Occupational Safety and Health Review Commission
Fiscal Year 2007 Performance Budget
Table of Contents
Fiscal Year 2007 Performance Budget
I. Summary and Highlights
II. Introduction -- Mission, Vision, and Strategic Goal
III. Budget Request and Annual Performance Plan by Organizational Function
IV. Budget by Object Classification Category
V. Other Tables
I. Summary and Highlights
Summary and Highlights
The Occupational Safety and Health Review Commission requests an appropriation of $10,346,000 to fund it in FY 2007. This amount is $58,900less than the FY 2006 appropriation of $10,404,900. The $10,346,000 for FY 2007 would support 67 full-time employees (FTEs).
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 2006 through FY 2011. The annual performance plan for FY 2007 reflects the new goals and objectives.
OSHRC’s FY 2007 budget request includes:
II. Introduction -- Mission,
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 by the Commission. This 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.
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.
The Review Commission continues to strive to be:
the rights and responsibilities of employers and employees under the Occupational
Safety and Health Act of 1970;
qualified and diverse workforce, and modern information management,
communications, and administrative systems; and
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 2006 through FY 2011.
III. Performance Budget
FY 2007 Performance Budget Request
This section describes the three functions of the Review Commission:
Each function has a staff assigned exclusively to it, and there is virtually no sharing of staff resources between the functions of the Administrative Law Judge and the Commission. 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 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:
Administrative Law Judge 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 Civil 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 for assignment 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 by constant monitoring of its Simplified Proceedings and Mandatory Settlement programs. 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.
Since FY 2000, OSHA inspections have remained relatively flat at approximately 38,000 per year, yet OSHA citations have risen approximately 9.5%. OSHA’s emphasis during recent years has been 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, process safety, 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:
Case processing is being expedited by moving greater numbers of cases into the Mandatory Settlement (Commission Rule 2200.120) and Simplified Proceedings (Commission Rule 2200.200) programs.
Under Mandatory Settlement, when the aggregate amount of the penalty sought by the Secretary of Labor is $100,000 or greater, the Chief Administrative Judge may assign a Settlement Judge to aid the parties in disposing of cases. The Settlement Judge appointed by the Chief Administrative Judge has full control of the proceeding and may require that the party’s’ representatives be accompanied by officials having full settlement authority. This procedure has aided the Commission in disposing of some extremely complex cases, with the approval of all parties.
The Simplified Proceedings process (formerly E-Z Trial) was enlarged to include cases with proposed penalties up to $30,000, when found eligible by the Chief Judge. This 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. By reducing paperwork and legal filings, Simplified Proceedings also lowers expenses for all parties.
Simplified Proceedings Case Activity
FY 2002 through FY 2007
The proportion of new cases assigned to the Simplified Proceedings process has averaged 47 % over the last four years. The Review Commission projects an increased number of new cases will be assigned to the Simplified Proceedings process in FY 2006 and FY 2007.
Anticipated Administrative Law Judge Workload for FY 2007
Three major factors impact on this function’s workload: (1) the quantity, magnitude, and nature of the cases; (2) the success of the Simplified Proceedings and Mandatory Settlement processes; and (3) the number of trials held, and their length and complexity.
OSHA projects it will conduct 37,700 inspections in FY 2006, and 37,700 in FY 2007. The number of OSHA inspections and their likely focus affects the Review Commission’s caseload on the highest hazard workplaces – especially those with high injury and illness rates, fatalities, repeat offenders, and the most egregious workplace hazards, which frequently result in larger contestable proposed 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.
The table above shows projected, as well as recent, case activity. Total caseload is projected to be level through 2007, but with higher rates of dispositions due to expanded use of Simplified Proceedings and Mandatory Settlement programs.
Of the total 67 FTEs requested, 25 are required for the Administrative Law Judge function. This staff level includes the employment of 12 Administrative Law Judges, plus other staff attorneys and support staff. Given the number of inspections occurring in FY 2005, and the complexity of the cases received, the Review Commission believes this is the minimum number of FTEs that is needed to address the expected workload and meet its performance targets.
The Chief Judge manages the effort to meet the Agency’s Government Performance Results Act of 1993 (GPRA) goals at the Administrative Law Judge Level.
The Chief Judge:
Public Service Goal a nd Outcome Goals
The Review Commission’s Strategic Plan for 2006 – 2011includes the following goals and objectives related to this function:
The Review Commission intends to advance this strategic goal at the ALJ level through the following strategies:
The Review Commission revised its strategic plan for the period FY 2003 – FY 2008, and again for the period FY 2006 through FY 2011. The following goals are included in its performance plans for fiscal years 2003 through 2007:
The function of the Commission is to exercise its discretion to review and decide cases contested under the Act, following an initial decision by an Administrative Law Judge. This higher level of review must be prompt, fair, and protective of the parties’ rights. Overall, this is our public service goal.
Proceedings Before the Commission
The Review Commission adjudicates contested cases independent from the enforcement and rule-making functions vested in OSHA. Disputed enforcement proceedings are tried initially before the Review Commission’s Administrative Law Judges. The Commission members may then review decisions by the Review Commission’s Administrative Law Judges.
The Occupational Safety and Health Act of 1970 provides for Presidential appointment and Senate confirmation of three Commissioners, each with a six-year term. Each Commission member has the authority to direct for review by the full Commission any case decided by any judge. Absent such a direction for review, the decisions of the Administrative Law Judges become final by operation of law. Once a case is directed for review, the Commission members have authority to review all aspects of a case, including judges’ findings of fact, conclusions of law, penalty assessments and abatement orders.
A counsel, who is responsible for providing assistance and advice on all pending matters, including the proper disposition of cases and motions and whether cases are appropriate for Commission review, aids each Commissioner. Each counsel also aids the Commissioner in researching and editing draft opinions submitted by the General Counsel after the Commission decides a case.
The General Counsel has primary responsibility for preparing and presenting factual and legal analyses to assist Commission members in adjudicating appeals. Office of General Counsel staff also has primary responsibility for presenting cases to the Commission for disposition and for preparing drafts of the Commission’s opinions.
The Commission strives to minimize the time for deciding cases and thus, the number of pending cases. Aided by improved case management technology, the Commission seeks to strengthen the internal processes by which a case is prepared for decision. Three external factors have a major impact on the operations of the Commission: the presence of a quorum, the size and complexity of cases, and the novelty of the issues presented for review.
As mentioned previously, the Commission consists of three members. The Occupational Safety and Health Act require a quorum of two Commissioners. During periods when the Commission lacks a quorum, no cases can be decided. In addition, with only two Commissioners, it may be more difficult to reach agreement sufficient to dispose of some cases. In cases where such agreement cannot be reached, deadlocks result. As a result, action on important issues may be postponed and issuance of some pending cases will be delayed.
The number of safety and health inspections carried out by OSHA each year, the nature of those inspections, and the rate at which employers choose to contest the citations issued and penalties proposed by OSHA all affect the number of cases contested before the Review Commission. In addition, 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. Consequently, the complexity and size of the cases both at the Administrative Law Judge level and at the Commission level has had a significant impact in recent years.
The Commission is now operating with two members because one Commissioner’s term expired on April 27, 2005, but it still expects to make substantial progress in addressing its caseload. If a new Commissioner is nominated and confirmed in FY 2006, the Commission will have a full complement of Commissioners until late April of 2007. This period of full membership should enable the Commission to issue decisions in a number of large, difficult cases now pending before it. Issuing decisions in these large cases will also allow the Commissioners, their staffs, and the Office of General Counsel to consider and decide the other cases in the backlog much more expeditiously.
To facilitate workflow, the Office of the Executive Secretary was moved from the Office of the Executive Director to the Office of the Chairman in FY 2005. The Executive Secretary dockets incoming cases resulting from OSHA appeals, and communicates with the public in general and parties to cases in particular.
Anticipated Commission Workload for FY 2007
The Commission maintained a quorum until April 27, 2005, when one Commission member's term expired. Although that vacancy had a limited impact in FY 2005, we expect that it will have a greater impact in FY 2006.
Solid case production focused on deciding and issuing decisions in older cases is projected to reduce further the Commission's case inventory in FY 2007. We expect to receive 21 new cases and issue 35 decisions and thereby reduce the number of cases pending at the end of FY 2007 to 6 cases, lower than the actual and estimated data for the preceding five fiscal years.
The FY 2007 budget requests funding for 9 FTEs to include the three Commissioners and their immediate staff (each Commissioner has a counsel and a confidential assistant), 17 FTEs in the General Counsel’s office, and 4 FTEs in the Executive Secretary’s Office, for a total of 31 FTEs. The budget request assumes that the Commission will have a full complement of Commissioners in place throughout FY 2007.
Public Service Goal and Outcome Goal
The Review Commission’s Strategic Plan (updated) includes the following goals and objectives related to this function:
The Review Commission intends to advance this strategic goal at the Commission level through the following strategies:
are to be remanded back to the ALJ level, court remands, interlocutory reviews, and Federal Rule 60(b) cases)
The following performance goals have been developed for fiscal year 2007 to support the FY 2006 – 2011 Strategic Plan:
Office of Administration Function
The function of the Office of Administration is to provide administrative support services for the Review Commission, to assure its success in fulfilling its mission.
The Administration function provides strategic planning and operational management of the organization. Administration also includes the Office of Public Information, technology management, computer and information security, financial, and administrative services. The day-to-day tasks performed under the direction of the Executive Officer, include:
Anticipated Office of Administration Workload for FY 2007
During FY 2007, the Executive Officer will pursue various activities in support of the Agency’s mission, with the following results expected:
The FY 2007 budget requests funding for 11 FTEs for the Office of Administration to perform the duties and responsibilities outlined above. The Administration staff has responsibility for implementing the President’s management and reform efforts, including implementing and monitoring strategic and performance plans and reports, budget and performance integration, human capital and competitive sourcing, and e-government.
IV. Budget by Object
Budget by Object Classification Category
The Occupational Safety and Health Review Commission requests an appropriation of $10,346,000 for FY 2007. This amount is a $58,900 reduction of the FY 2006 appropriation of $10,404,900. The $10,346,000 for the FY 2007 request would support 67 FTEs. Within the funds requested, the Review Commission would support the same level of activities and services included in the FY 2006 request. The proposed budget for FY 2007 by object classification category is shown in the table below, along with the FY 2006 budget request. A narrative explanation of the amounts requested for each object classification follows the table.
Object Classification Table
Fiscal Years 2006and 2007 ($ in 000s)
11.0 Full Time Permanent Positions
The request for FY 2007 includes $6,542,000 to fund the direct payroll costs of 67 FTEs. This is 2.56 percent lower than the FY 2006 level, and includes general pay raises in January 2005, January 2006, and proposed general pay increases in January 2007.
11.7 Other Compensation
Consistent with the Review Commission’s encouragement of individual employee initiative and performance, $25,000 is requested to provide funds to reward employees for superior performance or special acts or services. Cash awards are a necessary incentive in the Review Commission’s continuing effort to improve the quality and timeliness of its work product, which in turn, contributes to overall agency efforts to accomplish its Annual Performance Plan objectives.
12.0 Personnel Benefits
An amount of $1,414,000 is needed to fund the payroll-related costs of employee benefits in FY 2007. These benefits principally consist of the government’s contribution to the CSRS and FERS retirement programs, life and health insurance programs, the Transit Subsidy Program, and the Thrift Savings Plan. Personnel Benefits are steadily increasing as a proportion of personnel costs as the Federal Employees Retirement System (FERS) program covers more employees, and as the costs and types of other benefits increase.
Review Commission requests $117,000 for travel. Travel of Administrative Law Judges to conduct hearings will require an estimated $104,000. The request also includes funds for travel associated with training, conferences and supervisory travel to the regional offices.
22.0 Transportation of Things
An amount of $7,000 is requested to fund the cost of shipping materials between Review Commission offices and other locations, and the shipping costs associated with the purchase of supplies and equipment.
23.1 Rental Payments to GSA
The request includes $1,265,000 for office space rent. These projected rent costs are based on estimates provided by the General Services Administration (GSA) to the Review Commission in August 2005.
23.3 Communications, Utilities and Miscellaneous Charges
Telephone and postage costs are projected to require $61,000 in FY 2007. Local phone service and telecommunications is expected to require $42,000. Long distance service is estimated at $6,000, and postage for the required mailing of letters, cases, and other materials is expected to be $13,000.
The printing costs consist mainly of the charges for publishing regulations and announcements in the Code of Federal Regulations (CFR) and the Federal Register, purchasing copies of the CFR and the Federal Register and other GPO publications. Together, these printing/publishing costs are expected to approximate $9,000 in fiscal year 2007. The balance of the budget, $8,000, is needed for the production of compact discs, which contain the latest decisions reached by the Review Commission’s Administrative Law Judges and by the full Commission.
25.0 Other Services
An amount of $372,000is requested for Other Services. These funds will support: court reporting ($92,000), maintenance of the Review Commission’s automated data processing system, ($51,000), evaluation and support for information technology security ($28,000), and on-line legal research ($35,000). The category also includes funding for other contractual services such as the annual audit of our financial statements ($41,000), the services of a librarian ($25,000), training ($15,000), and contracting for services required to support the agency’s mission ($58,000). Finally, this category includes funds needed for continuing maintenance of the Review Commission’s Internet website ($27,000), which is housed and maintained by the Government Printing Office.
25.3 Services by Other Federal Agencies
An amount of $326,000 is requested for services provided by other federal agencies. This area includes $15,000 for the costs of support for personnel and payroll services provided by the National Finance Center, $258,000 for the costs of financial and administrative services provided by the Bureau of Public Debt, $41,000 for the costs of building security (estimated) provided by the Department of Homeland Security, and $12,000 for other interagency services.
25.7 Repair and Maintenance of Equipment
An amount of $32,000is requested for repair and maintenance of equipment including equipment used for printing and reproduction of cases, automated data processing equipment and servicing of building security equipment. The balance of the request ($14,000) is for maintenance of software licenses that ensure the security and integrity of our system .
The amount of $45,000 is requested for materials and publications. General office supplies, will require an estimated $22,000. Automated data processing supplies, including software, will require approximately $20,000. Subscriptions to periodicals and other publications will require $3,000 .
The amount of $109,000 is required for equipment in FY 2007. Subscriptions and other publications necessary to maintain our legal libraries will require $68,000 and $21,000 will be applied to computer acquisitions. This amount will enable the Review Commission to continue the replacement cycle established in earlier years. The expected life cycle of our automated data processing equipment is four years. Our automated data processing equipment includes personal computers, printers, a local area network, and associated peripherals. The remaining $20,000 of the amount requested for equipment will be used to replace worn or obsolete equipment. Within this amount we will also fund any furniture that may be needed.
V. Other Tables
Authorized Full Time Positions, by Function
1 Reduced to $8,081,000 by P.L. 104-134.
2 Reduced to $7,738,000 by P.L. 104-208.
3 Reduced to $8,092,000 by H.R. 1664.
4 Reduced to $8,470,000 by P.L. 106-113.
5 Reduced to $8,958,000 by P.L. 107-206.
6 Reduced to $9,610,125 by P.L. 108-7.
7 Reduced to $9,863,000 by P.L. 108-199.
8 Reduced to $10,510,240 by P.L. 108-447
1 Reduced to $10,404,900 by P.L. 109-148.