Occupational Safety and Health Review Commission
Fiscal Year 2009 Performance Budget and Justification
Table of Contents
Fiscal Year 2009 Performance Budget and Justification
I. Introduction -- Mission, Vision, and Strategic Goal
II. Performance Budget Justification by Organizational Function
III. Budget by Object Classification Category
IV. Other Tables
I. Introduction -- Mission,
Occupational Safety and Health Review Commission
TThe Occupational Safety and Health Review Commission (OSHRC) is an independent, adjudicatory agency created by the Occupational Safety and Health Act of 1970 (the Act). Our sole statutory mandate is to serve as an administrative court providing fair and expeditious 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 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.
Our Functions and Procedures
Our Rules of Procedure (which mirror the Federal Rules of Civil Procedure) provide two levels of adjudication when an employer 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 Commission members who are appointed by the President. 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.
Our principal (National) office is located in Washington, D.C. OSHRC also has two regional offices: one in Atlanta, GA, and one in Denver, CO. The regional offices are staffed with Administrative Law Judges who travel, as necessary, to adjudicate cases in locales where the alleged workplace violations took place.
Our vision is simple, direct and performance oriented. We strive to be:
OSHRC’s strategic goal is: To ensure fair, just, and expeditious adjudication of disputes brought before the Commission and its Judges. The Review Commission’s current strategic plan covers the period FY 2006 through FY 2011.
II. Performance Budget Justification
Budget Request Summary
TTo continue our mission of adjudicating OSHA-issued workplace safety citations, the Occupational Safety and Health Review Commission requests an appropriation of $11,186,000 to fund essential agency programs and support 67 full-time equivalent (FTE) positions in
The funding requested would allow us to fulfill our legislative mandate to serve as an administrative court providing fair 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.
Our FY 2009 budget request includes:
The Review Commission hopes to implement a new web-based Case Tracking/Docketing system during fiscal years 2008 and 2009 which will replace the existing 9-year old system. The upgraded system is expected to provide a comprehensive solution that will enable improved document management by capturing the existing paper trail electronically, associating each document with a specific event, and creating a searchable index. In addition, the revised system will provide better reporting options to support management oversight.
Justification by Organizational Unit
The Review Commission has three main offices which function in concert to achieve the agency’s overarching mission:
1. The Administrative Law Judge function;
Each office has staff and resources assigned exclusively to it, but all three work collaboratively to meet or exceed the Review Commission’s strategic goal. This separation of staff between the Administrative Law Judges and Commissioners stems principally from the nature of their functions, which must be apart so that each of these review levels is, both in fact and appearance, independent of the other. The Office of 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 front line of our agency’s delivery of services to the American public rests with the Administrative Law Judges. Our judges travel around the country to conduct formal hearings and related proceedings in a fair, just and expeditious manner. The function is directly related to the public service goal of fair, just and expeditious adjudication of disputes brought before the Commission and its ALJs.
The Administrative Law Judges report through the Chief Judge to the Chairman. However, they act independently in arriving at case decisions. The Commission’s rules are similar to the Federal rules. In the absence of specific Review Commission rules, the Federal Rules of Civil Procedure are followed. The Commission’s Rules are constructed and administered to secure the just and timely 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 and are designed to provide all parties with a fair hearing and swift adjudication of their case. To contest all or part of a citation, penalty, or abatement period, an employer must file a notice of contest with the Secretary of Labor 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 and docketing. 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
Our agency strives to expedite the judicial process in a fair and impartial manner, and to 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, as reflected by the increasing complexity of OSHA citations.
OSHA conducted 39,324 inspections in FY 2007, an increase of more than 4 percent above the anticipated level, and projects that they will conduct 37,700 inspections in FY 2008 and in FY 2009. OSHA inspections have remained relatively constant, at approximately 39,000 per year since FY 2000. During this time, despite a relatively steady number of inspections, citations resulting from those inspections have risen approximately 9.5 percent. 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, asbestos, lead poisoning, process safety, and construction industry hazards, etc.). These cases command a greater portion of the judges’ time. We believe this trend will continue into FY 2009.
The complexity of these cases is the result of the existence of one or a combination of the following:
Case processing is expedited by moving a greater numbers of cases into the Mandatory Settlement and Simplified Proceedings programs, an innovative methodology to speed the adjudication or settlement of pending cases.
Under Commission Rule 2200.120, where the parties consent thereto, the Chief Administrative Judge may assign a Settlement Judge to a pending proceeding to aid the parties in disposing of cases. Where the aggregate amount of the penalty sought by the Secretary of Labor is $100,000 or greater, the Mandatory Settlement procedure goes into effect. The Settlement Judge appointed by the Chief Administrative Judge has full control of the proceeding and may require that the parties’ 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 has been expanded to include cases where proposed penalties are not more than $20,000, and up to $30,000, when found eligible by the Chief Judge. The Simplified Proceedings process allows parties with relatively simple cases to have their “day in court” unencumbered by the formal Rules of Procedure and evidence, while ensuring 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 reduces the time and legal expenses to employers contesting relatively small penalty cases.
In FY 2007, 55 percent of new cases were assigned to Simplified Proceedings. The Review Commission projects that at least 50 percent of new cases will be assigned to the Simplified Proceedings process in FY 2008 and FY 2009.
Simplified Proceedings Case Activity
FY 2004 through FY 2009
Anticipated Administrative Law Judge (ALJ) Workload for FY 2009
Three major factors have an impact on the ALJs’ 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 each of the coming fiscal years – FY 2008 and FY 2009. The number of OSHA inspections and their 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 results in larger contestable proposed penalties. These inspections tend to result in more complex and contentious cases, which consume extensive time. The 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 following table provides actual Administrative Law Judge caseloads and accomplishments for fiscal years 2004, 2005, 2006 and 2007, and estimated caseloads and accomplishments for fiscal years 2008 and 2009.
*Provided by Directorate of Evaluation and Analysis, OSHA
The Office of the Administrative Law Judge requires 25 FTE in FY 2009. This staff level is consistent with FY 2008, and includes 12 Administrative Law Judges, staff attorneys and support staff. This staffing level will be needed to support the projected workload, based on OSHA’s planned inspections in the coming years, and meet performance targets, given the number and complexity of the cases anticipated.
The Chief Administrative Law Judge manages the effort to meet the Agency’s GPRA goals at the Administrative Law Judge level.
The Chief Administrative Law Judge:
Public Service Goal and Outcome Goals
The Review Commission’s Strategic Plan for 2006 – 2011 includes the following goals and objectives related to this function:
The Office of the Administrative Law Judge will advance this strategic goal through the following strategies:
To best serve the American people we revised our strategic plan for the period FY 2003 – FY 2008, and again for the period FY 2006 through FY 2011. OSHRC’s Strategic Plan includes the following outcome goals and performance measures for the Office of the Administrative Law Judges; the Plan also sets a FY 2011 target to “dispose of 95% of complex cases within a year.” The targets in the chart below represent interim targets for fiscal years 2004 through 2009.
OSHRC Commissioners are appointed by the President and confirmed by the Senate, and serve as an appellate level of review. The Commissioners review and decide cases contested under the Occupational Safety and Health Act, following an initial decision by an Administrative Law Judge. This appellate level of review must be prompt, fair, and protective of the parties’ rights. Overall, this is our primary public service goal.
Proceedings before the Commission
Our Commissioners adjudicate contested cases independently 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. The Commissioners sit as an appellate review body to review any case decided by the Review Commission’s Administrative Law Judges. 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 the Judge’s findings of fact, conclusions of law, penalty assessments and abatement orders.
Each Commissioner has 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. Each counsel also aids the Commissioner in researching and editing draft opinions submitted by the General Counsel after the Commission decides a case.
The Office of the General Counsel (OGC) provides legal advice and assists the Commission in complying with the various laws, regulations and executive orders governing its operations. OGC has primary responsibility for preparing and presenting factual and legal analyses to assist Commission members in adjudicating appeals, and may also provide legal advice on FOIA, EEO, procurement, appropriations, Privacy Act and other areas.
Our Commissioners strive 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 that have a major impact on the operations of the Commission are: the presence of a quorum, the size and complexity of cases, and the novelty of the issues presented for review.
The Commission consists of three Members appointed by the President. The Occupational Safety and Health Act requires a quorum of two Commissioners. Further, by statue, decisions can only be decided on the affirmative vote of two Commissioners. During periods when the Commission lacks a quorum, no cases can be decided. If there are 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 and issuance of some pending cases may be delayed.
The Commission began FY 2007 with a full complement of Commissioners, but ended the year with one vacancy (one Commissioner’s term ended on April 27, 2007). Nevertheless, the two remaining Commissioners resolved 13 cases during the remainder of the fiscal year. The President has nominated a new Commissioner who we anticipate will be on board in the near future.
Historically, 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 have an impact on the number of cases 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 longer, more costly trials. Consequently, the complexity and size of the cases both at the Administrative Law Judge and at the Commission levels has increased significantly in recent years.
Anticipated Commission Workload for FY 2009
The Review Commission focuses on solid case production, including deciding and issuing decisions in older cases to maintain and/or reduce case inventory in FY 2009. However, the cases that are going to hearings before the Commission’s ALJs are becoming more complex (e.g., imposition of higher penalties and/or more complex technical issues), which may result in a higher percentage of cases being petitioned for review.
The Commission had 27 pending cases at the beginning of FY 2007. The Commission received 25 new cases and issued 27 decisions by the end of that fiscal year. In FY 2008, we anticipate receiving 25 new cases and issuing 24 decisions, thus leaving an inventory of 26 at the end of the year. For FY 2009, the Commission anticipates receiving 26 new cases and disposing of 26 cases, ending that year with an inventory of 26 cases. Actual dispositions, of course, may be affected if a full Commission is not in place.
Our FY 2009 budget requests 31 FTE for the Commission function, including 10 FTE for the three Commissioners and their immediate staff, 16 FTE for the Office of General Counsel, and
Public Service Goal and Outcome Goal
The Review Commission’s Strategic Plan (Updated) includes the following goals and objectives related to this function:
The Commission will advance our strategic goal through the following strategies:
The following performance goals have been developed for fiscal year 2009 to support the
Office of Administration Function
The Office of Administration provides administrative support services for the entire Review Commission to assure success in fulfilling our mission.
The Office of Administration provides operational management for the agency, including procurement, information technology management, human resources management, information technology management, budget and financial management, and administrative services. The day-to-day tasks of this office are led by the Director of Administration and include:
Anticipated Office of Administration Workload for FY 2009
During FY 2009, Office of Administration staff will:
During FY 2007, the Office of Administration implemented two human resources improvements to better serve Review Commission staff. The first is the National Finance Center’s (NFC) STAR Web system, which enables web-based entry of attendance and leave data. The second is implementing NFC’s Employee Personal Page (EPP) which allows employees to view their payroll, leave, travel, health and life insurance, savings bond, and other personal information on-line. In FY 2008, we plan to continue with e-gov initiatives, including redesigning the OSHRC website to make it more accessible to internal and external customers, revising our Continuation of Operations (COOP) plan, and undertaking other activities in support of the Review Commission’s mission.
Our FY 2009 budget requests funding for 11 FTE for the Office of Administration function to perform the duties and responsibilities outlined above. The Office of 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.
III. Budget by Object
Budget by Object Classification Category
The Occupational Safety and Health Review Commission requests an appropriation of $11,186,000 and 67 FTE for FY 2009. The funding and staffing requested will enable the Review Commission to carry out its mission, as required by the Occupational Safety and Health Act. The growth in the FY 2009 budget request is required for higher salary rates approved by Congress, as well as to keep pace with inflation and other cost increases imposed upon us. The proposed budget for FY 2009 by object classification category is shown in the table below, along with the FY 2008 enacted level. A narrative explanation of the amount requested for each object classification follows the table.
Object Classification Table
Object Classification Detail
The budget request for FY 2009 includes $6,917,000 to fund the direct payroll costs of 67 FTE. This includes funding for comparability pay increases that will be effective in January 2008, as well as proposed comparability pay increases in January 2009.
This object class also supports awards to recognize those employees whose performance is superior, and who perform special acts or services. Cash awards are a necessary incentive under the Review Commission’s new performance appraisal system, and form an important component of the continuing effort to improve the quality and timeliness of work products that contribute to overall agency efforts to accomplish its Strategic Plan objectives. In FY 2006, the Review Commission implemented results-oriented performance management systems for both senior executive and GS level employees. As part of this effort, the Review Commission also revamped its system for employee recognition to link awards to the accomplishment of critical elements and performance goals. Under this system, employee performance awards are directly linked to performance appraisals, which are based on individual performance agreements, established in advance, by employees and their supervisors.
12.0 Personnel Benefits
This budget includes $1,619,000 to fund the payroll-related costs of employee benefits in
The Review Commission requests $126,000 for travel in FY 2009. Travel of Administrative Law Judges (ALJs) to conduct hearings accounts for the majority of this request. Travel costs have risen substantially over the last two years due, at least in part, to higher fuel costs. It should be noted that approximately 92 percent of the Review Commission’s travel budget pays for ALJ travel in order to conduct hearings. By law, these hearings must be conducted as close as possible to the site of the alleged violation. The remainder of these funds is for travel associated with training, necessary travel to the regional offices and other requirements.
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 $1,473,000 for office space rental for the National and Regional Offices. These projected rent costs are based on estimates provided by the General Services Administration (GSA) to the Review Commission in June 2007.
23.3 Communications, Utilities and Miscellaneous Charges
Telephone and postage costs are projected to require a total of $65,000 in FY 2009. Local phone service and telecommunications is projected to cost $44,000; long distance service is estimated at $8,000. Postage for the required mailing of letters, cases, and other materials related to cases is expected to be $13,000.
24.0 Printing and Reproduction
Printing costs consist mainly of the charges for publishing proposed regulations and announcements in the Code of Federal Regulations (CFR) and the Federal Register, and for purchasing copies of the CFR, Federal Register and other GPO publications. Together, these printing/publishing costs are expected to approximate $10,000 in fiscal year 2009. The balance of the budget -- $7,000 -- is needed for printing of Rules of Procedure and Guide to the Review Commission pamphlets, which are provided to parties, as well as the production of compact discs, which contain the latest decisions of the Review Commission’s Administrative Law Judges and Commissions for distribution to the public.
25.0 Other Services
A total of $800,000 is requested for Other Services in FY 2009. Requirements in this area fall into two basic categories: interagency agreements for services provided by other Federal agencies; and contractual services provided by non-Federal vendors. Additional information on each of these is provided in the following paragraphs.
Services Provided by Other Federal Agencies. A total of $407,000 is requested for services provided by other Federal agencies. This area includes $10,000 for personnel and payroll services provided by the National Finance Center, $319,000 for financial and administrative services provided by the Bureau of the Public Debt (including funds to support infrastructure upgrades and the establishment of a Capital Fund), and $45,000 for building security (estimated) provided by the Department of Homeland Security. The remaining amount ($33,000) will be used to fund other Interagency Agreements such as FOH, GSA (HVAC), and OPM.
Other Contractual Services. OSHRC procures a variety of services to support us in carrying out our mission. These include: 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 ($35,000), library operations ($45,000), training ($18,000), and other requirements to support the agency’s mission ($58,000). This category also includes funds needed for continuing maintenance of the Review Commission’s Internet website ($15,000), which is housed and maintained by the Government Printing Office.
26.0 Supplies and Materials
The amount of $45,000 is requested for supplies and materials in FY 2009, including general office supplies ($22,000) and automated data processing supplies and software ($20,000).
The amount of $117,000 is required for equipment in FY 2009. Subscriptions and other publications necessary to maintain our legal libraries make up the bulk of the costs in this object class. The remainder is required for new and/or replacement of computer and other information technology requirements, and to enable us to comply with Government-wide mandates such as the Federal Information Security Management Act. Our automated data processing equipment includes personal computers, printers, a local area network, and associated peripherals. Finally, a small portion of this funding will be used to purchase any office furniture that may be needed.
IV. Other Tables
Occupational Safety and Health Review Commission
Fiscal Year Request to Congress House Allowance Senate Allowance Appropriation
1995 $7,655,000 $7,595,000 $7,595,000 $7,595,000
Authorized Full Time Positions
FY 2007 FY2008 FY2009
Administrative Law Judge:
AL-1 1 1 1
Executive Level III 1 1 1
ES-00 1 1 1
Total full-time positions: 67 67 67
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
9 Reduced to $10,404,900 by P.L. 109-149