee Rule 2 
imposes a 5-minute limit on all questions. Now, I don't like to 
impose on our guests, but I do point out to you that in front 
of you there is a set of lights, and when you see that yellow 
light, I would ask you to start thinking about closing up 
before it gets to be red, so that we can do this in an 
expedient manner.
    Mr. Turnipseed, you're up for 5 minutes.

STATEMENT OF JON TURNIPSEED, M.S., CSP, SAFETY PROGRAM MANAGER, 
    CITY OF SAN BERNARDINO MUNICIPAL WATER DEPARTMENT, SAN 
                         BERNARDINO, CA

    Mr. Turnipseed. Chairman Norwood and Members of the 
Subcommittee, I want to thank you for this opportunity to 
represent 30,000 members of the American Society of Safety 
Engineers who all share your interest in finding ways to 
advance our nation's commitment to occupational safety and 
health.
    I am a certified safety professional who has worked in the 
profession for over 20 years. Since 1996, I have been the 
safety program manager for the city of San Bernardino one 
municipal water Department in California. From my experience I 
can tell you that the ideas that the Subcommittee is examining 
today, like third-party audits and providing more useful 
information on OSHA closing conferences, are ideas that 
complement and strengthen OSHA's enforcement role, which our 
members also support.
    However, enforcement is never enough. The challenge ASSE 
members face in today's workplace is to help employers move 
beyond compliance toward establishing proactive safety and 
health measures. The ideas under consideration today will 
encourage more employers to do that. ASSE has long supported 
legislation that would encourage employers to engage in 
voluntary safety and health audits.
    The approach of Senator Enzi's ``SAFE Act'' calls for a 
third-party independent audit and evaluation program separate 
from OSHA. These voluntary audits will not supplant OSHA's 
enforcement and cooperative efforts only add one more tool to 
increase the number of safe and healthy workplaces. OSHA is 
simply not given enough resources to provide the inspections 
and consultation services that can reach as many employers as 
we would all like.
    Qualified auditors with necessary experience, education, 
and skills, to be set by the Department of Labor advisory 
committee, would perform workplace inspections and provide 
consultation services to employers. Their greatest value will 
be in helping employers provide a safe culture to those 
businesses lacking the internal resources for their own health 
and safety programs.
    Reaching out to such employers may be the biggest challenge 
for OSHA. ASSE believes creative ways to meet this challenge, 
like this program, are needed. To help ensure auditors' 
competence, a program must rely on widely accepted mechanisms 
for certifying safety and health professionals who can 
participate. Auditors should have professional safety and 
health credentials like the CSP or CIH that meet the stringent 
requirements of quality accreditation bodies such as the NCCA, 
CESB, and ANSI's ISO.
    With the assistance of qualified auditors, employers would 
be more open to making suggested improvements, especially if a 
safe harbor from routine OSHA penalties were offered as an 
incentive for participation.
    A third-party audit program would not lessen OSHA's 
enforcement. It would provide additional resources for 
employers and encourage them in a less intimidating and 
positive way to take responsibility for safe and healthy 
workplaces.
    ASSE also believes that proactive employer efforts to 
advance safety and health can be encouraged through Senator 
Tiahrt's proposal to provide employers with a written statement 
on OSHA closing conferences. An OSHA inspector would be 
required to provide written results of the inspection as well 
as provide to the employer rights to conference and contest 
penalties and procedures involved in exercising these due 
process rights.
    Most important is that this measure would give employers 
timely notice of any perceived hazards or regulatory violations 
so that the employers could take prompt voluntary corrective 
actions to protect workers. It would also assist employers, 
especially small businesses, by giving fair notice of 
procedural requirements minimizing the potential for confusion 
when dealing with OSHA.
    Important also is that this requirement would not unduly 
burden OSHA, since any procedural information could easily be 
given through a preprinted statement. However, one difficulty 
needs to be addressed before the bill goes forward. At the 
closing conference it is unlikely that an OSHA inspector can 
know precisely which citations OSHA officials will ultimately 
approve. Additional review following accident investigations or 
help monitoring analysis, for example, may be necessary. While 
the inspectors should identify specific conditions that pose a 
threat to the workers' health and safety, initial citation 
recommendations at the closing conference cannot be made 
binding by OSHA.
    With the support of ASSE, with these changes, ASSE hopes 
the Committee can support this proposal.
    Mr. Chairman, we thank you for this opportunity, and ASSE 
looks forward to working with the Subcommittee to advance these 
initiatives and help encourage employers to proactively address 
workplace safety and health risks.
    [The prepared statement of Mr. Turnipseed follows:]

Statement of Jon Turnipseed, M.S., CSP, Safety Program Manager, City of 
     San Bernardino Municipal Water Department, San Bernardino, CA

    Chairman Norwood and Members of the Subcommittee:
    My name is Jon Turnipseed and I am a member of the Government 
Affairs Committee of the American Society of Safety Engineers (ASSE). 
In my professional capacity, I am Safety Program Manager for the City 
of San Bernardino Municipal Water Department in California. On behalf 
of ASSE, I am pleased to submit the following testimony on the subject 
of ``Examining Voluntary Employer Compliance Programs that Improve 
Occupational Safety and Health.''
    ASSE is the oldest and largest society of safety engineers and 
safety professionals in the world. Founded in 1911, ASSE represents 
approximately 30,000 dedicated safety and health professionals. ASSE's 
membership includes Certified Safety Professionals, Certified 
Industrial Hygienists, and Professional Engineers who are leaders in 
their fields with the knowledge and expertise needed to move safety and 
health forward on a global level.
    We will focus our comments today in two areas: incentives to 
implement third party safety and health audits and, the significance of 
closing conferences in the Occupational Safety and Health 
Administration (OSHA) inspection process.
    ASSE's members support safety and health agencies such as OSHA and 
believe these agencies help maintain a national focus on the importance 
of occupational safety and health. However, ASSE believes that 
enforcement is but one facet of a national effort. Our members strive 
to help their companies, and those outside employers who are assisted 
by their consultative efforts, to move beyond compliance by focusing on 
proactive measures rather than reactive remedial steps. More forward-
looking initiatives are needed if American business hopes to break 
through the plateau of injuries and illnesses that currently exists.
The Role of Third Party Audits In Improving Workplace Safety
    ASSE has consistently supported legislative initiatives that would 
encourage employers to conduct voluntary safety and health audits. The 
``third party audit'' envisioned in previous legislative proposals, 
such as Senator Enzi's ``SAFE Act,'' encompass these aspects and ASSE 
is hopeful that, once employers realized the benefits of such 
evaluative action, they would continue to implement this practice 
voluntarily on a regular basis.
    The ``SAFE Act'' approach calls for a ``third-party independent 
audit and evaluation program'' separate from OSHA. It would establish 
qualified ``auditors'' who would provide consultation services to 
employers and perform workplace inspections. The qualifications for 
such auditors could be established by an advisory committee under the 
U.S. Department of Labor, to ensure that the participating safety and 
health professionals had the experience, education and skills to 
perform the assigned functions within their respective areas of 
expertise.
    The participating professionals would not be ``deputized'' OSHA 
inspectors but would help increase safety awareness and improve the 
safety culture of businesses that lack internal resources to initiate 
their own programs. Because there would be no enforcement action 
associated with identification of hazards or non-compliant situations, 
employers would be more open to making the suggested improvements--
especially if a safe harbor from routine OSHA inspections was offered 
as an incentive for participation. Employers who resist making 
improvements to identified hazardous conditions would, of course, not 
qualify for any inspection-related incentives.
    The third party audit program will both impart an improved attitude 
toward safety among the business community and have practical, positive 
impacts on actual workplace conditions by identifying problems and 
implementing suggestions proactively. Simply put, the federal 
government does not have the resources necessary to provide either the 
inspections or consultation services necessary to help ensure safe and 
healthy workplaces across the country.
    If OSHA compliance officers had to visit every workplace, this 
would only occur once every 102 years. Under the current system, most 
businesses will complete their entire life cycle without the experience 
of an OSHA inspection--and without the purported benefits of compliance 
assistance gained by this experience, unless they are ultra-hazardous 
industries. OSHA normally inspects a worksite only after there is an 
accident, an employee complaint, or a plainly visible hazard that is 
brought to OSHA's attention by agency personnel or a professional 
referral. This approach is not geared toward prevention, but toward 
``after-the-fact'' punishment.
    The ``third party audit'' legislative approach encourages voluntary 
efforts of employers to seek out safety and health practitioners with 
proven competence and professional independence to put in place 
effective safety and health programs. These voluntary audits will not 
supplant federal enforcement and cooperative efforts but will add 
another tool for increasing the number of safe and healthy workplaces. 
We disagree with those who claim that such audits are an impermissible 
delegation of OSHA's enforcement authority. Moreover, there is 
precedent within the federal government for this approach. The U.S. 
Department of Transportation (DOT) has contracted with outside entities 
to conduct third party audits of ``new entrant'' motor carriers. 
Specific criteria ensure the qualifications of those auditors and also 
effectively address conflict of interest issues.
    Similar criteria could be applied by OSHA most effectively to any 
third party audit program. If OSHA developed a network of qualified 
third party auditors--to be deployed either voluntarily through agency 
policy or under a statutory mandate--they would have more flexibility 
to provide compliance assistance than under their current system. With 
a process that insures consistency in the application of the compliance 
audit process and the prohibition of conflicts of interest, this system 
should work very well.
    With respect to ``credentialing'' of program participants, ASSE 
recommends that legislation recognize the administrative mechanisms for 
credentialing/certifying safety and health professionals that have been 
in place for decades in the private sector. Our recommendation is that 
future legislation should specify that certifications be accredited by 
one of the following accreditation bodies be the Council of Engineering 
and Scientific Specialty Board (CESB), the National Commission for 
Certifying Agencies (NCCA) and ISO/ANSI.
    Finally, there is little incentive for a consultant to go against 
the tenets of the ``SAFE Act'' as they would risk criminal prosecution 
by the federal and/or state governments, civil penalties, lost of 
certification/licensure, potential tort litigation exposure, and the 
loss of reputation and livelihood. We hope that this Subcommittee will 
agree that the qualified consultants who would be eligible to 
participate in such a program would be an asset to employers, 
employees, government, and the country. Their proven level of integrity 
would be an overall enhancement to safety and health in the workplace.
More Effective Utilization of OSHA Closing Conference Will Improve 
        Safety
    ASSE also wishes to comment on the pending legislative proposal 
contained in HR 979, which was introduced by Rep. Todd Tiahrt (R-KS). 
This legislation would amend Section 8 of the Occupational Safety and 
Health Act of 1970 (29 USC 657, the ``OSH Act'') to require OSHA to 
provide the employer with a written statement at the closing 
conference, following completion of an inspection, that clearly and 
concisely provides information on the results of the inspection, 
including each alleged hazard and each citation that would be issued. 
The inspector would also provide written information on the rights of 
the employer to conference and contest citations, penalty assessments 
and the procedures involved in exercising these due process rights.
    The Society believes this legislation will contribute to enhanced 
safety and health by providing timely notice to employers of any 
perceived hazards and/or regulatory violations so that they can take 
prompt and appropriate corrective action. HR 979 would also assist 
employers--especially small businesses--by providing fair notice of 
procedural requirements and minimizing the potential for confusion that 
has resulted in some cases becoming final by mistake.
    We do not see providing the procedural information as being unduly 
burdensome on the agency, insofar as this procedural information could 
easily be imparted through a preprinted written ``statement of rights'' 
handed to the employer at the time of the closeout. Employers who do 
not understand this information should have an opportunity to ask 
questions of the inspector at the closing conference. This could be 
especially important for non-English speaking employers who may not be 
able to comprehend written information but who can converse with many 
of OSHA's multi-lingual compliance officers.
    With regard to a written statement of findings, ASSE believes that 
it is both practical and necessary for OSHA to give prompt notice of 
the results of the inspection and to identify the hazards at this 
stage, rather than waiting up to six months (under current law) to 
issue citations to the employer and having such citations be the first 
notification of the allegedly violative conditions.
    Section 8 of the OSH Act is silent concerning closing conferences. 
However, OSHA policy calls for three main phases of inspection 
activity: in addition to the actual ``walkaround'' portion, the CSHO is 
also required to conduct an opening conference, and a closing 
conference. OSHA's Field Inspection Reference Manual (the ``FIRM'', CPL 
02-00-103 (1994)), states, in relevant part: ``The CSHO shall describe 
the apparent violations found during the inspection and other pertinent 
issues as deemed necessary by the CSHO.''
    OSHA's May 1996 Construction Safety and Health Outreach Program 
document describes the Closing Conference in the following manner:
        It is a time for free discussion of problems and needs; a time 
        for frank questions and answers. The compliance officer 
        discusses with the employer all unsafe or unhealthful 
        conditions observed on the inspection and indicates all 
        apparent violations for which a citation may be issued or 
        recommended. The employer is told of appeal rights. The 
        compliance officer does not indicate any proposed penalties. 
        Only the OSHA area director has that authority, and only after 
        having received a full report.
    Reading these policies, it would appear that the agency--at least 
informally--comprehends the value of prompt communication to the 
employer concerning hazardous or allegedly violative conditions at the 
conclusion of an inspection or voluntary compliance audit. If this were 
actually occurring, HR 979 would largely be redundant. Unfortunately, 
the experience of ASSE members appears to be that the closing 
conference sometimes lacks this vital element and, as such, as been 
stripped of much of its safety value.
    The lack of prompt notice is especially harmful in the construction 
industry, where conditions change quickly and a project may be 
completed (or a building fully demolished) between conclusion of the 
inspection and issuance of the citations. If a General Contractor does 
not receive timely notice of an alleged violation, not only will 
workers continue to be at risk but the ``GC'' may find it impossible to 
fully identify all parties involved and to ascertain what actually 
occurred, who participated in creating the hazard, who was exposed, and 
what conditions were present. This interferes with the GC's ability to 
hold subcontractors accountable for OSHA compliance and to utilize 
contractual disciplinary provisions fully.
    ASSE does wish to clarify that, at the closing conference, it is 
unlikely that the inspector will know precisely what citations will 
ultimately be approved by OSHA officials as this may require additional 
review of documentation obtained through the accident investigations 
and/or analysis of health monitoring and other samples.
    Finally, although the compliance officers should identify with 
specificity those conditions that he/she believes pose a threat to 
worker safety and health, their initial citation recommendations must 
not be binding on the agency in terms of precluding deviation when the 
formal citations ultimately are issued. It may be sensible to modify 
the language of this paragraph to reference ``citations under 
consideration'' rather than those that ``will be issued.''
Conclusion
    The American Society of Safety Engineers greatly appreciates the 
opportunity to provide testimony at this important hearing on 
significant issues affecting the safety and health of American workers 
and the ability of their employers to manage workplace safety. We look 
forward to working with this subcommittee and Congress to advance these 
and other legislative initiatives that will encourage proactive steps 
to more effectively protect people, property and the environment.
    We will be happy to answer any questions you may have and will work 
to provide any additional information that may be requested.
    Thank you.
                                 ______
                                 
    Chairman Norwood. Thank you very much, Jon. I appreciate 
your timeliness there.
    David, you're up next for 5 minutes.

   STATEMENT OF DAVID PRESSLY, INCOMING PRESIDENT, NATIONAL 
          ASSOCIATION OF HOMEBUILDERS, WASHINGTON, DC

    Mr. Pressly. Mr. Chairman, Ranking Member, and Members of 
the Subcommittee, on behalf of the more than 220,000 members of 
the National Association of Home Builders, I would like to 
thank you for the opportunity to testify before you today. My 
name is David Pressly, and I am a home builder and developer 
from Statesville, North Carolina. I will be the president of 
NAHB in 2006.
    Mr. Chairman, let me begin by saying that home builders 
made only acknowledge a legal and moral obligation to provide 
their employees with a safe workplace, they share the concerns 
of this Committee, as well as OSHA, to ensure the health and 
safety of all of their employees in the home building industry.
    As a small business owner, I know that taking seriously the 
health and safety of my employees is one of my most important 
jobs. I have in my hand my own company's safety policy and 
health plan, which I wrote about 15 years ago with the help of 
NAHB, and I understand the importance of providing our 
employees with safety orientation and ongoing safety awareness 
training.
    Now, the vast majority of NAHB's members are classified as 
small businesses. Over 80 percent of NAHB's members build fewer 
than 25 homes a year, and a typical member firm employs fewer 
than 10 workers. Many of our small homebuilders are often 
puzzled by the complexity and range of OSHA requirements. Most 
don't have a full-time safety professional or a legal team at 
the ready, because it is simply not possible or affordable for 
them. Builders use their limited resources to target and 
prevent serious job site hazards. Most, due to their size, will 
never have the opportunity to participate in OSHA's voluntary 
protection program, or VPP Program.
    NAHB has long been successful in collaborating with OSHA in 
a variety of voluntary endeavors to advance job safety in an 
industry. Let me give you several examples of our 
collaboration. First, participation in the OSHA Alliance 
program, where NAHB and OSHA combine resources to focus 
attention on safety needs in our industry. The alliance has 
helped increase awareness at OSHA of the differences between 
``best practices'' at residential versus commercial 
construction job sites.
    Next is participation in OSHA's Harwood Training Grant 
program, which has allowed NAHB to provide valuable safety 
training for thousands of our smallest members, helping us 
target the growing Hispanic workforce in our industry with 
Spanish safety materials, such as this book we developed with 
OSHA on scaffold safety. So we continue to urge OSHA to ensure 
that their safety materials target this Hispanic population, as 
well.
    Finally, we participate within the OSHA Partnership program 
by our local associations, which has a positive impact on 
construction safety in our industry. We are concerned, however, 
that recent policies issued by OSHA will jeopardize the ability 
of our small members to continue participating in the 
Partnership program.
    Collaborative efforts with OSHA have helped improve the 
regulatory environment so it is effective, efficient, and has 
assured that construction job sites are safer than ever. 
However, additional efforts are required to improve OSHA's 
inspections and citation process, including reviewing the 
amount of time OSHA is allotted to issue citations. The 
Occupational Safety and Health Act allows OSHA to issue 
citations up to 6 months following an inspection. Far too often 
in our industry, OSHA utilizes all of the allowable 6 months to 
issue a citation. Home builders have received citations from 
OSHA 5 months and 28 days after the inspection. Typically, a 
house takes about 3 months to build, and often OSHA issues a 
citation, although the house is no longer under construction 
and legally turned over to the homeowner. The employees and 
supervisors of this site are no longer there, and in the 
residential construction industry time is of the essence.
    In order for a builder to appropriately correct a violation 
and retrain employees that might have committed the infraction, 
OSHA must be required to issue the citations in a timely 
manner.
    Additionally, OSHA requires a response from employers 
within 15 days for contesting the citations. Often, a small 
business like ours have a lot on their plate and inadvertently 
miss the deadline, or misplace paperwork, leaving no recourse 
to contest OSHA citations.
    So we support Chairman Norwood's legislation, H.R. 739, and 
any legislation which would provide flexibility on the 15-day 
contest period if the missed deadline was the result of a 
mistake, inadvertence, or surprise.
    We also believe that prompt notification in the form of a 
written summary at the conclusion of an OSHA inspection, before 
they leave the job site, would be beneficial to our industry. 
This would provide timely notice to homebuilders of potential 
safety hazards and allow them to correct any hazard or 
violation quickly.
    Finally, we strongly believe that at the conclusion of an 
inspection, OSHA should be required to provide employers with 
all of the necessary information to help them understand the 
OSHA citation procedures. Inspectors should explain in clear, 
plain English and Spanish how the citation process works, what 
the employer's rights are. For this type of reform, though 
small, it is an important step in helping our small businesses.
    Mr. Chairman, it is our pleasure to be with you, and I look 
forward to entertaining your questions.
    [The prepared statement of Mr. Pressly follows:]

Statement of David Pressly, Incoming President, National Association of 
                     Home Builders, Washington, DC

Introduction
    Mr. Chairman, Ranking Member, and members of the Subcommittee, on 
behalf of the more than 220,000 members of the National Association of 
Home Builders (NAHB), I would like to thank you for the opportunity to 
testify before you today on the issue of Occupational Safety and Health 
Administration (OSHA) reform and to further express the housing 
industry's support for efforts to address some of the most frequent 
concerns our members have when dealing with the OSHA inspection and 
citation process. My name is David Pressly and I am the First Vice 
President of NAHB and a home builder and developer of both single 
family homes and apartments in Statesville, North Carolina. I will be 
the President of NAHB in 2006.
    Meaningful OSHA reform remains one of the housing industry's 
legislative priorities--just as it ranks highly for so many other small 
businesses across the United States. In recent years, OSHA has 
significantly increased its inspection activities in the home building 
industry, and the process by which many of those inspections were 
undertaken has raised concerns from our members about OSHA's 
enforcement practices and procedures. We believe that there are several 
ways in which we can improve OSHA's procedures that would make 
regulatory compliance more cost-effective and make OSHA more user 
friendly for small businesses, while improving housing affordability 
and continuing to protect the safety of workers in the home building 
industry. We applaud the efforts of Chairman Norwood to promote several 
pieces of procedural reform legislation that were approved by the full 
House Education and the Workforce Committee in April, and look forward 
to the opportunity to discuss other ideas for procedural and process 
reforms.
    Mr. Chairman, let me begin by saying that home builders not only 
acknowledge a legal and moral obligation to provide their employees 
with a safe workplace, they share the concerns of this committee, as 
well as OSHA, to ensure the health and safety of all men and women 
employed in the home building industry. Further, we share the same 
ultimate goal of ensuring a safe working environment. Builders know 
that creating a safe work environment makes good business sense. It is 
no secret that safety saves lives--and money. Builders have learned 
that the money saved through reduced workers' compensation costs, lost 
time due to worker injuries, and less time spent on accident claims and 
reports can be converted to improvements in the way they operate their 
businesses, including the management of safety and health on the 
jobsite. It is also no surprise that a safe jobsite is also the key to 
retaining good employees. The building industry anticipates that we 
will need to build almost 18 million new homes during the next decade. 
The continuing increase in the demand for housing will create almost 1 
million new jobs in the residential construction industry. As a small 
business owner, I know that taking the health and safety of my 
employees seriously is not only my moral obligation, but also one of 
the best ways I have of recruiting and retaining good employees.
About the Home Building Industry
    NAHB is a building trade association that represents more than 
220,000 member companies nationwide. Our membership consists of 
builders and remodelers of single-family homes, townhomes, apartments, 
and condominiums, as well as thousands of specialty trade contractors. 
A vast majority of NAHB's members are classified as ``small 
businesses'' and our members employ approximately 8 million people 
nationwide. Our association's builder members will construct about 80 
percent of the more than 1.8 million new housing units projected for 
2005, making housing one of the largest engines of economic growth in 
the country. Our members provide Americans the opportunity to realize 
the American dream of homeownership.
    The home building industry continues to be one of the most heavily 
regulated industries in the nation, which is a significant reason why 
home ownership is beyond the reach of many Americans. Currently, small 
businesses in the United States bear a disproportionate share of the 
cost of our nation's regulatory burden. According to the Small Business 
Administration, federal regulations cost small businesses 60 percent 
more per employee than it costs large businesses, and compliance with 
these existing regulations can be very costly--averaging $7,000 per 
employee. In our industry, a sizeable share of these regulations comes 
from OSHA, and the costs imposed by OSHA regulations are financially 
onerous to every aspect of the home building industry.
    The majority of the home building industry is comprised of very 
small businesses. Over 80 percent of NAHB's member's build fewer than 
25 homes per year and more than half build fewer than 10 homes per 
year. A typical NAHB member firm is truly a small business, employing 
fewer than 10 workers.
    In most small home building companies the owner is the president or 
chief executive officer. Many businesses are a family affair with 
husband and wife teams, brothers, sisters, or kids frequently involved 
in the business. Many times, owners employ only a few workers and view 
them as family, regularly working in the same conditions as their 
employees. The staff and owners at these small companies also wear many 
hats, such as: investor--responsible for funding construction projects; 
salesman--meeting with prospective home buyers; purchasing manager--in 
charge of ordering construction materials and supplies; marketing 
manager--promoting the company and its products; accountant--ensuring 
creditors and employees are paid; construction manager--ensuring that 
the home gets built on time and within budget; and even construction 
worker--swinging the hammer to ensure a quality product.
    Many small home builders are often puzzled by the complexity and 
range of OSHA requirements imposed upon them. Most small construction 
firms do not have a full-time safety professional to implement the 
array of regulations because it is simply not possible or economically 
feasible for these small businesses. They use their limited resources 
to prevent recognized and serious jobsite hazards, such as falls, 
excavations/trenching, electrical safety and improving other worker 
safety and health concerns. A safe and productive workforce is crucial 
to any company, particularly a small one, and it should be stressed 
again that these employers want jobsites free of dangerous hazards.
    As a small business owner, I am concerned for the safety and health 
of my workers--my company's most important asset. I have brought with 
me today a copy of my own company's safety and health plan. I 
understand the importance of providing our employees safety orientation 
and ongoing safety awareness training, and I am not alone. Tens of 
thousands of home builders across the nation also recognize the value 
of providing a safe construction site for their workers.

Alternative to More Regulation
    NAHB supports alternatives to the regulatory approach for ensuring 
worker safety, and we have been successful in collaborating with OSHA 
in a variety of voluntary endeavors to advance jobsite safety 
throughout the home building industry.
    Similar to our efforts with the Environmental Protection Agency to 
improve the storm water permitting program and with the U.S. Fish and 
Wildlife Service to enhance its methods for designating critical 
habitat under the Endangered Species Act, we believe that our 
collaborative efforts with OSHA have helped our home builders work more 
safely, which has saved them time and money--savings which builders can 
then pass on to home buyers. Some of the collaborative efforts between 
NAHB and OSHA that have had a positive impact on construction safety in 
the home building industry include:
      Participation in the OSHA Alliance program, where NAHB 
and OSHA have combined its collective resources and focused its 
attention on addressing the safety educational needs of the home 
building industry workforce. This Alliance has been vitally important 
to increasing the awareness at OSHA, and among OSHA inspectors, of the 
differences between residential and commercial construction jobsites, 
and the often crucial differences between ``best practices'' at 
residential vs. commercial build sites.
      Participation on the OSHA Crane and Derrick Negotiated 
Rulemaking Advisory Committee (C-DAC), which has helped us to ensure 
that OSHA better understands how this revised regulation will impact 
the home building industry.
      Participation in OSHA's Harwood Training Grant program, 
which has allowed NAHB to provide valuable safety training, for free, 
at our local home building associations to nearly 1500 home builders 
and trade contractors. Participating in this program has given us a 
greater ability to reach some of our very small builders, who otherwise 
would have no access to organized OSHA training opportunities. 
Additionally, this program has helped us to target the growing Hispanic 
workforce in our industry. As many of the small businesses in our 
industry will tell you, it is vitally important that the training and 
safety materials we provide reach the non-English speaking employee 
population. NAHB is working hard to get Spanish-language safety 
materials out to our builder members, and we continue to urge OSHA to 
do more to ensure that their inspectors and safety materials can target 
this population.
      Participation on the OSHA's Advisory Committee on 
Construction Safety and Health (ACCSH), which has opened line of direct 
communication for home builders with OSHA and has ensured that home 
builders' viewpoints and opinions are taken into account prior to OSHA 
issuing construction safety regulations.
      Participation in the OSHA Partnership program by our 
local associations, which has improved communication between our 
members and OSHA and has had a positive impact on construction safety 
in our industry.
    NAHB is not an opponent of safety regulations, as long as these 
safety regulations are practical, feasible, cost-effective, and improve 
worker safety, but we believe that more can be accomplished working 
collectively--through non-regulatory efforts--to improve worker safety 
in our industry.
    We believe that collaborative efforts with OSHA have helped improve 
the regulatory environment so it is effective, but not inefficient, and 
has ensured that construction jobsites are safer than ever. The hope is 
that these collaborative efforts will continue far into the future.

Need for OSHA Reform Legislation
    NAHB believes that additional efforts are required to fix OSHA's 
inspection and citation process. For example, one of the most pressing 
issues among our members is the lengthy amount of time that often 
occurs between an inspection and the receipt of a citation. The 
Occupational Safety and Health (OSH) Act directs OSHA to issue 
violation citations with ``reasonable promptness'' following a site 
inspection, but allows OSHA to issue citations up to 6 months following 
any violation found during a jobsite inspection. In addition, any 
citation issued by OSHA includes a timeframe for correcting the alleged 
violation.
    Far too often in our industry, OSHA utilizes all of the allowable 
six months to issue a citation. NAHB believes that allowing OSHA up to 
6 months to issue a citation creates uncertainty for home builders and 
does not improve safety of workers. I would like to offer an example of 
how OSHA has issued citations to our members:
      Home builders have received citations from OSHA 5 months 
& 28 days after the jobsite inspection. Typically, a house takes 
approximately 90 days to build. In this scenario, OSHA has issued a 
citation and proposed a date to abate the alleged violation, although 
the house is no longer under construction and legally turned over to 
home owner.
    A review of, and changes to, the OSHA citation process would 
improve jobsite safety by allowing for prompt notification AND 
correction of any jobsite hazards discovered during an OSHA inspection. 
If OSHA issues a citation nearly 6 months after the jobsite inspection, 
how ``serious'' can the alleged violation be if it takes this much time 
to notify the builder of a potential jobsite hazard? It does no good to 
issue a citation months after the home is completed, when the site is 
no longer operating, and the opportunity to alert the employees and 
site supervisors to the hazard--and how to correctly fix the hazard--no 
longer exists. OSHA must realize that, in the residential construction 
industry, time is of the essence. In order for a builder to 
appropriately correct a violation, and re-train the employees who might 
have committed the infraction, OSHA must be required to issue the 
citations in a more timely manner.
    In addition, if a company receives an OSHA citation, OSHA requires 
a response from employers within 15 days for contesting citations. 
Often, small businesses have too much on their plate and inadvertently 
miss the 15 day deadline or even misplace paper work, further delaying 
a response to OSHA. In these circumstances where the 15 day deadline 
has passed, the small business owners have no recourse to contest OSHA 
citations. We support Chairman Norwood's legislation, H.R. 739, and any 
legislation that would provide flexibility on the 15-day contest period 
if the missed deadline was the result of a mistake, inadvertence, 
surprise, or excusable neglect.
    The imbalance of OSHA utilizing 6 months to issue a citation, while 
employers must contest any citation within 2 weeks is not only unfair 
to employers, but most importantly does not improve safety on the job. 
NAHB believes that OSHA procedural reforms would go a long way to 
ensure that small businesses are able to contest OSHA citations and any 
proposed penalties by leveling the playing field and by making OSH Act 
easier to understand.
    In addition, NAHB supports another procedural OSHA reform that 
could improve jobsite safety in our industry. Prompt notification, in 
the form of a written summary at the conclusion of the OSHA inspection. 
This would provide timely notice to home builders of potential safety 
hazards and allow them to correct and hazard or violation quickly. The 
alternative to a written summary after the inspection of for builders 
to wait several weeks, and possibly up to 6 months, for OSHA to issue 
citations notifying them of the nature of a violation found during the 
inspection. Employers have a right to know about any potential hazards 
discovered by OSHA on the jobsite, without any delay. This full 
disclosure by OSHA following an inspection, and before they leave the 
jobsite, would allow for the timely abatement of safety hazards by home 
builders, which provides the desired protection to construction 
workers.
    Additionally, we strongly believe that OSHA should be required to 
provide employers with all of the necessary information to help them 
understand the OSHA citation procedures. Employers should be given 
clear, plain-English information on how the citation process works, 
what their rights are to contest any citations they receive, and how 
the process of contesting the citation takes place, including the 
procedures undertaken at the OSH Review Commission (OSHRC). Finally, 
all employers should be provided with a list of contacts at the local 
or regional OSHA office, so that they can call with questions about 
their inspection or citations. We believe that this type of procedural 
reform, though small, is an important step towards helping our small 
business employers who are so often intimidated and confused by the 
OSHA inspection and citation process.

Conclusion
    In conclusion, I would like to reiterate that the members of NAHB 
are committed to worker safety and health. We urge Congress to review 
the OSHA citation and inspection process, and make changes that will 
ensure fair and consistent OSHA enforcement practices in the home 
building industry.
    NAHB is firmly committed to OSHA reform in the 109th Congress. We 
intend to work with the members of the appropriate committees and 
others in the House of Representatives to deliver meaningful, 
responsible OSHA reform legislation to President Bush for enactment as 
soon as possible.
    I thank the Chairman and Members of the Subcommittee for allowing 
me the opportunity to testify on behalf of the 220,000 member firms of 
NAHB. We look forward to working with this committee, the Congress, and 
the administration to pass needed OSHA reform.
    Thank you.
                                 ______
                                 
    Chairman Norwood. Thank you very much for your testimony.
    Frank, you're now recognized for 5 minutes.

 STATEMENT OF FRANK L. MIGLIACCIO, JR., EXECUTIVE DIRECTOR OF 
    SAFETY AND HEALTH, INTERNATIONAL ASSOCIATION OF BRIDGE, 
     STRUCTURAL, ORNAMENTAL AND REINFORCING IRON WORKERS, 
                         WASHINGTON, DC

    Mr. Migliaccio. Thank you. Mr. Chairman, Members of the 
Committee, my name is Frank Migliaccio, and I am the Executive 
Director of Safety and Health for the International Association 
of Bridge, Structural, Ornamental, and Reinforcing Iron 
Workers. I am here today to testify on behalf of the 3 million 
members and 15 unions that make up the Building and 
Construction Trades Department of the AFL- CIO, where I serve 
as chairman of the Safety and Health Committee. I appreciate 
the opportunity to testify today. Workers in the construction 
industry suffer more fatal injuries than any other industry 
sector.
    The building and construction trade has long been a strong 
proponent of voluntary joint labor-management safety and health 
initiatives as a supplement to mandatory OSHA enforcement, not 
as a replacement for OSHA enforcement. We believe that any 
measure to substitute OSHA inspections and enforcement with an 
unproven third-party certification and penalty exemption scheme 
would significantly decrease safety and health protection for 
workers.
    The GAO's Workplace Safety and Health Report, dated March 
2004, provided the Chairman of the Subcommittee on Workforce 
Protections, Committee on Education and the Workforce, and 
House of Representatives a state of the OSHA Voluntary 
Compliance Strategies; it shows promising results, but should 
be fully evaluated before they are expanded. To be effective, 
safety and health programs have to be site-wide and should 
include the employer and control of the entire site. 
Evaluations must be based on the actual work site, and the 
worker participation is key to the success of any program. The 
larger employers already do this and have the resources to do 
this. OSHA needs to focus its resources on the small employers 
and others at high risk.
    The targets of the VPP are generally your larger 
contractors, the 1.1 percent of construction employers with 
more than 100 employees--the employers with 30 percent of the 
construction workers. Yet they suffer only 14 percent of 
construction fatalities. The larger companies usually have 
safety and health programs already in place. These programs 
commonly use some form of voluntary third-party or internal 
performance auditing without legally exempting such audits from 
fact-finding by the court.
    Similarly, safety audits should not be made exempt from 
court fact-findings. The VPP should try and target for small 
companies that employ one to ten employees. These companies 
employ 23 percent of the construction workers, yet suffer more 
than 50 present of construction fatalities, double the average 
of the construction industry. Hispanic construction workers 
make up 16.6 percent of the construction workforce, but suffer 
19.6 percent of the fatalities. The small companies and the 
Hispanic workforce are the groups that need to be reached.
    The Federal Government employs approximately 25 percent of 
the construction dollars. There's a lot of room for 
improvement, and the government has control over these jobs. On 
such jobs, safety and health programs should be required in the 
job specifications. One job specification requirement should be 
that every worker in their position have an OSHA 10-hour 
construction workers standard safety and health card. This 
training is very generic, but requires that workers have some 
background on safety and health training. By requiring this, 
you reach the small one to ten employee contractors and also 
the Hispanic workforce, some of which do not even know that 
OSHA exists.
    By providing large contractors with VPP status without 
inspecting every job site would dilute the health and safety 
programs they have in existence already. Each job site has 
different subcontractors, supervisors, suppliers, rules and 
regulations, and a new workforce. Any assumption that you can 
inspect and/or audit only one employer's work site and predict 
conditions on other sites is false. You must evaluate 
performance by looking at each site you wish to be recognized 
as a model or VPP status.
    Reducing enforcement and lowering penalties will only lead 
to more unsafe jobs, injuries, and fatalities. Any company that 
knowingly puts workers in harm's way should have increased 
criminal and civil penalties placed upon them. The best way to 
improve voluntary compliance is to pass the Workplace Wrongful 
Death Accountability Act and the Protect the American Workers 
Act. Without the passage of these two Acts, the burden is 
placed on all taxpayers to pay the bill for those employers 
with uncontrolled hazards, including disability costs, 
uncompensated medical care, lost productivity, lost income tax 
revenue, and other costs.
    Voluntary protection programs like VPP require a great deal 
of OSHA manpower to provide what amounts to free consulting 
time for those employers or sites which already have some of 
the most effective safety and health programs in existence.
    In order for any VPP program to work, you must have worker 
and employer participation. Any voluntary program must engage 
workers and provide mechanisms for addressing hazards even when 
their immediate supervisors or employers have different 
priorities.
    In closing, I would like to again thank this Committee for 
the opportunity to testify in front of the Committee. Thank 
you.
    [The prepared statement of Mr. Migliaccio follows:]

Statement of Frank L. Migliaccio, Jr., Executive Director of Safety and 
Health, International Association of Bridge, Structural, Ornamental and 
                Reinforcing Iron Workers, Washington, DC

    Mr. Chairman, members of the committee. My name is Frank 
Migliaccio, Executive Director of Safety and Health for the 
International Association of Bridge, Structural, Ornamental, & 
Reinforcing Iron Workers. I am here today to testify on behalf of the 3 
million members and 15 unions that make up the Building and 
Construction Trades Department (BCTD) of the AFL-CIO, where I serve as 
Chairman of the Safety and Health Committee. I appreciate the 
opportunity to testify today to present the BCTD's views on voluntary 
OSHA compliance programs including the Voluntary Protection Program or 
VPP. Workers in the construction industry suffer more fatal injuries 
than any other industry sector, and we recognize and control serious 
occupational hazards every day on the job.
    The BCTD has long been a strong proponent of voluntary joint labor-
management safety and health initiatives as a supplement to mandatory 
OSHA enforcement activities. Voluntary compliance programs, which may 
include internal or third-party audits, are a key part of efforts to 
take the next step beyond minimal OSHA compliance. These should not, 
however, be seen as a replacement for OSHA enforcement. Given that for 
most employers the average time between OSHA inspections can be 
measured in decades, the unions within the BCTD work closely with our 
employers and site owners (in cooperation with the Construction Users 
Roundtable) to make safety and health a priority in our dangerous 
industry. Where employers or owners want to implement voluntary 
programs that go beyond the minimal requirements of OSHA compliance, we 
are ready to step up with a highly skilled workforce to solve problems 
and move paper programs into real improvements in working conditions. 
We believe that any measures to substitute OSHA inspections and 
enforcement with an unproven third-party certification and penalty 
exemption scheme would significantly decrease safety and health 
protections for workers. Several proposals have been advanced that 
include taking away workers' rights to an OSHA site inspection in 
response to a complaint and permitting warnings instead of citations 
for most violations. We do not believe that reducing penalties, or 
shifting OSHA enforcement resources to support voluntary efforts by 
large employers with model safety programs, will prevent occupational 
injuries and illnesses. OSHA should have greater flexibility to use 
workers' compensation data and other data sources to experiment with 
more effective inspection targeting processes. Occupational injuries 
and illness cost our economy billions of dollars per year and result in 
preventable pain and suffering. Ignoring existing hazards or reducing 
penalties and paperwork for employers does not control these hazards. 
These are real problems that need to be recognized and solved on a day 
to day basis.

Small employers are at greatest risk, yet are unlikely to participate 
        voluntarily without clear and immediate incentives
    In construction, more than 80% of the establishments have less than 
10 employees. These 1-10 employee establishments employ 23% of the 
construction workforce, but they suffer more than 50% of the fatal 
injuries. Hispanic construction workers (60% foreign born) are also at 
high risk, making up 16.6% of the workforce and suffering 19.6 % of the 
fatal injuries (2001). The only way very small employers currently 
participate in programs like those promoted in VPP is if the client/
owner of the site, or the construction manager on the site requires 
contractors and subcontractors to participate. Yet OSHA chooses to 
focus enforcement on the 1.1% of construction employers with more than 
100 employees. These employ over 30% of the construction workforce, and 
yet they suffer only 14% of the fatalities. Although there is always 
room for improvement, programs like OSHA VPP, focus on large employers 
with model programs and little need for government assistance. Funds 
for voluntary compliance assistance should be shifted to enforcement 
focusing on those employers that are truly at high risk and high risk 
worker training.

Accurately identifying and publicly recognizing model safety programs 
        is of value
    Whether recognition is from private organizations, professional 
associations, or the federal government, recognizing the true top 
safety performers can raise the visibility of safety concerns. As the 
number of recognized firms increases and the minimum standards required 
for recognition decrease, VPP designation is of less and less value. 
Reduced enforcement is not a necessary component of a voluntary 
program. Increased penalties may provide a more effective incentive.

Voluntary Compliance is Undermined by Reduced Enforcement and Low 
        Penalties
    Whether it is paying taxes or controlling work site hazards that 
could kill an employee, most of us voluntarily comply with laws and 
regulations. Penalties for non-compliance both create an incentive and 
are a statement that certain actions are unacceptable in our society. 
Reducing OSHA enforcement and accepting low penalties for violations, 
says quite clearly that you find killing workers to be an expected part 
of doing business in high-risk industries.
    The best thing Congress could do to improve voluntary compliance is 
to pass the ``Workplace Wrongful Death Accountability Act'' and 
``Protecting Americas Workers Act'' and increase the criminal and civil 
penalties that are appropriate for willful acts which put workers lives 
at risk.
    If, instead, Congress and OSHA were to reduce the incentives for 
compliance, the effect would be to place the burden on all taxpayers to 
pay the bill for those employers with uncontrolled hazards including 
disability costs, uncompensated medical care, lost productivity, lost 
income tax revenue, and other costs.

For workplace safety programs to be effective, employers that control 
        the work must share responsibility for compliance.
    On multi-employer job sites, and on sites where subcontractors, 
employers of joint venture partners, self-employed or temporary workers 
are simultaneously engaged in work, it is common that someone other 
than a worker's formal employer controls workplace conditions and 
workplace hazards. OSHA compliance, even in the context of a voluntary 
compliance program, must focus on the entity that is in the position to 
best ensure compliance on a worksite, whether it is the owner, 
construction manager or general contractor, or other subcontractors.

Conditions and practices on one site cannot predict practices on other 
        sites
    OSHA has proposed admitting employers to its VPP program based on 
their records on other worksites, or on a sample of worksites. This is 
extremely problematic. Construction work sites are constantly changing 
as the project progresses. Workers, employers, managers, kinds of work, 
the safety problems, and the manner in which all of these elements 
interact change continuously. Any assumption that you can inspect or 
audit one of an employer's work sites and predict conditions on other 
sites, is false. To determine whether to grant an employer VPP status, 
OSHA must evaluate performance at the actual sites to be recognized as 
model or VPP sites.

Effective compliance programs should not effect enforcement but should 
        effect penalties
    Construction is a complex and dangerous industry, and even with 
model programs, mistakes are made. Employers who implement effective 
safety programs should receive special consideration in defining 
penalties. As in other corporate crime, the existence of ``effective'' 
compliance programs should logically be a consideration in sentencing 
or setting penalties. It should not simply be an OSHA's certification 
of a site as VPP, but the employer's direct documentation of its 
effective safety program on the work site, which should legitimately be 
considered in determining appropriate penalties. In other parts of the 
law, including anti-trust and price-fixing, the Federal Sentencing 
Commission has defined criteria for effective corporate compliance 
programs. The government does not subsidize or formally approve 
corporate compliance programs related to these financial regulations. 
Why is it necessary or appropriate for the government to approve (with 
VPP status) and subsidize (with free OSHA manpower) large employer 
corporate compliance programs for OSHA? Logically, OSHA compliance 
should be a part of an employer's overall corporate compliance system.

OSHA should be required to use the most effective inspection targeting 
        and enforcement strategies
    Because OSHA doesn't have enough inspectors to reach the millions 
of US employers, it must depend on news of criminal penalties and 
citations reaching employers and creating an incentive for them to 
voluntarily evaluate risks and control hazards. VPP in its current 
form, third party safety audits, and other voluntary safety initiatives 
may have benefits on the specific site where OSHA provides its free 
services, but they provide no incentives for other employers to comply. 
Direct, aggressive, and highly visible enforcement remains the way to 
maximize visibility and create the most benefit to workers per dollar 
of OSHA budget. OSHA should pilot and evaluate innovative inspection 
targeting strategies. Evaluations must consider the overall impact on 
the safety and health of the US workforce, rather than the presumably 
positive impacts on VPP sites as a result of OSHA allocating 
disproportionate resources to assist a small number of receptive 
employers with model safety programs and already low reported injury 
rates.

Federal subsidies for the best corporate compliance programs is 
        unnecessary
    Our opposition to VPP or other voluntary programs is not because 
they don't work, but because they represent an inefficient use of OSHA 
resources. Voluntary programs like VPP require a great deal of OSHA 
manpower to provide what amounts to free consulting time for those 
employers or sites which already have some the most effective OSH 
programs in the nation. This group of employers would employ safety and 
health professionals even if VPP did not exist. To the extent that 
paper plans are actually moved into the multiemployer workplace, they 
can be very positive, and should be considered in determining penalties 
but not in inspection targeting. Larger employers have corporate 
compliance programs to oversee legal compliance, and OSHA enforcement 
should allow these compliance efforts to be easily integrated into 
broader corporate compliance efforts. These programs commonly use some 
form of voluntary 3rd-party or internal performance auditing, without 
legally exempting such audits from fact finding by the courts. 
Similarly, safety audits should not be made exempt from court fact 
finding. As with any form of audit, failing to act on identified 
problems is not good. However, the fact that compliance audits are 
conducted demonstrates that many employers have decided that the risks 
of not knowing the problems exist is greater.

Federal OSHA certification (with VPP Star status) of private programs 
        is of limited value, unless it is for the government's 
        contractors and vendors
    Although OSHA involvement can have a positive impact and identify 
persistent safety problems in work sites pursuing VPP status, these are 
already among the safest worksites in the nation. There are a variety 
of industry consensus standards including ANSI A10.38 Construction 
Safety Programs and the new ANSI Occupational Health and Safety 
Management Systems Z10 standard, that provide guidance for those 
interested in voluntarily improving their safety performance. Since a 
variety of trade and professional organizations provide recognition of 
top performing employers/members, and national and international 
standard setting bodies have defined guidelines similar to VPP, 
duplicating these efforts within the federal government at taxpayer 
expense is of limited value. Efforts to codify voluntary compliance 
programs in the law would inappropriately divert funds from enforcement 
and training. Corporate compliance programs focused on compliance with 
financial statutes such as anti-trust and price-fixing laws function 
effectively without government certification or personalized government 
assistance too employers interested in developing these programs. 
Private consultants, third-party auditors, and legal specialists 
implement programs with no government involvement until the 
effectiveness of such a corporate compliance program is considered in 
the sentencing phase of a trial to support reductions in penalties.

Worker Participation or Employee Involvement is Central to any 
        Voluntary Program
    Workers must be involved in any effective safety program. Any 
voluntary program must engage workers, and provide mechanisms for 
addressing hazards even when their immediate supervisor or employer 
have different priorities. The importance of this involvement is made 
clear in OSHA VPP and in ANSI consensus standards. OSHA's proposed 
budget eliminates all funding for safety and health training grants. 
This reflects a fundamental misunderstanding of the importance of 
employees in identifying and controlling hazards in the workplace. 
While safety and health is the employer's responsibility, if workers 
themselves are not able to anticipate or recognize hazards and work 
with their employer to implement controls, then construction workers 
will continue to die on the job. These OSHA training funds should be 
renewed and increased.
    I would also like to submit for placement in the record
    1. BCTD comments on OSHA VPP in construction dated November 1, 2004 
(OSHA Docket No. C-06).
    2. Statement of Lynn Rhinehart, Associate General Counsel, AFL-CIO. 
Submitted to the Subcommittee on Employment and Workplace Safety Of 
theSenate Committee on Health, Education, Labor and Pensions On The 
Occupational Safety and Health Act and Small Employers. May 10, 2005.
    [The information referred to has been retained in the Committee's 
official files.]
                                 ______
                                 
    Chairman Norwood. Dennis Morikawa, how did I do that time?
    Mr. Morikawa. You did very well.
    Chairman Norwood. OK, you're recognized for 5 minutes.

STATEMENT OF DENNIS J. MORIKAWA, ESQ., MORGAN, LEWIS & BOCKIUS 
                      LLP, WASHINGTON, DC

    Mr. Morikawa. Thank you. Mr. Chairman and distinguished 
Members of the Subcommittee, I am very pleased and honored to 
be here today to provide commentary to the Subcommittee in 
pursuit of your very valuable task.
    My name is Dennis Morikawa, and I am a partner in the law 
firm of Morgan, Lewis and Bockius and Philadelphia, 
Pennsylvania. I am past management co-chair of the Committee on 
Occupational Safety and Health Law of the American Bar 
Association. Since 1974, I have focused my practice on 
occupational safety and health law issues from enforcement 
matters to rulemaking, and in the last several years advising 
clients with respect to their participation in the very 
valuable OSHA cooperative compliance programs, including 
Voluntary Protection Programs or VPP's, and OSHA's Strategic 
Partnerships or OSP's as they are referred to.
    Now, I think it's very clear that the magnitude of the task 
facing OSHA in its duel role of providing enforcement as well 
as cooperative programs is a daunting job. The realities are 
and there over seven million workplaces in the United States. 
OSHA currently conducts inspections at the rate of 39,000 
inspections per year, but at that rate, as Mr. Owens correctly 
points out, it would take OSHA almost 180 years to visit every 
single workplace in America just once.
    With respect to cooperative programs, which I think have 
been very, very successful, VPP's, Partnerships and Alliances, 
the reality is they are scarcely 1500 such programs in the 
United States when faced with more than seven million 
workplaces.
    Now I am here to tell you today, Congress needs to support 
Cooperative Compliance efforts by OSHA, and I think it's very, 
very important. What can be done? A former partner of mine once 
told me something that I have never forgotten. He said that if 
you don't know where you're going, any road will get you there. 
Well, I'm here to tell you today, that we need a plan. There 
has to be an approach. We have to take into account OSHA's 
limited resources and its abilities with respect to enforcement 
and cooperative programs, to face the reality that Congress can 
indeed help OSHA in this very valuable task.
    First, clarify, direct and support OSHA in working with 
employers in determining and preventing workplace accidents 
through these types of cooperative programs.
    Second, and very importantly, remove disincentives that 
discourage employers from engaging in voluntary compliance 
efforts, and create incentives for employers to engage in these 
voluntary compliance issues, such as voluntary auditing, and 
third-party auditing.
    Current policies, while calling for voluntary self- audits 
as it currently exists, encouraging employers on one hand to 
voluntarily self-audit their compliance with OSHA standards, 
but at the same time, this policy allows OSHA to use the 
results of these self-audits against these employers in 
enforcement actions. This makes no sense. Indeed, we believe 
this has had a chilling effect on employers' willingness to 
engage in self-critical analysis of OSHA compliance issues.
    Now, we urge the Subcommittee to provide immunity for these 
self-audits so that employers will be incented to engage in 
this very valuable activity. I am not suggesting that Congress 
remove enforcement powers from OSHA, indeed, OSHA enforcement 
activity is very important to its mission. But we have to face 
the stark reality and that is OSHA simply can get the job done 
by itself. It needs help from the community that it regulates.
    Voluntary programs such as VPP, OSHA Strategic 
Partnerships, alliances and other programs reflect a growing 
acknowledgment that the industries themselves can and should be 
encouraged to collaborate and join hands to find common 
solutions through a process of acknowledgment, commitment, 
identification, enablement, and execution. These programs, 
indeed, leverage OSHA's resources dramatically by providing 
maximum impact on large numbers of employees that simply could 
not be reached by OSHA enforcement efforts. Therefore, we 
believe these are the kinds of programs that the Subcommittee 
should back.
    The National Electrical Transmission and Distribution 
Partnership is one such example. A combination of union and 
nonunion companies. Nonunion companies and the IBEW, the 
International Brotherhood of Electrical Workers, banding 
together--these are prime competitors in an industry all across 
the country who have joined together and joined hands to face 
the realities of workplace injuries, and try to bring down 
injuries in their industry. They have collaborated and joined 
in a partnership with OSHA. A high hazard industry has for the 
first time confronted these issues and is working successfully 
now to reduce injuries in their industry--a great achievement. 
I will be happy to answer questions about that later.
    There's nothing in the Act regarding any of these programs. 
Congress should clarify and direct OSHA regarding them. But 
even with cooperative programs, OSHA doesn't have the resources 
to partner with every workplace in America. Congress needs to 
find ways to encourage employers to help direct their safety 
and compliance issues themselves. We believe that providing 
immunity for self-critical analyses and audits is one tool that 
can be used by employers to accomplish those valuable goals.
    I appreciate the opportunity to address the Committee 
today, and I will be available to answer questions.
    [The prepared statement of Mr. Morikawa follows:]

  Statement of Dennis J. Morikawa, Esq., Morgan, Lewis & Bockius LLP, 
                             Washington, DC

    Chairman Norwood and members of the subcommittee, I am pleased and 
honored to be here today. Thank you for your kind invitation.
    By way of introduction, I am a partner at the law firm of Morgan, 
Lewis & Bockius LLP. I work in Philadelphia, Pennsylvania. My practice 
focuses on advising employers regarding occupational safety and health 
matters--both compliance advice and litigation of citations and 
penalties. I have been practicing in this area of law for more than 30 
years-since 1974. I am a past Management Co-Chair of the Occupational 
Safety and Health Law Committee of the American Bar Association. I am 
testifying today on behalf of myself--but with the experiences of many 
clients behind me.
    I am sure that you are aware of the magnitude of the task 
confronting the Department of Labor's Occupational Safety and Health 
Administration (OSHA). OSHA is responsible for enforcing the 
Occupational Safety and Health Act (OSH Act) and its regulations and 
standard for the 7.2 million workplaces in the United States. As you 
are aware, no employer is exempt from the OSH Act, no matter how small. 
Over the past five years OSHA has conducted an average of 39,000 
inspections per year. At that rate, if OSHA started tomorrow, it would 
take them 184 years and 7 months to inspect every workplace in America 
once.
    Obviously OSHA does not have the resources to rely solely on 
compliance inspections to enforce the OSH Act and Standards. Thus, 
almost from its inception OSHA began exploring compliance assistance 
efforts under which individual employers partner with OSHA to reduce 
injuries and illnesses and to comply with OSHA standards. In exchange 
for their undertakings, some employers have enjoyed immunity from or 
deferral of general scheduled inspections, although they are not exempt 
from either employee complaint inspections or inspections triggered by 
worksite fatalities or catastrophes. This immunity or deferral offers 
employers a respite from traditional enforcement and leverages OSHA's 
limited resources. In addition, OSHA's compliance assistance efforts 
offer employers the ability to resolve difficult compliance issues in 
non-adversarial settings. Unfortunately, skeptics of voluntary 
compliance measures both inside and outside the a seek to limit OSHA's 
efforts. Further, OSHA routinely seeks employer self audits for use 
against employers in citation cases. These actions unnecessarily limit 
the cooperative compliance absolutely necessary to prevent accidents.

Background On OSHA's Cooperative Programs and Incentives
            A. The Voluntary Protection Program
    Although it arose out of the agency's earliest efforts at 
cooperative compliance, OSHA's Voluntary Protection Program (VPP) was 
not an official program until the Reagan administration formally 
implemented it and recognized the first worksite in 1982, more than 10 
years after the effective date of the OSH Act. VPP was designed to 
recognize and promote effective safety and health management. Under 
VPP, management, labor, and OSHA establish a cooperative relationship 
at an individual workplace with a strong safety and health record 
(primarily identified by a days away, restricted and transfer (DART) 
injury and illness rate below the industry average) \1\, with the 
following understandings:
---------------------------------------------------------------------------
    \1\ The current VPP requirements exclude from participation any 
facility whose DART rate is above its industry average. Accordingly, 
those employers whom OSHA identifies as having the high injury and 
illness rates in the country--presumably those most in need of 
compliance assistance--are excluded from participation in VPP.
---------------------------------------------------------------------------
    1.  management agrees to operate an effective program that meets an 
established, detailed set of criteria;
    2.  employees agree to participate in the program and work with 
management to assure a safe and healthy workplace;
    3.  OSHA initially verifies that the program meets the VPP 
criteria; then OSHA publicly recognizes the site's exemplary program 
and removes the site from routine scheduled inspection lists (though 
OSHA may still investigate major accidents, valid formal employee 
complaints, and chemical spills); and
    4.  OSHA periodically reassesses the site to confirm that it 
continues to meet VPP criteria (every three years for the STAR program; 
every year for the MERIT program).
    OSHA has published guidance for Voluntary Protection Programs, 
which enumerate the specific requirements of VPP. After initial 
application and approval of their safety management systems and safety 
and health programs, employers are subject to a compliance inspection 
by a team of OSHA enforcement personnel. Any noncompliance identified 
during the inspection must be corrected within 90 days but no citations 
or penalties will be issued. Unfortunately, as currently established, 
under VPP OSHA will only partner with those employers who already have 
low injury and illness rates and excellent programs. By setting 
application criteria for its primary cooperative program so high, OSHA 
has eliminated the perceived risk of partnering with an employer to the 
detriment of those employers who could probably benefit most from 
cooperative programs.
            B. Consultation Service and SHARP
    Although it was the first formal compliance assistance offered by 
OSHA, the Consultation Service did not become a cooperative program 
with incentives from federal OSHA until after VPP was established. As 
originally established, and currently operated, the Consultation 
Service allows employers to request an on-site inspection and review of 
safety and health compliance from OSHA. Rather than reviewing 
compliance or conducting an inspection itself, OSHA uses state 
government staff--usually through a state department of labor--or 
consultants to conduct the inspection. The results of the inspection 
are kept confidential and not normally shared with OSHA. Rather, a 
participating employer's only obligation is to commit itself to 
correcting ``serious'' job-safety problems and health hazards 
identified during the inspection. In a situation where a serious 
violation would exist under OSHA criteria, the employer and consultant 
are required to develop and agree to a reasonable plan and schedule to 
eliminate or control the hazard. Consultants will offer general 
approaches and options and they may also suggest other sources for 
technical help. In rare instances, a consultant may find an ``imminent 
danger'' situation; if so, the employer must take immediate action to 
protect its employees.
    After working with Consultation Services for several years, OSHA 
established the Safety and Health Achievement Recognition Program 
(SHARP) whereby small employers, which have had a consultation 
inspection, can request recognition. To participate in SHARP, an 
employer must:
      Request a consultation visit that involves a complete 
hazard identification survey;
      Involve employees in the consultation process;
      Correct all hazards identified by the consultant;
      Implement and maintain a safety and health management 
system that, at a minimum, addresses OSHA's 1989 Safety and Health 
Program Management Guidelines;
      Lower the company's Lost-Workday Injury and Illness rate 
(LWDII) and Total Case Incident Rate (TCIR) below the national average; 
and
      Agree to notify your state Consultation Project Office 
prior to making any changes in the working conditions or introducing 
new hazards into the workplace.
    Certification of compliance with these requirements will qualify 
the small employer for a one-year exemption from routine OSHA 
inspections.
    While such state-supported programs constitute an important step in 
closing the ``credibility gap'' between OSHA and private employers, 
employers participating in this program sometimes find that the state-
provided consultants are not fully cognizant of OSHA's standards, 
because they do not enforce them routinely. In the worst cases, 
employers utilizing the Consultation Service have found that 
consultants have failed to identify OSHA-covered hazards when federal 
OSHA conducts an inspection and issues citations. In addition to 
substantive problems, employers often find that the states sometimes 
lack adequate funding and personnel to conduct inspections. Because of 
their limited funding, states limit or prioritize inspections in favor 
of small employers and exclude larger employers. Even where small 
employer requests for inspections are approved, it may take weeks or 
months to schedule the inspection. Finally, like VPP, membership in 
SHARP is predicated on being below the national average injury rate for 
the employer's industry thus excluding many employers.
            C. OSHA Strategic Partnerships
    The OSHA Strategic Partnership Program for Worker Safety and Health 
(OSPP), adopted on November 13, 1998 and revised December 9, 2004, is 
an expansion and formalization of OSHA's pilot programs and experiments 
with voluntary compliance outside of VPP. In a partnership, OSHA enters 
into an extended, voluntary, cooperative relationship with groups of 
employers, employees, and employee representatives (sometimes including 
other stakeholders, and sometimes involving only one employer) in order 
to encourage, assist, and recognize their efforts to eliminate serious 
hazards and achieve a high level of worker safety and health. OSHA and 
its partners have the opportunity to identify a common goal, develop 
plans for achieving that goal, and cooperate in implementation. Most of 
the worksites that have chosen to partner with OSHA are small 
businesses, with an average of 22 employees. Many of these partnerships 
focus on areas of concern addressed in OSHA's Strategic Plan. Some of 
these partnerships are seeking solutions to silica and lead exposures 
and serious hazards in the nursing home, food processing, shipbuilding, 
logging, and construction industries. Unlike VPP, employer eligibility 
criteria for entry into a partnership are not rigidly defined but OSHA 
maintains a discretionary ability to refuse to partner with any 
employer. Accordingly, employers seeking to partner with OSHA must 
demonstrate their commitment to OSHA and propose a partnership that is 
of value to the agency.
    Among other benefits, participating in a partnership program with 
OSHA may provide employers with Onsite Non-enforcement Verification 
inspections where no citations or penalties are issued. It is important 
to understand, however, that all partnerships must stipulate that 
partnering employers remain subject to OSHA inspections and 
investigations in accordance with established agency procedures. The 
agency's policies do, however, allow deferral of programmed inspections 
where focused verification inspections are part of the Partnership 
Agreement.

Advantages and Disadvantages of Cooperative Programs
    Although the programs outlined above are similar to one another, 
there are some key differences that employers must consider. A critical 
difference between Strategic Partnerships and VPP relates to the so-
called ``immunity provision,'' which exempts VPP sites from general 
scheduled inspections. OSHA has been careful to explain that Strategic 
Partnerships are different from VPP in that they do not offer complete 
exemption from inspections and that employers that fail to abate 
alleged safety and health violations identified during the course of 
the audit and review process could find themselves subject to 
inspections and citations for noncompliance. Similarly, utilization of 
the Consultation Service does not provide inspection immunity or 
deferral unless the employer takes the further step of certifying its 
programs and allowing verification of abatement of all Serious 
violations.
    On the other hand, if an employer is looking to simply further its 
working relationship with OSHA without attempting to assert itself as 
the best in industry in all areas of health and safety, a Strategic 
Partnership may be appropriate. While these programs do not necessarily 
provide exemptions from inspections similar to VPP, employers that are 
willing to make the commitment to engage in a voluntary compliance 
program under a partnership arrangement with OSHA can expect to enjoy 
distinct but intangible advantages not generally available to an 
employer that does not enter into such a partnership. These advantages 
include, for example, constant interaction with OSHA with respect to 
compliance programs and the establishment of a cooperative 
relationship.
    One such partnership I had the privilege of helping negotiate is 
the Electrical Transmission and Distribution Construction Contractors 
Partnership. This national partnership among OSHA, the International 
Brotherhood of Electrical Workers (IBEW), the major electrical 
transmission and distribution contractors--normally fierce commercial 
competitors--both union and non-union, the Edison Electric Institute, 
and the National Electrical Contractors Association, was formed when 
the CEOs of these contractors--representing more than 70% of this 
industry--decided that their high hazard industry was not preventing 
enough accidents. These employers did not start with the best injury 
rates--indeed for the first time that I can remember OSHA partnered 
with a group that had high injury rates. Instead they started with a 
plan to reduce injury rates by doing all that they could to review 
their accidents as a group, to identify the causes of those accidents, 
to establish general qualifications for performing the work, for 
training, and for best practices. They started with an agreement to 
work as a group to consistently apply their actions across the country 
and to raise the bar for everyone. Even though this partnership 
involves no inspection or citation immunity--and indeed OSHA's lawyers 
demanded that right of OSHA to use information generated by the 
partnership against the participating employers be maintained--there 
was opposition to the partnership from within OSHA. The argument was 
that OSHA would be stopped or limited in its ability to cite these 
employers for violations, particularly willful violations, in the event 
of an accident or inspection because the employers were doing all that 
the could--in conjunction with OSHA, the IBEW, and the trade 
associations--to prevent accidents. Thankfully, smart and courageous 
people within OSHA were willing to work with industry to prevent 
accidents and not simply to wait and develop a patter of blame and try 
to punish those who have accidents. And this partnership is working. It 
has identified four areas of concern with respect to fatalities and is 
working to develop best practices to address these areas. It has also 
reviewed voluminous data for benchmarking, worked to develop training 
for employees and supervisors, and developed best practices to be 
implemented by partnering employers. In part through this partnership, 
OSHA has worked to overcome its role as simply an investigator of 
fatalities and accidents and to become a partner in the prevention of 
accidents. Prevention, not punishment, should remain OSHA's primary 
mission.

Neutrality: Voluntary Self-Audits Without OSHA Involvement
    In early 2000, I was a member of an advisory committee requested by 
then Assistant Secretary Charles Jeffress to review a draft of a self 
audit policy prepared by OSHA. The audit policy was a response by OSHA 
to growing congressional criticism of its enforcement policies, which 
permitted OSHA compliance officers to seek employer self-audits during 
the course of compliance inspections. A congressional bill introduced 
by Representative Cass Ballenger in 1998 would have made employer self-
audits immune from disclosure, in order to encourage employers to 
evaluate their own OSHA compliance without fear that their own analyses 
could later be used against them in subsequent enforcement actions. On 
July 28, 2000, OSHA published its Final Policy Concerning the Treatment 
of Voluntary Employer Safety and Health Self-Audits in the Federal 
Register. Unfortunately many of the advisory committee's comments were 
rejected in the final version of the policy.
    OSHA's audit policy has four main components. First, it provides 
that OSHA will not ``routinely request self-audit reports at the 
initiation of an inspection.'' Second, the audit policy provides that 
where a voluntary self-audit identifies a hazardous condition and the 
employer corrects it prior to an OSHA inspection (or a related 
accident, illness, or injury triggering the inspection), no citation 
will be issued so long as steps have been taken to prevent recurrence 
of the condition. Third, it provides that where a voluntary self-audit 
identifies a violation, so long as the employer is responding in ``good 
faith,'' OSHA will not use the audit report to cite the employer for a 
willful violation. Finally, the audit policy provides that a self-audit 
may be used for a good faith reduction in any penalties assessed.
    While the audit policy represents a so far successful attempt by 
OSHA to head off Congressional criticism and to attempt to assure the 
regulated community that it will not be seeking self-audits as part of 
routine compliance inspections, there are some aspects of the policy 
that are problematic. For example, OSHA's policy on the avoidance of 
willful violations does not offer clear guidance; worse, it suggests 
that for an employer who is not acting in ``good faith''--or not taking 
``reasonable, timely, and diligent'' action after the audit--its audit 
can be evidence of willfulness.
    The most troublesome aspect of the policy, however, is part 
C(1)(b), which provides that compliance officers can request an 
employer audit during the course of an inspection. This includes 
situations where OSHA ``has an independent basis to believe that a 
specific safety or health hazard warranting investigation exists.'' 
Unfortunately, this exception is so broad that it seems to encompass 
the entire rule. The policy permits any compliance officer to request 
an audit so long as he believed a safety or health hazard exists. Of 
course, one might reasonably suppose that the very reason a compliance 
officer was conducting an inspection was because of a belief that such 
a hazard might exist; and indeed, this provision would appear to be met 
in the event of any employee complaint or referral investigation. In 
addition, the audit policy describes situations involving fatalities or 
catastrophic accidents as incidents in which OSHA has a ``significant 
interest'' in evaluating whether the employer had prior knowledge of 
circumstances that could have been corrected prior to the accident. 
Thus OSHA might more often request self-audits in the very cases in 
which employers have the most exposure. Indeed, in our experience 
representing clients we have often found this to be the case with OSHA 
inspectors routinely asking for copies of self audits, audits by 
consultants, and even subpoenas for insurance company audits.
    Overall, the current policy does not do enough to protect against 
abuse. As it now stands, there is not enough encouragement of employers 
to audit their worksites voluntarily. What is needed is to afford 
employer audits protection from discovery in all but the most exigent 
cases. Otherwise, employers' concern about their own work being used 
against them will inhibit the undertaking of the sorts of detailed and 
documented audits that could really make a difference in the safety and 
health of America's workers.

Future Prospects for Cooperative Programs and Voluntary Compliance 
        Efforts
    It is obvious from OSHA's commitment--in both monetary and 
personnel resources--that it will not abandon cooperative programs 
during this or any administration. The stated goal of the Agency is 
increased cooperative participation. Indeed, as of January 31, 2005 
each program has an all time high participation rate: 1231 VPP 
worksites more than 215 active Partnerships.
    The question should be: What limits employer participation in 
cooperative programs? Why aren't more employers attempting to obtain 
the benefits offered by the cooperative programs? As noted, 
historically VPP eligibility requirements made the program available 
only to the employers who already have the lowest injury and illness 
rates in their industry and excellent written programs. Through 
retention of absolute discretion regarding with whom it partners and 
the requirements it imposes, OSHA has similarly limited the number of 
partnerships. Thus, even if a given employer was willing to undertake 
the burden and commitment of VPP or a Partnership they might be 
excluded. OSHA maintains these exclusions in order to control the 
perceived risk of partnering with employers and to maintain maximum 
enforcement ability against employers. OSHA should eliminate these 
artificial barriers. OSHA should not allow its interest in maintaining 
the ability to cite employers to the maximum extent possible prevent 
the entry of willing and committed employers into cooperative programs. 
As is expressly stated in partnership agreements, employers entering 
into partnerships remain subject to programmed, complaint and fatality 
inspections in accord with agency procedures. Further, both VPP and 
partnership agreements provide that employers remain subject to 
citation and penalty. Congress should continue to review OSHA's 
programs and policies to make sure that eligibility requirements are 
not unduly limiting the number of employers participating in 
cooperative programs. In addition, because OSHA does not have the 
resources to partner with every employer in America and actively 
excludes some employers, Congress should protect self audits conducted 
by employers from disclosure. While such protection would not be the 
same as the citation and penalty free inspections conducted by OSHA in 
VPP, SHARP, and partnerships, it would encourage excluded employers by 
removing the existing disincentives. I for one am in favor of any 
measure that would help an employer explain how it prevented an 
accident, rather than having to explain how a fatality occurred.
                                 ______
                                 
    Chairman Norwood. Thank you very much, gentlemen. Very 
interesting testimony from all of you, and I look forward to 
everybody asking some questions.
    Hopefully, you will be willing to submit some answers in 
writing, because we certainly can't get all of the questions 
asked. But there's a lot more I would like to know, and maybe 
we can put into the record.
    With that, Mr. Kline, you are recognized for 5 minutes for 
questioning.
    Mr. Kline. Thank you, Mr. Chairman, and thank you, 
gentlemen, all for being here today. Interesting how we got to 
the first name basis here very quickly. The names don't look 
quite that hard to me, Mr. Chairman.
    Chairman Norwood. Well, for now, some of them.
    Mr. Kline. Oh, no, no.
    [Laughter.]
    Mr. Kline. No, no, I'm following up on your lead here. I 
thought that was very well, very well done.
    I believe I can say that all of us on this Committee, and I 
know all of you down there, want to see safe workplaces. I 
think it's beyond question that as currently configured OSHA 
simply doesn't have the resources or the number of people to go 
and inspect every site, particularly challenging for home 
builders where the site exists for 90 days or so. So we have to 
look for ways to make it possible to ensure that our employers 
are providing safe workplaces for our employees in some sort of 
a reasonable way.
    Mr. Morikawa--I'm trying, Mr. Chairman. We're working on it 
here. I think you stated very well when you say that OSHA 
doesn't have the resources and we have to find a way to do 
this, and with voluntary agreements and third parties and so 
forth.
    I want to underscore and I want you to expand on that just 
a little bit.
    But I want to underscore that certainly now when we are 
spending our resources in expanding our capability to defend 
Americans in homeland security and supporting our defense 
forces as we fight in this global war on terror overseas, the 
notion that we could possibly expand OSHA at this time to the 
number of inspectors and employees it would take to police the 
work site is just not reasonable. So we do have to look for 
some alternative sources.
    You mentioned, and I got a little quote here, that it may 
be necessary to create third-party audit privilege, and to 
prevent the audit from being used in outside litigation. Could 
you expand on that and tell me also if we create such a 
privilege, how do we resolve the issue of companies that 
receive an audit and then don't do anything to correct the 
legitimate safety concerns that were identified in that audit?
    Mr. Morikawa. Mr. Kline, the issue of self-critical 
analysis and self-audits has always been a topic of some 
controversy, because there was always a concern expressed and 
your question certainly includes that, that there are going to 
be employers in the United States who audit but don't correct 
violations as they find them.
    My personal experience has been that companies that 
actually go to the trouble to engage in a self-audit program do 
so with the best intention in mind, with the purpose of 
correcting those violations. In other words, it would make 
little sense to self-audit your compliance with OSHA standards 
and then decide to do nothing about it.
    I have seen many, many clients that we represent and 
represented by other companies in the United States who engage 
in self-auditing on a regular basis. They do that because they 
want to know what their workplace conditions are, and what are 
the causes of accidents they are experiencing.
    The Homebuilders do this kind of activity. The transmission 
and distribution electrical construction contractors have 
engaged in this activity, and they have found remarkable things 
in these audits. They have found things that they could 
discuss, they can analyze, and they could develop rules and 
procedures to prevent accidents in the future. That's the 
valuable function of auditing.
    Many times people have criticized OSHA because OSHA tends 
to be an accident investigator. OSHA comes in and they 
investigate totality. An OSHA official once told me something 
that I'll never forget. He said, ``We come in and investigate a 
workplace facility. In that sense we've failed, because now we 
are investigating something that happened at a workplace that 
we didn't prevent or couldn't prevent.''
    I think self-auditing does provide a tremendous means for 
identifying and heading off the causes of injuries and 
fatalities in the workplace, and that's why I think auditing is 
such a valuable function.
    Now, auditing should have an immunity for this reason. If 
every employee that engaged in self-auditing believed that OSHA 
would then walk in and use those audit results against them in 
enforcement proceedings, in litigation, they would be 
disinclined to do that for practical reasons, not creating a 
paper trail or creating a record that could be used against 
them, as an admission or as a legal matter.
    It is important to engage in this type of self-auditing, 
and for Congress to encourage self-auditing because it will 
expand the scope of compliance to many, many more workplaces 
than OSHA can currently reach through their enforcement 
efforts, or even their formal compliance efforts. So we applaud 
this type of approach. We support companies that do this.
    But we believe that we need Congress's help to try to make 
this an institutional requirement, a codification, a procedure 
that would be followed and supported by Congress, to let 
everybody know that Congress supports voluntary efforts in the 
United States to accomplish safety and health goals that can't 
be accomplished just by the agencies themselves.
    Chairman Norwood. Thank you, Mr. Kline. Good question. Mr. 
Owens, you are now recognized.
    Mr. Owens. I yield to my colleague from California, Ms. 
Woolsey.
    Ms. Woolsey. Thank you. Thank you, gentlemen. I heard most 
of you. I'm sorry that I got here late.
    All right, here's the deal on resources. If OSHA was valued 
by our leaders, by our budgets, by our government, it would be 
funded, it would be staffed, we would have the resources to do 
what is necessary to prevent injury and consider and hold our 
workers in the highest regard.
    But we don't do that. We instead make sure that the large 
corporations have huge tax breaks, and we could use that money 
to protect our workers.
    Now, on the other hand, injuries, death--that's very 
costly, not only to the family, if it's the breadwinner, 
anybody in the family. The company costs just soar with 
insurance and workers' comp when that happens. So it makes good 
sense that good employers, smart employers, are going to take 
care of their workers from the get-go.
    But what we're dealing with here is not that good, heads-up 
employer, whom you all represent when you're sitting here 
talking to us. We're talking about the employer that not only 
ignores an audit, but also would ignore a near-miss and pretend 
that near-miss wasn't--or couldn't tomorrow be somebody's eye 
being taken out, or something, or a death. But sometimes this 
employer will actually ignore a real serious injury or death.
    To give an employer the right to self-audit is a big 
mistake. If somebody can tell me, up there, how we could take 
that irresponsible employer and give them the right to--the fox 
in the hen house--to oversee these programs, I'll listen some 
more. But maybe we could start at the head of the table. Why 
would that employer do the right thing when they are not doing 
it now?
    Mr. Turnipseed. From my experience, a lot of these 
employers don't really understand what the requirements are. 
It's not so much an obvious thing of trying to not follow the 
laws and regulations. A lot of them are simply ignorant of the 
requirements.
    I honestly believe by going to a voluntary program, where 
there is some relief from penalties, that would encourage those 
folks to bring in someone to look at them.
    Ms. Woolsey. OK. Now we will move on to the next one. I'm 
going to tell you that any employer that is ignorant of OSHA 
laws now hasn't been around very long. I mean, that is just--I 
can't believe that.
    Mr. Pressly. Thank you, Ms. Woolsey. I would love to 
address that. I'm a very small businessperson from North 
Carolina, and I have usually between 10 to 13 employees. 
Because of the close proximity, I have--not to impose on 
employees, but I have a personal interest and knowledge of 
what's going on in their lives. A technician that has been with 
me 7 years yesterday lost his wife from lung cancer. I know 
these things. I know in a very personal sense what their health 
and their safety means to these men and women who are on my 
team.
    Ms. Woolsey. OK. So you're doing the right thing, right?
    Mr. Pressly. For a handful of reasons.
    Ms. Woolsey. OK.
    Mr. Pressly. For personal interest. Second, I know as a 
small businessperson how costly it is to lose a key person, or 
to lose any person--whether it's the training, recruitment, or 
missing production that takes place because a person is 
injured. So I wanted to say that at least from my personal 
experience, and the many folks that I work with, they care 
about their team.
    Ms. Woolsey. Right.
    Mr. Pressly. They care about their team, the team members--
--
    Ms. Woolsey. What about your competitor who is going to 
turn their backs on their workers, because in the short-term is 
less costly to them to have poor work?
    Mr. Pressly. I won't speak for anyone else, or characterize 
the thoughts of anyone else. But certainly in my business, as a 
small homebuilder, I know the financial cost that the loss or 
injury an employee makes to my bottom line, and I am not 
willing to take that chance as best I can.
    Ms. Woolsey. Because then we should never have any 
accidents or injuries. Frank, do you want to respond to this?
    Mr. Migliaccio. Yes, ma'am. I have listened to what 
everybody else has said has so far, and it is usually the small 
contractor. It is that one to ten, and a good example was an 
accident that occurred in--it was a trenching accident in South 
Carolina at a school were two Hispanic workers were killed. 
They were engulfed in the trench. What happened here was the 
contractor probably--maybe knew, maybe didn't know what the 
rules were.
    A lot of your contractors, smaller contractors, especially 
who are in business for two or 3 years, and then they're on 
their way. If they are--if their insurance mod does go up, 
you're going to see them change their name to something else, 
and go into business and start on again.
    What happens when you have a company that doesn't care 
about their people--that's that type of company right there, if 
there had just been some sort of a training mechanism, and I 
think that the esteemed gentleman to my right here, David, does 
have training. He showed there's training given to his people.
    You have to train the people, you have to let them know 
what's out there. Like I said in my oral statement, a lot of 
people don't know that OSHA exists, and most of those people 
are minorities, the Hispanic minorities.
    Chairman Norwood. Ms. Woolsey, your time has expired, but I 
would like to ask Mr. Morikawa to respond to your question.
    Ms. Woolsey. Thank you very much, Mr. Chairman.
    Mr. Morikawa. Thanks, Ms. Woolsey. To respond to your 
question, my experience in representing companies in a wide 
variety of different industries has shown that employers that 
Frank has just identified who don't care don't generally audit, 
either.
    Ms. Woolsey. Right.
    Mr. Morikawa. They don't care so they don't audit. They are 
not trying to find out if they are in compliance or out of 
compliance with OSHA standards. Companies that do care do 
audit.
    The issue here is does OSHA lose anything? The safety and 
health in America lose something by the fact that an employer 
audits and sometimes doesn't correct.
    No. 1, the rule that we are asking for, the support from 
Congress that were asking for, relates to the vast majority of 
good employers that do engage itself auditing and deserve this 
type of immunity. You can't make a rule based on the fact that 
you have some bad apples who may audit but not correct 
violations. No. 1.
    Second, with respect to OSHA's rights to inspect these 
workplaces, OSHA loses nothing in this. OSHA can still inspect 
workplaces and indeed they do. But we have seen in many cases 
is OSHA comes in and inspects an employer, and in the process 
of that inspection, they ask for the self audits.
    Now, they can look into the workplace, they can inspect it, 
they can talk to employees, they can examine documents, all 
perfectly within their rights. All of that is made available 
through the investigation process.
    What we're talking about is a small little category of 
self-audits that a company has done, which OSHA is now seeking, 
notwithstanding asking employers to engage in it. That's why we 
think immunity is important.
    Ms. Woolsey. Mr. Chairman, may I just----
    Chairman Norwood. No ma'am, time.
    Ms. Woolsey. I'm not going to ask another question. I just 
wanted to finish my thought.
    Chairman Norwood. Your time really is up, and it's somebody 
else's turn, and we have gone way over on your time out of 
courtesy to you.
    Ms. Woolsey. And there is five panelists.
    Chairman Norwood. I would like to remind Members that we 
are trying to stay in 5 minutes. If you want to ask a question 
that requires an answer from all four witnesses, please ask it 
first.
    I now recognize Dr. Price for 5 minutes.
    Mr. Price. Thank you, Mr. Chairman. I want to thank each of 
you for coming to be with us today as well, and I appreciate 
your testimony. I think it is once again important to mention 
that all of us up here are interested in safety on the job 
site, and the question is how do you get there.
    In my experience, in my district, I believe and understand 
that the employers that I work with are interested and safe 
work sites. Their interest in safety for their employees. I 
also understand and appreciate that the three biggest cost 
drivers for doing anything or taxation, litigation and 
regulation, and we can regulate people out of business. There 
is no doubt about it.
    Mr. Migliaccio, how was that?
    Mr. Migliaccio. Perfect.
    Mr. Price. I appreciated your testimony and I am left with 
a question about how--you were talking about the need to look 
into the small employers--you have got to get down and find 
those folks that are 80 percent, as Mr. Pressly said, of the 
folks out there that are building homes in this instance.
    How would you do that? How do you get down to the small 
employers? Do you hire an OSHA inspector for every single job 
site?
    Mr. Migliaccio. No sir, that's not feasible. Like everybody 
has said already, there's not enough money or inspectors to go 
around like that.
    Mr. Price. How do you do it?
    Mr. Migliaccio. First of all, I guess I was there with a 
small employers that are constantly having accidents. If 
they're allowed to keep bidding, say, a Federal or State funded 
job, that's ridiculous.
    Mr. Price. So you look at the outliers?
    Mr. Migliaccio. I would look at the outliers right there 
first. If there is a problem with this, I would say, well you 
know, I don't think I would let you bid on a job for, say 5 
years, there would be a penalty to it.
    What I would do is try to get that same small employer to 
start some sort of informational highway to their workers, 
letting them know what's going on, what is expected of them, 
safety talks, whatever it takes. The insurance industry could 
regulate this also by allowing the small businesses to compete 
with a lower premium if they did offer some sort of 
informational highway to their workers.
    Mr. Price. If we're looking at the outliers then we're 
going after the fact. Right? We're waiting for the accident to 
occur, and then going after the fact?
    Mr. Migliaccio. OK, if you're looking at the accident 
occurring, yes sir. The other way that I would do it is just go 
around and start making it before they even did the work, some 
sort of prerequisite or a specification in the job bids, either 
by the owner or the insurance industry, to show that they do 
have a record, they do have something that shows that they have 
a safety program.
    Mr. Price. You would do that for all homebuilders?
    Mr. Migliaccio. I would do it for as many as I possibly 
could. That would be for one that has been in business for 1 
year, or 5 years, or 50 years.
    Mr. Price. Mr. Pressly, tell me your thoughts about--I was 
struck by the fact that a homebuilder can get a citation 6 
months after the fact and be gone. I mean, the home is built, 
the family is in the home, and they are getting a citation and 
then had to respond to 15 days. That seems fairly ridiculous to 
me.
    Mr. Pressly. It seems a bit disingenuous, but and the 
original statue there was a provision for a reasonable amount 
of time, which OSHA has interpreted to be 6 months.
    Mr. Price. What do you think it is?
    Mr. Pressly. To issue that citation? My thought is, I'm 
just an ordinary North Carolina boy and I don't know a lot 
about a lot of things, but I want my people to be safe. It 
would be meaningful to me if that inspector on my job site 
would say David, here are these--here's this frayed cord, 
here's this scaffold, here is a ladder in a bad place, to tell 
me right then or write me up right then, because at that moment 
I'm going to take action to make sure that accident doesn't 
occur.
    Mr. Price. At the time. At the time.
    Mr. Pressly. If it's any time after that, particularly 6 
months, everybody is gone and everybody's forgotten about the 
situation. If indeed, I'm going to commit an infraction, I want 
to learn from that and I want to remedy it at that very moment.
    Mr. Price. Thank you. Mr. Morikawa, I wanted to follow up 
with you on, you made the comment that it's important to remove 
the disincentives to safety on a voluntary basis for employers. 
Expand if you would please on those disincentives. You 
mentioned one of them. Are there others that we can address?
    Chairman Norwood. Make note that the yellow light is on, so 
be as brief as you can.
    Mr. Morikawa. I'll try to make my comments brief to that, 
Mr. Price.
    Mr. Price. Thank you.
    Mr. Morikawa. I was focusing for the purpose of this paper 
on the issue of disincentives in the current policy that OSHA 
uses which encourages self-audits on one hand, and then uses 
the self-audits and enforcement actions on the other.
    I was part of the advisory committee that was consulted by 
the administration at that time on the development of the 
policy. A number of us who represented management on that site 
were urging that there should be a threshold test for when OSHA 
could get those types of self-audits, such as when the employer 
itself put into issue the fact that they were self-auditing, 
they were trying to demonstrate that they were acting in good 
faith. If you put the audit into issue, then it should be 
produced in a litigation case.
    But what we objected to was the notion that a compliance 
officer in any case could just simply walk in and ask for the 
audit on the first day of an inspection--in some respects kind 
of short cut their way to finding violations.
    Employers obviously are not incented to create ways for 
which OSHA can cite them very easily. It makes common sense. So 
that is why we believe it is a disincentive to engage in this 
type of voluntary activity.
    I believe this self-auditing is an extremely valuable tool. 
Who knows better workplace conditions then the employer itself? 
They know. They know where they are. They know how to identify 
them.
    In my experience, employers that engage in self-auditing 
also engage in self-correction. It has been a very a successful 
venture when companies have done it. I think having 
disincentives like that, that is the ability to use these 
audits against them, and only in that very limited area, I 
think it is something that should be eliminated, and I think 
that this Subcommittee could help in a large measure, in 
helping employers to accomplish that goal.
    Mr. Price. Thank you. Thank you, Mr. Chairman.
    Chairman Norwood. Mr. Owens, your recognized for questions.
    Mr. Owens. Thank you. I yield 2 minutes to my colleague, 
Ms. Woolsey.
    Ms. Woolsey. Thank you. I won't take 2 minutes. Here is the 
fear, OK. We have all of a sudden less money for OSHA because, 
guess what, self-audits do the work of OSHA. Then there will be 
nobody to train, to help write the manuals, to help show small 
companies how to put together their safety programs and their 
safety committees. That's my fear.
    The idea that you're saying here, Mr. Morikawa, is ideal, 
and I hope that it will work. But I don't think that we should 
let the company that self-audits and does not take care or have 
good faith steps of how they're going to fix what they find 
wrong off the hook, because self-auditing is only stepped on. I 
am going to leave it at that, and yield back to Mr. Owens.
    Mr. Owens. Yes, I would like to ask Mr. Migliaccio to look 
at the BP refinery situation in Texas City.
    I understand that they had--15 workers were killed in an 
explosion 2 months ago there. They had already been cited for 
safety lapses which had killed workers in the year 2003 and 
2004. What effect would exempting employers who do self-audits 
from penalties for injuring or killing workers have in this 
kind of situation?
    Mr. Migliaccio. By using that as an example, I would say 
nothing.
    Evidently they didn't learn from their first two accidents, 
fatal accidents, and they are probably not going to learn from 
the third one.
    Here again, a person who wants to do something right is 
going to do it. People who choose not to do it, they're not 
going to do it under any circumstances, no matter what the fine 
is, no matter what the penalty is. You're going to have people 
like that, and they are the people you have to drive out. If it 
takes OSHA citations to drive them out through penalties, 
financial penalties, whatever it takes, that's what you're 
going to need.
    But evidently this company you're speaking about hasn't 
learned, and they are a large company which is surprising. 
Usually your petroleum industry is very well regulated, very 
well educated out there, they do have training. But sometimes 
they have a subcontractor that might be working for them that 
really doesn't have it.
    So I don't think that you're going--it's hard to reach a 
company that doesn't want to do something voluntarily. That's 
why the thing with the voluntary, you know making anything 
voluntarily, it is not going to happen.
    It's like if the Federal Government asked me to pay my 
taxes voluntarily. Am I going to do it? I probably will. Would 
my brother, maybe not.
    I just look at things and you have to have some sort of 
organization, you have to have somebody overseeing, looking 
over your shoulder all the time.
    If you look at yourselves as the panel, your constituents 
back home look over your shoulder all the time. If you're not 
doing your job, you're looking for a job. It's the same way in 
our business. If our companies, our union companies out there 
putting up steel erection, if the company is not making their 
money and they are not doing it right, they are out of 
business. The companies, the general companies, the owners, 
they don't hire them. You've got to reach them. That's it.
    Mr. Owens. Mr. Turnipseed, you are a safety expert; what 
kind of qualifications would self-auditors have to have? For 
people who do self-audits would you want them to have some kind 
of licensing, some kind of provision for the person conducts 
self-audits, or the organization that pays somebody to conduct 
the self-audit, would there have to be some guidelines?
    Mr. Turnipseed. Yes, there are several guidelines. As I 
said in my opening comments, there are independent accrediting 
associations that go through and validate that. Such 
organizations as the Board of Certified Safety Professionals, 
there's an Industrial Hygiene certification. These are all 
independently audited.
    People have to have experience, they have to have testing. 
Myself, as a certified safety professional, I have a stamp very 
similar to professional engineer. The CSP is in fact equivalent 
to the engineer in training, the first step in becoming a 
professional engineer.
    So in the safety and health area there are several areas 
where you can actually get people officially trained, certified 
by an independent agency that they are in fact experts.
    Mr. Owens. So self-auditing then, and employment of experts 
would be feasible only for very large companies that can afford 
it, right?
    Mr. Turnipseed. To a certain extent, but if we go with this 
program were talking about Senator Enzi's SAFE Act, where 
you're going to have some of these voluntary audits, you should 
be able to go to an individual who is certified by the 
Department of Labor as an expert in whatever industry or 
profession, bring that individual in, you know, at the cost of 
the employer obviously, to do that audit.
    I think some of the smaller companies could afford some of 
these things. It's not going to be cost prohibitive.
    Mr. Owens. Mr. Morikawa, why should OSHA pay for these 
third-party safety auditors, when OSHA already spends over 10 
percent of its entire budget on the free and confidential state 
consultation programs in all 50 states? Do you think that 
program is working?
    Mr. Morikawa. Mr. Owens, I think the state consultation 
programs are an excellent idea. I think they're necessary. I 
think that the consultation programs provide a valuable service 
to small employers, because they provide a means or expertise 
to be able to identify safety and health hazards.
    The problem, as I see it, is that auditing, which is I 
think a very important component of any safety and health 
program, is something that can provide tremendous leverage in 
reaching compliance across broad spectrums. I think the whole 
idea of third party auditing is a good one, for this reason.
    No. 1, it will encourage employers to use that service. It 
accomplishes OSHA's mission, and OSHA's mission isn't just 
punishing employers that violate OSHA standards. OSHA's mission 
also should be prevention of accidents, prevention of 
illnesses. If they need to do that through these types of 
programs involving third-party auditors, that is a worthy 
funding source. I think that is money well spent. I would 
support money to be channeled in that direction to support that 
activity, because I think you really will bring about this 
entire evolution of compliance on a voluntary basis across----
    Mr. Owens. Instead of the state consultation program you 
take some of that money and use of the self-audits, is that 
what you're saying?
    Mr. Morikawa. Well, I can ask the question about how money 
should be allocated. That's for this Congress to decide. I can 
only say that there very many valuable functions that are 
performed by state consultation and Federal OSHA, a lot of 
different agencies trying to address the same issue.
    I believe that we ought to try to reduce and eliminate 
redundancies were you have both State and Federal doing the 
same thing. But I certainly think that there ought to be 
collaborative efforts designed to use those funds in a way to 
accomplish maximum impact, bang for the buck, if you will.
    Mr. Owens. My time is up.
    Chairman Norwood. Thank you, Mr. Owens. Well first, let me 
just make a comment. OSHA doesn't have anything. The American 
taxpayers pay for that. It may be something--including you 
gentlemen that are out there working every day. So it is sort 
of you are paying your way if we get third-party auditors. OSHA 
just doesn't have the right to pay anything.
    Mrs. Drake, you're now recognized for 5 minutes.
    Mrs. Drake. Thank you, Mr. Chairman. The first question 
that I have that hit my mind immediately as you all began to 
speak, is do you think, all of you, if you would each answer, 
that the American worker is safer because we have this audit, 
or do you think they are more in harm's way because of having 
this type of voluntary program?
    Mr. Turnipseed. From my experience, I believe that the 
workers are very safe. I see this as another resource, another 
arrow in the quiver, that we can add to improving that. I've 
done some independent work as a consultant, and even in places 
around the world, and I can testify with all honesty that we do 
a very good program here. We can do better, though.
    Mrs. Drake. Mr. Pressly.
    Mr. Pressly. Mrs. Drake, we as a trade association have 
sought out opportunities not only to represent our members, but 
simply to do the right thing. We have coalesced with the 
Environmental Protection Agency, with Fish and Wildlife and 
with Endangered Species, and certainly with OSHA.
    This is just one example of what I have given you of the 
alliance that we have had in the collaboration that we've had 
with this agency, this Federal Government agency, because they 
care about the safety of our--in this situation, care about the 
safety of our workers in this.
    So I recognize in my life that I'm not going to achieve 
perfection this side of the Jordan, but I'm going to do 
everything I can in this context to have a personal worksite 
that these men and women who work for me, simply because I care 
about them. Thank you for that.
    Mrs. Drake. Frank.
    Mr. Migliaccio. I would say yes, we are probably safer now, 
today, than we were 50 years ago. I wouldn't necessarily say it 
is because of the audit.
    Here again, I feel as though it is somebody looking over 
everybody's shoulder. I think the training is a lot better out 
there now.
    Mrs. Drake. But then, don't you think if there were a 
company that had violations and you knew they were a problem 
that possibly they could be done by OSHA, and we could be using 
the audits on other companies that don't have serious 
violations, and then use OSHA resources for companies like you 
described a little while ago?
    Mr. Migliaccio. I don't think, I mean, OSHA resources are 
already probably at their max right now. If I understand 
everything that has been said today, the audits supposedly--and 
the audit should be kept confidential and not be put out there. 
So if OSHA was to use them, then it is going against what has 
been said today.
    Mrs. Drake. But OSHA would know if there were a fatality on 
a site.
    Mr. Migliaccio. That's correct, but they wouldn't know 
about the injuries sometimes. A lot of times injuries aren't 
reported. Sometimes they're not reported because the person 
that's working on the job, for fear of losing their job, 
wouldn't report an injury.
    Mrs. Drake. Mr. Chairman, I just wanted to make the comment 
that I visited--I visit businesses in my district. I'll have a 
new question to ask them about whether they are doing any of 
these voluntary and audits or anything.
    But a business recently told me that they had $1 million 
worth of costs last year in injuries. They did something on 
their own, whether it was one of these voluntary, or they just 
did it within their own business. So far this year--I mean they 
went in and looked at what they were doing, they found right 
away that what they thought their workers knew and what their 
workers knew were two different things. They began really 
focusing on safety. They have had not one injury so far this 
year.
    So I don't think there's any businessman out there ever 
that would want this kind of expense on their bottom line, when 
they could be doing things voluntarily to find, and I think you 
would agree with me, Dennis?
    Mr. Morikawa. I do totally agree with you. In fact, I think 
an important point that needs to be made with respect to the 
concept of employer self-auditing is that this costs nothing 
for OSHA. These are employers who are volunteering to do this 
on their own, they are not asking for funding from OSHA. The 
Transmission and Distribution Electrical Construction 
Contractors Partnerships is a perfect example of that.
    This is a case where the five leading companies in the 
industry get together. They're both union and nonunion. They 
partnered together with the Edison Electrical Institute, which 
is the large trade association. The National----
    Mrs. Drake. Does that employer pay for that or does OSHA 
provide that? I've heard both things. I've heard the employer 
pays and I have heard that we're using all of this OSHA money.
    Mr. Morikawa. Let me explain that. In this particular 
instance, this is funded by the partnership itself, by the 
members of the partnership.
    Mrs. Drake. OK.
    Mr. Morikawa. Not by OSHA. OSHA has basically agreed to 
provide some resources to the partnership to study the causes 
of injuries and to help devise best practices. But the bulk of 
the costs has been borne by the members equally. That is not 
just the companies and also the union, and this has worked very 
effectively.
    We have found that this type of self-help, financed largely 
by the sector itself, not by the government is the way that we 
have been able to accomplish great, great strides in safety.
    Mrs. Drake. Thank you for answering that. Mr. Chairman, I 
just want to comment. I am not sure that a lot of these 
businesses know about OSHA rules. I bought a business license 
for my real estate business to move to another site from my 
broker. I never got anything from OSHA about my employees. I 
got a bill for my treasurer saying that I had to pay business 
personal property tax, but nothing from OSHA.
    So I don't know how that word gets out there, or especially 
because we're talking about small businesses being much more of 
a problem, than a large business that would have attorneys that 
know all of this. Thank you, Mr. Chairman.
    Chairman Norwood. Thank you, Mrs. Drake. Now I'll recognize 
myself to ask a couple of questions.
    Mr. Pressly, your particular statement interests me. Why do 
you suppose, or do you have any reason to know why all should 
take so long, you stated something like almost 6 months, to 
issue a citation. Why would they do that?
    Mr. Pressly. Sir, I don't know and I'm certainly will 
characterize that mind-set. It's human nature. If we have to 
operate between these margins and we begin at this point and 
complete at this time, there is a tendency to complete the job 
here, if I could be done at this time. That's my only guess.
    But, being a very pragmatic person, I want to know if my 
job site or my workplace is unsafe. And I want to know there, 
at that time so I can remedy that problem at that very moment, 
and not wait until after the fact and have a chance on another 
injury if. So I don't have the precise answer, but I can tell 
you that it certainly doesn't make sense to me.
    Chairman Norwood. Well, it doesn't do me either. I will try 
to find out a little more detail about that as to why it should 
take so long. I mean, I know that there is no doubt they are 
undermanned, there's no question about that. But we need to 
know why there it consistently takes 5-months and 25 days to 
have those citations out. I think it would help you to know 
immediately too.
    In reading your testimony I noticed that the Homebuilders 
were concerned that some of the small associations and builders 
will no longer be able to participate in OSHA's partnership 
program. I would like for you to explain that to me just a 
little bit.
    Mr. Pressly. A little bit about the partnership program. 
Again, it is a theme and purpose to have a safe workplace. We 
have had a series of exceptionally favorable relationships with 
OSHA and the folks at OSHA. I have given you a couple of 
examples.
    One of those aspects relate to inspections at these job 
sites by peers, who may see something that I wouldn't see on my 
site and help make my site safe. The proposed change as I 
understand it, is to have a compliance inspection by OSHA, 
which says--which we are going now from a voluntary situation. 
If that OSHA inspector comes to my job site, in terms of this 
proposed directive, and finds me a violation of some aspect, 
that's a fine for me right there. When in turn, if previously I 
could have--it could have been a voluntary thing and I could 
have remedied that immediately. So I think there will be many 
small business people will not participate in that program for 
that very reason.
    Chairman Norwood. You implied or said to me in your 
statement or in your testimony that most homebuilders build 10 
homes or less a year?
    Mr. Pressly. Yes, sir.
    Chairman Norwood. In that category of homebuilders, what 
number of employees might they have?
    Mr. Pressly. Ten is the number we use. In my family, in my 
company, mine is a small family company, in fact, in my company 
my wife is a licensed contractor. We all were multiple hats and 
my small company. I showed you my plan and my concern.
    But I will tell you that they are so many things in a small 
company that we all have responsibilities for and safety is 
certainly one of the most important ones we have. But our minds 
are limited, our focus is limited and for various reasons that 
we may not be applying ourselves where we may need to be 
applying ourselves at various times.
    Chairman Norwood. Well, my interest in all of this is for 
the small businessman and woman. You know, the large companies 
can well afford to hire somebody or two somebodies to be on 
their staff.
    Mr. Pressly. Mm-hmm.
    Chairman Norwood. But I knew I could never hire anybody to 
be in my office to be an OSHA adviser for health and safety. I 
thought I was pretty good about advising about health myself, 
but you know, you just can't afford that. Someone mentioned 
earlier about regulations. I think there are about 18, about 
that thick, the number of regulations plus all the other stuff.
    I mean, it's pretty hard to anticipate that all of these 
small businesses can know everything that these folks up here, 
sitting in their ivory tower, are ordering to be done plus what 
is happening in your state.
    The alliance program, we have heard a lot of praise about 
the program and a lot of criticism. How is your alliance with 
OSHA working for your industry. Perhaps you could give some 
examples of how it may have helped improve safety for your 
employees?
    Mr. Pressly. Yes. We've had--as I have testified, we have 
had a series of exceptionally favorable relationships with your 
OSHA team, and we're grateful for that. As I showed you, one of 
the issues that is important to us as homebuilders again is the 
safety of these scaffolds.
    We as the National Association of Home Builders wrote this 
book in both English and Spanish, and asked the OSHA staff to 
simply review it, to make sure that we were consistent their 
expectations. They were and we published it and printed it and 
distribute it to our members.
    OSHA now has a web site on light residential construction. 
It is in both English and Spanish. So any one of our 
employees--not only can an employer go to that, but any 
employee who has online access can go to that web site now to 
see exactly what those requirements are.
    So our alliance has benefited us as homebuilders and light 
construction folks in a number of ways, and we hope that we can 
sustain that dialog and that relationship at our expense and in 
our time with your OSHA's staff.
    Chairman Norwood. My time is up and I am going to conclude 
this hearing with a few comments just for the record to make 
sure that it is straight as it can be.
    My friend and colleague earlier stated that an employee is 
killed every 96 minutes because of ``corporate homicide,'' I 
quote, or an employer's willful behavior. Now that's just not 
right in the record shouldn't reflect that. We all agree that 
even one preventable death in the workplace is one too many. 
That said, I think it is important that we get this record to 
reflect the correct data.
    For the latest year for which we have information, there 
were 5,559 deaths in the workplace due to occupational injury 
that were reported. But what we failed to point out is that the 
5,559 number includes every occupational injury death in the 
workplace for whatever the cause. That includes homicide, that 
includes suicide, that includes auto accidents, and other 
instances which falls nowhere inside the OSHA jurisdiction. In 
fact, of the 5,559 deaths in the workplace, almost 60 percent, 
3,258 were traffic or highway incidents, or suicides, or 
homicides or assaults, but nothing related to corporate 
homicide.
    In short, if you want to say that on average throughout the 
work force of the entire United States of America, one employee 
dies every 96 minutes, that may be correct. But you shouldn't 
claim that that is caused by corporate homicide or employer 
wrongdoing causing these deaths.
    Another interesting thing, what we are really after here is 
to point out that we're not going to make it a healthier or 
safer workplace by hiring more inspectors.
    Based on the current numbers that we have, and this is an 
estimate and it is rough, and we will get it tightened up but 
it is basically about right, we would have to have 108,000 new 
OSHA inspectors to inspect every workplace every 2 years. Now 
if you could do that, if you could inspect every workplace 
every 2 years, I bet you would make some improvements. But 
that's not going to happen. Let's try to be realistic about 
that.
    We currently have 1200. Adding a thousand isn't going to 
help much. We've got to think outside the box here and find 
another way to make this a safe and healthy workplace other 
than saying, oh gosh, we've got to have more inspectors. If 
anybody has got a clue to how to hire 50,000 more, I would like 
to hear from them.
    This would cause us to increase the number of inspectors by 
a hundredfold. Now everybody knows that is not going to happen 
in this town. So let's find another way to get this job done.
    I want to thank the American Industrial Hygiene Association 
and recognize that they have submitted testimony for the record 
that is very important and recommend that all of our colleagues 
read that.
    [The material to be provided follows:]

Statement of the American Industrial Hygiene Association, Fairfax, VA, 
                        Submitted for the Record

    Chairman Norwood and Members of the Committee:
    The American Industrial Hygiene Association (AIHA) is pleased to 
submit the following comments to the House Education and the Workforce 
Committee--Subcommittee on Workforce Protections on today's hearing 
titled ``Examining Voluntary Employer Compliance Programs that Improve 
Occupational Safety and Health''.
    Founded in 1939, AIHA is the premier association of occupational 
and environmental health and safety professionals. AIHA's 12,000 
members play a crucial role on the front line of worker health and 
safety every day. AIHA is the most diverse professional association 
dedicated solely to the prevention of workplace fatalities, injuries, 
and illnesses with members representing a cross-section of industry, 
private business, labor, academia, and government. One of AIHA's goals 
is to bring ``good science'' and the benefits of our workplace 
experience to the public policy process directed at worker health and 
safety.
    As the professionals entrusted to assist employees and employers in 
making the workplace healthier and safer, AIHA is particularly pleased 
to submit comments on the issue of looking at voluntary programs that 
would improve occupational health and safety.
    AIHA would also like to thank the Chairman and members of the 
Subcommittee on behalf of the millions of Americans, both employees and 
employers who desire a healthy and safe workplace, for your involvement 
in addressing this issue. Your leadership is critical to improving this 
country's record of workplace-related injury and illness impacting 
workers, their families, and our communities.
    Over the course of the last several years, there have been numerous 
legislative proposals to amend the Occupational Safety and Health Act 
and/or take a closer look at the way the Occupational Safety and Health 
Administration (OSHA) has addressed the issue of enforcement and 
compliance assistance to employers. While few of these proposals have 
made their way into law, it goes without saying that the sponsors of 
these measures all had the same goal--to assure the health and safety 
of every worker. AIHA shares this goal.
    Prior to offering our comments on some of the approaches that may 
be put in place to assist employers, AIHA believes it is important for 
you to understand AIHA's view of OSHA. We have reviewed our position 
statement on ``AIHA's Global View of OSHA'' and find that while not all 
of this position statement addresses the issue of ``voluntary 
programs'', we feel it is important for the subcommittee to be aware of 
what we feel is necessary for OSHA to be an effective agency for worker 
health and safety.
    AIHA believes that:
      There must be a strong and well-funded OSHA. Continuing 
federal oversight is necessary to achieve ``safe and healthful'' 
workplaces.
      OSHA should have primary authority for health and safety 
in the workplace. Overlap and duplication among different government 
agencies makes compliance difficult, creating confusion and increased 
cost for employers.
      OSHA should receive adequate resources to provide 
coverage and enforcement. OSHA resources should be increased and 
coverage extended to the millions of public employees not currently 
covered by the OSH Act. OSHA penalties, including criminal penalties, 
should be at least as stringent as penalties for environmental laws.
      OSHA should set and enforce a set of generic performance 
standards. Addressing every hazard with a highly specific standard is 
an impossible task. A small number of generic performance regulations 
are needed. Generic standards should not replace, but complement, 
existing standards.
      OSHA should promote occupational health and safety 
programs for employers. We encourage the use of innovative incentives, 
particularly for small businesses.
      OSHA should have a mechanism to encourage employers to 
obtain third party assistance. Collaborate with employees and labor. 
Assistance should be provided by a competent Health and Safety 
professional having credentials recognized by national accrediting 
bodies (e.g., a CIH, CSP, ROH, or equivalent).
      There must be a mechanism for employee complaints.
      OSHA should collect and disseminate health and safety 
data.
      OSHA should provide education, training and guidance to 
employers and employee groups.
      OSHA should enhance technical support and research.
      There should be a general duty clause.
      OSHA should increase incentives for employers and labor 
to voluntarily achieve excellence in occupational health and safety.
      OSHA should enhance opportunities for employee 
participation. Facilitate ``partnering'' among all workplace 
stakeholders.
    As to some specific programs that might be implemented to improve 
occupational health and safety, AIHA suggests:

THIRD PARTY CONSULTATION SERVICES PROGRAM
    In a report published in March 2004, the General Accounting Office 
(GAO) cited the use of third party consultants among a list of 
recommendations by researchers, safety and health practitioners, and 
specialists, to achieve voluntary OSHA compliance. According to the GAO 
report: ``Using consultants could leverage existing OSHA resources by 
helping workplaces that might never otherwise see an OSHA inspector, 
especially small employers, and possibly also by enabling employers to 
address additional safety and health issues that might not be covered 
under an OSHA inspection for compliance standards''.
    AIHA agrees and strongly supports creation of a voluntary third 
party consultation services program.
    To assist in creation of such a program, AIHA has worked with 
several others to draft a stand-alone legislative measure that would 
introduce a pilot program to put a limited third party program in 
place. We are hopeful this measure will be introduced in this session 
of Congress.
    This legislative measure incorporates the best of the legislative 
language that was previously introduced regarding this program, yet 
addresses many of the concerns that were raised during hearings on the 
proposal.
    The draft bill would encourage small employers to conduct voluntary 
safety and health audits using the expertise of qualified safety and 
health consultants. A pilot program would be established in 3 States 
and would be limited to assisting small businesses as defined in the 
proposal. Consultants would be required to meet specific educational 
and experience qualifications in order to be certified to assist small 
business with the consultation. A special advisory committee would be 
established to carry out the duties of the program, with employers, 
employees and safety and health professionals serving as members of the 
advisory committee. Once a consultation has been completed and all 
health and safety questions resolved, the employer would be exempt from 
the assessment of any civil penalty from OSHA for a period of 1 year. 
It should also be noted that AIHA's support of a voluntary third party 
consultation services program in no way diminishes the need for 
companies to have internal audit programs.
    AIHA is convinced that of all the voluntary programs being 
discussed to assist small business, this third party consultation 
program offers the most assistance with the least cost.

CONTINUING EDUCATION AND PROFESSIONAL CERTIFICATION FOR CERTAIN 
        OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION PERSONNEL
    AIHA supports efforts to assure employees and employers that OSHA 
personnel are qualified to provide expert advice and assistance. In the 
past four years, AIHA is aware of the substantial increase in the 
number of OSHA personnel attaining nationally recognized health and 
safety certifications, such as the certified industrial hygienist and 
the certified safety professional designations. Continuation of this 
program should continue. AIHA has heard from many individuals that such 
certification indeed lends additional credibility to OSHA personnel.

VOLUNTARY PROTECTION PROGRAMS
    AIHA supports codification of the Voluntary Protection Program. The 
number of participants in this program continues to grow and all 
parties can be proud of the results of the program. Additional efforts 
need to be made to increase the number of participants, to include 
developing and implementing efforts that encourage participation of 
more small employers interested in the program. OSHA has made great 
strides in the past four years to create new programs for small 
employers to enter the program. Legislative confirmation of these 
efforts should be a priority.

TECHNICAL ASSISTANCE FOR SMALL BUSINESS
    AIHA strongly supports an increase in assistance to small business 
through increased funding for consultation programs. In addition to 
increased compliance assistance through OSHA, AIHA is also supportive 
of legislative efforts to assist small business through other 
compliance initiatives. Most notable among these is House Bill 230, the 
National Small Business Regulatory Assistance Act of 2005, introduced 
by Rep. John Sweeney of New York. This bill would provide an avenue for 
small business to attend compliance assistance seminars where they 
could be provided help in complying with federal regulations. Qualified 
third parties with expertise in the related areas would conduct the 
seminars.

CONCLUSION
    AIHA is aware that there may be many additional voluntary 
compliance programs that have been, or will be, discussed when 
addressing the issue of employer programs that improve occupational 
health and safety. Our thoughts on the proposals within these comments 
should not mean that we may not be supportive of others. AIHA is 
supportive of any and all programs that positively address occupational 
health and safety in the workplace.
    AIHA believes that the view of OSHA over the last several years is 
one that does not necessarily focus on enforcement/compliance, but an 
OSHA that attempts to build a partnership with business. AIHA is 
pleased to be one of over 300 organizations with an Alliance/
Partnership with OSHA that strives to bring forth the best solutions to 
workplace health and safety problems and share them with others. This 
is the type of cooperation that should continue.
    AIHA applauds your efforts and sincerely hopes you will be 
successful in your endeavor to advance the cause of worker health and 
safety. AIHA stands ready to assist you and Congress in every possible 
way in developing solutions that will best protect workers.
    Thank you.
                                 ______
                                 
    Mr. Owens. Excuse me. May I have one closing comment?
    Chairman Norwood. Yes, you may. Certainly. Mr. Owens, 
you're recognized.
    Mr. Owens. Yes, just to clarify one point that you're 
making. We have not used the word ``homicide.'' You chose to 
use that word. We would like to have the record kept open for 
us to submit an explanation as to exactly how we arrived at the 
figure of 96 deaths.
    We would also like to note the fact that no one is 
proposing that we hire enough inspectors to inspect every 
business, every year, or every 2 years. We're just proposing 
that we maintain a level of accountability through enough 
inspectors to make people take the law seriously.
    No one has ever proposed that every taxpayer have his 
income tax audited, but it would be ridiculous to propose that 
we eliminate all auditing of income taxes as a remedy to the 
situation. We are talking about a situation where there is a 
small percentage of corruption or failure to comply and that 
can be deadly. The percentage is too great and the amount of 
suffering that accumulates as a result of that is too great. 
Thank you.
    Chairman Norwood. I think the Ranking Member, and I wish to 
thank our witnesses for your valuable time, and I know it is, 
and your testimony.
    I thank all of our Members today that were here 
participating in this. If there is no further business, the 
Subcommittee stands adjourned.
    [Whereupon at 11:56 a.m., the Subcommittee was adjourned.]
    [Additional material submitted for the record follows:]

Response of David Pressly, Incoming President, National Association of 
  Homebuilders, Washington, DC, to Questions Submitted for the Record

The Honorable Charlie Norwood (R-GA)
Chairman, Subcommittee on Workforce Protections
Committee on Education and the Workforce
2181 Rayburn House Office Building
Washington, DC 20515

Dear Chairman Norwood:
    On behalf of the 220,000 members of the National Association of 
Home Builders (NAHB), I would like to express my thanks for the 
opportunity to testify before your subcommittee on May 12. NAHB's 
members are deeply concerned with the continued safety and well-being 
of their employees, and appreciate the opportunity to share their 
concerns about the Occupational Safety and Health Administration's 
(OSHA) enforcement and citation practices and policies with Congress. I 
also appreciate the written questions you forwarded to my attention 
following the hearing. I have included my response to your questions 
below:

    1. Can we build into any recommendations that a written list be 
given at inspection with the understanding that a written report will 
follow?
    One of the recurring problems in the home building industry is the 
lack of information provided to employers at the conclusion of the 
inspection. While we understand that OSHA needs time to formulate and 
issue citations following an inspection, we believe that OSHA should be 
required to notify employers at the conclusion of the inspection about 
the possible violations noticed during the inspection. Since it takes 
approximately 3 months to build an average sized home, and OSHA has up 
to 6 months to issue citations, it does no good to alert an employer to 
jobsite hazards on a jobsite that no longer exists. In order to be able 
to correct hazards in a timely manner and re-train employees who may be 
involved in a violation, an employer must have prompt notification of 
potential problems.
    Additionally, OSHA needs to take time at the end of inspections to 
explain in plain English how employers can contest citations, and 
provide a list of who at the local or regional OSHA office an employer 
can call with questions about their inspection or citations. These 
reforms, though small, can go a long way towards helping employers in 
the building industry mitigate and respond to jobsite hazards, and 
provide for enhanced protection for workers.

    2. Don't you think 15 days is too short? Maybe 15 with an extension 
of 15 upon request?
    Many NAHB members have been concerned for some time about the 
amount of time given to businesses to contest citations. The majority 
of NAHB members are classified as ``small businesses,'' many with 10 or 
fewer employees. Most business owners wear many hats, managing day to 
day operations, handling safety concerns, and swinging a hammer next to 
their employees on the jobsite. When a small company receives an OSHA 
citation, it often can go overlooked for several days while an employer 
is occupied with another aspect of the company, and by the time they 
have reviewed it, and talked to the employees involved in the citation, 
it is too late to contest the citation.
    NAHB believes that, especially given OSHA's ability to issue 
citations up to 6 months following an inspection, it is unfair to only 
allow businesses 15 days to respond to a citation. We have strongly 
supported Chairman Norwood's legislation, H.R. 739, and any legislation 
that would provide flexibility on the 15-day contest period if the 
missed deadline was the result of a mistake, inadvertence, surprise, or 
excusable neglect. We would support any opportunity to give businesses 
the flexibility to request an extension of the 15 day deadline.
    I hope these answers provide the subcommittee with further 
clarification of NAHB's positions on OSHA policies and practices. If I 
can be of any further assistance, or provide any additional 
information, please do not hesitate to contact me.

Sincerely,

David L. Pressly, Jr.
NAHB First Vice President

                                 
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