```

[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]

 
                     IS OSHA FAILING TO ADEQUATELY
                   ENFORCE CONSTRUCTION SAFETY RULES?

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

                                HEARING

                               before the

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, JUNE 24, 2008

                               __________

                           Serial No. 110-98

                               __________

      Printed for the use of the Committee on Education and Labor

                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html

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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            [Vacancy]
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                Sally Stroup, Republican Staff Director

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on June 24, 2008....................................     1

Statement of Members:
    Altmire, Hon. Jason, a Representative in Congress from the 
      State of Pennsylvania, prepared statement of...............    71
    McKeon, Hon. Howard P. ``Buck,'' Senior Republican Member, 
      Committee on Education and Labor...........................     6
        Prepared statement of....................................    11
        Additional submissions:
            Article, ``Top City Crane Inspector Accused of Taking 
              Bribes,'' New York Times, June 7, 2008.............     6
            Statement of Graham J. Brent, executive director, 
              National Commission for the Certification of Crane 
              Operators (NCCCO)..................................     9
    Miller, Hon. George, Chairman, Committee on Education and 
      Labor......................................................     1
        Prepared statement of....................................     3
        Additional submissions:
            Questions submitted to Mr. Foulke and their responses    65
            Statement of Christopher Lee, OSHA Deputy Regional 
              Administrator, retired.............................    62
            Statement of Joe Standley, president, District 
              Council of Iron Workers, California and Vicinity...    64
    Porter, Hon. Jon C., a Representative in Congress from the 
      State of Nevada, prepared statement of.....................    71

Statement of Witnesses:
    Ayers, Mark H., president, building and construction trades 
      department, AFL-CIO........................................    30
        Prepared statement of....................................    32
    Cole, George, former ironworker..............................    20
        Prepared statement of....................................    22
    Foulke, Hon. Edwin G., Jr., Assistant Secretary, Occupational 
      Safety and Health Administration, U.S. Department of Labor.    13
        Prepared statement of....................................    15
        Responses to questions for the record....................    66
    Kallmeyer, Mike, senior vice president for construction, 
      Denier Electric............................................    27
        Prepared statement of....................................    28
    LiMandri, Robert, acting buildings commissioner, City of New 
      York.......................................................    23
        Prepared statement of....................................    25

                     IS OSHA FAILING TO ADEQUATELY
                   ENFORCE CONSTRUCTION SAFETY RULES?

                              ----------                              

                         Tuesday, June 24, 2008

                     U.S. House of Representatives

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The committee met, pursuant to call, at 10:04 a.m., in Room 
2175, Rayburn House Office Building, Hon. George Miller 
[chairman of the committee] presiding.
    Present: Representatives Miller, Kildee, Woolsey, McCarthy, 
Tierney, Kucinich, Holt, Davis of California, Grijalva, Bishop 
of New York, Sanchez, Sarbanes, Loebsack, Yarmuth, Hare, 
Clarke, Courtney, McKeon, Petri, Platts, Wilson, Kline, Kuhl, 
Davis of Tennessee, and Walberg.
    Staff Present: Aaron Albright, Press Secretary; Tylease, 
Alli, Hearing Clerk; Jordan Barab, Senior Labor Policy Advisor; 
Jody Calemine, Labor Policy Deputy Director; Fran-Victoria Cox, 
Staff Attorney; Lynn Dondis, Policy Advisor, Subcommittee on 
Workforce Protections; David Hartzler, Systems Administrator; 
Brian Kennedy, General Counsel; Thomas Kiley, Communications 
Director; Danielle Lee, Press/Outreach Assistant; Sara Lonardo, 
Junior Legislative Associate, Labor; Alex Nock, Deputy Staff 
Director; Joe Novotny, Chief Clerk; Rachel Racusen, Deputy 
Communications Director; Meredith Regine, Junior Legislative 
Associate, Labor; Michele Varnhagen, Labor Policy Director; 
Mark Zuckerman, Staff Director; Robert Borden, Minority General 
Counsel; Cameron Coursen, Minority Assistant Communications 
Director; Ed Gilroy, Minority Director of Workforce Policy; Rob 
Gregg, Minority Senior Legislative Assistant; Alexa Marrero, 
Minority Communications Director; Jim Paretti, Minority 
Workforce Policy Counsel; Molly McLaughlin Salmi, Minority 
Deputy Director of Workforce Policy; Hannah Snoke, Minority 
Legislative Assistant; Linda Stevens, Minority Chief Clerk/
Assistant to the General Counsel; Sally Stroup, Minority Staff 
Director; and Loren Sweatt, Minority Professional Staff Member.
    Chairman Miller. A quorum being present, the committee will 
come to order.
    And the purpose of this morning's hearing is to conduct an 
oversight hearing on OSHA and enforcement of construction 
safety rules. And at this point, I will yield to myself for 
purposes of an opening statement.
    Over the past few months, a number of catastrophic and well 
publicized construction accidents have highlighted concerns 
about whether government health and safety agencies are doing 
enough to ensure safe working conditions at construction sites. 
In New York, two massive construction crane collapses have 
killed nine people, including one bystander.
    In Las Vegas, over the last 19 months, 12 construction 
workers have been killed in construction projects on the strip. 
According to the Las Vegas Sun, more workers have died in the 
city in the past 19 months than died during the entire 1990s 
construction boom. An investigative series in the Las Vegas Sun 
detailed circumstances behind the deaths on the strip, 
including inadequate response from the Nevada Occupational 
Safety and Health Administration.
    As our witnesses will describe today construction is one of 
the most dangerous industries for workers. On average, four 
construction workers die on the job every day. Unfortunately, 
most of these workers die one at a time, and their deaths do 
not garner the same level of attention that the media gave to 
the New York crane collapses.
    There is no question that construction is an inherently 
dangerous job, and there is no one who would argue with that. 
The question is whether more can be done to prevent accidents 
and to make the industry safer. We intend to begin to answer 
that question today and explore ways to make the industry 
safer.
    We will examine whether or not the U.S. Occupational Safety 
and Health Administration is doing everything it can to improve 
safety at construction sites. This committee has repeatedly 
raised serious concerns about OSHA's inability or unwillingness 
to issue needed health and safety standards for a number of 
different industries, and we have the same concern now about 
the construction industry.
    We will also examine today whether OSHA has sufficient 
resources to do its job. In the boroughs of Manhattan and 
Queens, for example, Federal OSHA has only 20 inspectors to 
cover thousands of construction sites, and some of the 
inspectors are new trainees. We have nothing but praise for the 
dedication and work of those few valiant inspectors who perform 
every day, but they are faced with an impossible task. The root 
cause of that problem lies here in Washington.
    We will also examine the role that cities can play in 
making construction sites safer. Because of the lack of Federal 
OSHA resources in the city, New York City decided to step in to 
address the hazards the city's construction boom has presented. 
The city reasoned that its actions not only protect workers but 
also protect members of the public who may be walking, driving, 
or living underneath a tower crane. By our count, and one of 
our witnesses confirmed this today, the city has more than 20 
times more inspectors on the ground than OSHA has.
    While we commend New York City for its activity in this 
area it is unclear whether other smaller cities have the same 
ability to put resources into construction safety that New York 
has. We also intend to examine today whether the Federal laws 
as now written may actually discourage some States and cities 
from maintaining their own programs to enforce workplace safety 
rules unless there are overriding public safety concerns.
    The State of Florida has tried to issue stronger 
construction safety regulations on its own, but those efforts 
were overturned by the courts because Federal OSHA regulations 
preempt any State enforcement in States that do not have their 
own occupational safety agencies.
    Let me be clear, the U.S. Occupational Safety and Health 
Administration is an agency responsible for workplace safety, 
but workers must best be served by vigorous OSHA enforcement, 
coupled with renewed efforts by States and cities to make 
construction sites safer.
    Finally, we will examine the enforcement tools that OSHA 
has to ensure construction site safety. OSHA has the ability to 
assess penalties against construction companies who violate the 
law, but those penalties appear to be low and really low enough 
to be considered just the cost of doing business. And they 
usually assess long after the inspections occur.
    Moreover, OSHA does not have the authority to shut down a 
job site unless the agency can convince a judge that the site 
presents an imminent danger. The city has the authority to 
wield a much bigger stick. The New York Building Department has 
the ability to shut down dangerous job sites at a moment's 
notice potentially costing the contractor hundreds of thousands 
of dollars a day. We will discuss today whether OSHA ought to 
have the enhanced authority to shut down hazardous job sites 
without first jumping through excessively time-consuming legal 
hoops when workers' lives are on the line. These are not simple 
issues, but they are issues of life and death, and they demand 
the committee's attention. Today we will hear from the head of 
OSHA, the president of the Building and Construction Trades 
Department of the AFL-CIO, the acting director of the New York 
Department of Buildings, and we will also hear from a former 
ironworker and a contractor from Las Vegas who will speak to 
the hazards workers faced during the building boom. He will 
also address the personal loss that workers and families face 
when a loved one is killed on the job.
    I want to thank all of the witnesses for being here today, 
and we look forward to your testimony and appreciate you giving 
your time to the committee.
    And with that, I would like to recognize the subcommittee 
Chair, Ms. Woolsey from California, for the purposes of an 
opening statement.
    [The statement of Mr. Miller follows:]

   Prepared Statement of Hon. George Miller, Chairman, Committee on 
                          Education and Labor

    Over the past few months a number of catastrophic and well 
publicized construction accidents has highlighted concerns about 
whether government health and safety agencies are doing enough to 
ensure safe working conditions at construction sites.
    In New York, two massive construction crane collapses have killed 
nine people, including one bystander.
    In Las Vegas, over the last 19 months, 12 construction workers have 
been killed in construction projects on the Strip. According to the Las 
Vegas Sun, more workers have died in the city over the past 19 months 
than died during the entire 1990s construction boom.
    An investigative series by the Las Vegas Sun detailed the 
circumstances behind the deaths on the Strip, including the inadequate 
response from the Nevada Occupational Safety and Health Administration.
    As our witnesses will describe today, construction is one of the 
most dangerous industries for workers. On average, four construction 
workers die on the job every day.
    Unfortunately, most of these workers die one at a time and their 
deaths do not garner the same level attention from the media that the 
New York crane collapses did.
    There's no question that construction is an inherently dangerous 
job. No one here would argue with that.
    The question is whether more can be done to prevent accidents and 
make the industry safer. We intend to begin to answer that question 
today, and to explore ways to make the industry safer.
    We will examine whether the U.S. Occupational Safety and Health 
Administration is doing everything it can to improve safety at 
construction sites.
    This Committee has repeatedly raised serious concerns about OSHA's 
inability or unwillingness to issue needed health and safety standards 
for a number of different industries. We have the same concern about 
the construction industry.
    We will also examine today whether OSHA has sufficient resources to 
do its job. In the boroughs of Manhattan and Queens, for example, 
federal OSHA has only 20 inspectors to cover thousands of construction 
sites--and some of those inspectors are new trainees. We have nothing 
but praise for the dedication and work that those few valiant 
inspectors perform every day, but they are faced with an impossible 
task, and the root cause of that problem lies here in Washington.
    We will also examine the role that cities can play in making 
construction sites safer.
    Because of the lack of federal OSHA resources in the city, New York 
City decided to step in to address the hazards that the city's 
construction boom has presented. The city reasoned that its actions not 
only protect workers, but also protect members of the public who may be 
walking, driving or living underneath a tower crane.
    By our count--and one of our witnesses can confirm this today--the 
city has more than 20 times more inspectors on the ground than OSHA 
has.
    While we commend New York City for its activity in this area, it is 
unclear whether other, smaller cities have the same ability to put 
resources into construction safety that New York has.
    We also intend to examine today whether federal law, as now 
written, may actually discourage some states and cities from 
maintaining their own programs to enforce workplace safety rules, 
unless there are overriding public safety concerns.
    The state of Florida has tried to issue stronger construction 
safety regulations on its own. But those efforts were overturned by the 
courts because federal OSHA regulations pre-empt any state enforcement 
in states that do not have their own occupational safety agencies.
    Let me be clear: The U.S. Occupational Safety and Health 
Administration is the agency responsible for workplace safety. But 
workers might be best served by vigorous OSHA enforcement coupled with 
renewed efforts by states and cities to make construction sites safer.
    Finally, we will examine the enforcement tools that OSHA has to 
ensure construction site safety. OSHA has the ability to assess 
penalties against construction companies that violate the law, but 
those penalties are low--low enough to be considered just another cost 
of doing business--and they are usually assessed long after an 
inspection occurs.
    Moreover, OSHA does not have the authority to shut down a job site 
unless the agency can convince a judge that the site presents an 
imminent danger.
    A city has the authority to wield a much bigger stick. The New York 
Buildings Department has the ability to shut down a dangerous job site 
at a moment's notice, potentially costing a contractor hundreds of 
thousands of dollars a day.
    We will discuss today whether OSHA ought to have the enhanced 
authority to shut down hazardous job sites without first jumping 
through excessively time consuming legal hoops when workers lives are 
on the line.
    These are not simple issues, but they are life and death issues, 
and they demand this Committee's attention.
    Today we will hear from the head of OSHA, the president of the 
Building and Construction Trades Department of the AFL-CIO and the 
acting director of the New York Department of Buildings.
    We will also hear from a former iron worker and contractor from Las 
Vegas who will speak to the hazards that workers face during a building 
boom. He will also address the personal loss that workers and families 
face when one a loved one is killed on the job.
    I thank all of our witnesses for being here today and I looked 
forward to their testimony.
    Thank you.
                                 ______
                                 
    Ms. Woolsey. Thank you, Chairman Miller.
    Thank you for holding this hearing on the recent crane and 
construction accidents that have plagued many of this Nation's 
construction workers, especially in big cities like New York 
and Las Vegas.
    As you noted, there is a building boom going on in those 
cities. And while these booms bring many needed jobs to working 
people, today we are going to examine the terrible price that 
workers pay when their employers cut corners in a mad dash to 
compete for and complete their projects. We are aware of the 
large bonuses that contractors receive if they complete their 
building projects by a certain date, particularly if they are 
finished ahead of schedule. But in reverse, we know there are 
equally large penalties that some contractors pay if projects 
are late. With the almighty dollar ruling, it is not a surprise 
that safety often comes last, and the real penalty falls on the 
worker, the worker who is injured, or the worker who loses his 
or her life.
    This hearing will point out, it appears, once again, that 
OSHA is failing to fulfill its mandate to keep workers in this 
country safe and to keep them healthy. With the construction 
industry that we are going to talk about today, the problem is 
pretty obvious. First, OSHA has not updated its crane and 
derrick standards since 1971. OSHA and other experts have long 
realized that this standard is out of date. And in fact, in the 
year 2003, OSHA began working on a new rule. Labor and 
Management came together, and they produced a draft in the year 
2004. But here we are, it is 2008, and OSHA hasn't issued its 
proposed rule.
    So we understand that the Department has sent the proposed 
rules to the OMB, and we hope, Administrator Foulke, that you 
are going to bring us some good news about that today about 
publishing these badly needed regulations.
    Also, the resources for construction jobs, the resources 
for OSHA in general, such as staff and inspectors, to enforce 
the health and safety rules at construction sites are woefully 
inadequate. In fact, Federal OSHA, all of OSHA, has only 821 
inspectors for the 29 States that don't have their own State 
OSHA programs, and the 21 States with their own health and 
safety programs have another 1,273 inspectors. This means that 
there are a total of 2,094 inspectors for the 8 million work 
sites in this country. Imagine that.
    Finally, one reason for this low number of inspectors, I 
believe, is that OSHA takes a good part of its budget from 
enforcement and transfers those funds into unproven voluntary 
programs and consultations for employers. If those were 
working, we wouldn't be having an increase in accidents, 
particularly in the construction industry.
    But as Chairman Miller did note, New York City takes health 
and safety seriously with its own inspectors. What we have to 
look at today then is why New York City is having the number of 
accidents that they have been having lately. But I do 
congratulate the city on its diligence.
    I share the chairman's concern that there are preemption 
and other issues that we must examine very seriously and that 
OSHA must be held accountable. Our workers are counting on us. 
They need to be assured that they are going to work in a safe 
place, that they will be safe and healthy, and they will be 
able to return to their families every night and every evening 
after they finish their jobs.
    So thank you again, Mr. Chairman, and I look forward to the 
hearing.
    Chairman Miller. Thank you.
    And now I would like to recognize Congressman McKeon, the 
senior Republican on the committee, for the purpose of an 
opening statement.
    Mr. McKeon. Good morning Chairman Miller, members of the 
committee and our panel of witnesses. We are here this morning 
for a broad overview of OSHA's efforts to ensure worker safety 
within the construction industry.
    Given a number of recent high-profile crane accidents, I 
expect that we will also look specifically at the crane and 
derrick standard currently in place, as well as the pending 
update to that standard that began with an OSHA-negotiated 
rulemaking process in 2004. It is my understanding that OSHA 
sent a proposal to revise and update the crane rule to the 
Office of Management and Budget earlier this month for final 
review and that we can expect to see final regulations in place 
before the end of the year.
    Media reports have shown the devastation that can occur 
when construction equipment fails. As we have seen, this 
problem has not been isolated in one area of the country but 
has had consequences nationwide. Construction cranes, for 
instance, are powerful tools in today's construction arena. 
They are being built higher, can carry larger loads and, if 
used properly, improve the efficiency of a construction 
project. Cranes can eliminate many man hours for lifting and 
moving supplies and materials on the job site. They can also be 
among the most dangerous equipment for construction workers to 
be around. Constant vigilance is vital when workers are moving 
in and around functioning cranes.
    Investigations into a number of recent crane accidents are 
still under way, and I expect these investigations to provide 
valuable information about how to prevent such tragedies in the 
future. However, I am very troubled by allegations in the New 
York Times that the city's chief crane inspector has been 
accused of taking bribes to certify cranes as operational and 
workers as having successfully passed licensing exams.
    I request unanimous consent to include this article, dated 
June 7, 2008, in the hearing record.
    [The information follows:]

                [From the New York Times, June 7, 2008]

           Top City Crane Inspector Accused of Taking Bribes

                         By William K. Rashbaum

    The city's chief crane inspector was arrested on Friday and charged 
with taking bribes to allow cranes to pass inspection, the authorities 
said. He was also accused of taking money from a crane company that 
sought to ensure that its employees would pass the required licensing 
exam.
    The man, James Delayo, 60, the acting chief inspector for the 
Cranes and Derricks Unit at the city's Department of Buildings, oversaw 
the issuing of city licenses for crane operators. The case against him, 
announced by the Manhattan district attorney's office and the city's 
Department of Investigation, was filed just a week after the city's 
second fatal crane collapse in less than three months.
    Officials said the accusations against Mr. Delayo bore no direct 
relation to the accident last week at 91st Street and First Avenue, 
where two workers died, or the crane accident on East 51st Street that 
left seven dead in March.
    But the case was another blemish on a Buildings Department that has 
been reeling from construction deaths and inspection lapses this year, 
and for which deadly crane accidents are part of a lingering series of 
problems.
    The agency's commissioner resigned last month and Mayor Michael R. 
Bloomberg has been struggling to find a replacement to run a department 
that has long been plagued by corruption and where critics say an 
underpaid, shorthanded staff of inspectors has been hard-pressed to 
deal with the city's building boom.
    ``This is a case where greed trumps safety,'' said Daniel J. 
Castleman, the chief assistant in the district attorney's office, which 
is also investigating the crane collapse last week. ``With all the 
construction going on in New York City and the fatal accidents of the 
last few months, this type of conduct cannot and will not be 
tolerated.''
    Rose Gill Hearn, the commissioner of the Department of 
Investigation, said in a statement that her office was working with 
District Attorney Robert M. Morgenthau as part of a continuing inquiry 
into corruption at the Buildings Department.
    ``D.O.I.'s investigation revealed the profoundly disturbing and 
sobering realization that a senior inspector responsible for ensuring 
that cranes operating in New York City are in proper condition and are 
operated by qualified individuals is charged with selling out his own 
integrity in a way that compromised public safety,'' Ms. Hearn said.
    Mr. Delayo surrendered on Friday morning to investigators and was 
arraigned in Criminal Court in Manhattan on a complaint that said he 
had admitted on Thursday to receiving the bribes. He was released on 
his own recognizance. A Buildings Department spokeswoman said he would 
be suspended without pay.
    The charges against Mr. Delayo include third-degree bribe-receiving 
and first-degree tampering with public records, both felonies for which 
he could face up to seven years in prison. Among the charges was the 
accusation that he had provided a copy of the crane operator's exam to 
a crane company, for which an official involved in the case said Mr. 
Delayo was paid about $3,000. The official, who spoke on the condition 
of anonymity because the investigation was continuing, said Mr. Delayo 
also provided the answers.
    As the chief inspector, Mr. Delayo had responsibility for 
overseeing the inspection of all cranes, including tower cranes, the 
type that collapsed in the two recent fatal accidents. The allegations 
against Mr. Delayo made it easy on Friday for him to be seen as a 
symbol for the failures that have plagued the Buildings Department for 
years. In fact, as he made his way to a cab after court, he was 
accosted by a street sweeper who dropped his broom and demanded to know 
if he felt responsible for the crane collapse. He did not answer.
    Mr. Delayo, whose Legal Aid lawyer said little that could be heard 
during the arraignment, entered no plea during the proceeding before 
Judge Abraham Clott of Criminal Court. Mr. Delayo, appearing slightly 
hunched and wearing a white shirt with thin blue and brown stripes, 
held his pants up, apparently because he had no belt on. Later, as he 
left the building housing Mr. Morgenthau's office, he wore a red 
bandanna as a makeshift belt.
    Mayor Bloomberg, in a statement, said that he has ``zero 
tolerance'' for corruption anywhere in his administration, and that 
such conduct is ``is all the more deplorable'' in a public safety 
agency like the Buildings Department.
    ``The Department of Buildings has made enormous strides in rooting 
out corruption over the past six years, but this case underscores that 
there remains more work to do,'' he said
    Mr. Bloomberg, along with the City Council, on Wednesday announced 
a legislative package aimed at broadening oversight at building sites. 
But on Friday, the Manhattan borough president, Scott Stringer, who had 
said that the measures proposed by the mayor and the Council did not go 
far enough, called Mr. Delayo's arrest ``stunning and frightening.''
    ``The man in charge of issuing city licenses to crane operators has 
been accused of years of taking bribes to license cranes he did not 
inspect, and to license operators who did not pass a required test,'' 
Mr. Stringer said in a statement. ``Under the circumstances, before we 
begin any new procedures to implement the administration's construction 
reforms, we must have a top-to-bottom review of the Buildings 
Department, its procedures and its personnel.''
    The accusations against Mr. Delayo focus on smaller mobile cranes, 
known as Class C cranes.
    A 26-year veteran of the Buildings Department, Mr. Delayo took 
bribes of ``a couple of hundred dollars'' in exchange for issuing 
licenses to about half a dozen Class C crane operators, including once 
to a man who did not even take the test, according to the criminal 
complaint and the official involved in the case.
    All of the operators worked for the company, Nu-Way Crane Service 
of Copiague, N.Y., that paid for the test and the answers, said the 
official. Investigators searched the offices of Nu-Way on Friday, 
seizing computers and records, the official said. A crane inspector's 
test was found there, but investigators were unsure if it was the one 
Mr. Delayo was accused of providing.
    A city official said that the Department of Buildings was 
suspending approvals for the company's cranes to operate and was 
evaluating the licenses issued to its operators.
    Nu-Way did not respond to telephone messages left at the company's 
offices. An official with the company served last year on the Buildings 
Department's Cranes and Derricks Advisory Council.
    The complaint said that on Thursday, Mr. Delayo admitted to Sadie 
Lopez, an investigator with the Department of Investigation, to meeting 
with and taking money from the owner and or employees of the crane 
company ``on numerous occasions'' from 2002 to 2007.
    The authorities also learned that Mr. Delayo signed off on the 
annual inspection of between 20 and 30 Class C cranes without 
conducting any examination in exchange for ``several hundred dollars'' 
apiece, the official said.
    Mr. Delayo, who lives in the Bronx, was promoted to acting chief 
inspector after the fatal crane accident in March. He makes $74,224 a 
year.
    In addition to the bribe-receiving and tampering with public 
records counts, the complaint charged him with first-degree 
falsification of business records and first degree offering a false 
instrument for filing, both felonies, and receiving an unlawful 
gratuity, a misdemeanor.
    The Buildings Department issues licenses to crane operators who 
work within the city, while state officials issue such licenses across 
the rest of New York. Earlier this year, state officials reported 
similar problems with the integrity of the process under which they 
were granting licenses and said one longtime employee had approved 210 
people for licenses despite their having failed the official exam, 
although he took no money and was charged with no crime.

    Daryl Khan, Colin Moynihan and Sharon Otterman contributed 
reporting.
                                 ______
                                 
    Chairman Miller. Without objection, so ordered.
    Mr. McKeon. Construction is vital to economic growth, but 
it is also an inherently dangerous industry. And that is why it 
is so important that steps be taken to help mitigate the risks 
and protect the workers. Because of the unique characteristics 
of construction job sites and their associated dangers, OSHA 
has put in place specific and extensive regulations directed at 
the construction industry. I look forward to learning more 
about those standards today.
    We have before us a distinguished panel of experts, 
including OSHA Administrator Foulke, who has taken over the 
development of the crane regulation I mentioned earlier in the 
midst of its development. I am hopeful he will provide us with 
an update on the crane rulemaking that has been developed, as 
well as the other specific safety standards applicable to the 
construction industry. This hearing is an important first step 
to examine safety protections for workers in the construction 
industry with a particular emphasis on the crane accidents that 
have drawn so much attention in recent months.
    I anticipate that the conclusion of OSHA's investigations 
will also help shape public policy on this important issue.
    I would also request unanimous consent to include testimony 
for the record from Mr. Graham Brent, executive director of the 
National Commission for the Certification of Crane Operators. 
When this hearing was originally scheduled we were notified 
that it would focus exclusively on crane safety. Although the 
scope of the hearing has been expanded, I believe the record 
will be enhanced with the inclusion of Mr. Brent's testimony.
    [The information follows:]

  Prepared Statement of Graham J. Brent, Executive Director, National 
      Commission for the Certification of Crane Operators (NCCCO)

    Good morning Mr. Chairman, and distinguished members of the House 
Committee on Education and Labor. My name is Graham Brent and I am the 
Executive Director of the National Commission for the Certification of 
Crane Operators (NCCCO).
    The National Commission for the Certification of Crane Operators 
(NCCCO) was formed in January 1995 as a non profit organization to 
develop effective performance standards for safe crane operation to 
assist all segments of construction and general industry.
    The establishment of NCCCO came in the aftermath of the San 
Francisco tower crane collapse in 1989 which claimed five (5) lives and 
foreshadowed the tragedies we have witnessed this year in New York, 
Miami and elsewhere. The foundation of the CCO national crane operator 
certification program by a dedicated team of industry experts over a 
ten (10) year period reflected a genuine and earnest desire by the 
industry most affected by such accidents to improve the safety of 
lifting operations.
    NCCCO's mission was--and remains today--to provide a thorough, 
independent assessment of operator knowledge and skills and, thereby, 
to enhance lifting equipment safety, reduce workplace risk, improve 
performance records, stimulate training, and give due recognition to 
the professional skill of crane operation.
    The industry representatives who participate in NCCCO activities 
represent such groups as: contractors, labor unions, rental firms, 
owners, steel erectors, manufacturers, construction firms, training 
consultants, and insurance companies. Since NCCCO began testing in 
April 1996, over 325,000 written and practical exams have been 
administered to more than 65,000 crane operators in all 50 states.
    Mr. Chairman, as tragic as the recent incidents in New York and 
Miami are, they need to be put in context. A recent survey (1) has 
revealed that there are an estimated 3,000 tower cranes in the United 
States, of which 2,100 might be in use at any one time. These tower 
cranes perform in excess of 100,000 lifts per day safely and without 
adverse consequence.
    Nevertheless, the recent incidents we have witnessed are clearly 
completely unacceptable. It's important to recognize that cranes, in 
and of themselves, are not dangerous. In the hands of unqualified 
personnel, however, they can become deadly instruments. This raises two 
questions: #1 What personnel need to be qualified? And #2: How can that 
qualification be determined?
    To the first question, OSHA has an overarching, if non-specific, 
requirement for all personnel engaged in the lifting operation to be 
trained and qualified and/or competent to perform the task they are 
assigned. This means the crane operator, to be sure. But it also 
extends to the rigger (who rigs the load to be lifted), the 
signalperson (who gives the operator verbal or visual instructions), 
and the inspector (who verifies that the crane has been maintained and 
erected correctly and in accordance with the manufacturer's 
instructions).
    In answer to the second question, ``how can that qualification be 
determined?'', we believe that professionally developed and accredited 
certification is the employers' and public's best assurance that the 
required training has been given and, most importantly, that it has 
been effective--that learning has, in fact, taken place.
    Remarkably, however, only 15 states and five (5) cities require 
crane operators to be certified or licensed. Only two (2) states 
require crane inspectors to be licensed. And there are no state or 
federal requirements for riggers to be licensed.
    OSHA's regulations that govern the use of cranes have gone largely 
unchanged since they were issued in the early 1970's. They reference an 
American National Standard for cranes (ANSI B30.5) that was published 
in 1968 and has been out of print and unavailable for years. In the 
meantime, cranes have an undergone a technological evolution that has 
transformed them into versatile and sophisticated pieces of machinery, 
equipped in many cases with electronic control systems that would 
challenge the skills of a commercial airline pilot.
    This situation has to change. OSHA recognized that much when, in 
the summer of 2003, it assembled 25 of the most qualified individuals 
in the industry and put them to work over a 12-month period to revise 
its outdated requirements. The Cranes and Derricks Advisory Committee 
(C-DAC), meeting once per month over an 11 month period, completed its 
work as requested, and delivered its report to the Department of Labor 
in August 2004. It is, by all assessments a remarkable document, 
developed in record time by industry experts without peer. To this 
date, despite numerous industry protests, and a unanimous endorsement 
for C-DAC's recommendations by OSHA's Advisory Committee on 
Construction Safety and Health (ACCSH), OSHA has not issued a proposed 
rule.
    This rule needs to be published and implemented for many of the 
reasons we are assembled here today. Among its widespread provisions 
are accredited certification for crane operators, and heightened 
training and qualification for signalpersons, two essential elements, 
in our view, for improving safety on construction sites around the 
nation.
    Calls for such measures are widespread with the industry. Just last 
week, a report (2) was published by the Center for Construction 
Research and Training (CPWR) that analyzes Bureau of Labor Statistics 
(BLS) data for 323 construction worker deaths attributable to crane 
accidents between 1992 and 2006. It makes eight (8) recommendations. 
No. 1 is for crane operators to be certified; no. 2 for riggers and 
signalpersons to be certified; and no. 3 for crane inspectors to be 
certified.
    Mr. Chairman, reports have been released this year, in New York 
State and more recently in New York City, that would imply the 
existence of state and city exam design and administration that fall 
well below acceptable standards. It is alleged that licenses have been 
issued without appropriate candidate assessment that reflects 
competency by an individual in the area being assessed. This is far 
worse than no license at all, for it implies competency in an 
individual when, in fact, a candidate may have failed a test or even 
not have tested at all. Clearly, a testing instrument (such as a state 
or city exam), must be beyond reproach in both its design and 
administration for employers and the general public to have confidence 
in the process.
    In this context, I would draw your attention to the fact that 
whenever I have talked this morning about ``certification'' I have done 
so with the qualification of ``accredited certification.'' The 
organization I represent believes it is critical that any third-party 
certification body be subject to onsite audit of its policies and 
procedures to ensure it has developed and continues to administer 
written and practical examinations that are fair, valid and reliable.
    Fortunately, there is a simple way for those who have a stake in 
construction safety matters to ensure only professionally developed 
certification is specified--and that is by ensuring that only 
certification bodies whose programs have been accredited by the 
American National Standards Institute (ANSI) are permitted to 
administer certification assessments. ANSI has developed a compliance 
program that meets the requirements of the ISO 17024 Requirements for 
Bodies Operating Certification of Persons and is the only accrediting 
body that requires onsite assessment of a certifying body as a 
condition of accreditation.
    In closing, Mr. Chairman, I would like to thank you and this 
Committee for providing NCCCO an opportunity to present these 
recommendations for improving safety on worksites wherever lifting 
equipment is being used. NCCCO stands prepared to lend its expertise in 
assisting this Committee to achieve that goal.

                               REFERENCES

Survey, May 2008, by the Specialized Carriers & Rigging Association 
        (SC&RA), 2750 Prosperity Avenue, Suite 620, Fairfax, VA 22031.
McCann, Michael, PhD, and Gittleman, Janie, PhD. Crane Related Deaths 
        in Construction and Recommendations for Their Prevention, The 
        Center for Construction Research and Training, June 2008. 301/
        495-8525.
                     nccco program status june 2008
    NCCCO ``BY THE NUMBERS'':
        NO. EXAMS ADMINSTERED: 325,000+
        NO. OF WRITTEN TEST ADMINISTRATIONS CONDUCTED: 5,000+
        NO. OF PRACTICAL TEST SITES APPROVED: 1,700+
        NO. OF CRANES APPROVED FOR PRACTICAL EXAM TESTING: 5,000+
        NO. OF STATES IN WHICH TESTING HAS BEEN CONDUCTED: 50
    CERTIFICATIONS AVAILABLE:
        MOBILE CRANE OPERATOR
        TOWER CRANE OPERATOR
        OVERHEAD CRANE OPERATOR
        RIGGER (2008)
        SIGNALPERSON (2008)
        ARTICULATING CRANE OPERATOR (2009)
    ACCREDITATIONS:
        AMERICAN NATIONAL STANDARDS INSTITUTE / ISO
        NATIONAL COMMISSION FOR CERTIFYING AGENCIES
        NATIONAL SKILL STANDARDS BOARD
    FEDERAL RECOGNITION:
        OCCUPATIONAL SAFETY & HEALTH ADMINISTRATION
        DEPARTMENT OF ENERGY
    OFFICIAL APPROVAL:
        DEPARTMENT OF EDUCATION
        DEPARTMENT OF DEFENSE
        DEPARTMENT OF VETERANS AFFAIRS
    STATES ADOPTING CCO PROGRAM:
        WEST VIRGINIA (2001)
        HAWAII (2003)
        NEW JERSEY (2004)
        CALIFORNIA (2005)
        MONTANA (2005)
        NEW MEXICO (2007)
        MINNESOTA (2007)
        NEVADA (2007)
        UTAH (2007)
        WASHINGTON (2010)
        FLORIDA (PROPOSED)
        PENNSYLVANIA (PROPOSED)
        MARYLAND (PROPOSED)
        IOWA (PROPOSED)
    NATIONAL INDUSTRY PARTNERSHIPS:
        AMERICAN SOCIETY OF CIVIL ENGINEERS (ASCE)
        AMERICAN SUBCONTRACTORS ASSOCIATION (ASA)
        ARTICULATING CRANE COUNCIL OF NORTH AMERICA (ACCNA)
        ASSOCIATED EQUIPMENT MANUFACTURERS (AEM)
        ASSOCIATED GENERAL CONTRACTORS OF AMERICA (AGC)
        CRANE MANUFACTURERS ASSOCIATION OF AMERICA (CMAA)
        INTERNATIONAL UNION OF OPERATING ENGINEERS (IUOE)
        SPECIALIZED CARRIERS & RIGGING ASSOCIATION (SC&RA)
        STEEL ERECTORS ASSOCIATION OF AMERICA (SEAA)
                                 ______
                                 
    Chairman Miller. No objection.
    Mr. McKeon. Thank you, Chairman Miller, and I yield back 
the balance of my time.
    [The statement of Mr. McKeon follows:]

Prepared Statement of Hon. Howard P. ``Buck'' McKeon, Senior Republican 
                Member, Committee on Education and Labor

    Good morning Chairman Miller, members of the Committee, and our 
panel of witnesses. We're here this morning for a broad overview of 
OSHA's efforts to ensure worker safety within the construction 
industry.
    Given a number of recent high-profile crane accidents, I expect 
that we will also look specifically at the crane and derrick standard 
currently in place, as well as the pending update to that standard that 
began with a negotiated rulemaking process in 2004. It's my 
understanding that OSHA sent a proposal to revise and update the crane 
rule to the Office of Management and Budget earlier this month for 
final review, and that we can expect to see final regulations in place 
before the end of the year.
    Media reports have shown the devastation that can occur when 
construction equipment fails. As we have seen, this problem has not 
been isolated in one area of the country, but has had consequences 
nationwide.
    Construction cranes, for instance, are powerful tools in today's 
construction arena. They are being built higher, can carry larger 
loads, and--if used properly--improve the efficiency of a construction 
project. Cranes can eliminate many man hours for lifting and moving 
supplies and materials on the jobsite. They can also be among the most 
dangerous equipment for construction workers to be around. Constant 
vigilance is vital when workers are moving in and around functioning 
cranes.
    Investigations into a number of recent crane accidents are still 
underway, and I expect these investigations to provide valuable 
information about how to prevent such tragedies in the future. However, 
I am very troubled by allegations in The New York Times that the city's 
chief crane inspector has been accused of taking bribes to certify 
cranes as operational and workers as having successfully passed 
licensing exams. I request unanimous consent to include this article, 
dated June 7, 2008, in the hearing record.
    Construction is vital to economic growth. But it's also an 
inherently dangerous industry, and that's why it's so important that 
steps be taken to help mitigate the risks and protect the workers. 
Because of the unique characteristics of construction job sites and 
their associated dangers, OSHA has put in place specific and extensive 
regulations directed at the construction industry. I look forward to 
learning more about those standards today.
    We have before us a distinguished panel of experts including OSHA 
Administrator Foulke, who has taken over the development of the crane 
regulation I mentioned earlier in the midst of its development. I am 
hopeful he will provide us with an update on the crane rulemaking that 
has been developed, as well as the other specific safety standards 
applicable to the construction industry.
    This hearing is an important first step to examine safety 
protections for workers in the construction industry, with a particular 
emphasis on the crane accidents that have drawn so much attention in 
recent months. I anticipate that the conclusion of OSHA's 
investigations will also help shape public policy on this important 
issue.
    I would also request unanimous consent to include testimony for the 
record from Mr. Graham Brent, executive director of the National 
Commission for the Certification of Crane Operators. When this hearing 
was originally scheduled we were notified that it would focus 
exclusively on crane safety. Although the scope of the hearing has been 
expanded, I believe the record will be enhanced with inclusion of Mr. 
Brent's testimony.
    Thank you Chairman Miller, and I yield back the balance of my time.
                                 ______
                                 
    Chairman Miller. I thank the gentleman.
    I would like now to introduce our panel. First, we are 
joined by Mr. Ed Foulke, who is Assistant Secretary of Labor 
for OSHA. Prior to his current position, Assistant Secretary 
Foulke was a partner in the law firm of Jackson Lewis LLP where 
he practiced labor relations law. From 1990 to 1995, he served 
at the Occupational Health and Safety Commission, which he 
chaired from 1990 to 1994.
    George Cole was an ironworker for over 40 years. His 
brother-in-law, Harold Billingsley, was killed in one of the 
recent Las Vegas construction accidents. Mr. Cole was 
previously the owner, operator and general manager of Uriah 
Enterprises, Inc., a steel fabrication and erection operation. 
Mr. Cole is a member of the Ironworkers Local 433.
    Robert LiMandri is the acting Building Commissioner of the 
City of New York, a position he was named to in April of 2008. 
Commissioner LiMandri joined the Building Department in 2002, 
first serving as Deputy Commissioner of Operation and later as 
a First Deputy Commissioner.
    Mike Kallmeyer is the senior vice president of Construction 
Services for Denier Electric Company in Columbus, Ohio. Mr. 
Kallmeyer has over 28 years of experience in the electrical 
field, having worked as an electrician, foreman, 
superintendant, project manager and department and division 
manager. He is currently responsible for managing the 
Construction Department at Denier Electric.
    Mark Ayers is the president of the 3-million-member 
Building and Construction Trades Department, AFL-CIO. Prior to 
being elected to that position, Mr. Ayers was the Construction 
and Maintenance Department director for the International 
Brotherhood of Electrical Workers.
    Welcome to all of you to the committee. We look forward to 
your testimony. Some of you have been here before, and you know 
we provide 5 minutes for your opening statements. And there 
will be a green light in front of you when you begin to 
testify. At 4 minutes, an orange light will come on, which is 
to suggest you might want to think about wrapping up, and then 
a red light at 5 minutes, which will end your testimony, but we 
obviously want you to be able to complete your thoughts in 
coherent sentences.
    So thank you.
    Secretary, we will begin with you.

 STATEMENT OF HON. EDWIN FOULKE, ASSISTANT SECRETARY OF LABOR 
                            FOR OSHA

    Mr. Foulke. Thank you Mr. Chairman, Ranking Member McKeon 
and members of the committee.
    Thank you for the opportunity to appear here today to 
discuss OSHA's efforts to protect the safety and health of 
employees who work in our Nation's construction industry.
    Construction is dangerous work, which requires employers to 
exercise constant vigilance against hazards, such as false and 
elevated positions, trenching and excavation cave-ins, 
entrapment in confined spaces, scaffolding collapses and 
electrocutions. Unlike other workplaces that have permanent 
ongoing operations, construction work sites are temporary and 
often involve dozens of different employers conducting 
different tasks at a single site. The dangers and hazards in 
the construction industry are well known, and the challenge for 
OSHA is to use the best mix of enforcement, outreach, 
standards, education and proper programs to protect employees.
    Strong enforcement of safety and health standards is a 
vital component of our effective approach to construction 
safety. OSHA focuses on the four most common causes of 
occupational fatalities in the construction industry, namely 
falls; ``struck bys''; ``caught in betweens''; and 
electrocutions.
    In fiscal year 2007 more than half of all the OSHA 
inspectors, both Federal and State plan inspections, were 
conducted in the construction industry, resulting in the 
issuance of 74,816 citations. Specifically, OSHA issued more 
than 24,000 citations for violations of the fall protection 
standard; 3,300 citations ``for struck by'' violations; and 
3,500 citations for electrical violations. And since 2001, OSHA 
has issued 256 penalties in the construction industry with 
penalties in excess of $100,000. Overall, OSHA has proposed 
more than three-quarters of $1 billion in penalties for safety 
and health violations since 2001. During the same period OSHA 
has made 64 criminal referrals to the Department of Justice, 
which is more than any previous administration.
    In fiscal year 2008, of the 57,000 violations issued so 
far, 80 percent have been characterized as serious, willful, 
repeat, or failure to debate, the highest percentage ever 
recorded by the agency. We are also effectively targeting our 
inspections, as violations have been found in 78 percent of the 
work sites OSHA has inspected.
    In addition to a strong target enforcement program OSHA 
continually reviews its construction safety and health 
standards. There are a number of regulatory changes under 
consideration, including the crane and derrick standard.
    OSHA conducts national, regional, and local emphasis 
programs to target enforcement of particular hazards and 
industries. The success of this approach is demonstrated in New 
York where upwards of 12 employees were being killed annually 
in roadway work zones. After the establishment of a local 
emphasis program by OSHA, the number of work zone fatalities 
was reduced to one in 2007. Also, a national OSHA trenching 
initiative which began in 2003 has helped to reduce the annual 
number of trenching- and excavation-related fatalities by 46 
percent.
    Along these same lines training is a critical component of 
an effective accident prevention program. The OSHA Training 
Institute has focused both on training our compliance officers 
to identify the hazards most common at construction work sites 
and on our train-the-trainer program, in which individuals who 
successfully complete the required training courses are 
authorized to conduct training programs in construction. Over 
1.6 million construction participants have been trained by 
these trainers since 2004.
    An example of how this training has saved lives occurred 
after a construction employee in Kansas attended one of these 
training courses and learned to don and adjust a full body 
harness. He and a coworker later survived a fall on the job 
because of their understanding of how to properly use this 
critical safety equipment.
    The construction industry employs a large number of 
Spanish-speaking employees. OSHA continues to develop and 
distribute Spanish-language material, such as a Spanish-English 
construction dictionary, public service announcement, quick 
cards and fact sheets, all of which are available on the 
agency's Spanish Web site. These materials help Spanish-
speaking employees identify workplace hazards.
    OSHA makes use of a variety of effective cooperative 
programs with employers, trade associations, labor 
organizations and others to provide safety and health in the 
construction agency. OSHA's voluntary protection program has 
113 construction participants across the Nation. There are also 
140 strategic partnerships with construction companies, which 
is more than 80 percent of all partnerships.
    I want to make it clear, however, that while the agency 
offers technical assistance to employers to help comply with 
OSHA standards, as well as recognizing employers for 
implementing exemplary health and safety systems, compliance 
with OSHA safety and health standards is mandatory, not 
voluntary. There is no such term or practice as voluntary 
compliance. Every employer is responsible for providing 
employees a safe and helpful workplace free of hazards. OSHA is 
committed to enhancing construction safety and to continue to 
provide employers and employees with safety information and to 
ensure that work sites comply with existing safety regulations.
    I can assure the committee that construction safety is a 
top priority for OSHA and that we are striving to ensure that 
all employees return safely to their families and friends at 
the end of each and every workday.
    Thank you, Mr. Chairman, and I would be happy to answer any 
questions that you may have.
    [The statement of Mr. Foulke follows:]

 Prepared Statement of Hon. Edwin G. Foulke, Jr., Assistant Secretary, 
Occupational Safety and Health Administration, U.S. Department of Labor

    Mr. Chairman, Ranking Member McKeon, and Members of the Committee: 
Thank you for the opportunity to appear today to discuss OSHA's 
comprehensive efforts to protect the safety and health of employees who 
work in our nation's construction industry.
    To accomplish its mission of saving lives and reducing injuries and 
illnesses, OSHA utilizes a balanced approach which includes: 1) strong, 
fair, and effective enforcement; 2) safety and health standards and 
guidance; 3) training and education; and 4) cooperative programs, 
compliance assistance and outreach. The Occupational Safety and Health 
Act (the OSH Act) enacted by Congress in 1970 stipulates that employers 
are ultimately responsible for providing a safe and healthful work 
environment. OSHA has a critical role in helping employers with their 
responsibilities, and utilizes all components incorporated in its 
balanced approach.
    Since 2001, as part of its strong enforcement program, OSHA 
proposed more than three-quarters of a billion dollars in penalties for 
safety and health violations and made 64 criminal referrals to the 
Department of Justice, which represents more than 30 percent of all 
criminal referrals in the history of OSHA and more than any previous 
Administration. In Fiscal Year (FY) 2008, of the almost 57,000 
violations issued so far, 80 percent have been categorized as serious, 
willful, repeat or failure-to-abate, the highest percentage ever 
recorded by the agency. We are also effectively targeting our 
inspections--78 percent of the worksites we inspected had violations. 
Our approach is working. All three key indicators--injury, illness and 
fatality rates--are all at the lowest levels in the nation's history. 
Most importantly, the overall fatality rate in construction has 
declined by 18 percent since 2001. These achievements highlight the 
Administration's commitment and success in protecting the safety and 
health of the nation's workforce.
    Even with all these achievements, OSHA recognizes that there are 
still safety and health concerns to be addressed at workplaces, 
including construction sites. We must remember that a successful 
construction project is one that it is done safely and without loss of 
life. One fatality is one too many.
    According to data from the Bureau of Labor Statistics (BLS) Current 
Population Survey, employment in the construction industry averaged 
approximately 11.9 million in 2007, with approximately 16 percent of 
the total classified as unincorporated self-employed. Since FY 2003, 78 
percent of all OSHA fatality investigations in the construction 
industry have been conducted on companies with 25 or fewer employees. 
According to the National Institute for Occupational Safety and Health 
(NIOSH), 80 percent of the construction businesses have fewer than 10 
employees. Construction is dangerous work which requires constant 
vigilance against hazards such as falls from elevated positions; 
trenching and excavations; confined spaces; scaffolding; electrocution 
and exposure to dust and noise. The dangers in construction work are 
well known and the challenge for OSHA is to use the best mix of 
enforcement, outreach, education, and cooperative programs to address 
construction workplace hazards.
    Another challenge presented to OSHA by the construction industry is 
the nature of this industry. Unlike other workplaces that have 
permanent and ongoing operations, the work performed at construction 
sites is highly dynamic, often involving dozens of different employers 
at a single construction site, whether it is a large industrial project 
or a residential home. It is in this complex and challenging worksite 
that OSHA works with employers, employees, and their representatives to 
improve safety and health.
    OSHA is familiar with these challenges and in response, has a 
multi-faceted approach to reducing construction-related accidents and 
preventing exposures to health hazards. OSHA focuses on the four most 
common causes of occupational fatalities in the construction industry: 
falls; ``struck by''; ``crushed by''; and electrocutions. In addition 
to a strong, targeted enforcement program, OSHA continues to revise and 
update its standards, create meaningful compliance assistance 
resources, and provide outreach, education and training. OSHA is 
committed to protecting employees by identifying hazards, citing 
employers when standards are violated, and educating stakeholders on 
ways to reduce the hazards associated with construction work across the 
country. OSHA also helps employers to provide safer working 
environments by engaging in a balanced approach of enforcement and 
outreach to key stakeholders to collaborate on important safety and 
health issues.
OSHA: Strong Enforcement Program for Construction
    Strong enforcement of safety and health standards is a component of 
our effective approach on construction safety. In FY 2007, 
approximately 51 percent of total OSHA inspections, both federal and 
State Plan inspections, were conducted in the construction industry. 
More than 67 percent of all federal and about 74 percent of State Plan 
construction inspections were programmed inspections. In FY 2007, OSHA 
issued 74,816 citations just in the construction industry. Since 2001, 
OSHA has issued 256 significant enforcement cases--those with penalties 
of at least $100,000--in the construction industry. As these statistics 
show, OSHA enforcement is strong and enforcement of our safety and 
health standards is a top priority of the agency.
    OSHA has addressed the top four causes of fatalities found in its 
Integrated Management Information System in several ways. The agency 
has been aggressive in issuing citations and penalties for violations 
of the standards that address these key hazards. In FY 2007, for fall 
protection violations, we issued 24,358 citations for a total of $33.5 
million in penalties; for struck-by and crushed-by, we issued 3,317 
citations for a total of $9.1 million in penalties; for electrical 
violations, we issued 3,566 citations for a total of $2.4 million in 
penalties.
            Enhanced Enforcement Program
    In addition to our standard enforcement efforts, OSHA has created 
other enforcement mechanisms to focus on those companies that ignore 
their obligations under the OSH Act. The Enhanced Enforcement Program 
(EEP) complements the agency's targeted approach to enforcement by 
addressing employers who, despite OSHA's enforcement and outreach 
efforts, ignore their obligations to provide a safe and healthful work 
environment. The program looks at an employer's national inspection 
history, not just the violations at a single facility, to determine 
whether failure to comply with OSHA safety and health standards is a 
problem at one facility or job site, or systemic throughout the entire 
company. If an employer meets the criteria for EEP, it will be subject 
to much greater enforcement scrutiny from OSHA, which may ultimately 
result in court enforcement of citations or criminal referrals. This 
program has been used in the construction industry to focus resources 
on companies that fail to adequately protect their employees. There 
were 1,189 EEP construction cases, which represents almost half of all 
OSHA EEP cases. After four years of implementation, OSHA revised the 
EEP program to focus greater enforcement emphasis on those employers 
that have a history of violations with OSHA (including history with the 
State Plans.) The revised program became effective on January 1, 2008.
            Special Emphasis Programs
    OSHA conducts National, Regional, and Local Emphasis Programs 
(NEPs, REPs, and LEPs) that target particular hazards or industries 
such as trenching, amputations, and refining. These programs combine 
enforcement and outreach efforts to address a particular safety and 
health issue. OSHA has completed a number of successful emphasis 
programs focused on such topics as fall hazards in construction, mobile 
crane operations, bridge and tunnel construction, silica and road 
hazards, falls relating to scaffolding, and energized power lines.
            Hexavalent Chromium
    OSHA promulgated a standard on exposures to hexavalent chromium on 
February 29, 2006 which reduced the permissible exposure limit (PEL). 
Construction employees are primarily exposed to hexavalent chromium 
during the welding/cutting of stainless steel, removing paint from 
existing structures such as bridges, and during refractory restoration.
            Portland Cement
    OSHA implemented new Portland Cement Inspection Procedures at 
construction sites as part of its settlement of a legal challenge to 
the new Hexavalent Chromium Standard by the Building and Construction 
Trades Department, AFL-CIO, Laborers' International Union of North 
America, and International Brotherhood of Teamsters.
            Preventing Falls
    In 2001, OSHA issued a new steel erection standard that modified a 
provision to allow the use of nets instead of a fully planked floor. 
Specifically, the new provision provides that the employer has the 
option of either maintaining a fully planked/decked floor or 
maintaining nets, every two stories. In 2002, stakeholders asked OSHA 
to permit the use of 100 percent fall protection instead of using 
planking or nets. They argued that planking is not effective fall 
protection and that 100 percent tie-off is safer than allowing 
connectors and deckers to work without personal fall protection above a 
planked floor. In response, OSHA issued a compliance policy stating 
that, if an employer used 100 percent fall protection, including for 
connectors and deckers, the failure to comply with this provision would 
be considered de minimis.
    OSHA agrees with the rationale that 100 percent fall protection 
provides greater protection than what is required by the standard. The 
standard issued in 2001 does not require connectors and deckers working 
less than 30 feet from the ground to use fall protection. Under the 
2001 standard, if an employer chooses to have a fully planked floor 
rather than a net 30 feet below the employees, which is allowed by the 
floor/net provision, those employees would be exposed up to a 30 foot 
fall to a planked floor. In contrast, under the de minimis policy, all 
employees would be protected by fall protection at all times. It is the 
position of OSHA that greater safety overall is achieved by employers 
using the de minimis policy.
            Preventing Construction ``Struck By'' Accidents
    An OSHA NEP addressing roadway work zone safety was created after 
the success of a local initiative that began in OSHA's Parsippany, New 
Jersey office. This collaborative program brings together state 
transportation and police authorities, as well as local unions, in 
cross-training efforts to improve hazard identification and correction 
at highway job sites. The success of this approach is reflected in New 
Jersey, OSHA data indicates that where 8-12 employees were being killed 
in roadway work zones annually; the number of workzone fatalities there 
was reduced to one in 2007.
    Also, OSHA updated the Signs, Signals and Barricades rule to 
improve protection for highway workzone employees. That standard had 
previously incorporated by reference the 1971 version of Part VI of the 
Department of Transportation's Manual on Uniform Traffic Control 
Devices (MUTCD). On September 12, 2002, OSHA updated that rule so that 
now employers must at least comply with the 1993 version of the MUTCD; 
they have the option of complying with the Millennium version. This 
change has upgraded requirements for a variety of warning and traffic 
control devices.
    In addition, OSHA is conducting a study of struck-by accidents to 
determine patterns and root causes.
            Trenching Initiative is Successful
    The OSHA Trenching Initiative, which was begun in 2003, has proven 
to be successful. The trenching initiative is a large scale effort to 
raise awareness of trenching hazards and basic trench safety practices. 
Working through cooperative programs such as the American Pipeline 
Contractors Association, and with other stakeholders, 500,000 Trenching 
Quickcards, 50,000 Trenching Posters, and NIOSH's CD Trench Safety 
Awareness Training have been distributed. Most of these training and 
education materials, such as the Quickcards, are designed specifically 
for use by the many small contractors that are engaged in trenching 
work. OSHA data indicates that the Initiative has helped to reduce the 
annual number of trenching and excavation related fatalities by 46 
percent.
            Preventing Electrocutions in Construction
    A National Strategic Partnership between OSHA and the Electrical 
Transmission and Distribution Construction Contractors, trade 
associations, and International Brotherhood of
    Electrical Workers was originally signed in August 2004 and 
continues today. The partners represent the interests of more than 70 
percent of the industry. The partnership's tri-level leadership (CEO's, 
corporate safety, employees/supervisors) harnesses industry expertise 
with that of OSHA to make significant progress towards the 
Partnership's goals: reduction of fatalities through data analysis, 
training, and best practice development/implementation.
    Initially, shared data analysis drove the partners to develop and 
implement best practices; they continue to do so. The analysis also 
resulted in the development and delivery of an industry-specific OSHA 
10-hour outreach training program. The course has reached more than 
12,000 employees, foremen and general foremen. Most recently the 
partners started delivering their new Supervisory Leadership and 
Outreach Training course. It has reached more than 120 supervisors to 
date. OSHA data collected indicates that the training efforts and the 
implementation of best practices have helped accomplish the 
Partnership's overall goal of reducing fatalities, which has shown 
remarkable progress by declining from 67.24 per 100,000 employees in 
2003 to 24.55 in 2007, a 63.5 percent reduction.
Unprecedented Levels of Hispanic Outreach Activities
    OSHA continues to make workplace safety and health for Hispanic 
employees a priority. The agency has a Diverse Workforce Issues Group 
that focuses on outreach, training and education issues through various 
means, including the OSHA--Mexican Embassy Letter of Agreement (LOA), 
several construction alliances, including alliances with the 
International Association of Foundation Drilling, the American Pipeline 
Contractors Association, the American Society of Safety Engineers, the 
National Association of Home Builders, and the Roadway Work Zone Safety 
and Health Partners, and OSHA's On-site Consultation Program. There is 
active participation by our stakeholders, including foreign consulates, 
industry, professional associations, organized labor, community faith-
based organizations, and small business employers to address the safety 
and health issues for this hard to reach segment of the work force.
    OSHA continues to develop and distribute Spanish-language materials 
such as a Spanish-English construction dictionary, public service 
announcements, posters, QuickCards, Fact Sheets, and many other 
publications, which are available on the Agency's Spanish version Web 
site, OSHA En Espanol. In addition the Agency has developed Spanish-
language eTools, like La Prevenci"n De Fatalidades (``The Prevention of 
Deaths'' in construction), which are also available on OSHA En Espanol.
Training for Construction Employees: OSHA Construction Outreach 
        Training Program
    The OSHA Outreach Training Program is a ``train-the-trainer'' 
program in which trainers who successfully complete the required OSHA 
Training Institute trainer course are authorized to conduct 10- and 30-
hour training programs in construction and to give cards provided by 
the OSHA Training Institute to their students. This ``train-the-
trainer'' program is OSHA's primary initiative for training employees 
in the basics of occupational safety and health hazard recognition and 
avoidance.
    The OSHA Construction Outreach Training Program is a voluntary 
program. However, its considerable growth has been driven through 
industry groups such as the building trades, contractors, employer 
associations, and specific companies. The endorsement by these groups 
has resulted in the requirement of the training as a condition of 
employment for their employees or members. Over 1.6 million 
construction participants have been trained by these trainers since 
2004.
OSHA Cooperative Programs
    OSHA makes use of a variety of effective cooperative programs which 
engages various stakeholders such as employers, organizations, 
organized labor, and others to improve safety and health in the 
construction industry. The agency's cooperative programs include 
Alliances, Strategic Partnerships, Voluntary Protection Programs (VPP), 
and On-Site Consultation programs to name a few.
    OSHA's VPP has 113 construction participants across the nation. 
There are 146 Strategic Partnerships with construction companies which 
account for more than 80 percent of all partnerships. OSHA's newest 
program, OSHA Challenge, ``A Roadmap to Safety and Health Excellence'', 
has 72 participants. These programs have demonstrated that effective 
safety and health management systems can make a significant difference 
by helping to reduce injuries and illnesses by 20 percent to 80 percent 
below their industry average according to BLS data comparisons. In 
addition, there are 14 national construction Alliances. OSHA offers a 
number of opportunities for businesses, trade organizations, labor 
unions, universities and state and local governments to work together 
to protect employees in the construction industry by identifying and 
addressing workplace hazards, providing input on proposed rules, 
enhancing safety and health management systems, and promoting a 
national dialogue on the importance of protecting construction 
employees from hazards.
    I want to make it clear, however, that, while the agency offers 
technical assistance to employers to help them comply with OSHA 
standards as well as recognize employers for implementing exemplary 
safety and health management systems, compliance with OSHA safety and 
health standards is not voluntary. There is no such term or practice as 
``voluntary compliance.''
Pending Rulemakings
    OSHA recognizes that a dynamic industry requires that we 
continuously evaluate regulations and standards. The following four 
items on OSHA's current regulatory agenda are particularly applicable 
to the construction industry.
            Cranes:
    Several recent fatal crane accidents have highlighted the 
importance of crane safety. OSHA estimates that there are approximately 
96,000 construction cranes in use each year in the United States. The 
recent crane accidents in New York, Miami, and Annapolis involved tower 
cranes. According to OSHA accident investigation data, in the period 
from 2000 to 2007, there were a total of 20 incidents involving tower 
cranes which resulted in 10 fatalities.
    OSHA is proactively engaged to improve crane safety. The 
Administration is in the final stages of preparing a proposed rule to 
update and improve its current construction cranes and derricks 
standard. The rule is being developed through a negotiated rulemaking 
process which provides opportunities for all stakeholders to provide 
input.
    The cranes and derricks proposed rule will comprehensively address 
the hazards associated with the use of cranes and derricks in 
construction, including tower cranes. Developing the proposal is a 
complex, large-scale project which requires diligent and thoughtful 
considerations of all the technical issues. Pursuant to statutory 
requirements, OSHA has completed the regulatory flexibility analysis, 
small business review, paperwork burden analysis, and economic impact 
analysis of the proposed rule.
    In addition to rulemaking, OSHA is highly engaged in a number of 
activities designed to heighten awareness of best practices and the 
construction hazards associated with crane use. OSHA's regional offices 
have established Alliances and partnerships, participated in numerous 
training activities, and provided information and training as part of 
proactive outreach programs.
    An increasing number of Compliance Safety and Health Officers 
(CSHOs) are attending OSHA Training Institute's (OTI) #2050 Cranes and 
Rigging Safety for Construction Course, which focuses on crane safety. 
Over the past 8 years, 111 Federal OSHA and 187 State plan employees 
have completed this course. OTI has also conducted a Web-based seminar 
in which over 670 CSHOs and other agency staff received crane safety 
training. Some OSHA employees in the field have also taken advantage of 
training opportunities provided by public and private sector entities. 
OSHA regional offices, such as Region V (Chicago), are organizing 
training events in conjunction with local unions and industry groups. 
The Region I office (New England) has conducted eleven different 
training events focused on crane safety. Regional offices have also 
recognized the need for additional efforts specific to crane use in 
urban and high-rise construction projects. Region I implemented a Local 
Emphasis Program for cranes in early FY 2008; Region IV is engaged in 
outreach activities on crane hazards with industry stakeholders in 
Florida; Region V has a Local Emphasis Program in high-rise 
construction in the Chicago area, and CSHOs in that region are using a 
Crane Initiative Questionnaire to focus attention on specific crane 
hazards. OSHA regional offices also are working with local building 
departments to exchange crane safety information.
    OSHA is currently developing a national Crane Safety Initiative 
that will, with the help of labor and industry stakeholders, heighten 
awareness of key crane safety hazards and safe practices.
    Finally, OSHA compliance officers inspect employer compliance with 
the OSHA construction crane standard as part of their inspections of 
construction sites. OSHA has detailed requirements for crane safety, 
which employers are required to follow. The requirements of the current 
crane standard include operational safety; a general requirement for 
employers to inspect construction cranes prior to each use; an annual 
inspection that must be ``thorough'' and documented, and that defects 
or deficiencies discovered in any inspection be repaired before the 
crane may be used; and requirements that employers conduct tower crane 
inspections prescribed by the manufacturer. Currently, there is no 
federal program under which OSHA is specifically charged with 
inspecting all construction cranes. Nor does OSHA currently require 
certification for crane operators.
    After the March 2008 tower crane collapse in New York City, OSHA 
increased inspections of large construction sites there, since those 
are the sites where cranes are most likely to be used. Similarly, the 
State Plan partner, New York-OSHA, staff increased outreach efforts to 
address crane safety. OSHA's National Office deployed an engineering 
expert to the accident sites in New York and Miami as part of the 
agency's on-going investigations of those accidents.
            Power Generation, Transmission and Distribution:
    On June 15, 2005, OSHA published a proposed rule to revise the 
general industry and construction standards for electric power 
generation, transmission, and distribution work and for electrical 
protective equipment. Public comments were received, hearings were 
held, and the final posthearing briefs were due on July 14, 2006.
    The proposed standard included revised minimum approach distance 
tables. Those tables limit how close an employee (or a conductive 
object he or she is contacting) may get to an energized circuit part. 
After the rulemaking record on the proposal closed, the technical 
committee responsible for developing the tables in the consensus 
standards on which the proposal was based discovered what they believe 
is an error in their calculation of minimum approach distances for 
certain voltages. OSHA will be reopening the record on this proposal 
for a period of 60 days to obtain comments related to the affected 
minimum approach distances.
            Confined Spaces:
    Fatality and injury data, OSHA enforcement experience, and advice 
from OSHA's Advisory Committee for Construction Safety and Health 
indicate that the existing construction standard for confined spaces 
does not adequately protect construction employees in confined spaces 
from atmospheric and physical hazards. The existing construction 
standard only requires employers to instruct their employees about 
confined-space hazards, and comply with other OSHA construction 
standards that address confined-space hazards. On November 28, 2007, 
the agency issued a proposed rule for confined spaces in construction 
that is estimated to prevent 6 fatalities and 900 injuries.
    The proposed rule addresses construction-specific needs in several 
ways. It uses a comprehensive, step by step approach to confined space 
safety by setting out how to assess the hazards, classify the space and 
implement effective procedures to protect employees. Since construction 
sites often have a number of employers working simultaneously, the 
proposed rule would require controlling contractors to coordinate 
confined space operations. Upstream engulfment hazards, which are 
typical in sewer-type spaces, are addressed by a requirement for an 
early warning system. Also, because conditions in these spaces during 
construction can change rapidly and unexpectedly, continuous monitoring 
for hazardous atmospheres would be required.
    We are currently analyzing the public comments that were submitted 
and have scheduled a hearing for July 22, 2008.
            Hearing Loss in Construction:
    OSHA is continuing work on a new hearing conservation rule for 
construction. The current requirement requires employers to implement 
an effective hearing conservation program but contains no details on 
what such a program must include.
    We are continuing the research and analytical efforts necessary to 
move this rulemaking forward. These include reviewing effective hearing 
conservation programs and state and international noise standards, and 
researching noise control methods such as reduced noise hand tools.
    Some of the issues under study that have added to the complexity of 
promulgating a rule include the seasonal nature of many construction 
jobs, the high employee turnover rate on many construction worksites, 
the temporary nature of many construction worksites, and the amount of 
noise generated by some commonly used construction equipment.
    OSHA is committed to enhancing construction safety, to continuing 
to provide employers and employees with safety information, and to 
ensuring that worksites comply with existing safety regulations. I 
assure the subcommittee that construction safety is a top priority for 
OSHA and that we are striving to ensure that all employees return 
safely to their families and friends at the end of every work day.
    Thank you Mr. Chairman. I would be happy to answer any questions.
                                 ______
                                 
    Chairman Miller. Thank you.
    Mr. Cole.

          STATEMENT OF GEORGE COLE, FORMER IRONWORKER

    Mr. Cole. Good morning, Chairman Miller, and other 
distinguished members of this committee.
    My name is George Cole. I am an ironworker, retired. For 42 
years I have been in the business.
    I never thought I would be testifying that OSHA has failed 
to enforce safety standards for steel erection. I deeply regret 
that I am here today on behalf of my deceased brother-in-law, 
Rusty Billingsley, who plunged 59 feet to his death on the City 
Center project in Las Vegas.
    With me today is my wife, Rusty's sister, Monique 
Billingsley Cole.
    To further add our overwhelming grief, after deciding on a 
$13,500 fine because the accident could have been prevented, 
Nevada OSHA then met privately with the company and withdrew 
all citations and fines, stating that Rusty's employer bore no 
responsibility for his death.
    I am here today on behalf of my family and ironworkers 
throughout the country. Rusty's death was not his fault. There 
are two problems here: the unsafe conditions at the workplace; 
and OSHA's failure to enforce its own standards as they were 
written. We need assistance to confront OSHA on their failure 
to enforce the safety standards for steel erection and their 
misuse of compliance directives that have effectively removed 
vital safety provisions for ironworkers.
    The compliance directive issued by Federal OSHA, violates 
the safety regulations contained in OSHA's Subpart R, Steel 
Rejection Standard Final Rule. OSHA standards require a decked 
floor every two floors or 30 feet, whichever is less. The 
compliance directive eliminated this safety provision for 
Rusty. This was never more evident than on October 5, 2007, 
when Rusty was permitted to fall over 59 feet to his death. 
Because of this directive, on that day, I lost my brother and I 
gained a statistic.
    The OSHA photos of his crushed and lifeless body will 
forever overshadow his energetic loving life and a kind 
generous man. On several occasions, representatives for the 
Ironworkers International and contractor associations have met 
with Mr. Edwin Foulke, Assistant Secretary of Labor, and his 
staff in good faith to resolve these issues.
    OSHA was strongly urged to rescind certain items contained 
in this compliance directive that removed safety provisions and 
create unsafe working conditions for ironworkers. Despite 
repeated warnings to Mr. Foulke, from industry stakeholders, 
members of his own staff and the former Deputy Assistant 
Secretary of Labor, Mr. Foulke has refused to rescind certain 
items contained in his compliance directive.
    Two weeks ago, Mr. Foulke visited Las Vegas and requested 
to meet with general contractors and subcontractors regarding 
the recent fatalities in Las Vegas. Why would Mr. Foulke come 
to Las Vegas to talk about fatalities and workplace safety when 
he has refused to rescind the OSHA compliance directive that 
has been the center of the controversy in Las Vegas?
    I was informed that Mr. Foulke refused to rescind certain 
Federal OSHA compliance directives but agreed that he would 
consider suspending them until further notice. Family members, 
friends, and brother ironworkers are disappointed that Mr. 
Foulke left Las Vegas without taking action on this compliance 
directive that contributed to the tragic death of my brother-
in-law, Rusty.
    I am extremely pleased that Nevada OSHA has formally 
denounced items contained in the Federal OSHA compliance 
directives. After a thorough review, Nevada OSHA officials 
concluded that certain OSHA compliance directives do not 
provide equivalent protection. State plan officials refer to 
OSHA's compliance directives as ``underground rulemaking'' when 
Federal OSHA intends to ``make policy'' without going through a 
formal rulemaking process. This is a disservice to the 
stakeholders in the steel industry who rely on OSHA to provide 
constant enforcement and interpretation of safety regulations.
    Nevada now joins other State OSHA plans that have refused 
to adopt these compliance directives. The working men and women 
that build America look to OSHA to enforce the safety 
regulations for our protection. We are shocked and disappointed 
that OSHA would issue compliance directives that remove safety 
provisions for the steel erection industry that has been 
considered a high-hazard industry. Today these compliance 
directives continue to be a deadly hazard to ironworkers and a 
source of confusion, costly job site delays, and unnecessary 
litigation.
    On behalf of Rusty, my family and ironworkers throughout 
the country, we seek your assistance to question Mr. Foulke on 
OSHA's current policy to not enforce the current safety 
standards for steel erection and their misguided compliance 
directive that removed vital safety provisions for ironworkers. 
I hope my testimony before you today will prevent future 
fatalities and help bring closure to our family. We believe 
that Mr. Foulke is accountable, and OSHA should be issued a 
willful citation for knowingly and intentionally violating 
their own standards.
    Thank you for not allowing Rusty's death to be in vain.
    [The statement of Mr. Cole follows:]

          Prepared Statement of George Cole, Former Ironworker

    Good morning Chairman Miller and other distinguished members of 
this Committee. My name is George Cole, I have been an Ironworker for 
42 years and I never thought I would be testifying that OSHA has failed 
to enforce safety standards for steel erection. I deeply regret that I 
am here today on behalf of my deceased brother-in-law, Harold ``Rusty'' 
Billingsley who plunged 59 feet to his death on the Project City Center 
in Las Vegas. To further add to our overwhelming grief, OSHA withdrew 
all citations and fines. I am also here today on behalf of my family 
and Ironworkers throughout the country. We need your assistance to 
confront OSHA on their failure to enforce the safety standards for 
steel erection, and their misuse of Compliance Directives that have 
effectively removed vital safety provisions for Ironworkers.
    The Compliance Directive issued by Federal OSHA violates the safety 
regulations contained in the OSHA Subpart R--Steel Erection Standard 
Final Rule. The OSHA standard requires a decked floor every 2 floors or 
30 feet whichever is less, and the Compliance Directive eliminated this 
safety provision for Rusty.
    This was never more evident than on October 5, 2007 when Rusty was 
permitted to fall over 59 feet to his death, because of this Directive. 
On that day I lost my brother and gained a statistic. The OSHA photos 
of his crushed and lifeless body will forever overshadow the energetic 
and fun loving life, of this kind and generous man.
    On several occasions, representatives from the Ironworkers 
International and contractor associations have met with Mr. Edwin 
Foulke, Assistant Secretary of Labor and his staff in good faith to 
resolve this issue. OSHA was strongly urged to rescind certain items 
contained in their Compliance Directive that removed safety provisions 
and created unsafe working conditions for Ironworkers. Despite repeated 
warnings to Mr. Foulke from industry stakeholders, members of his own 
staff, and the former Deputy Assistant Secretary of Labor, Mr. Foulke 
has refused to rescind certain items contained in the Compliance 
Directive.
    Two weeks ago Mr. Foulke visited Las Vegas and requested to meet 
with general contractors and subcontractors regarding the recent rash 
of fatalities in Las Vegas. Why would Mr. Foulke come to Las Vegas to 
talk about fatalities and workplace safety when he has refused to 
rescind OSHA Compliance Directives that have been at the center of 
controversy in Las Vegas? I was informed that Mr. Foulke refused to 
rescind certain Federal OSHA Compliance Directives but agreed that he 
would consider ``suspending them until further notice''. Family 
members, friends and brother Ironworkers are disappointed that Mr. 
Foulke left Las Vegas without taking any action on the Compliance 
Directive that contributed to the tragic death of my brother-in-law, 
Rusty.
    I am extremely pleased that Nevada OSHA has formally denounced 
items contained in the Federal OSHA Compliance Directive. After a 
thorough review, Nevada OSHA officials concluded that certain OSHA 
Compliance Directives do not provide ``equivalent protection''. State 
Plan Officials refer to OSHA Compliance Directives as ``underground 
rulemaking'' when Federal OSHA intends to ``make policy'' without going 
through a formal rulemaking process. This is a disservice to the 
stakeholders in the steel erection industry who rely on OSHA to provide 
consistent enforcement and interpretation of safety regulations. Nevada 
now joins other State OSHA Plan's who have refused to adopt these 
Compliance Directives.
    The working men and women that build America look to OSHA to 
enforce the safety regulations for our protection. We are shocked and 
disappointed that OSHA would issue Compliance Directives that remove 
safety provisions for the steel erection industry that is considered a 
``high hazard industry''. Today, these Compliance Directives continue 
to be a deadly hazard to Ironworkers and a source of confusion, costly 
jobsite delays, and unnecessary litigation.
    On behalf of Rusty, my family, and Ironworkers throughout the 
country, we seek your assistance to question Mr. Foulke on OSHA's 
current policy to not enforce the current safety standards for steel 
erection, and their misguided Compliance Directives that remove vital 
safety provisions for Ironworkers.
    I hope my testimony before you today will prevent future fatalities 
and help bring closure to our family. We believe that Mr. Foulke is 
accountable, and OSHA should be issued a willful citation for knowingly 
and intentionally violating their own standards.
    Thank you for not allowing Rusty's death to be in vain.
                                 ______
                                 
    Chairman Miller. Thank you.
    Commissioner LiMandri.

  STATEMENT OF ROBERT LIMANDRI, ACTING BUILDING COMMISSIONER, 
                        CITY OF NEW YORK

    Mr. LiMandri. Good morning Chairman Miller, Ranking Member 
McKeon, distinguished members of the Education and Labor 
Committee.
    Thank you for this opportunity to discuss construction 
safety regulation and enforcement. And frankly, the previous 
testimony really hits home today.
    Like yourselves and like many Americans, I am deeply 
troubled by the recent construction accidents in New York City 
and across the Nation. While we all know construction is 
inherently dangerous, there is no excuse for failing to 
minimize the risk.
    Since Mayor Bloomberg took office in 2002, the department 
has set high expectations for integrity and accountability; 
raised construction safety standards for the industry; and 
improved our own enforcement of existing regulations.
    Advancing construction safety demands attention from all 
levels of government and requires a steadfast commitment from 
industry. We have 975,000 buildings under our jurisdiction and 
issue approximately 170,000 permits each year. We have 
undertaken an aggressive enforcement effort to promote worker 
safety, but it is simply impossible for our inspectors to be at 
every job site all the time.
    Construction safety requires dedication from all 
responsible parties in government, contractors, architects and 
engineers, owners and workers. Everyone has this 
responsibility.
    In order to meet the challenge of enhancing construction 
safety, the Department of Buildings has undertaken a seven-
pronged approach: First, we nearly doubled the size of the 
agency and focused more resources to construction safety. 
Second, we sought new and improved regulatory oversight and 
enforcement tools. Third, we created a new enforcement program 
to stop problems before they become serious. Fourth, we 
supported an aggressive criminal prosecution of repeat 
offenders. Five, we are currently conducting a top-to-bottom 
review of high risk construction areas to further enhance 
safety. Six, we are holding all parties accountable. And seven, 
we are focusing on education for construction workers and 
requiring site safety managers in more locations in order to 
have a constant safety presence.
    In terms of resources, we are now better able to target 
high-risk areas of construction thanks to increased staffing 
under Mayor Bloomberg and the City Council. In our special new 
enforcement plan alone, we have identified 144 dedicated 
engineers, architects, inspectors, lawyers and support staff 
working to raise construction safety standards and to 
aggressively enforce them.
    Expanding our regulatory and enforcement tools has also 
been a crucial component to advancing construction safety. On 
July 1st of this year the new New York City construction codes 
go into effect. They put construction safety front and center 
and replace the city's outdated 1968 building code. We are also 
launching our construction analysis and oversight plan, an 
unprecedented top-to-bottom examination of crane, concrete and 
excavation operations, to improve industry practices, 
government oversight to minimize the risk.
    On the enforcement front, we are actively issuing stop-work 
orders, a particularly effective tool that we have in our 
arsenal that allows us to immediately halt unsafe construction.
    Finally, earlier this month, Mayor Bloomberg and members of 
the City Council announced an aggressive legislative package 
that would enable the department to track various types of 
contractors by their safety records. Overall, it has been an 
enormous but necessary ongoing effort.
    However, improving construction site safety also requires 
the Federal Government to take an active and aggressive role. I 
am proud of New York City's partnership with OSHA, as much of 
our progress would not have been possible without their 
dedicated staff.
    Yet it is clear that had OSHA had more additional staff, 
our achievements would be far greater. I urge Congress to 
follow New York City's lead in allocating increased funding to 
construction safety and provide additional resources to OSHA so 
they can deploy the construction safety inspectors they so 
desperately need.
    Right now, we have approximately 7,500 active new building 
construction sites and 8,000 additional major alterations. As 
was indicated earlier, OSHA has a minimal number of compliance 
officers. They simply cannot cover enough ground.
    While OSHA inspectors do their best to respond to 
emergencies and complaints, they lack the critical enforcement 
tool I mentioned earlier, the stop-work order. Without 
authority to halt unsafe work when they find it, OSHA 
inspectors can only issue fines.
    I want to get to cranes. The tower cranes that build our 
skyscrapers are like airplanes: They cross State lines. They 
demand regular maintenance and need skilled operators. They 
have interchangeable parts. We first support the first 
modernization of the crane OSHA rules. Because these cranes 
move across State lines, it is important that the Federal 
guidelines be updated. In addition, what we would like to see 
is an invaluable black box technology to be required in every 
tower crane across the country. Third, cranes that have these 
interchangeable structural components must be clearly labeled 
and must be able to track over their lifetime. And fourth, we 
are strengthening and expanding tracking and testing 
requirements for tower crane components.
    We can do a lot in New York City, but the entire Nation 
deserves better. The time is now to make meaningful changes. 
Facilitating development does not require turning a blind eye 
to safety. In New York City, we will not.
    Thank you.
    [The statement of Mr. LiMandri follows:]

 Prepared Statement of Robert LiMandri, Acting Buildings Commissioner, 
                            City of New York

    Good morning Chairman Miller, Ranking Member McKeon, Congresswoman 
Clarke and members of the Education and Labor Committee. Thank you for 
this opportunity to discuss construction safety regulation and 
enforcement.
    Like yourselves and like many Americans, I am deeply troubled by 
recent construction accidents in New York City and across the nation. 
While we all know construction is inherently dangerous, there is no 
excuse for failing to minimize that risk. The Department of Buildings 
recognizes this, and we are working hard to advance construction safety 
in New York City.
    Since Mayor Bloomberg took office in 2002, the Department has set 
high expectations for integrity and accountability, raised construction 
safety standards for the industry and improved our own enforcement of 
existing regulations.
    Advancing construction safety demands attention from all levels of 
government and requires a steadfast commitment from industry. The New 
York City Buildings Department has 975,000 buildings under its 
jurisdiction and issues approximately 170,000 permits each year. We 
have undertaken an aggressive effort to promote worker safety, but it 
is simply impossible for our Inspectors to be at every site at all 
times. Construction safety requires dedication from all responsible 
parties--government, contractors, architects, engineers, developers, 
owners and workers. Everyone has a responsibility.
    In order to meet the challenge of enhancing construction safety, 
the Department of Buildings has undertaken a seven-pronged approach--
(1) we nearly doubled the size of the agency and focused more resources 
to construction safety; (2) we sought new and improved regulatory 
oversight and enforcement tools; (3) we created a new enforcement 
program to stop problems before they become serious; (4) we supported 
aggressive criminal prosecution of bad actors and repeat offenders; (5) 
we are currently conducting a top to bottom review of high risk 
construction areas to further enhance safety; (6) we are holding all 
parties accountable; and (7) we are focusing on education for 
construction workers and requiring site safety managers in order to 
have an constant safety presence.
    In terms of resources, we are now better able to target high-risk 
areas of construction, thanks to increased staffing under Mayor 
Bloomberg and City Council. In our new Special Enforcement Plan alone, 
we have 144 dedicated staffers working to raise construction safety 
standards and to aggressively enforce them.
    Expanding our regulatory and enforcement tools has also been a 
crucial component to advancing construction safety. On July 1st the New 
NYC Construction Codes go into effect. They put construction safety 
front and center and replace the City's outdated 1968 Building Code. We 
are also launching our Construction Analysis and Oversight Plan, an 
unprecedented top-to-bottom examination of crane, concrete and 
excavation operations to improve industry practices and government 
oversight to minimize risk. On the enforcement front, we are actively 
issuing Stop Work Orders--a particularly effective tool we have in our 
arsenal that allows us to immediately halt unsafe construction. 
Finally, earlier this month, Mayor Bloomberg and members of City 
Council announced an aggressive legislative package that would enable 
the Department to track various types of contractors by their safety 
records. Overall, it has been an enormous--but necessary--ongoing 
effort. However, improving construction site safety also requires the 
federal government to take an active and aggressive role.
    I am proud of our partnership with OSHA, as much of our progress 
would not have been possible without their dedicated staff. Yet it is 
clear that if OSHA had more resources and staff, our achievements would 
be far greater. I urge Congress to follow New York City's lead in 
allocating increased funding to construction safety and provide 
additional resources to OSHA so they can deploy the construction safety 
inspectors they desperately need.
    New York City has nearly 7,500 active, new building construction 
sites, plus nearly 8,000 major alterations and demolition sites under 
the Buildings Department's jurisdiction. OSHA has approximately 15 
compliance officers for Manhattan, Brooklyn and Queens to enforce 
construction worker safety--including bridges, tunnels and other areas 
not under our Department's purview. Additionally, OSHA officers must 
also respond to incidents in parts of northern New Jersey and upstate 
New York. They simply cannot cover enough ground to show a meaningful 
enforcement presence.
    While OSHA's inspectors do their best to respond to emergencies and 
complaints, they lack the critical enforcement tool I mentioned 
earlier--the Stop Work Order. Without authority to halt unsafe work 
when they find it, OSHA inspectors can only issue fines. While fines 
can be a disincentive, they do not carry the same immediacy as a Stop 
Work Order.
    Recently, national attention has focused on crane safety after two 
crane collapses in New York City, as well as other crane problems 
across the country. This is a call to action for all of us. In New 
York, we have implemented new protocols and procedures, conducted 
inspection sweeps of cranes and are stepping up enforcement. But, we 
cannot do this alone.
    The tower cranes that build our skyscrapers are like airplanes. 
They cross state lines, demand regular maintenance, need skilled 
operators, have important interchangeable parts--and bring catastrophic 
results when they fail. In New York City, we have been working closely 
over the past three weeks with industry, developers and labor to 
improve crane safety and to implement a set of safety proposals I 
announced yesterday. Of the new safety requirements we are pursuing, 
four necessitate strong Federal and OSHA oversight and involvement:
    First, we support the proposed modernization to OSHA's crane rules. 
Countless American cities and states depend upon these antiquated 
regulations because they have no localized crane oversight of their 
own. Because tower cranes are transitory, it's imperative a better 
federal standard is established. The nation cannot wait another moment 
until the outdated OSHA tower crane regulations are revised to meet the 
demands of modern construction. Even though we are past the June 1 
deadline in which no new Federal standards can be enacted, the 
Administration should make a special exception and pass these important 
crane standards now.
    Second, the invaluable ``black box'' technology must be required in 
every tower crane across the country. This is the same technology used 
in airplane accident investigations.
    Third, cranes have many interchangeable, structural components. 
These crucial parts must be clearly labeled to track them over their 
lifetimes.
    Fourth, we are strengthening and expanding tracking and testing 
requirements for tower crane components. We are acting now, but this 
should fall under Federal requirements because these cranes follow 
construction sites across state lines.
    We can do a lot in New York City--but the entire nation deserves 
better crane regulations. Only the federal government can guarantee 
that.
    The time is now to make meaningful and lasting changes to minimize 
construction risk in New York City and across the country. Together, we 
can push all the responsible parties on the job site, from the workers 
to the managers and equipment users and most importantly, the 
contractors who supervise them, to make safety their top priority. It's 
going to take all of us to meet this challenge. Facilitating 
development does not require turning a blind eye to safety, and in New 
York City we won't.
    Thank you.
                                 ______
                                 
    Chairman Miller. Thank you very much.
    It is the intention of the Chair to take Mr. Kallmeyer's 
testimony now. We will then break for a vote, and we will be 
right back after the vote.
    Mr. Kallmeyer, welcome.

      STATEMENT OF MIKE KALLMEYER, SENIOR VICE PRESIDENT, 
         CONSTRUCTION SERVICES, DENIER ELECTRIC COMPANY

    Mr. Kallmeyer. Chairman Miller, Ranking Member McKeon, 
distinguished members of the committee, I appreciate the 
opportunity to appear before you today.
    My name is Mike Kallmeyer. I am the senior vice president 
of construction at Denier Electric in Columbus, Ohio. I have 
almost 30 years of experience in the electrical contracting 
field. I am pleased that the committee has decided to examine a 
subject that is of the utmost importance, workplace safety.
    Project safety is a key component of any successful 
contractor's business model. A safe job site is essential for 
maintaining employee morale and performance, and thus increases 
the contractor's ability to run a profitable business. Our goal 
is always to prevent accidents rather than simply reacting to 
them after the fact. I am hopeful that today's hearing will 
serve to convince the committee that the best way to improve 
workplace safety is by continually working to prevent job site 
accidents.
    Bad contractors who neglect safety rules and put their 
employees at risk should be punished to the fullest extent of 
the law. At the same time, it is important to recognize that 
the vast majority of employers care about their employees' 
safety and strive to run clean job sites that are safe and 
efficient. By working cooperatively to educate employers about 
the necessary workplace safety techniques and procedures, 
agencies such as the Occupational Safety and Health 
Administration can help continue the overall decrease in job 
site accidents that we have witnessed over the past several 
years.
    At Denier Electric, workplace safety is part of our 
culture. It is part of our culture because it is the right 
thing to do for our employees and it is the right thing to do 
for our business. Make no mistake about it, being an 
electrician can be a hazardous way to earn a living. But I can 
tell you from personal experience that our industry's workplace 
safety practices and techniques are dramatically improved from 
20 years ago and that they are continually evolving to meet the 
high expectations that we set for ourselves. That is why Denier 
encourages and practices workplace safety techniques through 
its own training and education programs, as well as the 
resources of our trade association, the Independent Electrical 
Contractors.
    Safety on the job site must be part of everything we do as 
a business. It must be part of Denier Electric's culture if we 
want it to be effective. To put this in context, I believe it 
will be beneficial to give you real world examples of how 
Denier makes safety part of everything that our employees do. 
First, all of our employees receive training in what we call a 
safety indoctrination before they ever set foot on one of our 
job sites. Our electrical apprentices receive the OSHA 10-hour 
outreach training as part of their apprenticeship educational 
program. Additionally, we provide the OSHA 30-hour training for 
all Denier Electric field supervisors and annually update the 
10-hour training for all employees. Along with that, each 
Denier Electric employee completes all the industry-recognized 
safety courses required for their field of employment. Denier 
Electric also offers a Drug Free Workplace Program and offers 
rehabilitation assistance for anyone in need.
    At the start of every construction project, we perform a 
hazard analysis of that particular job site, conducted by a 
Denier safety director in collaboration with field employees. 
He then conducts site-specific training for each construction 
site. And employees are provided with the necessary personal 
protective equipment for every job.
    Along with that, we initiate a daily ``frequent and 
regular'' inspection of each construction site conducted by 
field management or employees to identify hazards and mitigate 
the risks.
    Denier performs an incident investigation should an 
accident or ``near miss'' occur. These investigations are 
conducted by a team composed of management, employees, our 
safety director and, if necessary, an outside safety 
consultant. Senior management reviews all investigations to 
ensure that any corrective actions are completed.
    Secondly, we utilize employee incentive programs to 
continually improve the safety of our company. I understand 
that some are critical of incentive programs, but I have seen 
firsthand that a properly run incentive program produces 
tangible results. Our incentive program rewards individuals 
with good safety records, individuals who exceed our own 
training requirements, and individuals who volunteer to serve 
on our safety committee. In order to ensure that this program 
is truly effective, Denier's incentive program and safety 
policies are reviewed annually by a team of employees, 
management and outside safety consultants.
    A safe job site is a productive job site. And as you can 
see, at Denier, we take our safety programs very seriously and 
do everything we can to make our workplace safe. As I mentioned 
earlier----
    Chairman Miller. And with that, we are going ask you to 
wrap up because we have got to sprint to make a vote here.
    Thank you. Your entire written statement will be put into 
the record.
    Mr. Kallmeyer. Thank you.
    If I may conclude with a point that I made at the beginning 
of the testimony, I believe that the most effective action for 
government is to aggressively promote its educational 
partnerships with the industry so that more employers have the 
resources to improve the workplace. By working together, 
industry and government can provide employers with the 
educational resources that they need to prevent accidents 
before they happen.
    I would like to thank the committee for this opportunity, 
and I encourage you to work with your constituents, both 
employers and employees, to cooperatively improve job site 
safety.
    Thank you.
    [The statement of Mr. Kallmeyer follows:]

    Prepared Statement of Mike Kallmeyer, Senior Vice President for 
                     Construction, Denier Electric

    Chairman Miller, Ranking Member McKeon, distinguished Members of 
the Committee, I appreciate the opportunity to appear before you today.
    My name is Mike Kallmeyer, and I am the Senior VP for Construction 
at Denier Electric, in Columbus, Ohio. I have almost 30 years of 
experience in the electrical contracting field.
    I am pleased that the Committee has decided to examine a subject 
that is of the utmost importance; workplace safety. Jobsite safety is 
one of the key components of any successful contractor's business 
model. A safe jobsite is essential for maintaining employee morale and 
performance, and thus increases the contractor's ability to run a 
profitable business.
    Our goal is always to prevent accidents, rather than simply 
reacting to them after the fact. I am hopeful that today's hearing will 
serve to convince the Committee that the best way to improve workplace 
safety is by continually working to prevent jobsite accidents. Bad 
actors who neglect safety rules and put their employees at risk should 
be punished to the fullest extent of the law. At the same time, it is 
important to recognize that the vast majority of employers care about 
their employees' safety and strive to run clean jobsites that are safe 
and efficient. By working cooperatively to educate employers about the 
necessary workplace safety techniques and procedures, agencies such as 
the Occupational Safety and Health Administration (OSHA) can help 
continue the overall decrease in jobsite accidents that we have 
witnessed over the past several years.
    At Denier Electric, workplace safety is part of our culture because 
it is the right thing to do for our employees and for our business. 
Make no mistake about it, being an electrician can be a hazardous way 
to earn a living. I can tell you, from personal experience, that our 
workplace safety practices and techniques are dramatically improved 
from 20 years ago, and that they are continually evolving to meet the 
high expectations that we set for ourselves.
    That is why Denier encourages and practices workplace safety 
techniques through its own training and education programs, as well as 
the resources of our trade association, the Independent Electrical 
Contractors (IEC).
    Safety on the jobsite must be part of everything we do as a 
business, it must be part of Denier Electric's culture, if we want to 
be effective. To put this in context, I believe it will be beneficial 
if I give you real world examples of how Denier makes safety part of 
everything that our employees do.
    First, all of our employees receive training in what we call 
``safety indoctrination'' before they ever set foot on one of our 
jobsites. Our electrical apprentices receive OSHA training as part of 
their educational program. Additionally, there is OSHA 30 hour training 
for all Denier Electric employees. Along with that, each Denier 
Electric employee completes all of the industry recognized safety 
courses required for their field of employment. Denier Electric also 
offers a Drug Free Workplace Program, and offers rehabilitation 
assistance for anyone in need.
    On every one of our jobsites, each day begins with a ``pre-shift 
huddle'' where management and employees perform a hazard analysis of 
that particular jobsite. Denier's safety director also conducts site-
specific training for each job, and Denier employees are provided with 
the necessary personal protective equipment for every job. Along with 
that, we initiate a daily ``frequent regular inspection'' of each 
jobsite, conducted by management and an employee representative.
    Denier performs incident investigations, should an accident or a 
``near miss'' occur. These investigations are conducted by a team 
composed of management, employees, and an outside safety consultant.
    Secondly, we utilize employee incentive programs to continually 
improve the safety of our company. I understand that some are critical 
of incentive programs, but I have seen firsthand that a properly run 
incentive program produces tangible results.
    Our incentive program rewards individuals with good safety records, 
individuals who exceed our own training requirements, and individuals 
who volunteer to serve on our safety committee. In order to ensure that 
this program is truly effective, Denier's incentive program is reviewed 
annually by a committee of employees, management, and an outside safety 
consultant.
    A safe jobsite is a productive jobsite, and, as you can see, at 
Denier we take our safety programs very seriously and do everything we 
can to make our workplace safe.
    As I mentioned earlier, Denier belongs to IEC, which is an 
organization that is very active in promoting and educating its members 
about jobsite safety. IEC provides its members and their employees with 
numerous tools and resources to improve their work sites.
    A key to making progress with jobsite safety is continually 
educating contractors. Often times, employers may be unaware of the 
latest changes to safety regulations. OSHA's cooperative programs, with 
organizations such as IEC, serve as a valuable conduit for ensuring 
that the busy contractor is kept up to speed on the latest regulations 
and workplace practices.
    One of the keys to IEC's safety program is its Alliance program 
with OSHA. As part of IEC's agreement with OSHA, IEC commits to 
educating its members about OSHA regulations as well as relaying the 
best industry practices that are being promoted by OSHA.
    At the same time, IEC can assist OSHA in ensuring that its guidance 
and regulations are effective and realistic. The Internet has allowed 
so much more information to be available to business owners, large and 
small. OSHA and IEC are using this resource to better educate 
contractors about the value of jobsite safety, as well as providing 
contractors with the resources to make safe jobsites a reality. IEC, as 
part of its Alliance program with OSHA, works with OSHA officials to 
produce informational pieces and articles--such as ``e-Tools''--that 
are available through OSHA's web site, as well as IEC's.
    An excellent example of this partnership is IEC's Jobsite Safety 
Handbook, which was produced in cooperation with OSHA. The idea behind 
this Handbook is to provide contractors with a pocket-sized guide for 
their supervisors and employees in order to provide on-site guidance 
for the often complex problems that electricians can face every day.
    Since its production last year, IEC has distributed more than 
25,000 copies of this guidebook to its contractor members, and more are 
being printed in order to meet the continued demand for this useful 
resource.
    I am proud that Denier Electric is currently beginning the 
application process to participate in OSHA's Voluntary Protection 
Program (VPP). VPP is yet another example of OSHA working with industry 
to continually improve the workplace through cooperation and 
recognition of the best practices.
    If I may conclude with a point that I made at the beginning of my 
testimony, I believe that the most effective action for government is 
to aggressively promote its educational partnerships with the industry 
so that more employers have the resources to improve their workplace.
    By working together, industry and government can provide employers 
with the educational resources they need to prevent accidents before 
they happen.
    Programs such as OSHA's alliances are effective and will continue 
to be so with the proper support from Congress.
    I would like to again thank the Committee for this opportunity, and 
I encourage you to work with your constituents--both employers and 
employees--to cooperatively improve jobsite safety.
                                 ______
                                 
    Chairman Miller. Thank you. The committee will recess for a 
few minutes to run over, vote and come right back.
    [Recess.]
    Chairman Miller. The committee will come back to order.
    If we can get the people behind the witness table to take 
their seats please. These current votes are unexpected so we 
are going to see the best we can do here.
    Mr. Ayers, welcome, and we look forward to your testimony. 
Okay. Let's go. Thank you.

 STATEMENT OF MARK AYERS, PRESIDENT, BUILDING AND CONSTRUCTION 
                   TRADES DEPARTMENT, AFL-CIO

    Mr. Ayers. Thank you, Mr. Chairman. I want to thank you for 
providing me this opportunity to appear before you today and to 
discuss the very important issue of construction worker safety 
and health.
    The building trades are comprised of 13 unions, 
representing 2.5 million craft professionals in the United 
States and Canada. We have a 100-year track record of improving 
working conditions for construction workers, both union and 
nonunion alike, because regardless of union affiliation every 
construction worker in America has the right to a safe and 
healthful workplace.
    Unfortunately and all too often today, many construction 
workers will die, be injured, or become ill due to hazardous 
exposures on the job. After 20 years of steady improvement in 
construction safety and health, we suddenly find ourselves in 
the midst of a safety and health crisis. In the last 12 months, 
17 construction worker deaths have occurred in the Las Vegas, 
Nevada area. These deaths and numerous others, along with the 
sudden increase of construction crane accidents that have 
occurred recently throughout the United States, have drawn 
attention once again to the dangerous nature of construction 
work.
    Few people understand that on average four workers are 
killed every day on U.S. construction projects. Yes, you heard 
me correctly, four deaths every day. That equates to over 1,400 
workers each year. Statistically, there is a much better chance 
of surviving a tour of duty in Iraq than there is in coming 
home from a construction project in our homeland. That is 10 
times the number of firefighters who are killed each year, 10 
times the number of law enforcement officers killed, more than 
20 times the number of miners who are killed each year. And for 
every worker killed, several hundred workers are seriously 
injured.
    Mr. Chairman, I submit that if, God forbid, 17 police 
officers had perished in the line of duty we would see the 
National Guard patrolling the streets of Las Vegas. And if two 
miners became trapped in an underground mine accident, 
television networks would interrupt their regular programming 
for live coverage of the rescue effort.
    Nevertheless, it seems as though American construction 
workers are viewed as disposable commodities. It is an absolute 
outrage and it is something that I take very personally. 
Construction workers make up only 8 percent of the U.S. 
workforce, but we account for more than 22 percent of all work-
related deaths. There is no question that the vast majority of 
the deaths, injuries and illnesses that occur in construction 
are preventable.
    The building trades' commitment to job site safety led us 
to create in 1991 our own nonprofit institute, the Center For 
Construction Research and Training, to work in partnership with 
NIOSH and other organizations. Over the years, the center has 
made substantial progress in improving construction safety. 
Unfortunately, that progress is now being reversed.
    The responsibility of job site safety rests with employers 
and with OSHA. Today, in our opinion, both are falling far 
short of meeting their responsibilities. Therefore, the 
building trades submit that five major actions are urgently 
needed.
    One, we must have a dedicated Construction Occupational and 
Safety Health Administration, just like the Mine Safety and 
Health Administration.
    Two, we need an OSHA temporary emergency standard requiring 
that all workers in the industry are trained and certified in 
accordance with the basic 10-hour OSHA safety and health 
training program.
    Three, OSHA must promulgate a crane safety standard.
    Four, OSHA should increase job site enforcement activities.
    Five NIOSH funding should be increased for construction 
safety and health research.
    Mr. Chairman, 2 weeks ago, over 6,000 construction workers 
walked off the Las Vegas City Center project after the sixth 
construction fatality occurred at the site. In negotiations 
between the general contractor and local construction unions, 
we have seen to it that all workers at City Center and the 
workers at an adjacent project are being trained in the basic 
OSHA 10-hour safety program. Our analysis found that roughly 
5,000 workers are without the basic OSHA 10-hour training. Why? 
Because this basic training is voluntary, and until now the 
contractors on those jobs did not require it.
    The building trades believes it is our moral obligation as 
worker representatives and industry leaders to make sure 
construction workers have safe and healthy workplaces. With the 
help of this committee and the Congress as a whole, we can 
achieve that objective.
    Thank you, Mr. Chairman, for your interest in construction 
safety and health.
    [The statement of Mr. Ayers follows:]

     Prepared Statement of Mark H. Ayers, President, Building and 
                Construction Trades Department, AFL-CIO

    Mr. Chairman and distinguished members of this Committee, I want to 
thank you for providing me with the opportunity to appear before you 
today to address the very important issue of worker safety and health 
in the construction industry.
    My name is Mark Ayers, and I am the president of the Building and 
Construction Trades Department of the AFL-CIO. I am a 36 year member of 
the IBEW, the International Brotherhood of Electrical Workers, and have 
served in various leadership positions prior to being elected as 
president of the Building Trades Department last year.
    My organization, which I will refer to as ``the Department'', is 
composed of 13 international/national unions representing 2.5 million 
construction workers in the United States and Canada. The Department 
and its affiliated unions have a long history of improving working 
conditions for construction workers--both union and non-union alike. In 
fact, many of our organizations were founded over 100 years ago for 
that very purpose.
Introduction
    I am here today to address the safety and health of all 
construction workers in this country: union and non-union alike. All of 
these workers enjoy the right, under federal and state law, to a safe 
and healthful workplace. Yet, many continue to die, incur injuries, 
and/or become ill due to exposure to dangerous substances on the job.
    You have convened this hearing because of the critical point at 
which we find ourselves in today. We appreciate your concern. After 20 
years of steady improvement in construction safety and health, we 
suddenly find ourselves in the midst of a safety and health crisis.
    While the safety and health of construction workers has long been a 
priority of the Department, it's the alarming number of construction 
worker deaths that have occurred in Las Vegas--12 workers have died in 
just 16 months--hat brings us here today. These deaths, along with the 
dramatic collapse of two tower cranes in New York City and other recent 
crane incidents in cities across the nation that have killed and 
injured construction workers, bystanders and even first responders, 
have drawn the media's attention to the dangerous nature of 
construction work.
    Of course, this is not a new subject for those of us in the 
building trades. While we mourn the loss of every one of these workers, 
we know that by the end of this day, another four construction workers 
may lose their lives. And tomorrow, another two. And the next day, 
maybe six.
    We know this because an average of four workers are killed every 
day on U.S. construction sites. Yes, in our nation we lose, on average, 
four construction workers a day, some 1,200 to 1,500 workers each year. 
That's 10 times the number of fire fighters who are killed each year, 
10 times the number of law enforcement officers killed in the line of 
duty each year, and 20 times the number of miners who are killed each 
year. And, for every worker killed, several hundred workers are 
seriously injured. If the carnage that takes place in the construction 
industry happened in any other industry there would be a national 
outcry. Yet, the only way we seem to be able to get attention to this 
huge problem is when a crisis hits, like the one we are faced with now. 
Think about it. It is an absolute outrage.
    Construction worker deaths usually do not get front-page coverage. 
For the most part, they are usually single incidents--like an 
electrocution in New Jersey, a fall in Texas, a trench collapse in 
South Carolina, or a bulldozer rolling over on its operator in 
California. But let me tell you, they don't go unnoticed by other 
workers in the construction community. We know what it's like to lose a 
friend, and to see his or her family suffer.
    In 2006, 1,239 construction workers were killed on the job, or died 
as a result of their injuries. Construction workers make up only 8 
percent of the U.S. workforce, but account for more than 22 percent of 
all work-related deaths.
    In 2006, according to BLS reports, 412,900 construction workers 
experienced injury or illness, of which 153,200 cases were serious 
enough to require days away from work. However, recent studies show the 
BLS survey may miss half to two-thirds of all injuries due to 
underreporting. Moreover, the misclassification of workers as 
independent contractors means many more injuries are unaccounted for, 
since self-employed workers aren't covered by OSHA or the BLS survey.
    Less than 2.5 percent of the cases are from a work-related illness, 
but please don't let this low percentage fool you. Unfortunately, 
hundreds or even thousands of construction workers are being exposed at 
this very moment to an array of substances, such as asbestos, 
hexavalent chromium and silica, to name a few, that will cause disease 
years from now.
    The sad fact is that we as an industry and as a nation really have 
no idea how many construction workers die each day from disease 
resulting from job site exposures. Moreover, family members, including 
children, have often been exposed to these harmful substances as well.
    Those of us intimately involved in construction safety and health 
know that these deaths, injuries and illnesses are, by and large, all 
preventable. The outrageous number of fatalities in Las Vegas combined 
with crane incidents in New York and elsewhere has brought attention to 
the issue. Now that we have the attention of the media, the public, 
and, most importantly, the United States Congress, it's time that we 
talk about the construction industry as a whole and what needs to be 
done about it.
Describing the problems
    Workers falling to their deaths in the construction industry are 
not unique to the Vegas strip. Falls are the leading cause of death in 
our industry. They make up about one-third of all construction deaths. 
Fatal falls from rooftops are the most common, followed by falls from 
scaffolding and ladders. Fatal falls from girders, attributed to some 
of the deaths in Las Vegas, make up only 8 percent of fall fatalities.
    Workers who walk the iron have the highest rate of death among all 
other occupations in construction. Fortunately, due to a focused effort 
by all industry partners, death rates during steel erection have 
steadily declined over the years. That is a positive example of what 
can be done to improve safety and health conditions when there is a 
firm commitment to it.
    It was the Department's commitment to improving safety and health 
conditions in the construction industry that almost 20 years ago led it 
to create our own non-for-profit institute-CPWR: The Center for 
Construction Research and Training. CPWR is nationally, and even 
internationally, recognized as a leading organization in the field on 
construction safety and health research and training. Through its 
partnerships with NIOSH, NIEHS, and DOE, CPWR has developed an 
impressive network of over 30 collaborating organizations, including 
universities, as part of its national construction safety and health 
research and training center. Since 1990, the CPWR has been a major 
participant in the NIOSH construction initiative.
    CPWR currently has over 25 construction safety and health research 
projects underway, mostly involving development of specific 
interventions for hazards, such as falls and electrocutions. CPWR has 
developed and delivers an array of construction safety and health 
training courses to thousands of construction workers every year. CPWR 
also publishes the Construction Chart Book, now in its 4th edition, a 
copy of which will be submitted with my written statement. The Chart 
Book compiles everything there is to know about the U.S. construction 
industry and its workers based on the national data available to us. It 
goes into great depth about what we know about construction industry 
fatalities, injuries, illnesses, and hazards.
    As president of the Department, I also serve as president of CPWR. 
I'm extremely proud of the accomplishments of CPWR over the years. It's 
one of the most successful public-private partnerships in the 
construction industry, or any industry for that matter when it comes to 
occupational safety and health. The National Academy of Sciences 
reviewed the NIOSH construction program last year. While the Academy's 
final report has not yet been released, I'm confident that it will 
point to CPWR's national construction center as a key element of the 
NIOSH construction research program.
    Through the work of CPWR and others we have characterized the 
problem and advanced the state of knowledge about construction safety 
and health significantly over the last two decades. In areas where we 
have had special emphasis efforts, such as preventing falls and 
electrocutions, we have seen significant progress over the past 20 
years. Unfortunately, that progress in now beginning to be reversed.
    Why is the progress being reversed? Research entities can produce 
useful information, and unions can push for, and even bargain for 
safety and health provisions as part of the collective bargaining, but 
both as a legal and practical matter, employers are ultimately 
responsible for the safety and health of employees, and Occupational 
Safety & Health Administration (OSHA) is responsible for enforcing 
construction safety and health laws. In our opinion, both are failing 
us at this time.
Recommendations
    In our opinion, five major actions are urgently needed at this 
time:
    1. We need an OSHA temporary emergency standard requiring that all 
workers in the industry are trained and certified in accordance with 
the basic10-hour OSHA safety and health training program.
    2. We need OSHA to promulgate a crane safety standard.
    3. OSHA needs to increase enforcement activities.
    4. We need a dedicated Construction Occupational Safety and Health 
Administration, just like we have a dedicated Mine Safety and Health 
Administration.
    5. We need to increase NIOSH's funding for construction safety and 
health research consistent with the recommendations of the soon-to-be-
released National Academies Review.
    Two weeks ago over 6,000 construction workers walked off the Las 
Vegas City Center project after the sixth construction fatality. In 
negotiations between the general contractor and local construction 
unions, it was agreed that CPWR would put in place a system to train 
all site workers at City Center, and the adjacent Cosmopolitan project, 
in the OSHA 10-hour training program. Our estimate is that 
approximately two-thirds of the workers on both sites, or roughly 5,000 
workers, have not had the basic OSHA 10-hour hazard awareness training. 
Why? The basic training is voluntary and until now, the contractors did 
not require it on the site.
    This is not unique to these two projects in Vegas, and it brings me 
to my first point about what needs to be done as a general rule in the 
construction industry. OSHA needs to promulgate a construction training 
standard, making it mandatory for every construction worker to have, at 
a minimum, the basic 10-hour safety and health hazardous awareness 
training. We've seen several states enact legislation requiring this 
training, and it's time a rule is enacted at the national level. 
Surely, requiring that workers engaged in this very hazardous industry 
have basic safety and health training is not asking for too much.
    We also need to take serious steps to change the safety and health 
culture on construction sites, so everyone participating in the 
construction process-from the owner to the general contractor and 
subcontractors to the workers-understands the premium placed on working 
safely. As a first step in achieving this objective, we call on OSHA to 
require every construction project to have a written safety program and 
plan that clearly spells out the safety and health requirements of the 
site, the respective roles of the OWNER, contractors, subcontractors 
and employees, and the systems for identifying and minimizing hazards.
    Also on the issue of standards, in 2004, a group of labor, 
industry, and government safety and health professionals reached a 
consensus on a standard for crane and derrick safety in the 
construction industry. After four years, OSHA has indicated its plans 
to publish the standard for public comment in August 2008. OSHA must 
live up to this commitment, promulgate a final rule, and enforce the 
new standard.
    OSHA enforcement is particularly problematic in construction, due 
to the transient nature of our industry. About 80% of U.S. construction 
industry employers have 10 employees or fewer, and over 2 million 
workers in the U.S. construction industry are classified, or should I 
say misclassified, as self-employed or independent contractors. OSHA 
needs to be more innovative in its targeted enforcement activities; 
compliance operations need to be focused on those issues and violations 
that are known killers in the construction industry; OSHA needs to 
redirect the resources allocated to compliance assistance and alliances 
to enforcement; and OSHA penalties for serious and willful violations 
need to be enhanced so that there are serious consequences for serious 
violations of the law, particularly in cases of worker fatalities.
    Although there is value in forming partnerships to encourage 
workplace safety, in my estimation the extensive resources OSHA has 
devoted to alliances simply means the agency is spending its money on 
contractors that are already performing at a relatively high level, 
rather than reaching those medium to small employers that are willingly 
or unwillingly putting their workers in harms way.
    According to 2006 data there were a total of 876,229 construction 
establishments in the U.S. In 2007 OSHA data indicates there were 
49,666 construction inspections (combining Federal OSHA and State 
Plans), meaning that it would take OSHA an average of 17.6 years to 
inspect each construction establishment once. I don't know of many 
construction projects that last 17.6 years, and I venture to guess that 
there are thousands of employers in our industry that will never see an 
OSHA compliance officer.
    One has to ask what good are construction industry standards if 
they are not enforced. Funding is certainly a critical issue, and the 
Department has long been a proponent of OSHA's budget. However, I am of 
the mind that, no matter how much funding is appropriated, our current 
system may simply not work for this industry. I'm sure there are 
members of this Committee more familiar with the legislative history 
than I am, but I think we should explore the need for a dedicated 
Construction Occupational Safety and Health Administration, just like 
we have a dedicated Mine Safety and Health Administration. In the short 
term, we need a stronger Construction Directorate Office within OSHA, 
one that is willing to work with all industry stakeholders, and not 
just with a selected few.
    From before the OSHAct, it has been recognized that the 
construction industry is different from other industries in many 
critical aspects. It is very large, and it is very transient and 
mobile. The worksites are temporary, with many different employers and 
trades working on them simultaneously. The recognition of the need for 
special OSHA approaches for this industry also goes back a long way. 
The Secretary of Labor's Advisory Committee on Construction Safety and 
Health existed before the OSHAct and was continued after OSHA to make 
sure that OSHA's rules were responsive to the needs of the industry. In 
1994, OSHA established a dedicated Directorate of Construction to make 
its operations more attuned to the needs of the industry. Both of these 
have been valuable resources, but they are not enough.
    The Building Trades Department and CPWR are committed to improving 
safety and health conditions for all construction workers. We will 
continue to develop joint safety and health initiatives with our 
employers, associations, and owners. We have enjoyed a longstanding 
partnership with NIOSH, and we have made tremendous strides. Congress 
needs to increase NIOSH funding for construction safety and health 
research consistent with the recommendations of the soon-to-be-released 
National Academies Review.
    Twenty years ago there was no research being performed on 
construction safety and health. Congress corrected that and began to 
dedicate funding for construction safety and health research at the 
National Institute for Occupational Safety and Health. By 1995 the 
budget had increased to $12.1 million, which has remained unchanged in 
13 years thereafter. As a consequence, the amount of funding available 
after adjusting of inflation has significantly eroded the funding. It 
is today equal to $1 per construction industry worker. That does not 
say much for the priority that Congress places on construction safety 
and health.
    While it's not our responsibility under the law, it's our 
obligation as trade unionists and industry leaders to make sure 
construction workers' rights to a safe and healthy workplace are 
honored. We can do better. We have to do better.
    Again, I greatly appreciate the opportunity to appear before you 
today.
    Thank you, and thank you for your interest in construction safety 
and health.
                                 ______
                                 
    Chairman Miller. Thank you very much, and again thank all 
of you for your testimony.
    Mr. Foulke, it has been raised several times already this 
morning, how come it is taking so long to do the crane safety 
standard? My understanding was the negotiated rulemaking was 
completed in 2004.
    Mr. Foulke. That is correct. The negotiated rulemaking was 
completed in 2004, and we have--what the negotiated rulemaking 
completed was the regulatory text of the document. OSHA has--
and that reg? text is approximately 119 pages long currently. 
As a result, we, OSHA, then had to then draft the preamble. The 
preamble in this document is over 1,000 pages long. Once that 
was completed, we had to go through the regulatory flexibility 
analysis. We had the SBREFA review, which we had for small 
business review, and then we had the Paperwork Reduction Act. 
So we had to do all those things during that time period. Also, 
we had to because of the--the standard had to be then 
reviewed--the text of the standard had to be reviewed to ensure 
that it was not in conflict----
    Chairman Miller. How does that compare to other, the time 
frame after other negotiated rulemakings?
    Mr. Foulke. I don't----
    Chairman Miller. Does it take 4 years for every other, 
after you do negotiated rulemaking, does it then take 4 years 
to get them in place? Is that standard?
    Mr. Foulke. I'm not positive, but I believe it is 
probably--unfortunately----
    Chairman Miller. Do you know?
    Mr. Foulke. I don't know right offhand but we can check 
that out for you and get an answer for you.
    Chairman Miller. Okay, in your statement, you talk, you 
stated in 2007 for fall protection violations we issued 24,000 
citations for a total of $33 million in penalties. What does 
that tell us?
    Mr. Foulke. What that tells us is that OSHA's enforcement 
program regarding construction is working.
    Chairman Miller. That 24,000 citations were issued and, 
given your limited ability to inspect sites, this is a good 
trend?
    Mr. Foulke. No. It shows that our targeting inspection 
program for identifying where the high hazard construction 
sites are, where there may be problems, is working and that 
we're getting to those sites and we are issuing citations.
    Chairman Miller. So that 24,000 is the high targeted sites?
    Mr. Foulke. I think we do have, we have special emphasis 
programs throughout in construction.
    Chairman Miller. I understand that. I'm trying to determine 
what does that figure tell me?
    Mr. Foulke. I think it focuses on obviously we are 
inspecting those where the fatalities occur, because those are 
automatic inspections. We are obviously--we have our----
    Chairman Miller. There were 400 fatalities due to falls. 
This is 24,000. I am just trying to determine--you suggested 
this is a barometer of being aggressive. I don't know what 
24,000 sites tell me. And if I divide that into 33 million it 
tells me about $1,300.
    Mr. Foulke. All I can say is I think it demonstrates we 
have an effective safety enforcement program that is focused on 
getting to the sites that have the problems and we are finding 
the problems and correcting them, or having them abated.
    Chairman Miller. I am going to ask you to provide 
supporting evidence of that because I don't know that. I 
understand that is what you are saying, but I don't know that 
that is what it tells me. I don't know if 24,000 is small 
because you couldn't get to enough sites. I don't than if it is 
abusive because you got to sites you shouldn't get to. I don't 
know what it tells me. It is a figure and a fine. I don't know 
if $1,300 per incident is sufficient or not. It doesn't sound 
like it. If these are serious, if these warrant violations and 
serious infractions, if that is what the violation brought 
about, I just--I can't decipher that information is what I am 
saying.
    Mr. Foulke. Perhaps we could break it down and provide the 
committee some additional information how that breaks down. But 
like I say, I really believe what that tells us is that our 
enforcement program, our targeting system, our national, local 
and regional emphasis programs are focused on the sites we need 
to be getting at and we are getting to where we need to get.
    Chairman Miller. Mr. Cole, who is sitting next to you, his 
brother-in-law was killed and there was no fine. There was a 
preliminary fine, as I understand it, and then there was a 
decision to remove that fine later on.
    Mr. Foulke. That is my understanding based on his 
testimony.
    Chairman Miller. So you went from a preliminary fine to--of 
the employers, there was some investigation, preliminary 
citation fine was issued, and then later it was determined it 
was entirely the fault of the worker and no fine was issued.
    Mr. Foulke. Mr. Chairman, that came under Nevada OSHA. And 
the question then becomes--I don't know exactly what was all in 
part of that. There is the employee misconduct defense. That is 
a defense that has been recognized by the review commission, 
the Federal courts and State courts. I don't know if that 
played in it because once again we don't have jurisdiction over 
Nevada OSHA. So I don't know what was involved in the 
negotiations. If they determined that they didn't have the 
evidence to support the violations or not, I don't know.
    Chairman Miller. Let me just follow up on that line with 
the indulgence of my colleagues here. Nevada OSHA is one of the 
States like California. Nevada OSHA has been certified by the 
Federal Government. They run their health and safety as we do 
in California.
    Mr. Foulke. That is correct.
    Chairman Miller. In the case that I cited in my testimony 
and is laid out more exhaustively in the Las Vegas Sun, time 
and again there are assessments and fines filed, and then time 
and again, after essentially what becomes a private meeting 
between the employer and Nevada OSHA, those fines are 
substantially reduced or waived together.
    You have no authority to look at that enforcement to see 
whether or not that is sufficient or not, absent questioning 
the whole program, is that correct? You don't get to intervene 
under current law as to whether enforcement or training or 
these various components of that are adequate?
    OSHA might have certified Nevada 13 years ago to do this. I 
don't know when they did. And at that point it is their ball 
game, as I understand it.
    Mr. Foulke. I was looking here. They had relinquished full 
authority back in April 2000 from Nevada. But to answer your 
question, just like in California too, once we provide, give 
full authority to the State plan, then they have full 
jurisdiction over their safety and health program. We can, 
though, however, issue--or go in as part of--what is it 
called--HAFVA, which is a complaint that allows--Federal OSHA 
is a complaint about a State planned State on a particular item 
that we can go in and that is given to usually to the regional 
administrator and they do an investigation on that particular 
State plan. We also do studies and we actually are doing a 
current study. We had a complaint regarding the settlement in a 
New Orleans hotel site settlement so we are looking at those 
too. So we can go in, but it is limited.
    Chairman Miller. I raise that point because in your 
testimony and you have said before in your appearances before 
this committee that these fines are an important part of your 
operation, and yet we see in this case Nevada OSHA is waiving 
what you considered an important enforcement tool at the 
national level. I am not holding you responsible for what they 
are doing. I am just saying somehow there is a different view 
of the universe here in terms of the role that these fines play 
in helping to diminish the accident rate and the ability to 
enforce the law.
    Mr. Foulke. Well, like I said, once again because it was 
Nevada OSHA I am not sure what was all involved. But you need 
to understand as part of the settlement process that are 
utilized by both the Federal program and all the State programs 
is that when an employer has been issued citations and once 
those citations have been contested, there is no requirement 
under the act to abate those sites, those hazards until there 
is a final order of either the review commission or the State 
review commission, which is however it works out. And normally 
during the settlement process what you have is there is 
sometimes reductions in the penalty amounts or even the 
classification of the penalty, but in turn, and part of the 
reason is to get immediate abatement of the hazards so that the 
employees are protected from the safety and health hazard that 
has been identified, but secondly normally, I know from the 
Federal OSHA standpoint and I know from my past practices as an 
attorney representing employers in this area, there was always 
a requirement when there was a penalty reduction that something 
else would be given, done by the employer that was not required 
under either the standard or the act.
    So in effect you are getting some things for the penalty 
reduction, but with respect to this particular item I don't 
have the information because, like I say, it was handled by 
Nevada OSHA.
    Chairman Miller. I have run out of time. But I would just 
notice that in the Las Vegas Sun story again, Perini 
Construction Company is involved in four of these cases and yet 
fines continued to be reduced. There is something wrong with 
that enforcement plan, but we will come back to that.
    Mr. McKeon.
    The gentleman is recognized for 5 minutes plus.
    Mr McKeon. Thank you, Mr. Chairman. Secretary Foulke, in 
Mr. Cole's testimony he criticized OSHA for issuing a 
compliance directive in conflict with the underlying steel 
erection regulations. Can you explain the controversy and why 
OSHA has taken the position that it has?
    Mr. Foulke. Yes, sir. The steel erection standard was once 
again a negotiated type of rulemaking where we had industry and 
the unions and the government involved in that, in preparing 
the materials. One of the biggest issues--and if you--actually 
I have the preamble here. If you look at the preamble, the most 
contentious issue in this whole development of the steel 
erection standard was fall protection. There was a desire to 
have 100 percent fall protection included in the final rule. 
When the final rule, there was a draft final rule proposed that 
had 100 percent fall protection in there. And it was 
distributed to all the stakeholders who were involved in the--
excuse me, in the standard, in the rulemaking. At that point 
there was a request I believe from the iron workers, but there 
may be other groups that were involved, to include exceptions 
that were previously included in the proposal, the proposed 
regulation, the post-steel erection regulation. And the final 
rule was determined to have the two exceptions, and two 
exceptions to 100 percent fall protection was for the--was 
dealing with the connectors and the deckers from 15 feet to 30 
feet and also dealt with the shear stud issue. Those were the 
two things which said that you do not have to have fall 
protection, you do not have to have 100 percent fall 
protection; in other words, you have to be tied off. You can 
have either a decking or netting below it at either two stories 
or 30 feet.
    Just as an example, that is 30 feet. If you fall from that, 
if I fell backwards off of that and landed on this floor, the 
likelihood of me surviving is low because if you look at--the 
data shows that most of, over 50 percent of the fatalities are 
less than, from falls of less than 30 feet. So we had that 
problem. And so the question was--and it was presented to my 
predecessor, Mr. Henshaw--is if an employer instead of 
requiring to have the decking at 30 feet or two stories or 30 
feet, whichever is less, and with respect to shear studs, if 
they didn't have the shear studs, instead of having shear studs 
installed at the site as opposed to shop installed studs, that 
if they were using 100 percent fall protection; in other words, 
if they were tied off at all times when they are on there, 
would that be a violation of the standard? And the 
determination by Mr. Secretary Henshaw or Assistant Secretary 
Henshaw was that if they were using 100 percent fall 
protection, that they were tied off completely, that he took 
the position that that was as effective safety protection, 
actually it was more safety protection because--than what was 
provided in the standard because if a person falls from there, 
from a lanyard he will fall five to six feet instead of falling 
30 feet. And that is basically how it came out. But it was a 
contentious--if you read the standard--excuse me, read the 
preamble of the standard it says this is one of the most 
contentious issues of the standard.
    Mr McKeon. So in the case that we are talking about, of 
Rusty, they didn't have the 30-foot or two-story protection 
because he was supposed to be tied off then? Was he supposed to 
be doing one or the other on this job?
    Mr. Foulke. Which one.
    Mr. McKeon. On the job that we are talking about.
    Mr. Foulke. The fall protection, I am not sure if--I am 
assuming he was above--was at between 30 and--15 and 30 feet 
because if he was above 30 feet then 100 percent fall 
protection would be required under the standard.
    Mr McKeon. So what is 100 percent protection?
    Mr. Foulke. One hundred percent protection is that they are 
in a harness, with a lanyard and attached to an anchoring point 
or a safety line.
    Mr. McKeon. So if you are working above 30 feet, everybody 
is supposed to have that so that----
    Mr. Foulke. That is right. It is interesting if you read 
the standard. This is--the standard that was written is kind of 
unusual because the standard actually requires the employer to 
provide fall protection. There is a separate section other than 
the decking and netting section that requires fall protection, 
1926760? requires that the employer provide all the fall 
protection, the belts, the harnesses, whatever the fall 
protection, the lanyards, the lifelines, and the employees are 
supposed to wear the equipment. But the standard does not 
require them to hook off. And it is spelled in the preamble. It 
is just--it was an unusual standard when it was promulgated.
    Mr McKeon. Who sets that standard?
    Mr. Foulke. OSHA proposed the standard and--but we worked 
with the committee to get to provide----
    Mr McKeon. And you signed off on something that didn't 
require----
    Mr. Foulke. No, no, this was----
    Mr McKeon. I don't mean you personally.
    Mr. Foulke. It was promulgated in the Clinton 
administration.
    Mr. McKeon. I wasn't meaning you personally. OSHA signed 
off on an agreement that indicates 100 percent protection but 
if you don't clip off, you don't have the 100 percent 
protection.
    Mr. Foulke. No, it is only between the 15 and the 30 feet 
that you actually have to provide--between--anything over 30 
feet or two stories they have to be hooked on by standard. 
Between 15 and 30, there is an exception.
    Mr McKeon. Then how could he die if he was doing this?
    Mr. Foulke. If he was connected to the lifeline, if he had, 
if he was following the rules--either one way or the other, 
either you had decking or netting----
    Mr. McKeon. But he was above 30 feet. He was at 60 feet.
    Mr. Foulke. No--well, he may have been. I don't know but--
--
    Mr. McKeon. Mr. Cole stated that he fell over 59 feet.
    Mr. Foulke. Oh, this was--you are talking about--that one I 
am not sure. I don't know the facts of that case, to tell you 
the truth. I don't know if there was--there was something 
about--I don't know if he fell between a hole in the flooring 
or not. That is what I had read. I think there was something in 
the newspaper said there was a hole in the flooring.
    Chairman Miller. Do you want to respond quickly?
    Mr. Cole. I will respond, when he is done.
    Chairman Miller. He's done. That is one of the wonderful 
things about being chair of a committee.
    Mr. Cole. Two things I want to respond on is that sub part 
(r) clearly states that there will be one floor or 30 feet. It 
also states tie off. But that rule is being misinterpreted 
because the iron workers worked through the nineties to get 
this thing on. And it wasn't just to protect the iron worker 
from a fall. It is to protect the people in the other trades 
that work underneath the 30-foot. If an iron worker or anybody 
or the wind would drop one item through that hole to a person 
that is walking on a floor that is being finished, studs are 
going down, and electrical is going in the floors, that can 
kill somebody with a 60-foot drop and that is why they want 30-
foot.
    It also makes it so other crafts can work underneath the 
iron workers as they go up the building. So the 30-foot hole 
and the tie off are two separate issues. And we need to 
separate them for a good accountability of what is right and 
what is wrong.
    Chairman Miller. Thank you. Mr. Kildee.
    Mr. Kildee. Thank you, Mr. Chairman. Mr. Foulke, the 
presence of cranes in any city is an indicator of generally 
economic growth. That economic growth ordinarily would indicate 
that we can afford the best safety enforcement possible. What 
governmental or fiscal factors interfere with us in providing 
that safety enforcement? Is your budget inadequate or is your 
enforcement authority inadequate?
    Mr. Foulke. Well, Congressman, I would just state this, if 
you look at the fatality rates in both general industry and 
construction, they have to be continually going down. So I 
would say that what we are doing, how we are targeting that in 
our enforcement efforts, our targeting enforcement, but also 
our outreach program. I mentioned about the 1.6 million 
employees that have been trained on the OSHA 10-hour course as 
a result of our outreach to that. So I can't say that--well I 
guess I can say I think our efforts are working. We have our 
effective enforcement, we are targeting them, we are doing the 
training programs. We are doing partnerships and our 
partnership programs have been very effective, especially in 
construction because that is kind of where we focused our 
emphasis on the partnerships because most of the--over 50 
percent of the partnerships are construction. And the idea 
there is to help develop training programs, best practices, 
model policies, whatever it takes, we are working together and 
I think it was mentioned by one of the other speakers in their 
testimony, that that is part of what we have to do. We have to 
train the employees and we are doing that I think pretty 
effectively; 1.6 million since 2004 to me is as effective as a 
lot of people being trained on the OSHA 10-hour course and 30-
hour course.
    Mr. Kildee. How does our construction death record compare 
with European countries or Canada?
    Mr. Foulke. I don't know the answer to that, to tell you 
the truth. But I think we can get that information. I don't 
know how they keep records. All I can tell you--what I can tell 
you though is that there has been a decrease in workers comp 
claims both in the United States, in Canada and the European 
nations. So I think there has been a general trend. I think the 
injury illness and fatality rates have been pretty much 
trending the same way in those countries.
    Mr. Kildee. Well, the Center for Construction Research and 
Training indicates that Finland, Norway, Germany, Australia, 
Canada, Switzerland, Sweden have less than half the fatalities 
in construction than does the United States. Now it would seem 
to me that it is not meant to be personal but you should know. 
You are the guy in charge. You should know how we compare. I 
mean, I look at many things to see how we compare. It would 
seem to me that of all people in the country you should know 
how we at least compared to--Canada is 60 miles from my 
district. And Canada's rate of death is about half in the 
construction industry. What are they doing right that we aren't 
doing?
    Mr. Foulke. Well, Congressman, I would say that once again 
our injury illness and fatality rates have continued to go down 
both in general industry and construction. So we are--I think 
we are making progress. Why Finland or even Canada or 
Australia, their rates may be low, and I don't know, not having 
seen the data, if there is the type of construction that they 
do or the amount of construction that they do. In Nevada we are 
talking about one project that has 7,000 employees on the site, 
just one project.
    Mr. Kildee. Canada is very similar to the United States. 
They are part of the NAFTA agreement. I can go either north, 
south, or east to get to Canada, within a matter of 1 hour. So 
I see that regularly and you look across the Detroit River and 
you see the cranes there in Windsor and they are doing a lot of 
construction there and yet half, that is a pretty good record, 
half of what we have. Why are we not emulating Canada?
    Mr. Foulke. Like I say, I don't have--I haven't seen the 
data and so I would have to look at the data before I can give 
you an answer, and I would be happy to do that.
    Mr. Kildee. I suggest you look at the data and visit 
Canada. It is a nice country. I see it regularly, and I see 
cranes there all the time. Just go to the Detroit River there 
and look on both sides and Canada is doing a lot of 
construction, yet their death rate is half.
    I yield back.
    Chairman Miller. Thank you. I want to recognize Mr. Kline. 
Before I do, I just want to say the committee has been joined 
by Congresswoman Shelley Berkley, who represents Las Vegas.
    Mr. Kline.
    Mr. Kline. Thank you, Mr. Chairman. I want to echo Mr. 
Kildee's notion that we should all visit as many countries as 
possible. I am not sure if he was limiting it to Canada. But it 
is always a good idea to see how the rest of the world works.
    Mr. Kallmeyer, I must admit I am looking at your lapel and 
what that pin might be. I was going to speculate it looked like 
flags. Could you tell us what that is?
    Mr. Kallmeyer. Yes, sir. It is Marine Corps and----
    Mr. Kline. Outstanding. Thank you very much. I thought it 
might be. It just looked a lot like mine.
    Mr. Kallmeyer. Semper fi, sir.
    Mr. Kline. Semper fi, sir, and welcome. It is nice to have 
you on the committee. Mr. Kallmeyer, continuing with you, last 
week, I think it was last week, in this committee we heard 
testimony that employers were underreporting injuries and 
illnesses. And we also heard from some that safety incentive 
programs may encourage workers not to report injuries. 
Interesting concept. Your testimony outlines the Denier 
incentive program as successful and describes how it helps to 
ensure a culture of safety. Could you tell us how and elaborate 
on that a little bit?
    Mr. Kallmeyer. Yes, sir. At Denier Electric Company our 
incentive programs are heavily based on collaboration; that is, 
cooperation between employees, between management, field 
management, senior management, and outside consultants. Our 
incentive plans are based upon the end result, which is a safer 
job site. The individuals wind up with a reward for their 
contribution to that end result. If the overall safety results 
were not improved, they were not better than industry averages, 
there would not be any incentives there.
    Mr. Kline. So there is no incentive for an individual to 
not report in the way you have it put together?
    Mr. Kallmeyer. Absolutely. If there is an unsafe situation, 
if there are employees who are not participating in education, 
who are not getting certifications for their lift operations or 
their trench ensuring operations or their lockout-tagout 
certifications to prevent electrocution, it is recorded. And if 
they aren't participating, they are not included in those 
incentives.
    Mr. Kline. Thank you. Thank you very much, Mr. Chairman. I 
yield back.
    Chairman Miller. Thank you. The gentlewoman from New York, 
Ms. McCarthy, is recognized for 5 minutes.
    Mrs. McCarthy. Thank you, Mr. Chairman, and I appreciate 
having this hearing. Mr. Foulke, what are the things--and I 
don't know if anybody had heard this question. I didn't hear 
it--well, actually I did hear it a little bit. I know every 
time we ask if you had enough money to be able to run the 
program as it should be, we always have well, no, we do all 
right, and yet we see that there is such a shortage of OSHA 
inspectors going around. When you look at New York they have 
done a terrific job on having certainly a very, very large 
amount, probably 20 times more than what you have in the city 
alone, but one of the other things that I wanted to ask you 
also when you were talking about the safety and how on training 
the employees, is that voluntarily or is that mandatory?
    Mr. Foulke. Madam, it depends on the particular State. 
There are some standards that have specific requirements for 
training. And it depends on which standard you will be looking 
at. So as a general rule training is not--it depends on the 
standard, I guess I have to say.
    Mrs. McCarthy. So some States make it mandatory, some 
States don't make it mandatory; it is voluntary?
    Mr. Foulke. If it is in the standard, if it is a State plan 
then they have to be as effective--it would require them to 
have at least the same level of coverage that the Federal 
standard has.
    Mrs. McCarthy. One of the problems that I see in looking at 
the testimony, Mr. Ayers, they do contracting where it becomes 
mandatory, if I understand from your written testimony, on 
training has to be mandatory. That is part of the contracts 
through the unions.
    Mr. Ayers. That is correct in some cases. But to answer 
your specific question, training is voluntary. But the 
difference is we need our employers to demand that anyone 
reports to a construction site has at minimum a 10-hour OSHA 
card.
    Mr. McCarthy. Exactly. That is what I am trying to get at. 
Why can't we make it mandatory that everybody goes through 10 
hours of training through OSHA?
    Mr. Foulke. Well, I mean there is a mandatory training in 
construction, but it is not the 10 or 30-hour course. I mean we 
could--obviously there could be a--a standard could be 
promulgated on training to require the 10 or 30-hour course. 
But once again----
    Mrs. McCarthy. Do you have enough people to actually do it? 
Just say it was mandatory or even voluntarily. Do you have 
enough inspectors to be able to even carry that through?
    Mr. Foulke. Well, even if the construction--if we had the 
mandatory 10 or 30-hour course, we would handle that through 
our OSHA Training Institute. We also have ed centers with 
universities and community colleges around the country who are 
doing that already. We trained--from 2004 to the present we 
have trained 1.6 million employees on the OSHA 10 and 30-hour 
courses. So we are doing the training. We would have the 
ability to do it through our ed centers, I believe.
    Mrs. McCarthy. I am just thinking about a lot of the--you 
know, you had mentioned in your testimony that we are seeing a 
lot more Hispanic workers on the job and, yes, you have done a 
program as far as putting things up as far as safety issues in 
that particular language. But again with those that are not 
union contracted, have they had even the correct training to be 
doing the job that they are doing?
    Mr. Foulke. Well, once again I would say that we do have 
mandatory training in construction. It is not the 10 or 30-hour 
course, but we do have--and of that 1.6 million that have been 
trained, I don't know--we don't have a breakdown--or I don't 
have a breakdown as to whether that is all union or nonunion or 
who it is.
    Mrs. McCarthy. All right. Maybe you have another number for 
me. How many construction workers do we have total in this 
country? Ballpark figure.
    Mr. Foulke. I am trying to remember. I have seen the figure 
but----
    Mrs. McCarthy. Mr. Ayers?
    Mr. Ayers. We estimate 12 million.
    Mrs. McCarthy. 12 million. So we have trained under your 
estimate 1 point?--the whole idea about OSHA, isn't it supposed 
to be prevention?
    Mr. Foulke. Yes, ma'am.
    Mrs. McCarthy. Well, we haven't even touched the surface 
then.
    Mr. Foulke. Once again it is the employers' responsibility 
to make sure they do receive the basic training on 
construction.
    Mrs. McCarthy. But we are going around in circles here. 
Basically you are saying the employer. And we know that a lot 
of employers are doing their job, but it seems to me that an 
awful lot of employers are not doing the job because we have 
too many injuries and we have too many deaths on a yearly 
basis, even though you are saying the numbers are coming down. 
But maybe it is because there are some training programs. But 
isn't it up to the Federal Government to have a standard that 
all construction workers should go under a safety training 
program?
    Mr. Foulke. Well, once again the 1.6 million are the ones 
that we know that have taken the 10 and 30-hour OSHA training 
courses. We don't know what other safety and health training 
other employees have received. We don't keep those numbers.
    Mrs. McCarthy. Do you think it would be a good idea if you 
had those numbers? Just so we would have a truer picture?
    Mr. Foulke. It is difficult. The reason we have those 
numbers is because they are being trained through our ed 
centers around the country. There are other consultants, safety 
and health consultants, there are thousands of safety and 
health consultants around the country that do training, and the 
employers may be providing training. And they may not be doing 
the 10 or 30-hour course, yet they are doing a full program of 
safety and health training for their employers and we are not 
capturing that.
    Mrs. McCarthy. What would you consider--if the employer is 
doing a safety program and it is not the 10 or 30-hour program, 
what would you consider the bare minimum that would actually 
make our workers safer.
    Mr. Foulke. I think under the standard they are supposed to 
be advised and trained on the hazards associated with their 
work sites, what they would normally be exposed to and be able 
to train to avoid them and also training on personal 
protection.
    Mrs. McCarthy. Is it a 1-hour course? Is it a 2-hour 
course? Is that a talk before they go on the job?
    Mr. Foulke. A 10-hour course is much more comprehensive 
than that.
    Mrs. McCarthy. But it is not mandatory?
    Chairman Miller. The gentlewoman's time has expired. You 
can answer the question.
    Mr. Foulke. We don't have the data. They may be being fully 
trained through the employers' private consultants and not 
taking the 10 or 30-hour courses. And I think it is up to the 
employer maybe to design the course to be able to train the 
employees on the hazards that they are going to be associated 
with in their particular type of construction.
    Mrs. McCarthy. I will yield back but it might be curious to 
find out if Canada actually makes it mandatory for all safety 
training.
    Chairman Miller. I thought we blamed everything on the 
Canadians. No.
    Mr. Bishop of New York.
    Mr. Bishop of New York. Thank you, Mr. Chairman. Thank you 
for holding this hearing, and I thank the witnesses for their 
testimony.
    Secretary Foulke, it is my understanding that a process 
took place from July of '03 through July of '04 with all of the 
stakeholders associated with proposing new regulations for 
crane safety. It is my understanding that that process resulted 
in consensus among all of the stakeholders with respect to 
draft regulations. Four years later OSHA has still not proposed 
a final rule. I can understand, I think, that lapse of time 
when the proposed rule or the draft regulations are 
contentious. But my understanding is we have agreement with all 
of the stakeholders and still we have 4 years elapsed with no 
proposed rule.
    Can you comment on that and help us understand why it would 
take--when all of the stakeholders have agreed why would it 
take 4 years to issue a proposed rule?
    Mr. Foulke. Well, I would first mention the fact that the 
first negotiated rulemaking regarding steel erection took about 
9 years. They started in 1992 and finished in 2001.
    Mr. Bishop of New York. Was that contentious or was that 
also a consensus building process such as the crane regulation 
process?
    Mr. Foulke. The 100 percent fall protection issue was 
contentious on that. But at the same time, there was no 
requirement for----
    Mr. Bishop of New York. If I could get you to focus on the 
crane thing. Again, why it is it that it would take 4 years?
    Mr. Foulke. Okay. The reg text is all that the negotiated 
rulemaking team worked, the CDAC team developed. So we had the 
regulatory text. That is 119 pages. From there we had to 
develop the preamble which basically the preamble to any 
standard basically spells out in detail what each provision is 
determined to give kind of instructions to employers and 
employees and all business organizations and the unions as to 
what, why that particular item was put on that particular 
standard.
    The preamble to the cranes and derrick standard is over 
1,000 pages long. So that all had to be drafted by the agency. 
That was not drafted by the CDAC committee. Then we went 
through, and we are dealing with a lot of different things. We 
are talking about this is a very comprehensive standard. It is 
dealing with ground conditions, assembly, disassembly, power 
lines, electrocution issues, operator certification, safety 
devices, signaling and inspection. So we have all these things 
we had to work on and then we had to look at each one of both 
the construction standards that were already in place to 
determine if this somehow was a conflict. Then we had to go 
through the regulatory flexibility analysis. We had to go 
through the small business review process, small business 
review, then we had the paperwork review. Then of course you 
have to have the attorneys look it, and that is what is taking 
so long. This is a major standard.
    Mr. Bishop of New York. My understanding is that the White 
House has decreed there are to be no final rules proposed for 
OSHA standards subsequent to June 1. Will you request a waiver 
of that standard so as to expedite the crane standard?
    Mr. Foulke. What we do is we have the process--you have to 
look at the process----
    Mr. Bishop of New York. Yes or no? Will you?
    Mr. Foulke. I have to explain the process here. It is right 
now before OMB. Once they review, provide that review then we 
have to put the proposed rule in the Federal Register and 
provide comment period, which will be 60 days. Then under the 
act, we are--the OSHA act provides that any person can request 
a hearing on that standard. There more than likely will be a 
hearing on this standard.
    Mr. Bishop of New York. I think what I'm hearing is a no, 
that you will not----
    Mr. Foulke. We will have the proposed rule out some time 
probably by September. And then the other process goes through. 
So unfortunately the time periods that are allowed under the 
law are going to carry it into 2009.
    Mr. Bishop of New York. I only have time for one more 
question.
    Mr. LiMandri, if the draft regulations agreed to by the 
stakeholders with respect to crane safety had the force of law, 
in your opinion, would those regulations have prevented the two 
accidents that took place in New York City?
    Mr. LiMandri. The two different accidents that occurred in 
New York City are both under investigation, and I don't want to 
compromise that investigation. I will tell you that we are here 
today because these CDAC regulations will standardize across 
the Nation--cranes are transitory. They go across State lines. 
If there are not Federal regulations that make the operators, 
the people who maintain those cranes, and how those cranes are 
worked on when they go in and out of a jurisdiction, and there 
is no standard baseline, I do think that it will have a large 
effect across the Nation on the standard. So, we are here today 
to support that. There are some very specific pieces in this 
that would raise the level of standard. That can make a 
difference.
    Mr. Bishop of New York. Thank you. I yield back. Thank you, 
Mr. Chairman.
    Chairman Miller. Thank you.
    Ms. Woolsey.
    Ms. Woolsey. Thank you, Mr. Chairman. Actually if I was Mr. 
Cole and I was listening on the responses as to why everything 
took so long, blah-blah-blah-blah, I would be asking the 
question, why wasn't that all in place before my brother died? 
Four years later, I mean, we take too long. So, Mr. Ayers, you 
said it, I mean you actually said in so many words that 
accidents have become big news in this country of ours, the 
mine accidents and the vigils, and Las Vegas and New York, the 
news, it becomes reality shows actually.
    But I'm telling you, there is nobody in the United States 
of America that does not want workers safe and healthy. So my 
question to you, Mr. Foulke, is what is it going to take? What 
is missing in this picture? Why can't we do it right? You have 
the entire country behind you. What is it going to take from 
the Federal, the representatives, what is it going to take from 
the administration? Because right now what we have is not the 
will to cut in half at least rulemaking. So why would it take 4 
years? You have your reasons and your rationale. If there is a 
will, we can do it quicker but you must need the support to do 
it. Why are we competing with enforcement, competes with 
prevention, competes with protection? We need all of it. We 
don't need competing priorities. We need to keep our workers 
safe and healthy. What will it take?
    Mr. Foulke. What I would say is once again we are focusing 
on moving the standards as quickly as we can.
    Ms. Woolsey. We heard that. It is not very quick. Why does 
it take so long? And I don't want because it takes all these 
people and this and 120 pages. Then put 120 more people on it. 
What is it going to take?
    Mr. Foulke. And we have our full reg agenda and we have 
people on every one of our reg agendas pushing to move this 
forward.
    With respect to the cranes and derricks, once--as in any of 
the standards, there are certain things that the Congress has 
mandated that we go through, the SBREFA panel. The SBREFA 
review is required under the SBREFA act. The courts have 
indicated, have required us to put in certain things. They 
require us to do feasibility and risk assessments.
    Ms. Woolsey. Do they require it to take 4 years?
    Mr. Foulke. Well, the time period to do those things, it is 
not that we----
    Ms. Woolsey. Okay, I can't--you are going to repeat what 
you already said, and I don't want you to have to do that.
    Now I have another question. I am from California. Cal OSHA 
has always been stronger than fed OSHA. That is why it was my 
understanding that Cal OSHA stood. So now we have waivers for 
quite a few States. And isn't that based on the State being 
independent of OSHA if their regs and their programs are 
stronger, better in so many words? If it turns out they are 
not, or at least they don't--aren't equal to OSHA, how does--
who and how is that waiver taken away from them? That right?
    Mr. Foulke. The standard that you are talking about is 
under the act, the act originally started out with a national 
safety and health program nationwide. But the provisions of the 
act allowed for States to take over safety and health programs. 
The standard of care or requirements for the State is that they 
be at least as effective as the Federal OSHA and that is what 
you are saying, the Cal OSHA was stronger, has changed some of 
their standards to be more rigorous. But that is also in 
structure and performance. And so we are responsible to and we 
audit the States. They are supposed to have a strategic plan. 
We are supposed to make sure that they are making good on their 
goals and reducing injuries and fatalities. So we do audit 
them.
    And then as I mentioned earlier there is a--we do 
quarterly--we conduct special what they call CSPA.
    Ms. Woolsey. Have we ever taken back the responsibility of 
the Federal Government from a State?
    Mr. Foulke. No, we have not. It was only one time when Cal 
OSHA was going to relinquish its plan back to Federal OSHA. 
They did it for a small period of time. But we have not. But we 
have done studies on State plans and we also have what they 
call CSPA complaints where a complaint can be filed by a State 
concerning a State plan and we investigate that complaint.
    Ms. Woolsey. Mr. Chairman, may I ask one little question of 
Mr. Cole? One little question, and he will give me one little 
answer.
    Mr. Cole, did your brother-in-law ever complain about 
safety conditions on the site? And was there a employee safety 
committee or a process for complaining?
    Mr. Cole. My brother-in-law, I saw him probably 3 days 
prior to, maybe a week before his death, and he went to work at 
City Center for his overtime. He was working on another job. 
And after he got there, he did not talk to me about the job, so 
I can't tell you that. I wish I could, but I can't.
    Ms. Woolsey. Thank you very much. We are over time. Thank 
you, Mr. Chairman.
    Chairman Miller. Mr. Holt.
    Mr. Holt. Thank you very much. Thank you, Mr. Chairman. Mr. 
Foulke, I would like to get on the record answers to several 
questions. First, will we see silica standards this year? Will 
we see confined space standards this year? And will we see 
lockout-tagout standards this year?
    Mr. Foulke. We are working on the silica standard. We are 
in the process of doing the next step in the process--doing the 
peer review of the data. And so we are moving forward on that.
    With respect to the confined spaces, I am assuming you are 
talking about confined spaces in construction. The confined 
spaces in construction standard we issued a proposed rule. We 
did receive comments on the proposed rule. And we also received 
a request for a hearing. And I believe the hearing on the 
confined space construction is July 22 of this year. So we will 
be moving forward with that.
    And the lockout-tagout, we have a lockout-tagout standard. 
We are working on a maritime. We are having regulatory 
hearings. We are going to have hearings on the maritime 
lockout-tagout.
    Mr. Holt. The construction lockout-tagout is in effect?
    Mr. Foulke. We are using the lockout-tagout for 
construction used in the general industry standard.
    Mr. Holt. So the answer to my three questions, will we see 
those this year?
    Mr. Foulke. You will--for silica--we are not doing a 
standard on lockout-tagout for construction. We are just doing 
one on maritime. We are having a hearing on that. And once the 
hearing is completed we will review that.
    On the silica, the peer review, and from peer review the 
next step after that would be a proposed rule. I don't know if 
that will be completed by the end of the year, just depends on 
what the peer review determines.
    And on the hearing on confined spaces in construction that 
will be--like I say, is on the 22nd of July. And once we get 
the review from that, then we will go forward, make whatever 
changes, depends if we have no comments at the--from the 
hearing arguably the potential to have a final rule this year, 
there is the potential for that. It just depends what comes out 
at the hearing.
    Mr. Holt. I understand it is customary at the end of an 
administration to start shedding responsibility. I would just 
urge you to, you and everyone in OSHA, to show a greater sense 
of urgency. I realize some of the work will not be completed in 
this administration. But I sure hope that you can have as much 
completed as possible and have everything else teed up for the 
next administration to implement because we are seeing too 
much, too many injuries, too many deaths. And despite your rosy 
statistics, it just doesn't match with the experience I hear 
from people in the workforce and certainly what we see 
reported.
    So with that, Mr. Chairman, I say thank you for setting 
this up.
    Chairman Miller. Thank you.
    Mr. Sarbanes.
    Mr. Sarbanes. Thank you, Mr. Chairman. And Mr. Foulke, you 
said there are 1.6 million employees that have been trained 
through the OSHA Ed program? Is that right?
    Mr. Foulke. Usually we classify it as 1.6 participants in 
the 10 and 30-hour courses.
    Mr. Sarbanes. So they are getting at the minimum 10 hours 
training. Do you think it ought to be mandatory that everyone 
who is working in the industry should----
    Mr. Foulke. We already have a mandatory requirement with 
respect to training. It is with respect to specifically going 
to 10-hour, 30-hour courses. I think we would have to look and 
see how--how that would impact on, there is a lot of things. To 
go mandatory on that we would have to go through once again how 
that would impact on small businesses. How--what is the--how 
would that--how much it would cost to this particularly the 
small business and how it would impact them, how it would be--
we would also have to do paperwork analysis on that. So I would 
have to look at that before I say should we go to a 10 or 30-
hour mandatory OSHA course.
    Mr. Sarbanes. Leaving the cost and impact and so forth 
aside, just looking at what a worker comes away with training, 
what is the argument against every worker having that safety 
training of at least 10 hours?
    Mr. Foulke. I think yeah, I know in my private, in my 
experience in private practice and dealing with clients that 
were in the construction industry and even in general industry. 
But they are doing a lot of training. We do not know exactly 
the scope of the training being done by the employers in-house 
through consultants or whatever. They may be providing all 
this. They may have a much more broad inspection or training 
program than is required under the 10-hour or even the 30-hour 
course because I know some of my clients did have that type of 
thing.
    So to say they are not getting the training, I can't say 
that all the--that we are deficient necessarily in training.
    Mr. Sarbanes. But if they weren't getting the training, 
would that be a bad thing?
    Mr. Foulke. Well, first of all, they are responsible for 
providing training. There is a mandatory requirement for 
training in the construction. So they would be in violation of 
the standard. But secondly, like I say, I believe personally 
that, you know, keeping employees safe is a moral 
responsibility for employers.
    Mr. Sarbanes. So you think they should be getting the 
training, that every employee should be getting----
    Mr. Foulke. I think they have to. They are required to 
provide training. So that is the law. So they should be 
providing training.
    Mr. Sarbanes. My impression is that there is a certain 
dimension of viewing this workforce as kind of a disposable 
workforce, which is the thing that I think is troubling a lot 
of people here.
    Before I run out of time, though, I just would want to ask 
Mr. Ayers, in your testimony you talk about this recommendation 
of actually creating a dedicated construction OSHA. I just 
wondered if you could talk a little bit more about why you see 
the need for that.
    Mr. Foulke. Yes, sir. We think that it is very important to 
address all the injuries and fatalities that we are seeing now 
because it is similar to the Mine Safety and Health 
Administration. I meant the deaths of miners, it is a terrible 
thing, but in comparison to the death of construction workers, 
it is not even close. So what they have done for the miners has 
proven to be effective. They have regular inspections of mines. 
You know, quite frankly we have roughly 800,000 construction 
projects, and under the current level of inspections going on, 
it would take 17 years to inspect all those projects. Now 
granted, they start and they stop and they move around. But a 
separate agency for construction is badly needed as much as a 
mandatory 10-hour OSHA certification.
    Mr. Sarbanes. And before the time runs out, given that 
there is limited resources always, I guess, what are the kinds 
of things that would flag dangerous work sites where you could 
say, well, we better send somebody out there. I may be looking 
for counterintuitive things. Like we talked last week, we had a 
hearing on the poultry industry and, well, I guess they were 
talking about the steel in one instance, but where there are 
instances where the reported injury is zero or one for location 
where that is just not plausible. So you say, well, those are 
the places you ought to be sending some inspectors out because 
something is going on. Is there similar kinds of triggers or 
flags you can point to that would help allocate resources or 
not really?
    Mr. Ayers. Not really. What frustrates us the most is 
typically the larger ones are the ones subject to inspection 
and typically the larger jobs are the safest jobs. Now City 
Center is a exception, but you are looking at a $9 billion, 
largest commercial project in America. They have stacked 
workers, working around the clock. There are a lot of problems, 
why there are problems there.
    But again to answer your question, I think the focus should 
be not so much on the large projects but focus on a good 
sampling of all projects.
    Mr. Sarbanes. Thank you.
    Chairman Miller. Ms. Sanchez.
    Ms. Sanchez. Thank you. I want to begin my question with 
Brother Ayers. I am a fellow IBW member, so welcome to our 
panel, and I am keenly interested in some of the insight that 
you can lend as a witness on this panel. In your written 
testimony, you mentioned that OSHA's statistics undercount 
accidents because so many construction site workers are 
misclassified as independent contractors. Can you explain why 
this is so important that they are missing from the statistics?
    Mr. Ayers. Yes. Independent contractors are an extremely 
big problem in the industry. And the statistics are much worse 
than what you have seen in my written testimony or probably the 
statistics you have seen from everyone here because an 
independent contractor is not required to report to OSHA. So if 
there is an injury, an illness, a fatality, it is not reported 
with OSHA. Therefore, BLS doesn't capture it. So the statistics 
you are looking at----
    Ms. Sanchez. You think they are underreported?
    Mr. Ayers. No doubt about it.
    Ms. Sanchez. Grossly underreported?
    Mr. Ayers. Absolutely.
    Ms. Sanchez. In your opinion, do you believe union job 
sites are safer than nonunion sites and, if so, can you explain 
why that is?
    Mr. Ayers. You are going to make me show my bias obviously.
    Ms. Sanchez. Just the facts. Just the facts.
    Mr. Ayers. I believe personally that the union sites are 
safer sites, and I only say that from the aspect that we make a 
point to push and offer training. Our workers have a place to 
go to get training. It is not to say that every nonunion worker 
doesn't have a place to go to get training, but more often than 
not they do. And you need to keep in mind that 80 percent of 
all construction employers are less than 10 employees so----
    Ms. Sanchez. So the vast majority probably don't have as 
easy a time accessing training?
    Mr. Ayers. Right. Again, that is why we think it is very 
important that an emergency 10-hour standard be adopted.
    Ms. Sanchez. Thank you.
    Mr. Foulke, you described OSHA, and I am quoting here, 
unprecedented levels of Hispanic outreach, yet a recent 
government report revealed an unprecedented level of Hispanic 
work-related fatalities especially in construction. The report 
found that in 2006 the fatality rate was 25 percent higher in 
Hispanics compared to all other workers and foreign born 
Hispanic workers had a 70 percent higher rate of work-related 
injury deaths compared to native born Hispanic workers. From 
1992 to 2006, deaths from falls among Hispanic workers 
increased by approximately 370 percent.
    So what is it that you are doing wrong? Because you are 
talking about outreach, training and education, and some 
distribution of Spanish language materials. But you are not 
mentioning enforcement. And clearly there is something that is 
failing if you have statistics like this going up for Hispanic 
workers.
    Do you have any ideas of how you can improve cutting the 
fatality rate for Hispanic construction workers?
    Mr. Foulke. Let me--first of all, I misspoke about an 
earlier question about the general industry. Lockout does not 
apply to construction. We do have a small construction lockout-
tagout.
    Now to get to your question on Hispanic workers, it is 
clearly a concern of ours about the number of fatalities in the 
Hispanic community, and we have been working very diligently 
and doing a lot of outreach. And I understand what you are 
saying. But we also, you have to look at our enforcement. We 
have focused our enforcement. We don't target and say we are 
looking for enforcement for Hispanics. The enforcement is 
across the board.
    Ms. Sanchez. I understand, but that then leads to the 
belief on my part, and I don't think wholly unrational, that 
there isn't enough enforcement going on across the board.
    Mr. Foulke. Well, the overall fatalities numbers have 
reduced.
    Ms. Sanchez. But they are going up for Hispanic workers and 
that is sort of the largest growing segment of the workforce, 
if I am not mistaken.
    Mr. Foulke. I think it is the largest expanding segment of 
the workforce. And we are focusing on trying to get to the 
Spanish speaking workers because clearly our efforts on--the 
outreach efforts are tied into our enforcement though, too, 
because we--last year, 67 percent of all Federal and State--74 
percent of--excuse me, over 50 percent, 51 percent of our OSHA 
inspections were construction where a lot of the fatalities are 
occurring for Hispanic. So we are targeting that area.
    One of the areas----
    Ms. Sanchez. My recommendation, because I have got a couple 
other very brief questions I would like to ask you, is that you 
really step it up in that area because it is clearly a glaring 
failure in terms of statistics. You are talking about, oh, 
injuries are down. Deaths are down. In this particular segment 
of the population, it is a very clear, very pressing, urgent 
problem, and I urge you to take double time in terms of trying 
to address that.
    Mr. Foulke. Okay.
    Ms. Sanchez. If the chairman would indulge me, can I ask 
unanimous consent for 1 additional minute because I have two 
quick questions. Thank you, Mr. Hare. I appreciate that.
    Mr. Foulke, I want to talk a little bit about the 
statistics you list on page 2 of your testimony because you 
indicate that since 2001 OSHA has issued 256 significant 
enforcement cases, and significant enforcement cases are those 
defined as those with penalties over $100,000 in the 
construction industry alone.
    Ms. Sanchez. In your testimony you write that these 
statistics, quote, show that OSHA enforcement is strong, end 
quote. So I am interested in knowing how much of the fines in 
those 256 cases have been collected, do you know.
    Mr. Foulke. That I do not know the exact answer on, the 
exact number.
    Ms. Sanchez. I would appreciate if you could provide that 
later.
    Mr. Foulke. I think our collection rate is actually fairly 
high.
    Ms. Sanchez. I would be interested in getting that 
information later. Do you know if any of the fines in those 256 
were reduced for any reason?
    Mr. Foulke. Those were the----
    Ms. Sanchez. Again these are the significant enforcement 
cases.
    Mr. Foulke. Since most of the cases are settled, a lot of 
times the penalties are reduced based on the settlement 
process, what is obtained as part of that settlement process. 
If we get additional--if we get additional things from the 
employer that they are going to add safety people or they are 
going to do more training or whatever.
    Ms. Sanchez. So the short answer is it is likely that those 
fines were reduced?
    Mr. Foulke. I think you can say that, yes.
    Ms. Sanchez. In how many construction industry fatality 
cases did OSHA levy a fine less than $100,000, meaning that 
there was a fatality but the case was not considered a, quote-
unquote, significant enforcement case?
    Chairman Miller. We are going to submit that for the record 
and you are going to submit the answer for the record because 
we have a vote on and I want to go to Mr. Hare and Ms. Berkley.
    Ms. Sanchez. Thank you. I thank the chairman.
    Chairman Miller. Thank you.
    Mr. Hare. Mr. Secretary, let me just ask you a yes or no 
question. Does your agency have a big enough budget and enough 
inspectors to ensure the safety of American construction 
workers?
    Mr. Foulke. Once again I think I have said in the past--
today is--I think that what we are doing, the enforcement 
efforts, the compliance assistance, the training, the outreach, 
has demonstrated that we have an effective program because our 
injury, illness and fatality rates are going down.
    Mr. Hare. Well, that is interesting because we had a 
hearing last week and we talked about amputations. One of those 
was in terms of workplace safety and accidents happening. And 
in the State of Michigan in 1997 there were, I think, 700 or 
800 amputations and they were underreported by 64 percent. So 
when people are getting hurt on the job and there is 
underreporting to the tune of 64 percent of people who have 
lost a limb, which I think we would all have to agree here that 
is pretty significant, it is awful hard to say, I think, how 
much progress is being made when we are not even reporting and 
getting the accurate figures, number one, for people who have 
been hurt. The way it is now, as I understand it, if OSHA were 
to attempt to inspect every workplace in the United States just 
one time, it would take you folks 133 years to do that, which 
is 49 years longer than it would have taken in 1992.
    Mr. Foulke gave rather--and I missed it, but I was reading 
his testimony--arguments that his brother-in-law would be alive 
today if OSHA had enforced its steel erection standard and had 
not weakened it in compliance directive by removing the 
requirement for decking 30 feet below the workers. I don't 
understand how OSHA standards can provide protections. What 
happened here?
    Mr. Foulke. I am sorry, I don't understand your question. I 
apologize.
    Mr. Hare. Mr. Cole in his testimony said that he believed 
that his brother-in-law, if I am not mistaken, would be alive 
today if OSHA had enforced its steel erection standard. Do you 
believe that is the case? Would you agree with Mr. Cole.
    Mr. Foulke. I am sorry about that incident. That particular 
incident occurred in Nevada OSHA, so I don't have the details 
of that specific incident. Under the directive that we have as 
to the steel erection standard if an employee, if there is not 
decking or netting underneath the employee within two stories 
or 30 feet, whichever is less, then to qualify under the 
directive you have to have 100 percent fall protection. In 
other words, they had to be tied off at all times. So I don't 
know the requirement on that.
    Mr. Hare. Let me ask you, Mr. Cole. You discussed the steel 
erection standard in your testimony on page 1. And apparently 
the compliance record eliminated this. I am interested in your 
insights about this as an ironworker.
    Mr. Cole. Could you repeat the question one more time?
    Mr. Hare. Well, you discussed the steel erection standard 
in your testimony on page 1 and apparently the compliance 
directive eliminated the safety provisions. And so as an 
ironworker I am interested in your insights about this.
    Mr. Cole. Subpart (r) on the final standards rule said that 
every other floor or 30-foot, whichever is closest, would be 
decked. The directive--I think it was 23, 24 and 25--eliminated 
that, which made it okay for a contractor to say I don't have 
to deck it, we can just make sure everybody is tied off. The 
problem with Rusty's death and a lot of deaths that happen, the 
law is a run-around because somewhere in erection process there 
has to be a working floor. A working floor is a floor that is 
planked solid, doesn't have a hole more than three inches and 
the ironworkers move from that floor to continue the building 
up. And it gives a place for all the other crafts to work 
underneath, that an accident can't happen if something goes 
wrong. It can't fall through that floor and hurt somebody that 
is underneath it. And Subpart (r) was fought for 10 years, 12 
years before it became a final rule. And it has been taught by 
Local 433 and the international in the State of Nevada where I 
am from. I taught it myself. And I was surprised and amazed 
that the Federal Government would come out with a directive 
that would take safety away as when they were the champions of 
putting safety in with the help of contractors and the unions 
to make a safe working spot for the man going to the job and 
his wife knows that he don't have to worry about not coming 
home.
    Mr. Hare. So you put it in and the Feds took it out?
    Mr. Cole. They took it out. It was there.
    Mr. Hare. Thank you, Mr. Chairman.
    Chairman Miller. Congresswoman Berkley.
    Ms. Berkley. Thank you, Chairman Miller, for inviting me to 
discuss this important issue. I want to particularly thank and 
acknowledge Mr. Cole for coming to share your story and your 
experiences. Needless to say, you have my deepest sympathy for 
the loss of your brother-in-law, Rusty Billingsley.
    My district of Las Vegas has seen unprecedented growth in a 
construction boom in recent years and there are currently 
40,000 new hotel rooms under construction in Las Vegas. While 
this construction is very important to the local economy, it is 
also very important more so to ensure the safety of the workers 
that are building our city for the future. Unfortunately, my 
hometown of Las Vegas has seen a high number of construction-
related deaths, and we are here to make sure that everything is 
being done to protect our construction workers.
    Make no mistake that the construction workers on-site in 
Las Vegas are the highest quality building trades unionists in 
the country. They have the expertise, the quality of their work 
is unsurpassed, and they have experience on the job of many 
years and many construction sites. They are second to none. I 
am hopeful that the purpose of this hearing and through this 
hearing we will be able to shine a spotlight on this most 
important issue so that those who are on the job and at risk 
can have the safest possible work site conditions available.
    I have a couple of questions. And Mr. Cole, I want to be as 
sensitive as possible, but I would like to get short answers if 
you could possibly, just so we have this on the record for 
absolute sure.
    Do you believe the OSHA compliance directive on steel 
erection standards provides equivalent protection to 
ironworkers during the steel erection process? Is that a yes or 
a no?
    Mr. Cole. Subpart (r) does give protection in many ways. 
The directive does not.
    Ms. Berkley. The directive does not. Thank you.
    Do you believe, and I know this is a difficult question to 
answer, that your brother-in-law might be alive today if OSHA 
had enforced the current steel erection standard and not issued 
the compliance directive?
    Mr. Cole. Ms. Berkley, I know for a fact of ironworkers 
that is alive on a 30-foot fall. I don't know one on a 60-foot 
fall.
    Ms. Berkley. How did you feel, you and your wife feel when 
you found out that OSHA had completely dropped the penalties 
for your brother-in-law's death?
    Mr. Cole. We were devastated.
    Ms. Berkley. Mr. Foulke, I know that you visited Las Vegas 
a couple of weeks ago. According to Nevada OSHA, they have 
formally denounced items contained in the Federal OSHA 
compliance directive, and after a thorough review Nevada OSHA 
officials concluded that certain OSHA compliance directives do 
not provide equivalent protection.
    Now, when you were in Las Vegas I was informed that you 
have refused to rescind certain Federal OSHA compliance 
directives but agreed that you would consider suspending them 
until further notice. Have you in fact done that?
    Mr. Foulke. No, I am going to clarify that. What I said is 
that I would be--I received--first of all, I met with Nevada 
OSHA and talked to them about the current situation. Then I 
made it a point to meet with all of the----
    Ms. Berkley. I know who you met with.
    Mr. Foulke.--Employers and then I met with the unions. As 
part of that discussion additional information regarding the 
steel erection standard and the issue regarding fall 
protection, the 100 percent fall protection issue, was brought 
to my attention. And I advised them that I would begin to 
review the situation and determine what, if anything, would be 
done.
    Ms. Berkley. And have you done that and what is your 
conclusion?
    Mr. Foulke. We are still reviewing the information.
    Ms. Berkley. And how long is it going to take you to review 
this? I don't want to turn on my television in Las Vegas and 
hear that another worker at one of these sites, construction 
sites has fallen to their death. So there is a bit of urgency 
here. So when do you plan to do this?
    Mr. Foulke. I understand, Congresswoman, but you need to 
understand the directive requires 100 percent fall protection 
if there is no decking or netting, so that if they fall, their 
lanyards should stop them from falling. There should be no 
falls. The directive actually provides more protection to a 
certain degree.
    Ms. Berkley. According to Nevada OSHA and everybody else, 
that is an accurate statement. The reality is that if we had 
left the current steel erection standards in place and not 
issued the compliance directive Mr. Billingsley and others 
might be alive today.
    Mr. Foulke. I don't know the answer to that, but I also do 
not know the answer to the use of 100 percent fall protection 
when there is----
    Ms. Berkley. So what are you going to do?
    Mr. Foulke. There may have been employees that are alive 
today because of the 100 percent fall protection. But because 
we prevented them from being killed or injured we don't know 
that.
    Ms. Berkley. What I would like to do, I am going to submit 
this question to you and I would appreciate if you responded. 
What more can you do, what more resources are needed to help 
prevent additional construction tragedies in Las Vegas. I would 
appreciate a comprehensive answer so that we can implement 
these things and save people's lives.
    Thank you very much.
    Mr. Foulke. Let me make one point that we have provided 
OSHA Federal inspectors to the Center City site that are 
assisting the Nevada OSHA inspectors, so we are already 
providing assistance at the site.
    Ms. Berkley. Thank you.
    Chairman Miller. Thank you. Mr. Cole, I think you wanted to 
comment on that. I will stay here. I know you guys will run for 
a vote. But you wanted to comment on that question?
    Mr. Cole. I just want her because she is from our State, to 
make her aware that the fall protection and the tie-off are two 
certain things. And two ironworkers in Las Vegas were tied off 
and they are both dead. It was over 30 feet.
    Ms. Berkley. Thank you, Mr. Cole, for clearing that up. 
Thank you, Chairman Miller.
    Chairman Miller. Thank you very much.
    Mr. LiMandri, you have the authority under your public 
health code, if I am correct, to shut a job down, is that 
correct?
    Mr. LiMandri. That is correct.
    Chairman Miller. How often due to safety, health and safety 
has that been invoked in the city?
    Mr. LiMandri. It has actually increased. In 2002, we did 
approximately 2,000 stop work orders. Just last year we have 
done approximately 9,900 and it is on the rise.
    Chairman Miller. 9,900?
    Mr. LiMandri. 9,900, yes.
    Chairman Miller. I assume these are all across all the size 
jobs.
    Mr. LiMandri. Yes, you can use it on any size job. It does 
not matter what actual work is occurring. What we want to do is 
we want to halt the unsafe practice, require the contractor to 
come in, tell us, or the engineer of record, tell us what they 
are going to do differently and then we allow them to go back 
to work.
    Chairman Miller. What triggers this, an inspection in the 
finding of a violation, the reporting of a violation and a 
confirmation of that violation by the city?
    Mr. LiMandri. The city does an inspection based on--it 
could be based on an accident or it could be based on an 
inspection. We write a violation, the stop order work 
violation. It requires them to remedy the situation. That might 
mean remedial work prior to going back to work or a listed 
practice of how they are going to move forward because each 
construction site is different and they have particular means 
and methods that might have to be addressed.
    Chairman Miller. But not every violation, or let me ask 
you, does every violation order, I guess, or citation result in 
a stop work?
    Mr. LiMandri. We issue thousands of violations a year. Not 
every violation requires a stop-work, that is correct.
    Chairman Miller. And how is this received in the employer 
community, the contractor community, how does this work?
    Mr. LiMandri. Well, I will tell you that the best way to 
get someone's attention is to stop the work, getting them to 
identify before they go back to work a new plan. We get major 
compliance. We also----
    Chairman Miller. Get major complaints.
    Mr. LiMandri. I am sorry. We get additional compliance. 
They go above and beyond the code. We may say that whatever the 
practice is today we don't agree with, we want you to do more. 
There might be management changes, there might be a protocol 
change, we might require them to change personnel, whatever 
that is.
    Chairman Miller. What is New York's situation with the 
steel erection standard that we have been discussing here 
today, whether or not you have to have flooring, netting and 
tie-off, or if you have 100 percent tie-off essentially you 
don't need to do the others? What do you do in New York in 
high-rise construction?
    Mr. LiMandri. Right now today I cannot comment on that at 
this time, but certainly we would like to go back and talk to 
our local officials based on what they are doing locally with 
our director. And I would turn that back over to Ed Foulke, if 
I may.
    Chairman Miller. Yeah, but wait a minute. Do you have a 
standard or don't have a standard?
    Mr. LiMandri. The standard that they follow is the standard 
that is put out by Federal OSHA.
    Chairman Miller. Okay. So you have not done something under 
your health and safety codes to change that?
    Mr. LiMandri. We don't have----
    Chairman Miller. You are living with that directive?
    Mr. LiMandri. Yes. We basically live based on Federal OSHA. 
There is no standard at the State level for OSHA. We do not 
have a New York State OSHA plan.
    Chairman Miller. Mr. Foulke, how many States have complied 
with that directive? I believe that Nevada just went the other 
way, is that correct, in the last few weeks where they now have 
flooring and/or netting and tie-off?
    Mr. Foulke. That is correct.
    Chairman Miller. And California----
    Mr. Foulke. California was one that did not.
    Chairman Miller. Did not. So in California we still have 
the old standard, essentially flooring, netting or----
    Mr. Foulke. The standard is still in place across the 
country. It is not that the standard is not there. The 
directive finds that if you do 100 percent fall protection then 
it would be a de minimis site.
    Chairman Miller. You mentioned maybe in my first round of 
questioning that that standard was very contentious and it is 
making the question of whether you are going to require 
flooring and netting plus tie-off and that went back and forth 
and the standard came out with tie-off and flooring and 
netting, correct?
    Mr. Foulke. As I understand it, there are two exceptions 
that dealt with--decking was one of the exceptions, netting and 
decking, and then there was one for shear studs. But going back 
to just the netting and decking, that was, as I understand, in 
the proposed rule. Then there was a draft final rule that was 
circulated among the stakeholders which had 100 percent fall 
protection without the two exceptions. And then concern was 
raised about that, the two exceptions for decking and netting, 
and then the shear studs was put back in the final rule. And 
then----
    Chairman Miller. So the final rule said?
    Mr. Foulke. Says, still does say. It has not been changed.
    Chairman Miller. Still does say, I got you.
    Mr. Foulke. The standard still says that if you are at 15 
feet up to 30 feet, you do not have to have any fall protection 
as long as you have either a decking or netting in place.
    Chairman Miller. Now, is it correct, it has been suggested 
that since the directive is put out there that fall fatalities 
have gone up?
    Mr. Foulke. I don't have that data, to tell you the truth. 
I can get back with you on it.
    Chairman Miller. Can you do that?
    Mr. Foulke. The problem is we don't know how many people 
have not.
    Chairman Miller. I understand that. That is true. Without 
the standard if people survive, they survive. That is not the 
test, how many people we don't know about. The test is how many 
people we know that have been killed.
    Mr. Foulke. You mean without the fall protection.
    Chairman Miller. Right.
    Mr. Foulke. Well, if they are using 100 percent fall 
protection there should be no fatality.
    Chairman Miller. Again you may use 100 percent fall 
protection, you may tie off on something that turns out to be 
faulty.
    Mr. Foulke. Which I think has happened.
    Chairman Miller. I like the idea of 100 percent fall 
protection, except there aren't that many things in life that 
are 100 percent. And tieing off, it doesn't have to be your 
arrangement, it can be the safety line arrangement or whatever 
else you tie off to at that point.
    I want to go back to what I talked to you about earlier in 
light of the New York experience. We had this series of 
accidents take place in Las Vegas. We had citations, I guess, 
if I am using the right word, citation, violations were 
recognized and fines were imposed. And then a second round of 
meetings was held between Nevada OSHA and contractors and in 
some cases the fines were abolished, in some cases they were 
substantially reduced. Since the reports in the newspaper they 
have held for a moment here.
    Is that a practice under national OSHA where you don't have 
State plans?
    Mr. Foulke. On penalty reductions as a result of 
settlements?
    Chairman Miller. Is that how it is handled, there will be a 
second meeting between the employer, the contractor and OSHA?
    Mr. Foulke. Yes. Under our field inspection reference 
manual we have a--what they have is once the citation has been 
issued the employer has 15 days in which to contest the 
citation. During that time period there is a provision that 
allows for informal conference where the employer can come in 
and try to resolve the citation and enter into an informal 
settlement.
    Chairman Miller. Does that include the union if it is a 
union site or the worker or the worker's family?
    Mr. Foulke. Not necessarily, no.
    Chairman Miller. So how would they--what would their remedy 
be if the fine was abolished? What would the worker's or the 
union's rights be if that was done as a result of the informal?
    Mr. Foulke. Under the act once there has been a contest the 
unions have the ability to contest the abatement date. And that 
is----
    Chairman Miller. Contest the----
    Mr. Foulke. Abatement date of the violation, how long the 
abatement date. That is the----
    Chairman Miller. To fix the violation?
    Mr. Foulke. Correct.
    Chairman Miller. They cannot contest the fine being reduced 
or eliminated?
    Mr. Foulke. Not under the act.
    Chairman Miller. How does that strike you?
    Mr. Foulke. I just follow the law.
    Chairman Miller. Well, you have been a ministry in the law 
now for a period of time here. I mean I don't get how you can 
have an injured worker or a worker who has died, then you can 
have an informal process in which the worker or the worker's 
family or the union, and even the other workers on the site are 
not included, that that passes a smell test in this country.
    Mr. Foulke. Well, we do have a procedure to keep the--
during the inspection process we do have a requirement for the 
surviving family members to be informed about how the 
inspection----
    Chairman Miller. But they have no rights in this hearing? 
No, I understand that.
    Mr. Foulke. No.
    Chairman Miller. But here you are making a determination in 
a--you know, again I don't know the evidence is hard, but in 
Mr. Cole's brother-in-law's case there was a substantial fine 
imposed, there was some question about whether or not it was 
faulty equipment or whether he wasn't tied off. Again I don't 
know that. But then in an informal hearing the fine went away 
and that was it. I don't understand how we can continue that 
process without having either the worker representative 
organization in the case of the union site and/or the family, 
somebody to be able to say wait a minute, you guys, you are 
making a secret handshake here without having to go to court. 
The company didn't have to go to court to make the fine go 
away. But if I want to have the fine stay in place I guess I 
would have to go to court later.
    Mr. Foulke. Right. Well, in my experience when I was in 
private practice involved in informal conferences a lot of 
times the unions were invited to those things, to the informal 
conference. But under the act they are limited as to what they 
are able to contest, and that is limited to the time of 
abatement, the date.
    Chairman Miller. And that is how the law works?
    Mr. Foulke. And OSHA does keep the families informed but 
they do not have----
    Chairman Miller. Mr. Kallmeyer, have you been involved in 
these kinds of conferences? I don't know if you have had these 
kinds of violations or citations with Denier Electric.
    Mr. Kallmeyer. Yes, sir, I have.
    Chairman Miller. What is your sense of how this works?
    Mr. Kallmeyer. I personally have been involved in one. And 
there was a citation issued for--it was listed as a bare copper 
conductor on a job site. It was an electrical violation. And 
the compliance officer was in error. It was a ground wire that 
was supposed to be bare. And we presented evidence at the 
hearing and the OSHA regional director brought in an electrical 
expert and agreed with our testimony and it was vacated 
basically.
    Chairman Miller. I don't know if that was a union work 
site, but anybody else raise questions about whether or not 
that should be done or not?
    Mr. Kallmeyer. The OSHA represented the complaint, the OSHA 
compliance, or the OSHA regional director represented the 
complaint and provided an electrical expert to--who I believe 
was an OSHA employee also provided testimony as to the facts 
there.
    Chairman Miller. One of my concerns with this is that--I 
mean, we talk about fines with respect to worker safety and 
24,000 citations for violations and fines levied and $33 
million. And again, as I said earlier, I don't know what that 
tells me. We will have that further discussion with the people 
at OSHA what that is really suggesting to us. And the 
discussion about the trend line coming down overall for 
accidents, and yet construction accidents is kind of uneven 
about that. And you have, as I said, four people a day dying on 
construction sites.
    But when I see the same process being followed--and again 
this is Nevada OSHA, I am sorry they are not here at the table 
at the moment. But you have a repeat offender, you have Perini, 
Perini, Perini, Perini, and these fines keep going away. I 
don't get it. I mean I don't know that any of you can comment 
on that. But there is something wrong in that process. I 
recognize they are a worldwide company, they are highly 
respected and all the rest of that, but something is terribly 
wrong in this process, especially if those fines are going away 
after essentially a one-sided discussion. I don't say it is not 
on the level, but it doesn't allow for an intervener on behalf 
of the victim of that incident and/or the family or the 
representatives, the union in the case of a union work site. 
That just doesn't seem to make sense to me. And that is a 
matter of real concern.
    You look at fines. And in the case of Mr. Billingsley, was 
it, that died in the fall, Mr. Cole's brother-in-law, it was a 
$13,000 fine. We are talking about, I don't know, one part of 
this job was $3.6 billion and somebody said it was $9 billion 
overall. You do start to get the sense that just pay the fine 
and let us keep moving here, we are working 24-7. And that is a 
fairly disturbing aspect.
    I happened to be in Las Vegas for a speech a couple of 
weeks ago and I was--I still have images of it 25 years ago, 
but I was quite stunned at the size of this project that is 
going on. And that is a tough project, with all due respect, to 
put a stop work order on with that kind of--you know, it is one 
thing when interest rates were low, it is another thing when 
that kind of construction money is very dear now in this 
country. And I just worry that these fines really do not 
provide, especially when they are waived just consistently, and 
these fatalities, forget the other fines, that they are 
sufficient to ensure a safe workplace or to change a behavior.
    Mr. Foulke. Well, Mr. Chairman, I would just say one thing 
to one of your points where we have companies that do come back 
and continue to have fines. We have our enhanced enforcement 
program where we have--where when we find employers that are 
not following or not meeting their obligations under the act, 
are not following the standards and we have--where we see a 
repeat type of situation, then we have this program which 
allows us to go not only to that site but also to all their 
sites and inspect them on that. And also it spells out the 
amount, the reductions and stuff like that is eliminated from 
the penalty.
    So we have a very forceful program to deal with those 
employers that don't seem to be--that have continual problems, 
that don't seem to get their responsibility under the act.
    Chairman Miller. Do the State plans have that same 
provision? Does Nevada have an enhanced enforcement? Are they 
required to? The question is, are they required to?
    Mr. Foulke. I don't know if they have adopted that enhanced 
enforcement program.
    Chairman Miller. Because their plan has to be equal to or 
greater than, right?
    Mr. Foulke. But that is one of our enforcement programs. It 
is part of like our national emphasis program, it is like our 
local emphasis program. They can have their own State emphasis 
programs.
    Chairman Miller. So whether a State has it or not, that is 
still a program that you carry out?
    Mr. Foulke. That we have from a Federal standpoint, 
correct.
    Chairman Miller. Well, I want to thank you all for your 
time. I think that, speaking as chair of this committee, I 
think that consideration has to be given to something beyond 
these fines. We have been around this before on fines in coal 
mining and elsewhere where they become, I hate to say this 
because it sounds so callous and it is not fair to a lot of 
responsible employers, but it becomes almost a cost of doing 
business, and that just can't be acceptable here. I think that 
perhaps New York City has a regime that would lead--again we 
have to look at the numbers here, but would lead to better 
enforcement. It is not a minor step. But I just don't think 
that certainly on some of these mega projects that the fines 
that we have historically watched, I am not sure that that 
leads to the kinds of corrective behavior, the kinds of 
modifications and improved safety that we would look for in the 
work site. And I mean this project in Nevada looks a little bit 
like a test case here in the sense that--the fatalities and 
injuries that have taken place and yet they continue and the 
number one tool in the arsenal, which is fines, continues to 
get waived. I think that raises very, very serious questions 
about that State enforcement and about what the Federal 
Government under the delegation of authority has the ability to 
do under the current law.
    Thank you all very much for your testimony. It has been 
very helpful to the committee. There will be--14 days will be 
available for any member of the committee who wants to submit 
additional material for the committee. Some of my colleagues 
had questions that they wanted to send in writing. We will 
forward those to you and we would appreciate it if we could 
have a response to those questions.
    Thank you, and with that, the committee stands adjourned.
    [Additional submissions from Mr. Miller follow:]

      Prepared Statement of Christopher Lee, OSHA Deputy Regional 
                         Administrator, Retired

    I appreciate the opportunity to submit this statement to the 
Committee on Education and Labor on a critically important issue to 
working men and women in the construction trades in the United States--
Ironworkers involved in constructing this nation's commercial 
buildings.
    As a career OSHA safety and health professional, I devoted 28.5 
years to the Agency and its mission. Since 1990, I served as the Deputy 
Regional Administrator in San Francisco until June 2008. Following is 
my personal statement as an occupational safety and health 
professional.
    As you know, the Occupational Safety and Health Administration 
convened a Steel Erection Negotiated Rulemaking Advisory Committee to 
gather input from various stakeholders regarding key safety concerns in 
the steel erection industry. After considerable deliberations and many, 
many meetings, a consensus was reached.
    After the promulgation of this standard, Subpart R--Steel Erection 
Standard--the Agency issued a Compliance Directive that in the minds of 
many concerned safety and health professionals removed safety 
provisions and created unsafe working conditions for Ironworkers.
    The standard as written (CFR 1926.754(b)(3), and supported by a 
myriad of stakeholders, requires a ``* * * fully planked or decked 
floor or nets shall be maintained within two stories or 30 feet, 
whichever is less, directly under any erection work being performed.'' 
The several persuasive arguments in support of this standard include:
     Provides containment for falling objects such as tools, 
bolts, etc.
     Limits fall distance to Ironworkers
     Provides a platform for rescue
     Has been industry practice and OSHA standard
     The SENRAC supported this standard
     The preamble to Subpart R supports the standard
     OSHA reviewed and approved training manuals prior to 
publication
    Of critical note is the fact that several OSHA State Programs--such 
as the Cal OSHA program and now the Nevada state OSHA program do not 
enforce the Compliance Directive, rather the requirements of the 
standard itself.
    There are concerned parties who believe that OSHA's issuance of 
Compliance Directives is ``underground rulemaking'' whereby Federal 
OSHA attempts to make policy without going through a formal rulemaking 
process.
    The entire construction industry including project owners, 
controlling contractors, subcontractors, and other parties rely on OSHA 
for consistent interpretation and enforcement of all safety standards.
    It is unfortunate that many affected parties in the construction 
industry consider these Compliance Directives to be a source of 
regulatory confusion, costly jobsite delays, and unnecessary 
litigation.
    OSHA Assistant Secretary Edwin Foulke has been quoted as saying 
``Even one injury or fatality on the job is one too many''.
    I have attended many management meetings since Mr. Foulke assumed 
his responsibilities in approximately April 2006. He has repeatedly 
stated that OSHA has a noble mission--to ensure that the working men 
and women in America return home whole and healthy at the end of their 
working day.
    Mr. Foulke, in concert with is key advisors, and the career 
leadership of the Regions and the Directorates, spent two years 
identifying a mission statement for the Agency and to identify its 
three core values. The core values are respect, integrity, and 
commitment.
    In my opinion, Mr. Foulke, on behalf of the Agency, ought to 
respect the safety and health concerns of working men and women on 
construction worksites as noted above; should have the integrity to 
enforce the fall protection standard as it was promulgated and endorsed 
by numerous stakeholders; and, recommit to the basic ideals of the OSHA 
Act as it relates to construction workers in these environments.
    There seems to be a disconnect between Mr. Foulke's statements and 
his actions. He can change this situation by executive direction--he 
need not convene any committees, nor submit notices to the Federal 
Register. He, as I understand the situation, can simply rescind or 
suspend the Compliance Directive. I urge, most respectfully, that at a 
minimum, he suspend the Directive.
    Mr. Foulke has a unique opportunity to ensure that Ironworkers 
involved in the construction of this country's high-rise buildings, and 
other trade workers affected by work above, have a safer workplace from 
which they
    can return to their homes at the end of the day--whole and healthy. 
That is, and has been, his stated goal from the start of his tenure.
    I urge you, Mr. Chairman, and the members of the Committee, to 
strongly advocate to Mr. Foulke that he ``do what's right'' and protect 
these workers.
    Thank you for your time and attention.
                                 ______
                                 

Prepared Statement of Joe Standley, President, District Council of Iron 
                    Workers, California and Vicinity

    Good morning Chairman Miller and other distinguished members of the 
Subcommittee on Workforce Protections of the House Education and Labor 
Committee. I would like to submit the following statement for today's 
hearing and request that it be included into the official record of 
this proceeding. This statement was provided on June 10, 2008 in Las 
Vegas, Nevada that summarizes our opposition to the Occupational Safety 
and Health Administration (OSHA) Compliance Directive for Steel 
Erection that has effectively removed safety provisions to Ironworkers 
and has contributed to recent fatalities in Las Vegas, Nevada.
    I am seeking your support today to question Mr. Foulke on OSHA's 
current policy to not enforce safety standards for steel erection, and 
his policy of supporting Compliance Directives that are contrary to 
safety standards contained in the Subpart R--Steel Erection Standard. 
It is our hope that that you will instruct Mr. Foulke to enforce the 
current safety standards for steel erection, and take immediate action 
to rescind all Compliance Directives that are contrary to OSHA 
standards that remove safety provisions for Ironworkers.
    I am President of the District Council of Iron Workers of the State 
of California and Vicinity that includes California, Nevada, Arizona, 
and Hawaii. With me today are Doug Williams of Iron Workers local 433, 
Hart Keeble of Iron Workers local 416, Danny Thompson of Nevada AFL-
CIO, Steve Ross of the Nevada State Building & Construction Trades 
Department, Jim Stanley, former Assistant Secretary of Labor for OSHA, 
Greg McClelland of the Labor Management Cooperative Trust, and Steve 
Rank of the Ironworker Management Progressive Action Cooperative Trust. 
Thank you for your time to be here today.
    As President of the District Council of Iron Workers, the safety 
and health of our members is my utmost concern. In view of recent 
accidents involving Ironworkers in Las Vegas, and recent developments 
regarding the Nevada State OSHA Plan and Federal OSHA, I felt that it 
was necessary to establish today's press conference to clarify various 
issues. It is my hope that today's press conference will illustrate our 
long struggle with Federal OSHA to enforce safety standards for steel 
erection. Additionally, I want to comment on OSHA's policy of 
Compliance Directives that have removed vital safety provisions for 
Ironworkers.
    First, I would like to address safety and regulatory issues 
pertaining to Federal OSHA that have been at the center of controversy 
here in Las Vegas. I regret that recent accidents and widespread 
confusion regarding safety standards for steel erection have been 
linked to a Federal OSHA Compliance Directive for steel erection. The 
Compliance Directive issued by Federal OSHA has effectively removed 
several safety provisions contained in the OSHA Subpart R--Steel 
Erection Standard. We have prepared copies of several documents for 
your review that support our claim, that the Compliance Directives that 
are contrary to the OSHA Subpart R--Steel Erection Standard, and expose 
Ironworkers to significant dangers during the steel erection process.
    On several occasions, representatives from our International 
Association and contractor associations have met with Mr. Edwin Foulke, 
Assistant Secretary of Labor--OSHA, and his staff in good faith to 
resolve this issue. OSHA was strongly urged to rescind certain items 
contained in their Compliance Directive that removed safety provisions 
and created unsafe working conditions for Ironworkers. Despite repeated 
warnings to Mr. Foulke from labor and management representatives, 
including members of his own staff, Mr. Foulke has refused to rescind 
the Compliance Directive.
    As President of the District Council of Iron Workers, I have a 
responsibility to ensure that all Ironworkers are afforded safe working 
conditions set forth by OSHA regulations. I also have a responsibility 
to ensure that safety regulations are not compromised by OSHA 
Compliance Directives. I have been informed that Mr. Foulke will be in 
Las Vegas this week, and has requested to meet with general contractors 
and subcontractors regarding the recent fatalities in Las Vegas. We are 
outraged with news that Mr. Foulke would come to Las Vegas to 
pontificate about fatalities and workplace safety matters, when he has 
refused to rescind OSHA Compliance Directives that have been at the 
center of controversy in Las Vegas. However, we would welcome Mr. 
Foulke's decision to rescind certain Federal OSHA Compliance Directives 
during his presentations in Las Vegas this week. Please join us in our 
efforts to confront Mr. Foulke regarding his refusal to enforce the 
OSHA standards for steel erection, and his continued policy to support 
Compliance Directives that remove safety provisions for Ironworkers.
    Secondly, I would like to address regulatory issues pertaining to 
the Nevada State OSHA Plan. On behalf of the three thousand Ironworkers 
working in Nevada, I am extremely pleased that Nevada OSHA has formally 
denounced items contained in the Federal OSHA Compliance Directive. 
Representatives from the District Council of Iron Workers recently met 
with Nevada OSHA officials, to provide documentation that supports our 
concern that OSHA's Compliance Directive removes safety provisions to 
Ironworkers. Nevada now joins other State OSHA Plan's who have refused 
to adopt these Compliance Directives. After thorough review, State Plan 
officials have concluded that certain OSHA Compliance Directives do not 
provide ``equivalent protection'' as mandated by State Plans. State 
Plan Officials often refer to OSHA Compliance Directives as 
``underground rulemaking'' when Federal OSHA intends to ``make policy'' 
without going through a formal rulemaking process. This is a disservice 
to the stakeholders in the steel erection industry who rely on OSHA to 
provide consistent enforcement and interpretation of safety 
regulations.
    The District Council of Iron Workers, controlling contractors, 
contractor associations, and subcontractors have supported Nevada OSHA 
and their decision. We commend Nevada OSHA on their decision to uphold 
the OSHA regulations that protect our Ironworkers and denounce OSHA 
Compliance Directives that remove crucial safety provisions to our 
members.
    The working men and women that build America and those of us who 
represent them, look to the Occupational Safety and Health 
Administration to enforce the safety regulations for our protection. 
The entire construction industry including project owners, controlling 
contractors, subcontractors, and other parties rely on OSHA, for 
consistent interpretation and enforcement of safety standards.
    Our International Association and industry stakeholders have 
invested a considerable amount of time and resources to raise the 
standard for safety performance in the steel erection industry. We were 
shocked and disappointed that OSHA would issue Compliance Directives 
that removed safety provisions for the steel erection industry that is 
considered a ``high hazard industry''. Today, these Compliance 
Directives continue to be a source of regulatory confusion, costly 
jobsite delays, and unnecessary litigation.
    On behalf on 18,000 thousand Union Ironworkers in the California 
District Council of Iron Workers, please join us in our efforts to 
question Mr. Foulke on OSHA's policy to not enforce safety standards 
for steel erection and the misuse of OSHA Compliance Directives. It is 
our hope that Mr. Foulke will enforce the current safety standards for 
steel erection, and take the appropriate action to rescind all 
Compliance Directives that are contrary to the OSHA Steel Erection 
Standard, that remove safety provisions for Ironworkers.
    Once again, thank you for your time to be here today and your 
attention to this matter.
                                 ______
                                 
    [Questions for the record submitted to Mr. Foulke and their 
responses follow:]

                                    [via facsimile]
                                             U.S. Congress,
                                     Washington, DC, June 27, 2008.
Hon. Edwin G. Foulke, Jr., Assistant Secretary for OSHA,
Occupational Safety and Health Administration, U.S. Department of 
        Labor, Constitution Avenue, NW, Washington, DC.
    Dear Assistant Secretary Foulke: Thank you for testifying at the 
Tuesday, June 24, 2008 Committee on Education and Labor Hearing on ``Is 
OSHA Failing to Adequately Enforce Construction Safety Rules?''
    Committee Members had additional questions for which they would 
like written responses from you for the hearing record.
    Congresswoman Woolsey asks the following questions:
    1. Mr. Foulke, I was a human resource manager for 20 years and know 
from experience that issues of work organization are important to 
health and safety. By that I mean how many hours people work, excessive 
overtime and what kind of stress they're under to get jobs completed 
quickly. We're certainly seeing this in Las Vegas and in New York.
    Mr. Foulke, what is OSHA doing to address these work organization 
issues?
    2. Mr. Foulke, it sounds like your inspectors in New York are doing 
great work, given how short staffed they are.
     Are they able to do anything aside from investigate 
accidents and respond to complaints? Anything actually preventative?
     Have you considered bringing in reinforcements from other 
regions?
    Additionally, please answer the following questions:
    1. What was the timeframe for all other OSHA negotiated 
rulemakings, from the time that the negotiators agreed to a proposal, 
to Notice of Proposed Rulemaking to final issuance of the standard?
    2. Your testimony mentions 256 significant enforcement cases since 
2001 in construction. Can you tell me how much of the fines in those 
256 cases have been collected?
    3. Your testimony states that in 2007, there were 24,000 citations 
for fall protection hazards, and $33 million in penalties. Can you tell 
me:
    a. How many inspections for fall protection hazards were conducted 
in construction?
    b. How many separate construction sites were inspected?
    c. How many of these fall protection-related inspections were a 
result of:
          i. Fatalities
          ii. Events involving injuries
          iii. Complaints
          iv. Referrals
          v. General Schedule or targeted inspections
    d. What was the median penalty of fall protection citations?
    e. How many fall protection citations were there annually, from 
2001-2007? What were the average and median penalties in each of those 
years?
    4. How many construction fatalities resulted in OSHA penalties that 
were less than $100,000? How many were more than $100,000? What were 
the average and median penalties for fatalities in the construction 
sector?
    5. What additional resources would be needed by Nevada OSHA to 
prevent additional construction tragedies in Las Vegas?
    6. How many week-long crane training classes are schedule at the 
OSHA Training Institute? What are the dates?
    a. Are the upcoming classes filled?
    b. How many attendees are
          i. federal compliance officers
          ii. state plan compliance officers
          iii. state consultation program employees
    7. About 80 percent of U.S. construction industry employers have 10 
employees or fewer, and over 2 million workers in the U.S. construction 
industry are misclassified as self-employed or independent contractors.
    What is OSHA doing to reach small employers, including home 
builders, and what is OSHA doing to ensure that workers are not 
misclassified for safety and health purposes?
    Please send your written response to the Committee staff by COB on 
Tuesday, July 8, 2008--the date on which the hearing record will close. 
If you have any questions, please contact the Committee. Once again, we 
greatly appreciate your testimony at this hearing.
            Sincerely,
                                             George Miller,
                        Chairman, Committee on Education and Labor.
                                 ______
                                 

              OSHA's Responses to Questions for the Record

    Congresswoman Woolsey Question 1: Mr. Foulke, I was a human 
resource manager for 20 years and know from experience that issues of 
work organization are important to health and safety. By that I mean 
how many hours people work, excessive overtime and what kind of stress 
they're under to get jobs completed quickly. We're certainly seeing 
this in Las Vegas and in New York. Mr. Foulke, what is OSHA doing to 
address these work organization issues?

    OSHA Response: OSHA appreciates your recognition of these issues, 
many of which go beyond the authority of the Occupational Safety and 
Health (OSH) Act. For example, the Department of Labor's Wage and Hour 
Division administers the federal overtime provisions of the Fair Labor 
Standards Act. OSHA inspectors do report possible violations to them.
    What OSHA will continue to do is to use all of its tools--vigorous 
enforcement, compliance assistance, cooperative programs and 
education--to ensure that employers take all necessary actions to 
protect employee safety and health and to impress upon them that 
compromising on safety and health is not an option.
    OSHA uses every opportunity to encourage employers to adopt good 
safety and health management systems in their workplaces. Such systems, 
which can go beyond regulatory mandates to address the important human 
factors you mention, have proven time and again to be a powerful force 
in reducing workplace injuries and illnesses.
    OSHA has taken action to address specific problems in Las Vegas and 
New York City. We are assisting Nevada-OSHA with construction 
inspections in Las Vegas. Also, we have deployed a special Task Force 
in our Manhattan Area Office, which has 12 additional compliance 
officers and an expert on cranes drawn from other OSHA offices, to 
increase construction inspections in New York City.

    Congresswoman Woolsey Question 2: Mr. Foulke, it sounds like your 
inspectors in New York are doing great work, given how short staffed 
they are.
    a. Are they able to do anything aside from investigate accidents 
and respond to complaints? Anything actually preventative?
    b. Have you considered bringing in reinforcements from other 
regions?

    OSHA Response:
    a. OSHA's compliance officers in New York City, as elsewhere, are 
actively involved not only in responding to complaints, fatalities, and 
accidents, but in conducting a large number of ``programmed'' or 
targeted inspections in high-hazard workplaces, which constitute about 
46 percent of all inspections in New York City. These include OSHA's 
nationwide programs such as the Site-Specific Targeting program and the 
National
    Emphasis Programs for silica, lead, amputations, trenching, and 
others. They also include 10 Local Emphasis Programs in the New York 
Area, 4 of which specifically address construction hazards, including 
falls, electrical, trenching, and struck-by/caught-between hazards.
    OSHA is using every available resource and tool--enforcement, 
outreach, education and training--to better identify and proactively 
eliminate hazards, and to convince employers to do likewise. To raise 
awareness of occupational hazards on city job sites, OSHA has been 
sending copies of violation citations issued to employers on city 
construction sites to the employers' insurance or workers' compensation 
carriers, as well as to construction project owners and developers. 
Citations involving training violations at union-represented sites will 
be sent to the unions representing the employees and to their training 
funds.
    OSHA also maintains 25 Regional and Area Office Alliances and 19 
Strategic Partnerships with employers, trade associations, unions and 
other organizations in New York, to work cooperatively to prevent 
workplace accidents. The agency is planning to hold outreach meetings 
with unions and the construction industry to garner their feedback on 
construction safety issues and to elicit their support in reporting 
hazards and encouraging compliance with safety standards.
    OSHA will continue its ongoing Alliance with the New York City 
Department of Buildings, under which the two agencies cross-train 
inspectors and managers on each agency's construction safety standards, 
regulations, and procedures, with a focus on the most common 
construction hazards likely to harm employees. OSHA's Manhattan office 
has been participating in a joint task force with the Department of 
Buildings to address scaffolds and their related fall hazards and has 
conducted both concurrent inspections and inspections based on 
referrals from the Department. Already this year, OSHA staff has 
conducted dozens of training sessions for construction industry groups, 
unions, and even NYC staff on the various construction standards, with 
particular emphasis on falls, scaffold, crane, electrical and struck 
by/caught between hazards.
    b. When an OSHA region requires additional resources or assistance 
to address issues such as the recent crane accidents, or a natural 
disaster, OSHA identifies assets within the agency that are available 
to provide immediate internal assistance. In addition, OSHA has several 
safety and health experts that comprise the agency's Health Response 
Team and Safety Response Team, as well as several rapid response teams 
that respond to biological exposures, structural collapses, and 
radiation releases anywhere in the nation.
    To address the recent crane and construction fatalities in New York 
City, OSHA sent 12 additional compliance officers to New York City to 
augment and provide support to the compliance officers already 
stationed in the five New York City boroughs. The agency also provided 
an expert on cranes from OSHA's Billings, Montana Area Office to assist 
the New York regional staff. The additional compliance officers are 
focusing their inspection activities on high-rise construction sites, 
cranes, and other types of places where fatalities and serious 
accidents have occurred over the past six months.

    Committee Question 1: What was the timeframe for all other OSHA 
negotiated rulemakings, from the time that the negotiators agreed to a 
proposal, to Notice of Proposed Rulemaking to final issuance of the 
standard?

    OSHA Response: OSHA has used negotiated rulemaking for its 
rulemakings for ``Fire Protection in Shipyards,'' for 
``Methylenedianline (MDA)'' and for Steel Erection.
    In the Fire Protection in Shipyards rulemaking, the negotiated 
rulemaking committee finished its work and agreed on a draft proposed 
rule in February, 2002. The Notice of Proposed Rulemaking (NPRM) was 
published on December 11, 2002 (67 FR 76213). The final rule was 
published on September 15, 2004 (69 FR 55667).
    In the MDA rulemaking, the negotiated rulemaking committee agreed 
on a draft proposed rule in May, 1987 (see 57 FR 35633). OSHA issued an 
NPRM on May 12, 1989 (see 54 FR 20672). The final rule was issued 
August 10, 1992 (see 57 FR 35630).
    In the Steel Erection rulemaking, the negotiated rulemaking 
committee completed the draft regulatory text for the proposed rule in 
December, 1995 (see 66 FR 5197). On August 13, 1998, OSHA issued an 
NPRM (see 63 FR 43452; 66 FR 5198). The final rule was issued January 
18, 2001 (see 66 FR 5195).
    Note that the Crane and Derricks proposed rule regulatory text, 
with its accompanying preamble, is considerably longer than those for 
the Fire Protection in Shipyards, MDA, and Steel Erection rule makings.

    Committee Question 2: Your testimony mentions 256 significant 
enforcement cases since 2001 in construction. Can you tell me how much 
of the fines in those 256 cases have been collected?

    OSHA Response:

               SIGNIFICANT CONSTRUCTION CLOSED CASES ONLY
------------------------------------------------------------------------
            Fiscal year                       Penalties remitted
------------------------------------------------------------------------
2001                                 $2,547,376
2002                                 $1,159,711
2003                                 $1,006,041
2004                                 $1,070,049
2005                                 $908,786
2006                                 $611,572
2007                                 $208,112
Total                                $7,511,647
------------------------------------------------------------------------

               SIGNIFICANT CONSTRUCTION OPEN CASES ONLY\1\
------------------------------------------------------------------------
            Fiscal year                       Penalties remitted
------------------------------------------------------------------------
2001                                 $15,783
2002                                 $0
2003                                 $84,542
2004                                 $165,186
2005                                 $340,433
2006                                 $687,192
2007                                 $331,747
Total                                $1,624,883
------------------------------------------------------------------------
\1\ There are a number of reasons that cases appear as ``open'' in
  OSHA's database, even though penalties have been remitted. In some
  cases, employers may have contested some, but not all, of the items
  for which penalties were proposed in a particular case. In others,
  OSHA may have agreed to a payment plan, under which the employer has
  some period of time to pay the entire penalty. In still other cases,
  the employer may have paid the penalty but OSHA has not yet confirmed
  that the cited violations have been abated.

    Committee Question 3: Your testimony states that in 2007, there 
were 24,000 citations for fall protection hazards, and $33 million in 
penalties. Can you tell me:
    a. How many inspections for fall protection hazards were conducted 
in construction?
    b. How many separate construction sites were inspected?
    c. How many of these fall protection-related inspections were a 
result of:
          i. Fatalities
          ii. Events involving injuries
          iii. Complaints
          iv. Referrals
          v. General Schedule or targeted inspections
    d. What was the median penalty of fall protection citations?
    e. How many fall protection citations were there annually, from 
2001-2007? What were the average and median penalties in each of those 
years?

    OSHA Response
    a. There were 6,476 Federal construction inspections that resulted 
in fall protection violation citations.
    b. 6,237
    c.i 119
    c.ii 43
    (Employers are required to report work-related fatalities to OSHA. 
Employers are also required to report to OSHA multiple inpatient 
hospitalizations (hospitalization of three or more employees) resulting 
from a work-related incident.) OSHA data show 43 injury related 
inspections in 2007.
    c.iii 459
    c.iv 1,120
    c.v. 4,400
    3.d see 3.e below
    3.e The data below reflect that penalties assessed to small 
businesses are generally reduced as a result of a statutorily-mandated 
small business penalty reduction program.

                      FEDERAL FALL PROTECTION DATA
------------------------------------------------------------------------
   Fiscal year         Citations          Median $           Mean $
------------------------------------------------------------------------
          2001              4,691             1,500             2,370
          2002              5,471             1,500             2,052
          2003              6,103             1,500             2,107
          2004              6,056             1,500             2,072
          2005              6,565             1,500             1,981
          2006              6,951             1,500             1,867
          2007              7,080             1,500             1,901
------------------------------------------------------------------------
(Note that the median initial penalty in each year from 2001 through
  2007 was $1500. This results from the fact that the most commonly
  assessed initial penalty for fall citations is $1500, combined with
  the fact that the lowest possible penalty ($0) and highest possible
  penalty ($70,000) are always the same. Consequently, even though the
  total number of fall citations was different in each of these years,
  the median penalty remained constant).

    Committee Question 4: How many construction fatalities resulted in 
OSHA penalties that were less than $100,000? How many were more than 
$100,000? What were the average and median penalties for fatalities in 
the construction sector?

    OSHA Response:

                   FEDERAL CONSTRUCTION FATALITY CASES
------------------------------------------------------------------------
                   No. of         No. of
               fatalities in  fatalities in    Mean case     Median case
 Fiscal year    cases under     cases over      penalty        penalty
                   $100k          $100k
------------------------------------------------------------------------
       2001            357             11         10,849         4,000
       2002            383              5          8,396         3,500
       2003            355              3          8,557         4,200
       2004            409             11          9,790         4,000
       2005            389             12         10,521         4,500
       2006            364             12         15,315         5,000
       2007            372              4          9,086         4,900
------------------------------------------------------------------------

    Committee Question 5: What additional resources would be needed by 
Nevada OSHA to prevent additional construction tragedies in Las Vegas?

    OSHA Response: Both Federal OSHA and Nevada OSHA, operating under 
the authority of its OSHA-approved State Plan, are greatly concerned 
about the recent construction fatalities in Las Vegas. In FY 2008, OSHA 
is providing $1,112,600 in grant funds to the Nevada OSHA program. 
Nevada matches this funding and contributes an additional $3,655,497 in 
unmatched funds. These funds support 27 safety and 11 health compliance 
officers.
    No regulatory agency by itself can ensure that additional accidents 
will not occur. It is the responsibility of employers to comply with 
safety and health standards and to ensure that their workplaces are 
free of recognized hazards. In addition, Nevada requires employers with 
more than 10 employees to have a written job safety program to guide 
their compliance efforts. It is incumbent on both Nevada and Federal 
OSHA, through enforcement and compliance assistance, to see that 
employers meet their responsibilities.
    In response to the fatalities which occurred at the CityCenter 
project, Nevada OSHA has undertaken a comprehensive inspection of that 
project. At the request of the state, Federal OSHA is providing an 
additional 4 compliance officers because the CityCenter project is 
unique in that it is the largest private-sector construction project in 
the United States. The 4 additional compliance officers are providing 
technical assistance to the state in completing the full-site 
inspection as expeditiously as possible. Federal OSHA will continue to 
work with Nevada OSHA and other stakeholders to enhance construction 
safety in Las Vegas and provide whatever further assistance may be 
appropriate.

    Committee Question 6: How many week-long crane training classes are 
scheduled at the OSHA Training Institute? What are the dates?
    a. Are the upcoming classes filled?
    b. How many attendees are
          i Federal compliance officers
          ii. state plan compliance officers
          iii. state consultation program employees

    OSHA Response: The OSHA Training Institute has two more sessions of 
its Cranes and Rigging for Construction class scheduled for the 
remainder of FY 2008. The dates are August 19-22 and September 9-12. 
The August class is filled; the September class still has seats 
available.

------------------------------------------------------------------------
                                                August   Sept.    Total
------------------------------------------------------------------------
Federal Compliance Officers..................       28        0       28
State Plan Compliance Officers...............        2       26       28
State Consultation Program Employees.........        7        8       15
Other........................................        0        0        0
                                              --------------------------
      Totals.................................       37       34   \1\ 71
------------------------------------------------------------------------
\1\ As of August 11, 2008

    Committee Question 7: About 80 percent of U.S. construction 
industry employers have 10 employees or fewer, and over 2 million 
workers in the U.S. construction industry are misclassified as self-
employed or independent contractors.
    What is OSHA doing to reach small employers, including 
homebuilders, and what is OSHA doing to ensure that workers are not 
misclassified for safety and health purposes.

    OSHA Response: OSHA recognizes the need to reach small construction 
employers, including home builders, and has employed a good mix of 
outreach, education, enforcement and cooperative programs to deliver a 
multi-faceted approach to small business assistance.
    OSHA offers a number of resources, programs and services to small 
businesses. OSHA provides web-based small business tools, including 
OSHA's Compliance Assistance Quick Start, which is a tool to introduce 
employers and employees, especially those at new or small businesses to 
the compliance assistance resources on OSHA's website. Quick Start 
currently includes several modules, including one for construction.
    Other online small business tools include the OSHA Small Business 
Handbook and Safety Pays, which help employers estimate the costs of 
occupational injuries and illnesses and the impact on a company's 
profitability. OSHA augments the previously mentioned outreach with its 
Spanish-language compliance assistance resources such as safety cards, 
booklets, and posters, all available on OSHA's Web site.
    OSHA's On-Site Consultation Service offers free and confidential 
advice to small and medium-sized businesses in all states across the 
country, with priority given to high-hazard worksites. Employers that 
participate in the On-Site Consultation Program may seek recognition 
under the Safety and Health Achievement Recognition Program (SHARP) for 
their exemplary safety and health programs. SHARP provides incentives 
and support for small businesses to develop, implement, and 
continuously improve safety and health programs. OSHA offers a number 
of other Cooperative Programs for small businesses to work with the 
Agency, including the Alliance Program, Strategic Partnership Program, 
and the Voluntary Protection Programs.
    Finally, OSHA makes training available to small businesses through 
26 Education Centers around the country. Through the Education Centers, 
several construction-related courses are available. OSHA also provides 
training through its Outreach Training Program.
    As demonstrated by the numerous outreach initiatives already 
mentioned, OSHA has a multi-faceted approach for small business 
outreach that incorporates specific construction-related outreach.
    Regarding the employee misclassification issue; OSHA compliance 
officers sometimes encounter individuals during a construction 
inspection who claim to be self-employed or an independent contractor, 
or encounter a company that claims that a worker is not its employee 
but rather an independent contractor. In accordance with the OSHA Field 
Inspection Reference Manual Chapter III C. 1. b. (1) Definition of 
employee, in such instances, it is OSHA policy to gather information to 
determine, based on a common law test of employee status, if the 
individual is in fact an employee. An entity that is not an employer is 
not subject to citations or other enforcement actions under the OSH 
Act, and individuals who are bona fide independent contractors are not 
employees as defined in the Act.
                                 ______
                                 
    [The statement of Mr. Altmire follows:]

Prepared Statement of Hon. Jason Altmire, a Representative in Congress 
                     From the State of Pennsylvania

    Thank you, Chairman Miller, for holding this important hearing on 
OSHA's enforcement of construction safety rules.
    Construction is one of the most dangerous industries in the U.S. In 
2006, over 1,200 construction workers were killed on the job, and while 
construction workers only comprise 8 percent of the total workforce, 22 
percent of all work-related deaths are from construction work. Despite 
these alarming numbers, OSHA has not updated its crane and derrick 
safety standards in over 30 years. Four years ago, labor and employer 
groups came to an agreement on new draft standards to improve crane 
safety that better reflects new technologies. Despite agreement from 
the parties involved, OSHA has yet to turn the draft into an official 
proposal.
    I look forward to today's testimonies as well as hearing about what 
OSHA has done and what they plan to do in the future to address these 
work-related deaths. I believe that we can work together to develop 
adequate safety standards for our nation's construction workers.
    Thank you again, Mr. Chairman, for holding this hearing. I yield 
back that balance of my time.
                                 ______
                                 
    [The statement of Mr. Porter follows:]

Prepared Statement of Hon. Jon C. Porter, a Representative in Congress 
                        From the State of Nevada

    Thank you Chairman Miller and Ranking Member McKeon for holding 
this very important hearing today on construction safety rule 
enforcement. I also wish to take this opportunity to extend my 
condolences to George Cole, brother-in-law of Harold Billingsley who 
lost his life the City Center site in Las Vegas, Nevada. I wish him and 
his family all the best and extend my deepest sympathies. I also wish 
to express my condolences to all others who have lost their lives in 
similar tragedies.
    Mr. Chairman, this is obviously an issue of great concern to all 
members of the Committee and the full House. It is of greater concern 
to those of us from Southern Nevada. Construction and development play 
a crucial role in the life and economy of my community in Southern 
Nevada. Construction of residences, office buildings, and resorts in 
Southern Nevada provide one of our most important sources of jobs and a 
major economic driver for my constituents. The construction of MGM 
Mirage's City Center resort site is one of the largest in our history 
and will represent the largest and most technologically advanced 
development on the Las Vegas Boulevard.
    This project has run into some challenges since construction began 
17 months ago. Along with the six deaths that have occurred to date, 
the recent malfunction of an unstable 180-foot crane, caused the Las 
Vegas strip to be shut down for an hour. A majority of the union 
worker's went on strike halting progress on the site.
    I have taken the initiative of speaking directly with Assistant 
Secretary of Labor for Occupational Safety and Health, Edwin Foulke, as 
well as having my staff speak with Steve Ross, the Secretary Treasurer 
of the Southern Nevada Building Trades and Tom Czehowski the director 
of Nevada's OSHA. While there may be disagreement over how best to 
improve enforcement of standards and regulation of businesses, I 
believe there is consensus over the importance of safety training 
provided to workers and supervisors. For this reason, I have taken the 
action of asking the Appropriations Committee to provide an increase in 
funding for our states to use for training of workers and supervisors.
    I remain dedicated to finding reasonable solutions to provide for 
the safety of our workers. These safety concerns must be addressed by 
both federal and state officials, as well as the contractors and 
workers carrying out construction. I look forward to hearing from our 
witnesses today to see how our federal government can better work with 
state, local and union officials in providing the safest possible 
working environment.
    Again, I thank Chairman Miller and Ranking Member McKeon for 
holding this hearing and look forward to a productive discussion of how 
our government can help protect our workers.
                                 ______
                                 
    [Whereupon, at 12:43 p.m., the committee was adjourned.]

                                 
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