Occupational Safety and Health Review Commission

Table of Contents

Fiscal Year 2006 Performance Budget

Page

I. Summary and Highlights 1

II. Introduction -- Mission, Vision, and Strategic Goal 2

III. Budget Request and Annual Performance Plan by Organizational Function 5

IV. Budget by Object Classification Category 22

V. Other Tables 28

I. Summary and Highlights

Summary and Highlights

The Occupational Safety and Health Review Commission requests an appropriation of $10,510,000 to fund it in FY 2006. This amount is the same as the FY 2005 appropriation of $10,510,000. The $10,510,000 for FY 2006 would support 67 FTEs, a reduction of 2 FTEs from the FY 2005 request.

The amount requested would allow the Review Commission to fulfill its legislative mandate to serve as an administrative court providing just and prompt resolution of disputes involving the Occupational Safety and Health Administration (OSHA), employers charged with violations of Federal safety and health standards, and employees and/or their representatives. The request supports the goal in the strategic plan to improve service to the public. The Review Commission updated its strategic plan for the period FY 2003 through FY 2008. The annual performance plan for FY 2006 reflects the new goals and objectives.

OSHRC’s FY 2006 budget request includes:

· $8,127,000 to support direct payroll costs for 67 FTEs. These costs represent 77 percent of the Review Commission’s appropriation.

· $1,265,000 for office space rent.

· Funds for services provided by other Federal agencies such as support for financial and administrative services and for personnel and payroll services. The estimated costs of financial and administrative services provided by the Bureau of Public Debt (BPD) is $258,000 in FY 2006, a 4.6% increase.

· Funds to enable the Agency to complete the annual performance plan goals and targets, and implement the President’s Management Agenda, including the implementation of plans under the Government Paperwork Elimination Act or E-Gov initiative.

· Funds to allow the Review Commission to comply with IT security requirements. Funding will support independent evaluations of the security of the information system and corrections or improvements in any weaknesses found as a result of the evaluation. With base resources, the Agency will also continue to support automation and technology efforts initiated earlier, including hardware, software and contractual support.

II. Introduction -- Mission,

Vision, and

Strategic Goal

Introduction -- Mission, Vision and Strategic Goal

The Review Commission is an independent, adjudicatory agency created by the Occupational Safety and Health Act of 1970. Its sole statutory mandate is to serve as an administrative court providing just and expeditious resolution of disputes involving OSHA, employers charged with violations of Federal safety and health standards, and employees and/or their representatives. The Review Commission was created by Congress as an agency completely independent of the Department of Labor to ensure that OSHA’s enforcement actions are carried out in accordance with the law and that all parties are treated consistent with due process when disputes arise with OSHA.

The Occupational Safety and Health Act and the Review Commission’s Rules of Procedure (which by law mirror the federal rules) provide two levels of adjudication when an employer timely contests an OSHA citation for alleged violations of the Act or failure to abate such alleged violations. The first is a trial level, which affords an opportunity for a hearing before a Review Commission Administrative Law Judge. The judge’s decision becomes final unless the decision is directed for review to the Commission. The second level is a discretionary appellate review of the judge’s decision by the Commission members. Both before its judges and the Commissioners, the Review Commission provides fair and impartial adjudication of cases concerning the safety and health of employees’ working conditions in the United States.

The principal (national) office of the Review Commission is located in Washington, D.C. There are also regional offices in Atlanta and Denver.

Mission Statement

The mission of the Occupational Safety and Health Review Commission is to provide an impartial forum for the just and prompt adjudication of workplace safety and health disputes involving the Department of Labor, employers and employees, and/or their representatives under the Occupational Safety and Health Act of 1970.

Vision Statement

The Review Commission continues to strive to be:

· A quasi-judicial body that is -- and is recognized for being -- objective, fair, prompt, and professional;

· An agency that creates a body of law through its decisions that defines and explains

the rights and responsibilities of employers and employees under the Occupational

Safety and Health Act of 1970;

· A model Federal agency with highly effective processes, a highly motivated,

qualified and diverse workforce, and modern information management,

communications, and administrative systems; and

· An agency that values team work, develops its employees, and strives to improve its performance, service, and value to the American people.

Strategic Goal

The Review Commission has as its strategic goal a public service goal that is to assure fair, just, and expeditious adjudication of disputes brought before the Commission and its judges. The Review Commission updated its strategic plan for the period FY 2003 through FY 2008.

III. Performance Budget

Request by

Organizational function

FY 2006 Performance Budget Request

This section describes the three functions of the Review Commission:

· Administrative Law Judge function

· Commission function

· Management and Administration function

Each function has a staff assigned exclusively to it, and there is virtually no sharing of staff resources between the functions. This circumstance principally stems from the nature of the Administrative Law Judge and Commission functions, which must be separate so that each of these review levels is, both in fact and appearance, independent of the other. The Management and Administration function supports both the Administrative Law Judge and Commission functions and the Agency’s strategic planning efforts.

Funding and staffing by function is as follows:

Funding and FTE by Function

FY 2005 Estimate FY 2006 Estimate

$ FTE $ FTE

Administrative Law Judge 4.4 26 4.5 26

Commission 4.1 26 4.2 26

Management and Administration 2.0 17 1.8 15

Total 10.5 69 10.5 67

Administrative Law Judge Function

Function

The function of the Review Commission’s Administrative Law Judge Division is to conduct formal hearings and related proceedings in a fair, just, and expeditious manner. The function is directly related to the public service goal.

The Administrative Law Judges report organizationally, through the Chief Judge, to the Chairman. However, they act independently in arriving at case decisions. The Commission’s rules are based upon the Federal rules, but in the absence of specific provisions in the Commission’s rules, the procedures are in accordance with the Federal Rules of Procedure. The Rules are constructed and administered to secure the just, speedy and inexpensive determination of every action.

Proceedings Before the Review Commission’s Administrative Law Judges

The events leading to the presentation of an OSHA case before a Review Commission Administrative Law Judge follow an established procedure. To contest all or part of a citation, penalty, or abatement period, an employer must file a notice of contest within 15 working days from the receipt of the citation proposed by OSHA. The Secretary of Labor transmits the notice of contest and all relevant documents to the Review Commission’s Executive Secretary for filing. After the case is docketed, it is forwarded to the Office of the Chief Judge who monitors the process and assigns the case to an Administrative Law Judge. The case is generally assigned to an Administrative Law Judge in the Review Commission office closest to where the alleged violation occurred. Thereafter, the Administrative Law Judge has full responsibility for all pre-hearing and pre-trial procedures, including settlement, and is charged with providing a fair and impartial hearing in an expeditious manner, and rendering a decision promptly.

Administrative Law Judge Operations

The Review Commission strives to expedite the judicial process in a fair and impartial manner, strengthen its settlement procedures and case management responsibilities, and maintain the success of its E-Z Trial for cases that are not complex and Settlement Part processes for complex cases. The Administrative Law Judge function addresses a caseload that is becoming increasingly more complex. Achieving these ends is the primary responsibility of the Chief Administrative Law Judge.

OSHA’s emphasis during recent years on more serious workplace hazards, and the consequent increase in proposed penalties, has translated into more complicated cases and more costly trials (cases involving lock-out/tag-out, confined spaces, health care hazards, including asbestos, lead poisoning, construction industry hazards, etc.). These cases command a greater portion of the judges’ time. The Review Commission anticipates that this trend will continue.

The complexity of these cases is the result of the existence of any one or a combination of the following:

· Intricacies of the law (complex questions of law)

· Volume of documents, including transcripts

· Large number of witnesses (including expert witnesses in such fields as engineering, architecture, construction, soil, physics, epidemiology, pathology, neurology and infectious diseases)

· Number of alleged violations, items, and affirmative defenses (including distinct and separate items)

· Technical, novel, difficult or new standards raised

· Types of cases, such as those involving asbestos, lead poisoning, or ergonomics, process safety management and/or confined spaces

The Review Commission intends to expedite case processing by easing entry requirements to its E-Z Trial and Settlement Part Programs. These programs grant full due process rights to all parties in adjudicating these cases expeditiously and in a cost effective manner.

The Settlement Part (Rule 120) requires formal settlement efforts in cases where the proposed aggregate penalty is $200,000 or the Chief Judge finds that the case is appropriate for this part because of its complexity. The Review Commission hopes to expand this program by rule changes to include cases with an aggregate penalty of $100,000 or more, allowing more cases to be assigned to mandatory settlement procedures.

The E-Z Trial process allows parties with relatively simple cases to have their “day in court” unencumbered by the formal rules of procedure and evidence, while assuring that due process requirements will be maintained. Under this process, a business, with or without counsel, can present its case before a Review Commission judge and receive a prompt decision. Most paperwork, including legal filings, has been eliminated so that justice can be rendered swiftly and inexpensively. The process is intended to reduce the time and legal expenses to employers contesting relatively small penalty cases. The process also allows more time for Administrative Law Judges to address the more complex cases. The Review Commission arranged for an outside evaluation of the program performed in FY 2001. The evaluation showed that program implementation was effective and that the program is generally being implemented in accordance with the goals. The Review Commission hopes to expand this program by revising the eligibility requirements for entry. The Review Commission solicited public comment on proposed rule changes to expand E-Z Trial and Settlement Part Programs in June 2004.

E-Z Trial Case Activity

FY 2001 through FY 2006

FY2001

FY2002

FY2003

FY2004

FY2005

FY2006

Actual

Est.

New Cases

2316

2134

2369

2230

2400

Cases assigned to E-Z Trial

711

869

1017

1119

1080

The proportion of new cases assigned to the E-Z Trial process has averaged 41 % over the last four years. The Review Commission projects 45% of new cases will be assigned to the E-Z Trial process in FY 2005 and FY 2006.

Anticipated Administrative Law Judge Workload for FY 2006

Three major factors impact on this function’s workload: (1) the quantity, magnitude, and nature of the cases; (2) the success of the E-Z Trial and Settlement Part processes; and (3) the number of trials held, and their length and complexity.

OSHA projects it will conduct 37,700 inspections in FY 2005, and 37,700 in FY 2006, slightly fewer than the number of inspections conducted in FY 2004 (39,167). The Review Commission’s caseload is not expected to be affected by OSHA’s reduced inspections due to their likely focus on the highest hazard workplaces – especially those with high injury and illness rates, fatalities, repeat offenders, and the most egregious workplace hazards, which could result in larger contestable fines and penalties. These inspections tend to result in more complex and contentious cases, which consume extensive judicial time. Their discovery process is lengthy and time consuming, motion practice is expanded, legal research and decision-writing time is protracted and, of necessity, the trial process is elongated and complicated.

Administrative Law Judge Case Activity

FY 2001 through FY 2006

FY2001

FY2002

FY2003

FY2004

FY2005

FY2006

Actual

Est.

OSHA Inspections

35,578

37,493

39,798

39,167

37,700

New Cases

2,316

2,134

2,369

2,230

2,400

Administrative Law Judge

Case Inventory, Start of Year

846

840

812

780

761

681

New Cases

2,316

2,134

2,369

2,230

2,400

Total Caseload

3,162

2,974

3,181

3,010

3,161

3,081

Disposals

(1)

With Hearing

121

110

(2)

Without Hearing

2,201

2,067

2,304

2,155

2,370

Total Dispositions

2,322

2,162

2,401

2,249

2,480

Total Case Inventory, End of Year