QUESTIONS SUBMITTED BY THE SUBCOMMITTEE VACANCY ON COMMISSION QUESTION: The Commission operated with all five Commissioners in place during FY 1990; however, the Commission now has a vacancy. When do you expect that the Administration will be sending a nomination to the Senate to fill this vacancy? ANSWER: The Administration submitted the reappointment nomination of Ford B. Ford for Commissioner and redesignated Chairman on September 11, 1990. The nomination was resubmitted on January 4, 1991. QUESTION: If the Commission operates at less than its full complement of five members, would the Commission still require additional staffing? ANSWER: Yes, it would. The additional funds requested are for increased staffing in the General Counsel's office and in the Administrative Law Judge Activity. Workload in these activities is not affected by the Commission having less than a full complement of five members. ADMINISTRATIVE LAW JUDGE DETERMINATIONS QUESTION: Administrative Law Judges at the Commission hear and decide contested cases as initiated by the Secretary of Labor, mine operators and miners. Your budget indicates that you are anticipating an increase in cases. Why are you anticipating those increases? ANSWER: At the time the budget workload estimates were being developed, the Secretary of Labor had published or was in the process of publishing several regulations which we believed would result in an increased workload. Included in these regulations were the pattern of violations and increased civil penalties (which was part of the Budget Reconciliation Agreement). In addition, the Secretary had changed her special assessment procedures. While it could not be determined to what extent these actions will be contested, we believe that the Commission's workload will increase. QUESTION: In FY 1991, the Commission requested funding for an additional ALJ. Was that position filled? ANSWER: No, the position has not been filled. As we testified last year, the Commission's budget for 1991 included funding for General Schedule Pay increases only. The establishment of special pay rates for Administrative Law Judges and Executive Pay increases has prevented the Commission from filling several needed vacancies including an additional judge. CASES CONTESTED QUESTION: Who is contesting the majority of the cases reaching the Commission for review the Secretary of Labor, mine operators, or miners? ANSWER: with the In fiscal Currently, 82% of the cases filed Commission's ALJs are filed by the Secretary of Labor. year 1990, 80% of the cases were filed by the Secretary. Although the cases are filed by the Secretary of Labor, they are the result of operators contesting the Secretary's enforcement actions and resultant civil penalties. At the Commission level, of the 29 cases received as of February 28, 1991, five were filed by the Secretary of Labor, twenty by mine operators and four by miners. In fiscal year 1990 the Commission received 80 cases. Thirteen of these were filed by the Secretary of Labor, 55 by mine operators, 10 by miners and one each by the United Mine Workers and the American Mining Congress. QUESTION: Are these cases based on substantive issues or are those cases in effect being filed to protest the amount of fines being levied? ANSWER: All cases filed for Commission Review, and the vast majority of cases filed at the ALJ trial level, involve substantive issues including mine site conditions at the time the citation was issued. Currently, we are receiving a substantial number of cases appealing the procedure under which the Secretary of Labor is to apply excessive history in computing the civil penalties. AGE OF CASES/CARRYOVER QUESTION: Although your projections indicate that more cases will be decided at the Administrative Law Judge level, the number of cases carried over will also increase. This same trend of carryovers is projected at the Commission level. What is the average age of cases being carried over? ANSWER: At the Commission Review level the average age of 31 cases in inventory is 6.8 months. The average age of the 18 cases decided as of February 28, 1991 is 7.1 months. At the ALJ (trial) level the Commission had 1,625 cases pending as of February 28, 1991. The Commission's ADP system does not provide an age inventory, however, we believe that it would be about 4.5 months. The average of the cases decided by the ALJs this year is 5.9 months. COMMISSION REVIEW QUESTION: An additional $201,000 has been requested to support Commission review activities. To what do you attribute the increased workload? ANSWER: Of the $201,000 increase requested in FY 1992, $123,000 is for increased pay costs. The amount of $60,000 is for annualization of the FY 1991 increases and $63,000 for the proposed 4.2% General Schedule increase in FY 1992. The balance of the increase, $78,000, is being requested for two additional FTE, including an additional attorney for the General Counsel's office, scheduled to be hired at the beginning of the fiscal year. SURPLUS ADMINISTRATIVE LAW JUDGES QUESTION: The National Labor Relations Board has, for several years, loaned Administrative Law Judges, on a reimbursable basis, to other agencies to help address backlogs. Will the Commission explore the possibility of utilizing these surplus ALJs from the NLRB and report back to this Subcommittee on the results of your discussions with the Board? ANSWER: Yes, we will. The Commission supports the effective utilization of government personnel and is concerned with achieving economies in governmental services. The hiring or detailing of administrative law judges must be coordinated with and approved by the Office of Personnel Management. The Commission will keep the Subcommittee informed of discussions, results and available opportunities to utilize surplus NLRB judges. OCCUPATIONAL SAFETY AND HEALTH REVIEW STATEMENT OF EDWIN G. FOULKE JR., CHAIRMAN ACCOMPANIED BY: PAUL TENNEY, ADMINISTRATIVE LAW JUDGE JAN COLLINS, EXECUTIVE DIRECTOR LARRY HOSS, DIRECTOR OF ADMINISTRATIVE SERVICES EARL OHMAN, JR., GENERAL COUNSEL DAVID JONES, CHIEF LEGAL COUNSEL AND SPECIAL ADVISOR BUDGET REQUEST Senator HARKIN. Occupational Safety and Health Review Commission, established by the Occupational Safety and Health Act of 1970, has the responsibility of adjudicating cases, when disagreements arise over OSHA safety and health inspections performed by the Occupational Safety and Health Administration. The budget request for next year is $6.7 million, an increase of $464,000 over last year. We have here Mr. Edwin Foulke Jr., Chairman of Occupational Safety and Health Review Commission. We will put your statement in the record. If you would identify the people with you and give us a summary, I would appreciate it. Mr. FOULKE. Thank you, Mr. Chairman. To my immediate right is our Chief Administrative Law Judge, Paul Tenney. To my immediate left is the Director of Administrative Services, Mr. Larry Hoss, and to his left is our General Counsel, Mr. Earl Ohman. Also present, to my left is the agency's Executive Director, Jan Collins. Behind me also and to my right is David Jones, who is my Chief Legal Counsel and special advisor, and Ray Darling, who is the Executive Secretary, Clerk of Court of the agency, sir. It is a privilege to appear here before you and the committee to present for your consideration our fiscal year 1992 appropriation request for the Review Commission. The Commission has requested funding levels for fiscal year 1992 of $6,711,000, which, as you mentioned is an increase of $464,000 over the appropriated 1991 fiscal year funding levels. PREPARED STATEMENT We have also requested funding to support a staffing level of 82 FTE's, which is 4 FTE's above the estimated level for fiscal year 1991. I will be happy to answer any questions that you have for our agency. [The statement follows:] STATEMENT OF EDWIN G. FOULKE JR. Mr. Chairman, it is a privilege to appear before you and the Committee to present for your consideration the fiscal year 1992 appropriation request for the Occupational Safety and Health Review Commission. The Commission's requested funding level for fiscal year 1992 is $6,711,000, which is an increase of $464,000 above the fiscal year 1991 funding level. The requested funding will support a staffing level of 82 Full Time Equivalent (FTE) positions, which is 4 FTE above the estimated level for fiscal year 1991. The Occupational Safety and Health Review Commission (Commission) is an independent adjudicatory agency established under the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. (Act). The Commission is primarily composed of three Commission members (commissioners) who are appointed by the President with the advice and consent of the U.S. Senate, and a corps of administrative law judges (ALJ's). Its purpose is to effect the just and expeditious adjudication of disputes between the Occupational Safety and Health Administration (OSHA), an agency of the Department of Labor, and employers charged with violations of safety and health standards enforced by OSHA. The Commission has a two-tier system for adjudicating contested OSHA cases. At the first level, proceedings are conducted before an ALJ of the Commission. When a case at this level cannot be concluded by settlement or upon motion, it is decided by an ALJ after a hearing conducted in accordance with the Commission's Rules of Procedure and the Administrative Procedure Act. At the second level of proceedings, the commissioners review cases to assure consistent application of precedent and to formulate case law in novel circumstances and as to new OSHA standards. Any one commissioner, acting alone, can direct review of any ALJ decision. Unless a commissioner directs a case for review within 30 days, the ALJ's decision becomes the final decision of the Commission. The commissioners normally decide each case based upon a review of the record, which includes briefs filed by the parties, and, where appropriate, upon oral argument engaged in by the parties before the commissioners. With the exception of directing cases for review, the Act requires a quorum of two commissioners and the affirmative vote of two commissioners for the Commission to take official action. During fiscal year 1990, 3,365 new contested cases were filed with the Commission, which was a slight decrease from the fiscal year 1989 level. However, the Commission presently estimates that approximately 3,630 new cases will be filed in fiscal year 1991, and that 3,830 new cases will be filed in fiscal year 1992. It must be noted that these estimates do not take into consideration the 700 percent increase in the maximum civil penalty amounts provided by the newly enacted Omnibus Budget Reconciliation Act of 1990. It is likely that the above increase in civil penalty amounts will increase the volume of contested cases filed with the Commission. When an employer is cited by OSHA, the employer has the option of paying the fine and correcting the violation or of filing a Notice of Contest with the Commission. It is reasonable to assume that employers faced with significantly higher fines will be more likely to contest the citation and pursue the matter through hearing before the Commission. The Department of Labor has indicated that the contest rate may increase from the present 7 to 9 percent to perhaps 30 percent as a result of the new penalty amounts. This will result in a concomitant increase in the Commission's caseload. However, the amount of this increase cannot be determined with certainty until later in fiscal year 1991. OSHA commenced implementation of the increased civil penalty amounts in March 1991. Should the Commission's caseload be significantly increased as a result, the funding and FTE levels in its ALJ program may well require increases for staff, travel for hearings, and hearing transcript costs in order to maintain a reasonable case disposition time. Otherwise, the volume of contested cases awaiting disposition by Commission ALJ's may increase in significant numbers. At the second level of Commission proceedings, a sharp increase in directions for review and dispositions has occurred since the establishment of a quorum of commissioners in late fiscal year 1990. This level of case activity is expected to continue through the remainder of fiscal year 1991 and fiscal year 1992. During the past eight months, the Commission has made substantial progress in the disposition of cases which have been at the review level for some time. Many of these older cases were pending as a result of the absence of a quorum of commissioners, and some because the issues were complex and difficult to decide. In addition, I attribute part of the Commission's success in disposing of cases to a change in a procedural rule which now encourages parties in proceedings before the commis |