COMMISSION VACANCY Senator HARKIN. You have done a good job in reducing the backlog, and I appreciate that. Do you have a vacancy now on the Commission? Mr. BACKLEY. Yes; we do. Our former chairman, Ford B. Ford's nomination is currently pending in the Labor Committee. Senator, I have been Chairman three times since 1978. It is getting to be old hat, and I would just as soon be doing something else. I would appreciate anything you can do to urge Mr. Ford's nomination along. Senator HARKIN. That is pending now? Mr. BACKLEY. Yes; it is. Senator HARKIN. That is before our committee. Mr. BACKLEY. I believe, Senator, you are on that committee. Mr. BACKLEY. Ford B. Ford. He has previously appeared before you. At this time we have four sitting Commissioners. The Commission is active and we do have a quorum. Senator HARKIN. How long has that been pending before us? Senator HARKIN. I appreciate you bringing that to my attention. I am going to look at that. Mr. BACKLEY. Thank you. I appreciate that, Senator. Senator HARKIN. That is really all I have. You are doing a good job. Mr. BACKLEY. Congratulations on your reelection. QUESTIONS SUBMITTED BY THE SUBCOMMITTEE Senator HARKIN. Thank you very much. There will be some additional questions which will be submitted for your response in the record. [The following questions were not asked at the hearing, but were submitted to the Commission for response subsequent to the hearing:] 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 the QUESTION: An additional $201,000 has been requested to support Commission review activities. To what do you attribute 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:] |