Occupational Safety and Health Review Commission

OSHRC

Fiscal Year 2008 Performance Budget and Justification

February 2007

Table of Contents

Fiscal Year 2008 Performance Budget

Page

I. Introduction -- Mission, Vision, and Strategic Goal

II. Budget Request and Annual Performance Plan by Organizational Function

III. Fiscal Year 2006 -- The President's Management Agenda: A Performance Report

IV. Budget by Object Classification Category

V. Other Tables

I. Introduction -- Mission,
Vision, and
Strategic Goal

Occupational Safety and Health Review Commission

Our Mission

The Occupational Safety and Review Commission is an independent, adjudicatory agency created by the Occupational Safety and Health Act of 1970.  Our sole statutory mandate is to serve as an administrative court providing fair 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.

Our Functions and Procedures

Our Rules of Procedure (which are similar to 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 an experienced 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., with regional offices in Atlanta and Denver.  The regional offices are staffed with Administrative Law Judges who travel around the country adjudicating cases, most often in locales where the alleged workplace violation took place.

Our Vision

Our vision is simple, direct and performance oriented.  In fiscal 2008 we 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

We have but one strategic goal, and that is to ensure 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, and submitted it to OMB and Congress.

II. Performance Budget Justification

Budget Request Summary

To continue our mission of adjudicating OSHA-issued workplace safety citations, the Occupational Safety and Health Review Commission requests an appropriation of $10,696,000 to fund essential agency programs in FY 2008. This amount is three percent above the FY 2007 budget request of $10,346,000.

The amount 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. The $10,696,000 for FY 2008 would support 67 FTEs. 

Our FY 2008 budget request includes:

$8,226,000 to support direct payroll costs for 67 FTEs.  These costs represent 77 percent of the Review Commission’s appropriation.               

$1,311,000 for office space rent, a four percent increase over FY 2007. 

Funds for services provided by other Federal agencies, such as support for financial and administrative services and for personnel and payroll services.  The estimated cost of financial and administrative services provided by the Bureau of the Public Debt (BPD) is $258,000 in FY 2008, a five percent increase over the FY 2007 fees.

Funds to enable the Review Commission to complete its annual performance plan goals and targets and to further implement the President’s Management Agenda, including the implementation of the E-Gov Act.

Funds to allow the Review Commission to comply with IT security requirements.  Funding will support an independent evaluation of the security of the information system, and corrections or improvements to any weaknesses found as a result of the evaluation.

Justification by Organizational Unit

The Review Commission has three main divisions which function in concert to achieve the agency’s overarching mission:

1. The Administrative Law Judge function;
2. The Commission function;
3. The Office of Administration 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:

Funding (in millions) and FTE by Function

	FY 2007 Estimate	FY 2007 Estimate	FY 2008 Estimate	FY 2008 Estimate
	$	FTE	$	FTE
Administrative Law Judge	4.4	26	4.5	25
Commission	4.5	30	4.6	31
Administration	1.4	11	1.6	11
Total	10.3	67	10.7	67

 

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 organizationally, 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, 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 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 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 assigns the case to an Administrative Law Judge and monitors the process.  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.  Achieving these ends is the primary responsibility of the Chief Administrative Law Judge.

Since FY 2000, OSHA inspections have remained relatively constant at approximately 38,000 per year, yet OSHA citations have risen approximately 9.5% since that time.  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 in FY 2008.

The complexity of these cases is the result of the existence of 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 issues raised
Types of cases, such as those involving asbestos, lead poisoning, or ergonomics, process safety management and/or confined spaces

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, have 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.

Simplified Proceedings Case Activity

FY 2003 through FY 2008

	FY 2003	FY 2004	FY 2005	FY 2006	FY 2007	FY 2008
	Actual	Actual	Actual	Actual	Est.	Est.
New Cases	2,369	2,230	2,202	2,002	2,000	2,200
Cases assigned to Simplified Proceedings	1,017	1,119	1,217	1,063	1,000	1,100

 

The Review Commission projects that more than 50% of new cases will be assigned to the Simplified Proceedings process in FY 2007 and FY 2008.

Anticipated Administrative Law Judge (ALJ) Workload for FY 2008

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 36,500 and 37,700 inspections in FY 2007 and FY 2008, respectively.  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 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.

Administrative Law Judge Case Activity

	FY 2003	FY 2004	FY 2005	FY 2006	FY 2007	FY 2008
	Actual	Actual	Actual	Actual	Estimate	Estimate
OSHA Inspections	39,798	39,167	38,714	*38,579	*36,500	*37,700
Administrative Law Judge
Case Inventory, Start of Year	812	780	761	708	685	620
New Cases	2,369	2,230	2,202	2,002	2,000	2,200
Total Caseload	3,181	3,010	2,963	2,710	2,685	2,820
Disposals
(1) With Hearing	97	94	57	62	65	75
(2) Without Hearing	2,304	2,155	2,198	1,963	2,000	2,125
Total Dispositions	2,401	2,249	2,255	2,025	2,065	2,200
Total Case Inventory, End of Year	780	761	708	685	620	620

 

*Provided by Directorate of Evaluation and Analysis, OSHA

Staffing

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 2006, and the complexity of the cases received, we believe this is the minimum number of FTEs needed to address the expected workload and meet performance targets.

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:

Conducts early review and screening of the potentially difficult cases before assignment;
Exercises strong management and monitoring of progress of cases to meet performance goals;
Ensures training of judicial and administrative staff; and
Examines judicial case management practices of other entities.

Funding (in millions) and FTE

	FY 2007 Estimate	FY 2007 Estimate	FY 2008 Estimate	FY 2008 Estimate
	$	FTE	$	FTE
Administrative Law Judge	4.4	26	4.5	25

 

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:

Public Service Goal	Outcome Goals
To ensure fair, just, and expeditious adjudication of disputes brought before the Review Commission and its judges	Increase the percent of non-complex cases at the Administrative Law Judge level that are resolved in less than one year Increase the percent of complex cases at the Administrative Law Judge level that are resolved within 18 months

Our intent is to advance this strategic goal at the ALJ level through the following strategies:

Expedite the assignment of cases to judges;
Use objective criteria to determine complex cases, and track the processing of these cases;
Monitor closely case performance, and improve case management information systems and reports;
Conduct early review and screening of potentially difficult cases;
Provide training to all judges on a variety of subjects, including technical and legal issues, legal writing, case management and alternative dispute resolution (ADR), to help develop services and processes equal to the very best in judicial practice;
Implement changes in the agency’s Rules of Procedure to improve case processing (e.g. Mandatory Settlement Part and Simplified Proceedings), and seek new ADR methods;
Continue to use a team of judges to handle, on a rotational basis, extremely complex cases and assign appropriate staff to timely process and monitor such cases, including settlement discussions; and
Develop procedures for case processing and decision quality.

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.  The following goals are included in its performance plans for fiscal years 2003 through 2008:

Outcome Goals	Performance Measures	FY 2004 Actual (Target)	FY 2005 Actual (Target)	FY 2006 Actual (Target)	FY 2007 Target	FY 2008 Target
Increase the percent of non-complex cases at the ALJ level that are resolved in less than one year	Percent within 365 days	98% Target Exceeded (93%)	99.5% Target Exceeded (94%)	99% Target Exceeded (94%)	99%	99%
Increase the percent of complex cases at the ALJ level that are resolved within 18 months	Percent within 540 days	98% Target Exceeded (93%)	98.2% Target Exceeded (94%)	99% Target Exceeded (94%)	98%	98%

 

Commission Function

Function

The sole function of our Commissioners is to 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 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 Office of the General Counsel (OGC) provides a one-stop legal office assisting the Commission in its compliance with the various laws, regulations and executive orders governing its operations.  In addition to providing legal advice on FOIA, EEO, procurement, appropriations, privacy and a myriad of other legal areas, OGC has primary responsibility for preparing and presenting factual and legal analyses to assist Commission members in adjudicating appeals. 

Commission Operations

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 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 appointed by the President.  The Occupational Safety and Health Act requires a quorum of two Commissioners.  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.  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.

During the period of April 2005 through June 2006, the Review Commission had only two sitting Commissioners.  In June 2006, a vacancy on the Commission was filled and the Commission now has its full complement of three Members.  As a result of this third Commissioner assuming his seat, much of the Commission’s FY 2006 case decision output was concentrated in the last quarter of the fiscal year. 

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 more costly trials.  Consequently, the complexity and size of the cases both at the Administrative Law Judge level and at the Commission level has increased significantly in recent years.

Anticipated Commission Workload for FY 2008

In FY 2006, the Commission had 40 pending cases at the beginning of the year.  It received 13 new cases and issued 26 decisions by year-end.  Thus, the Commission entered FY 2007 with 27 cases pending on review.

As mentioned above, a vacancy on the Commission was filled in June 2006 and the Commission now has three Members.  However, in mid-FY 2007, the term of a Commissioner will be expiring, which could lead to a two-Member Commission for a period of time.  Failure to have a full Commission in place necessarily affects the generation of decisions, particularly when a consensus cannot be achieved, and deadlocks result.  Accordingly, the Commission anticipates disposing of 15 cases in FY 2007, ending the year with an inventory of 28 cases.

Solid case production focused on deciding and issuing decisions in older cases is projected to reduce further the Commission's case inventory in FY 2008.  However, the cases that are going to hearings before the Commission’s ALJs are becoming more complex (e.g., imposition of higher penalties, or more complex technical issues), which could result in a higher percentage of cases being petitioned for review.  We expect to receive 17 new cases and issue 20 decisions by the end of FY 2008

Office of General Counsel and Commissioners' Case Activity

	FY 2003 Actual	FY 2004 Actual	FY 2005 Actual	FY 2006 Actual	FY 2007 Estimate	FY 2008 Estimate
1. New Cases:
a. Cases Directed for Review	16	19	20	11	12	13
b. Other New Cases:
i. Interlocutory Appeals	0	0	0	0	1	1
ii. Interlocutory Appeals	0	4	2	2	3	3
iii. Interlocutory Appeals	1	0	0	0	0	0
Total Other New Cases	1	4	2	2	4	4
Total New Cases [a + b]	17	23	22	13	16	17
2. Case Inventory from Prior Year	74	60	54	40	27	28
3. Total Caseload [1 + 2]	91	83	76	53	43	45
4. Dispositions	31	29	36	26	15	20
5. Case Inventory, End of Year [3-4]	60	54	40	27	28	25

 

Staffing

Our FY 2008 budget requests a total of 31 FTE, including 9 FTEs for the three Commissioners and their immediate staff (each Commissioner has a counsel and a confidential assistant), 17 FTEs for the General Counsel’s office, and 5 FTEs for the Executive Secretary’s Office, for a total of 31 FTEs.

Funding (in millions) and FTE

	FY 2007 Estimate	FY 2007 Estimate	FY 2008 Estimate	FY 2008 Estimate
	$	FTE	$	FTE
Commission	4.5	30	4.6	31

 

Public Service Goal and Outcome Goal

The Review Commission’s Strategic Plan (Updated) includes the following goals and objectives related to this function:

Public Service Goal	Outcome Goal
To ensure fair, just, and expeditious adjudication of disputes brought before the Commission and its judges	Reduce the length of time to resolve Commission-level cases

 

We will advance our strategic goal at the Commission level through the following strategies:

Focus on the disposition of older cases, with the immediate aim of reducing the existing backlog and the eventual goal that no case will sit for more than nine months on review;
Expedite the disposition of priority cases that require immediate action (e.g., cases that are to be remanded back to the ALJ level, court remands, interlocutory reviews, and Federal Rule 60(b) cases);
Implement internal markers to assist in the preparation of cases and issuance of Commission decisions;
Accelerate processing of cases through a variety of efforts, including early intervention of the Commissioners’ counsels, computerization of changes to draft decisions and development of strategies to resolve cases when there are only two Commission members;
Expand the use of teams in the Office of the General Counsel to reduce the time needed to write decisional memoranda and draft decisions;
Develop new methods to shorten case preparation time;
Develop procedures for case processing and decision quality;
Implement changes to the Agency’s Rules of Procedure to improve case processing;
Make greater use of oral arguments and requests for amicus briefs for complex cases and cases that present significant questions of law; and
Develop case processing measures for employees assigned to cases and ensure individual performance plans support priorities in the Review Commission’s strategic and annual performance plans.

The following performance goals have been developed for fiscal year 2008 to support the FY 2006 – 2011 Strategic Plan:

Public Service Goal	Outcome Goals	FY 2003 Actual	FY 2004 Actual (Target)	FY 2005 Actual (Target)	FY 2006 Actual (Target)	FY 2007 (Target)	FY 2008 (Target)
Reduce the length of time to resolve Commission-level cases	Percent of cases over 2 years old disposed of at the Commission level	New for FY 04	42% (100%)	52% (100%)	22% Target not met (100%)	(100%)	(100%)
Reduce the length of time to resolve priority cases	Percent of priority cases disposed of within 6 months	New for FY 04	100% Target met (100%)	100% Target met (100%)	100% Target met (100%)	(100%)	(100%)

 

Office of Administration Function

The purpose of the Office of Administration is to provide administrative support services for all offices of the Review Commission, to assure success in fulfilling our mission.

Administrative Operations

The Office of Administration function provides operational management for our agency.  The Office of Administration includes procurement, information technology management, human resources management, information security, financial management, budget preparation/justification/execution, and administrative services. The day-to-day tasks of this office are led by the Director of Administration and include:

Supporting the development and implementation of the Agency’s strategic goal;
Maintaining and enhancing a website to provide the public with greater access to Review Commission information;
Providing support agency-wide in the areas of finance, budget, procurement, human resources, equal opportunity and general services;
Providing personnel, payroll, benefits, reproduction, and mail services, and travel assistance to agency employees;
Procuring goods and services, maintenance and needed repairs of equipment, training, reference materials, supplies and office space;
Implementing case management and administrative systems through IT hardware and software;
Developing computer systems and information security enhancements; and
Enhancing telecommunications and improving technology efficiency and effectiveness.

Anticipated Office of Administration Workload for FY 2008

During FY 2008, the Director of Administration will:

Implement the President’s Management Agenda and related initiatives;
Improve financial and administrative services and enhance integrity and efficiency of the Agency’s financial management and human resources programs;
Provide greater online access to information generated by OSHRC to citizens and other interested parties, as required by the E-Gov Act;
Improve computer information security based on an evaluation of the Review Commission’s computer security, compliance with the various security acts and the implementation of corrections or improvements in any weaknesses found as a result of evaluations;

Provide faster and better public access to and dissemination of Review Commission information and decisions through the use of modern automated technology and techniques, including the Agency’s website;
Execute the Continuity Of Operations Plan (COOP) including maintenance, testing, and (if needed) implementation of the COOP for Washington, DC and the regional offices in Denver and Atlanta;
Maintain Homeland Security Presidential Directive (HSPD) #12;
Implement oversight of the Agency’s succession and transition plan;
Evaluate the impact of the Review Commission’s new Strategic Human Capital Management Plan.

 Staffing

Our FY 2008 budget requests funding for 11 FTEs 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.

Funding (in millions) and FTE

	FY 2007 Estimate	FY 2007 Estimate	FY 2008 Estimate	FY 2008 Estimate
	$	FTE	$	FTE
Administration	1.4	11	1.6	11

 

III. Fiscal Year 2006

The President’s Management Agenda:

A Performance Report

Fiscal Year 2006 – The President’s Management Agenda, A Performance Report

 Introduction

The Review Commission’s 2003 - 2008 strategic plan focused on the agency’s general goals of reducing the time it takes to dispose of cases, disposing of all cases pending for more than two years at the Commission level, and improving the quality of decisions and case processing.  The updated and revised strategic plan for 2006 - 2011 reaffirms these goals and the commitment to expedite the disposition of cases that come before the Review Commission.

In addition to the key programmatic goals, OSHRC’s revised strategic plan focuses on the President’s Management Agenda (PMA) initiatives to become a model Federal agency with highly effective processes; to develop and maintain a highly motivated, qualified and diverse workforce; and to implement modern information systems management, communications and administrative systems.   A simple, but powerful example of these changes is reflected in the fact that the median response time for Freedom of Information Act (FOIA) requests filed with the Review Commission has already been reduced from 30 working days down to two working days. 

Strategic Management of Human Capital

The Review Commission began work to implement its new Human Capital Plan during fiscal year 2006, conducting a major agency-wide reorganization.  The reorganization and ensuing personnel and cultural changes were guided by the agency’s need to modernize all aspects of its administrative functions.  Higher performance standards were set, and rewards and sanctions were restructured to make them consistent with OSHRC’s priorities, goals and values as reflected in the agency’s Strategic Plan.  For example, no Review Commission SES member had received a performance appraisal since at least 2001.  During FY 2006, SES staff were not only appraised, but all received completely revamped performance plans in accordance with the agency’s revised, and OPM approved, SES appraisal system.

At the staff level, the Review Commission has hired selectively, recruiting a well qualified and diverse staff.  The human resources staff has recruited and examined 364 applicants for 14 career or career-type positions that were filled during the fiscal year.  The employees recruited provided new knowledge, energy and ideas.  More importantly, especially in the administrative area, they brought to the Review Commission skill sets that had been lacking, but which are necessary for the transformation of the agency into a modern organization. 

As mentioned above, the Review Commission completely overhauled its performance appraisal systems for both the Senior Executive Service and employees in grades 1 through 15.  The emphasis is now placed on performance and results.  The Review Commission has promoted a culture of achievement by recognizing employees based on performance.  The new rating system is also providing more meaningful distinctions in performance.  Accordingly, only about 50% of staff subject to formal appraisal surpassed the fully successful level of performance.  A supervisory assessment tool for gathering employee feedback on Review Commission supervisors and managers was implemented, and leadership behaviors that promote an inclusive work environment were cultivated.  In this regard, the Review Commission has rewritten all staff performance plans and many position descriptions, linking job functions to agency specific goals, as required by the President’s Management Agenda.
Employees completed more than 84 training courses during fiscal year 2006, and developed and presented an annual Judicial Conference attended by more than 32 attorneys and health and safety professionals from across the nation.  In particular, the Office of the General Counsel has increased staff training to include all areas of administrative law and practice, including FOIA, ethics, privacy, appropriations, procurement, and other general legal areas.
For the first time, the Review Commission is undertaking a comprehensive personnel security review.  One hundred percent of employee personnel security files were audited and the Review Commission has implemented a plan for completing appropriate security clearances.

Competitive Sourcing

During fiscal year 2006, the Review Commission re-examined its competitive sourcing program.  Although in previous years much had been outsourced (e.g., library staffing, document scanning, etc.), we looked for new opportunities to bring competition to bear on our non-core functions.  Accordingly, the Review Commission’s FAIR Act inventory was updated to include as a commercial activity, IT support, which had previously been performed “in house.”  As a result of this determination, certain IT functions were outsourced and the Review Commission is now receiving a higher-level of IT support than in previous fiscal years, at a lower cost.

We will continue to look for additional areas to compete.  A copy of the Review Commission’s prior year FAIR Act inventories is posted on the agency’s website.

Improved Financial Performance

Since 2002, the Review Commission has contracted with the Bureau of the Public Debt, Administrative Resource Center, for accounting services.  The Administrative Resources Center prepared the Review Commission’s FY 2006 financial statements.  The principal financial statements include the Balance Sheet, Statement of Net Cost, Statement of Net Position, Statement of Budgetary Resources, Statement of Financing, and the Statement of Custodial Activity.

In accordance with the “Accountability of Tax Dollars Act of 2002,” during 2006, the financial statements were reviewed by the Review Commission’s independent auditors.  The Review Commission received another “unqualified” financial statement opinion reflecting sound and consistent financial management practices.

Internal Controls

The Review Commission is a small agency and does not have a separate Office of Inspector General.  Therefore, the Review Commission’s management team assumes the responsibility for overseeing the assessment of the agency’s internal operations and determining if there are any material weaknesses that need correction.  Two independent program reviews of internal controls take place each year:  an audit of financial statements, and an audit of computer and information security.

In FY 2005, the agency contracted for an independent audit of its computer and information security, consistent with the Federal Information Security Management Act, signed into law as part of the E-Government Act.  This independent evaluation revealed that there was a material weakness in policies and procedures, specifically in information technology Certification and Accreditation.  Recommendations for improvement were made for the agency’s security program and plan.  The agency is using the recommendations generated from the audit to develop management corrections. 

The system of internal controls for the Review Commission is also functioning well.  The system provides reasonable assurance as to the efficiency and effectiveness of programs and operations, reliability of financial and performance information, and compliance with laws and regulations. These controls satisfy the requirements of the Federal Managers’ Financial Integrity Act.  As previously mentioned, the Review Commission contracts for annual audits of its financial statements, including reviews of the adequacy of the Review Commission’s internal control systems. The Review Commission has received an unqualified opinion for each audit conducted.

The Review Commission has also contracted with the National Finance Center for payroll and personnel services.  In addition to the agency’s internal controls and procedures that safeguard assets and ensure that obligations and disbursements are made consistent with management’s direction, both the Bureau of the Public Debt and the National Finance Center have established practices and procedures that assure appropriate internal controls.  The two agencies’ internal control systems are evaluated independently.

Expanded Electronic Government

The Government Paperwork Elimination Act and e-government initiatives require agencies to use technology that allows individuals to submit information or transact business electronically, where practicable.  The Review Commission maintains an interagency agreement with the Government Printing Office to provide a secure website, accessible to the disabled, containing Commission policies, procedures, rules, guides and publications, strategic and performance plans, job opportunities, Commission and ALJ Decisions, links to related agencies and the OSH Act.  The Commission's website, http://www.oshrc.gov, receives about 3,000 hits daily. 
 
We currently post all final Commission and Administrative Law Judge decisions on our website, facilitating dissemination of decisions to interested parties.  Providing the decisions on the Internet has also reduced the public’s need to file Freedom of Information Act requests for them.  During FY 2006, in addition to use of the Federal Register, the Review Commission also published three notices of proposed rulemaking on our website.  Finally, the Review Commission now posts all vacancy announcements on the website.

On August 1, 2005, the Review Commission revised its Rules of Procedure to provide that when all parties consent, documents and pleadings may be filed with the Commission in electronic format.  To date, very few parties have elected to do so.  In order to increase the use of electronic filing, we are exploring its mandatory use in certain instances.  Because we are aware that many small employers may not have the ability to file electronically, the Review Commission will carefully evaluate the use of electronic filing on a case-by-case basis, particularly where the interests of small businesses may be affected.  In sum, electronic filing is available and in place, and our future efforts will be focused on increasing its use.

The Commission continues to modernize its local and wide area networks using internal security management that includes integrated firewall, authentication, and caching services.  Anti-virus protection is performed by a two-fold approach.  One is at the server level using a product that scans all incoming data through our e-mail servers and data residing on the server.  The second is through another vendor’s product on the desktop.  Both solutions provide daily updates of signature files.

Budget and Performance Integration

During FY 2006, the Review Commission initiated a schedule of regular meetings of its senior leadership team in order to ensure timely program and budget execution.  The Review Commission reviews and updates its operating plan, as needed, and makes adjustments accordingly.  The program plan is now fully integrated into the performance management system, which is used to assess both organizational and individual employee effectiveness and results.  The Review Commission has also fully integrated its budget, program and performance management systems, as required by the Government Performance and Results Act.  Finally, the Review Commission’s staff and programs are aligned with the specific tasks and general goals of the approved Strategic Plan.

During the coming fiscal year, the Review Commission plans to explore the use of additional program and budgeting refinements in order to further align specific management practices with the agency’s strategic and program goals.  The initial focus of this effort will be on the agency’s administrative support services.

Other Management Initiatives

During fiscal year 2006, the Review Commission completed a number of projects that ensured compliance with government-wide statutes and regulations.  These include:

On October 27, 2005, the Review Commission began initial implementation of its Personal Identity Verification Program for employees.  This program was initiated in compliance with HSPD-12 requirements.  During FY 2006, the initiation of employee background checks began.  In its next phase, during FY 2007, the agency will be issuing employees credentials that meet current HSPD-12 standards.

On November 4, 2005, the Review Commission issued its first comprehensive policy on employee retention allowances.  The purpose of this policy is to provide additional pay flexibility and employee incentives to retain the most productive and valued employees.  

On January 20, 2006, the Review Commission issued its first comprehensive revision to its GS employee evaluation plan in almost twenty years.  All GS-level employee performance plans are now in compliance with the new system, which links employee evaluations to results achieved.

On April 14, 2006, the Review Commission published a complete revision to its System of Records Notices, as required by the Privacy Act of 1974, 5 U.S.C. § 552a, as amended.  Under the Privacy Act, the Review Commission must publish in the Federal Register a notice describing, inter alia, what systems of records are maintained by the Review Commission and how those records are maintained.

On May 10, 2006, the Review Commission implemented its first comprehensive “Ethics Program” as required under 5 C.F.R. § 2638.203.  The Program outlines the ethical obligations of Review Commission employees.  It also identifies employees and officials responsible for carrying out the Program's various functions.  A prior Directive entitled “Conduct -- Rules of Ethics, 1987” was substantially revised, updated and incorporated into the new Program.

On September 27, 2006, the Review Commission published a complete revision to its regulations implementing the Freedom of Information Act (FOIA), 5 U.S.C. § 552.  The final regulations, which became effective on October 27, 2006, set forth the Commission’s policies, procedures and assigned responsibilities for carrying out the requirements of the FOIA.  These new rules ensure OSHRC compliance with both the FOIA and Executive Order 13392.  In addition, a FOIA Directive was issued on September 29, 2006, that governs the Commission’s day-to-day activities related to this law.

On July 28, 2006, the Review Commission published a complete revision to its regulations implementing the Privacy Act of 1974, 5 U.S.C. § 552a, as amended.  The period for Notice and Comment on that revision ended on August 29, 2006.  The Commission’s proposed rulemaking is a major rewrite of the Commission's existing Privacy Act regulations, first promulgated in 1979.  The final regulations were published in the Federal Register on September 29, 2006 (71 FR 57416).

On August 28, 2006, the Review Commission updated and modernized its Equal Employment Opportunity policies and procedures to comply with all current Equal Employment Opportunity Commission regulations and management directives.  This was the first comprehensive update of the Review Commission’s directives in this important area in over twenty years.

During FY 2007, the Review Commission plans to continue to review and update its system of administrative management directives and associated regulations, where necessary, in order to achieve a “best in class” Federal agency workplace.

IV. Budget by Object
Classification Category

Budget by Object Classification Category

The Occupational Safety and Health Review Commission requests an appropriation of   $10,696,000 for FY 2008.  This amount is approximately three percent higher than the FY 2007 request (which is shown in the table below). The $10,696,000 for the FY 2008 request would support 67 FTEs. With the baseline funds requested, the Review Commission would support the same level of activities and services included in the FY 2007 request.  The growth in the FY 2008 budget request, in part, will offset inflationary increases in salaries and benefits, as well as the affects of higher transportation costs.  In addition, we are requesting $110,000 to fund our GS and SES bonus plans.  The proposed budget for FY 2008 by object classification category is shown in the table below, along with the FY 2007 budget request. A narrative explanation of the amount requested for each object classification follows the table.

Object Classification Table
Fiscal Years 2007 and 2008 ($ in 000s)

				Change FY 2007-2008	Change FY 2007-2008
	Budget Object Class	FY 2007	FY 2008	$	%
11.1	Full Time Permanent Positions	6,542	6,765	+223	+3
11.7	Other Compensation	25	110	+85	+340
	Sub-total	6,567	6,875	+308	+5
12.0	Benefits to Personnel	1,414	1,351	-63	-4
21.0	Travel	117	117	0	0
22.0	Transport of Things	7	7	0	0
23.1	Rental Payments to GSA	1,265	1,311	+46	+4
23.3	Communications, Utilities, and Miscellaneous	61	61	0	0
24.0	Printing	17	17	0	0
25.0 25.3	Other Services Services by Other Federal Agencies	372 326	362 366	-10 +40	-3 +12
25.7	Repair and Maintenance of Equipment	46	56	+10	+22
26.0	Supplies	45	45	0	0
31.0	Equipment	109	128	+19	+17
	Total	10,346	10,696	+350	+3

 

1.Full Time Permanent Positions

			Change FY 2007-FY 2008
FY 2007 $6,542,000	FY 2008 $6,765,000	Amount +$223,000	% +3

The request for FY 2008 includes $6,765,000 to fund the direct payroll costs of 67 FTEs. This includes general pay raises in January 2007 and proposed general pay increases in January 2008. 

11.7 Other Compensation

			Change FY 2007-FY 2008
FY 2007 $25,000	FY 2008 $110,000	Amount +$85,000	% +340

The Review Commission is committed to the Administration’s initiative for the Strategic Management of Human Capital.  As part of this effort, during the past year, the Review Commission has developed a new personnel management performance evaluation system for both senior executive and GS level employees which stresses a results orientation.  Also as part of this effort, the Review Commission has completely revamped its system for employee recognition.  Beginning in FY 2007, all employee performance awards will be directly linked to performance appraisals, and all performance appraisals will be linked to employee performance agreements, agreed to in advance, with managers and supervisors.

Accordingly, to fund this initiative linking pay to performance, the Review Commission requests $110,000 to recognize those employees whose performance is superior, or 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 product, which in turn, contributes to overall agency efforts to accomplish its Strategic Plan objectives.

12.0  Personnel Benefits

			Change FY 2007-FY 2008
FY 2007 $1,414,000	FY 2008 $1,351,000	Amount -$63,000	% -4

An amount of $1,351,000 is needed to fund the payroll-related costs of employee benefits in FY 2008.  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.

21.0  Travel

			Change FY 2007-FY 2008
FY 2007 $117,000	FY 2008 $117,000	Amount -0-	% -0-

The Review Commission requests $117,000 for travel.  Travel of Administrative Law Judges (ALJs) to conduct hearings will require an estimated $108,000.  Travel costs have risen substantially over the last two years due to higher fuel costs.  It should be noted that approximately 92% 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.  Thus, only 8 percent of the Review Commission’s travel budget is discretionary in nature.  Given the large recent increases in the cost of travel, the Review Commission is actively pursuing a strategy of holding some hearings, or parts of hearings, through electronic video teleconferencing (VTC) techniques.
 
The request also includes funds for travel associated with training, conferences and supervisory travel to the regional offices. 

22.0  Transportation of Things

			Change FY 2007-FY 2008
FY 2007 $7,000	FY 2008 $7,000	Amount -0-	% -0-

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

			Change FY 2007-FY 2008
FY 2007 $1,265,000	FY 2008 $1,311,000	Amount +$46,000	% +4

The request includes $1,311,000 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 2006. 

23.3 Communications, Utilities and Miscellaneous Charges

			Change FY 2007-FY 2008
FY 2007 $61,000	FY 2008 $61,000	Amount -0-	% -0-

Telephone and postage costs are projected to require a total of $61,000 in FY 2008.  Local phone service and telecommunications is expected to require $42,000; long distance service is estimated at $6,000.  Postage for the required mailing of letters, cases, and other materials is expected to be $13,000. 

24.0 Printing and Reproduction

			Change FY 2007-FY 2008
FY 2007 $17,000	FY 2008 $17,000	Amount -0-	% -0-

 

The printing costs consist mainly of the charges for publishing proposed 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 $10,000 in fiscal year 2008.  The balance of the budget -- $7,000 -- is needed for the production of compact discs, which contain the latest decisions of the Review Commission’s Administrative Law Judges as well as the decisions of the full Commission.

 25.0  Other Services

			Change FY 2007-FY 2008
FY 2007 $372,000	FY 2008 $362,000	Amount -10,000	% -3

A total of $362,000 is 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 ($31,000), the services of a librarian ($31,000), training ($18,000), and contracting for services required to support the agency’s mission ($58,000).  This category includes funds needed for continuing maintenance of the Review Commission’s Internet website ($18,000), which is housed and maintained by the Government Printing Office. 

 25.3  Services by Other Federal Agencies

			Change FY 2007-FY 2008
FY 2007 $326,000	FY 2008 $366,000	Amount +40,000	% +12

A total of $366,000 is requested for services provided by other Federal agencies.  This area includes $30,000 for personnel and payroll services provided by the National Finance Center, $258,000 for financial and administrative services provided by the Bureau of the Public Debt, $41,000 for building security (estimated) provided by the Department of Homeland Security, and $37,000 for other interagency services.

Repair and Maintenance of Equipment

			Change FY 2007-FY 2008
FY 2007 $46,000	FY 2008 $56,000	Amount +10,000	% +22

An amount of $56,000 is 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.

26.0 Supplies and Materials

			Change FY 2007-FY 2008
FY 2007 $45,000	FY 2008 $45,000	Amount -0-	% -0-

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. 

31.0 Equipment

			Change FY 2007-FY 2008
FY 2007 $109,000	FY 2008 $128,000	Amount +19,000	% +17

The amount of $128,000 is required for equipment in FY 2008.  Subscriptions and other publications necessary to maintain our legal libraries will require $69,000, and $38,000 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.  $21,000 of the amount requested for equipment will be used to replace worn-out or obsolete equipment.  Within this amount we will also fund any furniture that may be needed. 

V. Other Tables

Appropriation History
Occupational Safety and Health Review Commission

Fiscal Year	Request to Congress	House Allowance	Senate Allowance	Appropriation
1995	$7,595,000	$7,655,000	$7,595,000	$7,595,000
1996	$8,081,0001	$8,127,000	$8,200,000	$8,100,000
1997	$7,738,0002	$7,753,000	$7,753,000	$7,753,000
1998	$7,900,000	$7,800,000	$7,900,000	$7,800,000
1999	$8,092,0003	$8,050,000	$8,100,000	$8,100,000
2000	$8,470,0004	$8,500,000	$8,100,000	$8,500,000
2001	$8,720,000	$8,720,000	$8,600,000	$8,720,000
2002	$8,958,0005	$8,964,000	$8,964,000	$8,964,000
2003	$9,673,0006	$9,577,000	$9,577,000	$9,577,000
2004	$9,863,0007	$10,115,000	$10,115,000	$9,610,000
2005	$10,510,2408	$10,516,000	$10,595,000	$10,595,000
2006	$10,404,9009	$10,510,000	$10,510,000	$10,510,000
2007		$10,346,000	$10,510,000	$10,346,000

Authorized Full Time Positions, by Function

Administrative Law Judge	FY 2006 Authorized	FY2007 Estimate	FY2008 Estimate
AL-1	1	1	1
AL-III	11	11	11
GS-14	3	3	3
GS-11	3	3	3
GS-12	1	1	1
GS-9	1	1	1
GS-8	1	1	1
GS-7	3	3	3
GS-6	1	1	1
Sub-total	25	25	25

 

Commission

Executive Level III	1	1	1
Executive Level IV	2	2	2
ES-00	3	3	3
GS-15	6	6	6
GS-14	4	4	4
GS-13	3	3	3
GS-12	6	6	6
GS-11	2	2	2
GS-9	4	4	4
Sub-total	31	31	31

                                       

Administration

ES-00	1	1	1
GS-14	4	4	4
GS-13	1	1	1
GS-12	1	1	1
GS-11	1	1	1
GS-9	1	1	1
GS-6	1	1	1
GS-5	1	1	1
Sub-total	11	11	11
Total full-time equivalent 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