sioners to request oral argument. Oral arguments have enabled the commissioners to question the parties as to their prospective on the issues presented and to reach accord on the disposition thereof.

In summary, Mr. Chairman, I am pleased with the progress that the Commission has made during the past year that I have been Chairman. I firmly believe that the Commission will be faced with an increase, and possibly a sizable increase, in contested cases during fiscal years 1991 and 1992. Should the increase prove to be sizable, the continued utilization of efficient case management procedures and careful use of resources may not be adequate to handle such an increase without an increase in staff personnel.

This concludes my opening statement. Again, I appreciate the opportunity to appear before you today. My staff and I will be glad to answer any questions that you and the Committee may have at this time.

THREE MEMBER BOARD

Senator HARKIN. You have a full complement on the Commission now?

Mr. FOULKE. Yes, Mr. Chairman. We have, I was confirmed by the Senate the last day of February of last year, and came on board March 5. The other two commissioners, Commissioner Montoya and Commissioner Weisman, came on board in May 1990. We are a three-member board.

Senator HARKIN. So you have been at full strength. I really do not have any questions, unless you have anything specific that you want me to focus on.

Mr. FOULKE. No; I think our budget submission pretty well states forth our position, and the statement we have submitted pretty much covers everything.

QUESTIONS SUBMITTED BY THE SUBCOMMITTEE

Senator HARKIN. Thank you very much. Thank you all for being here. There will be some additional questions from various Senators which we will submit to you for your response.

[The following questions were not asked at the hearing, but were submitted to the Commission for response subsequent to the hear

QUESTIONS SUBMITTED BY THE SUBCOMMITTEE

Commission Workload/Quorum

I am pleased to see that today, the Commission does have a quorum. Last year, as I recall, the Commission was without one single Commissioner and had been for some time. The Commission is projecting that it will review 2.8% or 110 of the Administrative Law Judge decisions in 1991. Inasmuch as the Commission will be operating at full strength for the first time in several years and inasmuch as the amount of penalties is expected to increase substantially, do you feel that you have under-estimated the workload for FY 1991?

Not at this time. It is anticipated that an increase in litigation as a result of higher proposed penalties will occur. However, it is almost impossible to estimate with any accuracy what the size of the increase in the Commission caseload will be. It may very well be late fourth quarter FY 1991 or early FY 1992 before the anticipated caseload increase materializes before the Review Commission.

Processing Time

the

It is my understanding that all fines and directive actions by OSHA are held in abeyance when an OSHA decision is contested until such time as a decision is issued by the Commission. What steps is the Commission taking to move quickly on violations at transitory-type industries. For example, construction industry has one of the highest injury and fatality rates in the country. I could foresee instances where an OSHA fine and citation would be contested and by the time the Commission issued a decision, the job at the construction site was done and safety measures were never put into place. How are you addressing these circumstances?

At the outset, it should be noted that the Occupational Safety and Health Act provides in section 10(b) that corrective action is delayed until entry of a final Commission order only "in the case of any review proceedings under this section initiated by the employer in good faith and not solely for delay or avoidance of penalties." This provision has been invoked only rarely. Therefore, it is the highest priority of the Review Commission to adjudicate cases as expeditiously as possible. To accomplish this, Review Commission judges make every effort to speed the resolution of cases. Approximately 93% of the Commission's cases are settled by the parties through consensual resolution prior to a hearing. In addition, the Commission provides in its Rules of Procedure for a separate set of simplified procedures to permit less formal and faster processing of certain classes of cases. In cases not eligible for simplified proceedings, Commission Rules of Procedure automatically expedite proceedings in cases initiated by employee notices of contest and by petitions for modification of abatement. All other cases may be expedited by motion of a party or the Commission itself.

Increase in the Number of Appeals

OSHA penalties for violation of standards increased from $11.2 million in FY 1986 to $45.7 million for FY 1989. This obviously affected the Commission's caseload. Are the

contested decisions being heard by the Commission based on the amount of the fines or on the substantive underlying issues?

Based upon those cases that have been contested before the Commission, the overwhelming majority of those are contested on the merits of the case rather than the dollar amount of the proposed fines.

Administrative Law Judges

I note that the Commission has requested 3 additional FTE's for the Office of Administrative Law Judges. The National Labor Relations Board has a surplus of Administrative Law Judges. Has the Commission looked at borrowing Administrative Law Judges on a reimbursable basis to help reduce its

caseload?

During the last few months, several unexpected (ALJ) vacancies occurred in the Commission's ALJ program due to retirements and transfers. Currently there is a staffing level of 39 FTES allocated to the ALJ program. The time required to recruit and employ selectees for those positions will result in an average FTE employment of 34 for FY 91. By the end of FY 92, the Commission expects to have a fully encumbered ALJ program staff of 39 FTEs.

At the present time, the Commission's administrative law judge staff is fully capable of handling the contested caseload before it and no reason exists to borrow ALJS from outside the Commission.

Caseload Increases

Your budget justification states that you expect an increase in cases as a result of increases in OSHA penalty limits. How soon do you expect to see these increases in case loads?

It cannot be estimated with any degree of certainty as to exactly when the caseload may begin to increase as a result of the increased OSHA penalty proposals. However, we do know that OSHA did not begin enforcement of the higher penalty authority until March of this year. The Commission may begin to receive some contested cases with increased penalty amounts during the last quarter of FY 91 and certainly early in FY 92.

U.S. NAVAL HOME

STATEMENT OF CAPT. FRANCIS J. FERRY, GOVERNOR

BUDGET REQUEST

Senator HARKIN. Now we have one more, Naval Home, the last independent agency we will hear from this morning.

The Naval Home is requesting $10,055,000 for operations and maintenance, a capital outlay request of $1.2 million. This is the first time that the Labor, Health and Human Services Subcommittee has considered the Naval Home's funding request. Prior to this year, the Home was funded out of the Defense Subcommittee on Appropriations. The 1991 defense authorization requires the Naval Home and U.S. Soldiers' and Airmen's Home to be merged into a new, Federal independent agency, the Armed Forces Retirement Home, by 1995.

I would like to welcome Capt. Francis J. Ferry before the subcommittee today. Captain Ferry presently serves as the 57th Governor of the Naval Home, which is celebrating its 157th anniversary this year. The Home was established by Congress to provide for proper care of older and disabled members of the Navy and Marine Corps.

Captain Ferry, welcome to the subcommittee. Your statement will be made a part of the record in its entirety. If you could summarize it I would appreciate it.

Captain FERRY. Thank you, Mr. Chairman. It is a pleasure to appear before you today for the first time to discuss our U.S. Naval Home. I have prepared a statement for insertion in the record, but a brief summary follows.

My purpose this afternoon is to furnish information on the Home that would be helpful to the committee during considerations of the fiscal year 1992 budget. We are located, sir, on 38 acres on the shores of the Gulf of Mexico in Gulfport, MS.

Our main building is the resident dormitory that can house 580 Navy residents in individual rooms. Attached to it is a 60-bed health care complex, and routine support facilities. The remaining buildings are used to support our Home functions. Membership of the Home as of March 15, 1991, was 355.

Now I would like to digress here-sorry about the hour being late one of our residents died on that day, and her name was Mary Reed. Mary died at the age of 94. She spent 12 years at the Naval Home. She was a World War I vet. She was a yeoman second class from Miners Mills, PA, and she was very active in politics. She served with the mayor of Philadelphia, and I think it would be a tribute to this committee and to Mary and to her family if her name would be mentioned in the Congressional Record. Senator HARKIN. I appreciate that. Thank you.