[House Report 116-623]
[From the U.S. Government Publishing Office]


116th Congress   }                                      {       Report
                        HOUSE OF REPRESENTATIVES 
 2d Session      }                                      {       116-623

======================================================================



 
                  TIMELY REVIEW OF INFRASTRUCTURE ACT

                                _______
                                

December 8, 2020.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

        Mr. Pallone, from the Committee on Energy and Commerce, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 1426]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 1426) to amend the Department of Energy 
Organization Act to address insufficient compensation of 
employees and other personnel of the Federal Energy Regulatory 
Commission, and for other purposes, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                CONTENTS

                                                                   Page
   I. Purpose and Summary............................................. 1
  II. Background and Need for the Legislation......................... 2
 III. Committee Hearings.............................................. 2
  IV. Committee Consideration......................................... 3
   V. Committee Votes................................................. 3
  VI. Oversight Findings.............................................. 5
 VII. New Budget Authority, Entitlement Authority, and Tax Expenditure 5
VIII. Congressional Budget Office Estimate............................ 5
  IX. Federal Mandates Statement...................................... 6
   X. Statement of General Performance Goals and Objectives........... 6
  XI. Duplication of Federal Programs................................. 7
 XII. Committee Cost Estimate......................................... 7
XIII. Earmarks, Limited Tax Benefits, and Limited Tariff Benefits..... 7
 XIV. Advisory Committee Statement.................................... 7
  XV. Applicability to Legislative Branch............................. 7
 XVI. Section-by-Section Analysis of the Legislation.................. 7
XVII. Changes in Existing Law Made by the Bill, as Reported........... 8

                         I. Purpose and Summary

    Representatives Pete Olson (R-TX) and Michael Doyle (D-PA) 
introduced H.R. 1426, the ``Timely Review of Infrastructure 
Act'' to address the insufficient compensation of employees and 
other personnel at the Federal Energy Regulatory Commission 
(FERC).

              II. Background and Need for the Legislation

    FERC is composed of 12 program offices. Many of the 
employees and other personnel that enable the Commission to 
complete its mission are highly specialized in fields including 
archaeology, biology, geology, engineering, and environment. 
This level of expertise is necessary to support FERC's numerous 
programs across technology types.
    Due to compensation constraints, FERC has trouble 
recruiting and retaining personnel necessary for the highly 
specialized nature of its work. For example, the Commission has 
had difficulty hiring engineers throughout the agency, with 
only 13 percent of new hires being engineers in 2018, the 
lowest level in the past four fiscal years. In the Office of 
Energy Projects, FERC saw about a 30 percent separation rate in 
its engineering staff. As a result, FERC issued 176 vacancy 
announcements, of which 39 percent of the postings failed to 
identify desirable candidates. Additionally, 18 percent of 
offers were turned down, with most candidates citing 
compensation rates as the main issue.\1\
---------------------------------------------------------------------------
    \1\ Senate Committee on Energy & Natural Resources, Subcommittee on 
Energy Legislative Hearing, 116th Cong. (Sept. 11, 2019).
---------------------------------------------------------------------------
    H.R. 1426 amends section 401 of the Department of Energy 
Organization Act to grant the FERC Chairman additional 
authority to adjust compensation for a category of employees 
and other personnel without regard to certain civil service 
laws. The Chairman must publicly certify that other approaches 
to retaining and attracting employees are inadequate and that 
the adjustment to compensation is necessary to carry out the 
Commission's functions in a timely, efficient, and effective 
manner. The bill also requires that the Chairman periodically 
submit to Congress a report including information related to 
hiring, vacancies, compensation, and efforts to retain and 
attract employees.

                        III. Committee Hearings

    For the purposes of section 103(i) of H. Res. 6 of the 
116th Congress the following hearings were used to develop or 
consider H.R. 1426:
    On June 12, 2019, the Subcommittee on Energy held a hearing 
entitled, ``Oversight of FERC: Ensuring Its Actions Benefit 
Consumers and the Environment.'' The Subcommittee received 
testimony from the following witnesses:
           The Honorable Neil Chatterjee, Chairman, 
        Federal Energy Regulatory Commission
           The Honorable Cheryl A. LaFleur, 
        Commissioner, Federal Energy Regulatory Commission
           The Honorable Richard Glick, Commissioner, 
        Federal Energy Regulatory Commission
           The Honorable Bernard L. McNamee, 
        Commissioner, Federal Energy Regulatory Commission

                      IV. Committee Consideration

    Representatives Olson, Doyle, Thompson (D-MS), and Weber 
(R-TX) introduced H.R. 1426, the ``Timely Review of 
Infrastructure Act'', on February 28, 2019, which was referred 
to the Committee on Energy and Commerce. Subsequently, on March 
1, 2019, H.R. 1426 was referred to the Subcommittee on Energy. 
A hearing related to the legislation was held by the 
Subcommittee on June 12, 2019.
    The Subcommittee on Energy held an open markup session to 
consider H.R. 1426 on January 9, 2020. No amendments were 
offered to the bill and the Subcommittee voted to forward H.R. 
1426 favorably to the full Committee, without amendment, by a 
voice vote.
    On July 15, 2020, the full Committee met in virtual open 
markup session, pursuant to notice, to consider the bill H.R. 
1426 as approved by the Subcommittee on Energy. No amendments 
were offered to the bill during its consideration. At the 
conclusion of markup of the bill, the Committee on Energy and 
Commerce agreed to a motion on final passage offered by Mr. 
Pallone, Chairman of the committee, to order H.R. 1426 
favorably reported to the House, without amendment, by a 
recorded vote of 48 yeas to 3 nays, a quorum being present.

                           V. Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list each record vote 
on the motion to report legislation and amendments thereto. The 
Committee advises that there was one record vote taken on H.R. 
1426, on a motion by Mr. Pallone ordering H.R. 1426 be reported 
favorably to the House, without amendment. The motion on final 
passage of the bill was approved by a record vote of 48 yeas to 
3 nays. The following is the record vote taken during Committee 
consideration, including the names of those members voting for 
and against the motion:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                         VI. Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII and clause 2(b)(1) 
of rule X of the Rules of the House of Representatives, the 
oversight findings and recommendations of the Committee are 
reflected in the descriptive portion of the report.

 VII. New Budget Authority, Entitlement Authority, and Tax Expenditures

    Pursuant to 3(c)(2) of rule XIII of the Rules of the House 
of Representatives, the Committee adopts as its own the 
estimate of new budget authority, entitlement authority, or tax 
expenditures or revenues contained in the cost estimate 
prepared by the Director of the Congressional Budget Office 
pursuant to section 402 of the Congressional Budget Act of 
1974.

               VIII. Congressional Budget Office Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 27, 2020.
Hon. Frank Pallone, Jr.,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1426, the Timely 
Review of Infrastructure Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Aaron 
Krupkin.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
    

    H.R. 1426 would authorize the Federal Energy Regulatory 
Commission (FERC) to increase the compensation for certain 
positions if the agency certifies that the compensation under 
current law is insufficient to retain or attract personnel. The 
certifications would be valid for five years and could be 
extended.
    FERC employees whose work primarily involves using skills 
related to science, technology, engineering, or mathematics 
would be eligible for the higher compensation. Currently, the 
agency has about 400 positions that fit that description. 
Implementing the bill would increase FERC's costs to the extent 
that FERC increases employee compensation using the process 
authorized in H.R. 1426. According to the agency, the annual 
median salary for petroleum engineers at FERC is about $50,000 
less than the annual median salary for petroleum engineers in 
the Washington, D.C. area. Using the assumptions that the pay 
gap is similar for other affected personnel and that FERC would 
gradually close the gap over a five-year period, CBO estimates 
that FERC's real compensation costs would increase by about $60 
million over the 2021-2025 period.
    However, because FERC is authorized to recover 100 percent 
of its costs through user fees, any change in agency costs 
(which are controlled through annual appropriation acts) would 
be offset by an equal change in fees that the commission 
charges. Thus, implementing those provisions would result in no 
net change in discretionary spending.
    If FERC increased fees, it would increase the cost of an 
existing mandate on public and private entities, such as 
electric utilities, that are required to pay those fees. CBO 
estimates that the additional amount collected would average 
about $12 million annually and fall well below the annual 
threshold established in the Unfunded Mandates Reform Act for 
intergovernmental and private-sector mandates ($84 million and 
$168 million in 2020, respectively, adjusted annually for 
inflation).
    On November 7, 2019, CBO transmitted a cost estimate for S. 
607, the Timely Review of Infrastructure Act, as reported by 
the Senate Committee on Energy and Natural Resources on October 
22, 2019. Although the two pieces of legislation are similar, 
the estimated gross cost of implementing the bill is higher for 
H.R. 1426, because that estimate includes costs through 2025 
whereas the estimate for S. 607 only went through 2024. In both 
estimates, there would be no net cost to FERC. In addition, S. 
607 would impose additional reporting requirements on the 
Department of Energy that are not in H.R. 1426. CBO's estimated 
costs reflect that difference.
    The CBO staff contacts for this estimate are Aaron Krupkin 
(for federal costs) and Fiona Forrester (for mandates). The 
estimate was reviewed by H. Samuel Papenfuss, Deputy Director 
of Budget Analysis.

                     IX. Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

        X. Statement of General Performance Goals and Objectives

    Pursuant to clause 3(c)(4) of rule XIII, the general 
performance goal or objective of this legislation is to address 
insufficient compensation of employees and other personnel of 
FERC.

                  XI. Duplication of Federal Programs

    Pursuant to clause 3(c)(5) of rule XIII, no provision of 
H.R. 1426 is known to be duplicative of another Federal 
program, including any program that was included in a report to 
Congress pursuant to section 21 of Public Law 111-139 or the 
most recent Catalog of Federal Domestic Assistance.

                      XII. Committee Cost Estimate

    Pursuant to clause 3(d)(1) of rule XIII, the Committee 
adopts as its own the cost estimate prepared by the Director of 
the Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974.

   XIII. Earmarks, Limited Tax Benefits, and Limited Tariff Benefits

    Pursuant to clause 9(e), 9(f), and 9(g) of rule XXI, the 
Committee finds that H.R. 1426 contains no earmarks, limited 
tax benefits, or limited tariff benefits.

                   XIV. Advisory Committee Statement

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                XV. Applicability to Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

          XVI. Section-by-Section Analysis of the Legislation


Section. 1. Short title

    Section 1 designates that the short title may be cited as 
the ``Timely Review of Infrastructure Act''.

Sec. 2. Addressing insufficient compensation of employees and other 
        personnel of the Federal Energy Regulatory Commission

    Section 2(a) amends section 401 of the Department of Energy 
Organization Act by enabling the Chairman of FERC to fix the 
compensation for FERC employees or other personnel. The 
Chairman may fix compensation if the Chairman publicly 
certifies that compensation is insufficient to retain or 
attract employees or other personnel. Section 2(a) establishes 
that a certification shall apply to employees or other 
personnel who conduct work of a scientific, technological, 
engineering, or mathematical nature. The certification shall 
specify a maximum amount of compensation, be valid for five 
years, explain why other approaches for retaining and 
attracting employees and other personnel are inadequate, and 
not be overly broad. Certifications can be renewed for another 
five years no later than 90 days before the expiration of a 
certification. Section 2(a) also states that employees and 
other personnel hired during periods when the certification 
expired and was not renewed are not eligible for the level of 
compensation that would apply if the certification was in 
effect. If the certification is renewed, the Chairman may fix 
the compensation of new hires. Employees or personnel whose 
compensation was fixed by a certification, may retain the level 
of compensation at the discretion of the Chairman. Section 2(a) 
mandates that the Chairman shall consult with the Director of 
the Office of Personnel Management in implementing this 
subsection.
    Section 2(a) also authorizes the Chairman to obtain the 
services of experts and consultants. The Chairman shall limit 
use of experts and consultants and ensure that employment 
contracts are subject to renewal not less frequently than 
annually.
    Section 2(b) mandates that the Chairman submit a report on 
hiring, vacancies, and compensation at FERC to the Committee on 
Energy and Commerce of the House of Representatives and the 
Committee on Energy and Natural Resources of the Senate no 
later than one year after enactment, and every two years 
thereafter for 10 years. Reports should include trends and 
efforts to retain and attract employees and other personnel.
    Section 2(c) establishes that the amendment shall apply 
beginning 30 days after the date of enactment.

      XVII. Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                 DEPARTMENT OF ENERGY ORGANIZATION ACT




           *       *       *       *       *       *       *
             TITLE IV--FEDERAL ENERGY REGULATORY COMMISSION


                     appointment and administration

  Sec. 401. (a) There is hereby established within the 
Department an independent regulatory commission to be known as 
the Federal Energy Regulatory Commission.
  (b)(1) The Commission shall be composed of five members 
appointed by the President, by and with the advice and consent 
of the Senate. One of the members shall be designated by the 
President as Chairman. Members shall hold office for a term of 
5 years and may be removed by the President only for 
inefficiency, neglect of duty, or malfeasance in office. Not 
more than three members of the Commission shall be members of 
the same political party. Any Commissioner appointed to fill a 
vacancy occurring prior to the expiration of the term for which 
his predecessor was appointed shall be appointed only for the 
remainder of such term. A Commissioner may continue to serve 
after the expiration of his term until his successor is 
appointed and has been confirmed and taken the oath of Office, 
except that such Commissioner shall not serve beyond the end of 
the session of the Congress in which such term expires. Members 
of the Commission shall not engage in any other business, 
vocation, or employment while serving on the Commission.
  (2) Notwithstanding the third sentence of paragraph (1), the 
terms of members first taking office after the date of 
enactment of the Federal Energy Regulatory Commission Member 
Term Act of 1990 shall expire as follows:
          (A) In the case of members appointed to succeed 
        members whose terms expire in 1991, one such member's 
        term shall expire on June 30, 1994, and one such 
        member's term shall expire on June 30, 1995, as 
        designated by the President at the time of appointment.
          (B) In the case of members appointed to succeed 
        members whose terms expire in 1992, one such member's 
        term shall expire on June 30, 1996, and one such 
        member's term shall expire on June 30, 1997, as 
        designated by the President at the time of appointment.
          (C) In the case of the member appointed to succeed 
        the member whose term expires in 1993, such member's 
        term shall expire on June 30, 1998.
  (c) The Chairman shall be responsible on behalf of the 
Commission for the executive and administrative operation of 
the Commission, including functions of the Commission with 
respect to (1) the appointment and employment of hearing 
examiners in accordance with the provisions of title 5, United 
States Code, (2) the selection, appointment, and fixing of the 
compensation of such personnel as he deems necessary, including 
an executive director, (3) the supervision of personnel 
employed by or assigned to the Commission, except that each 
member of the Commission may select and supervise personnel for 
his personal staff, (4) the distribution of business among 
personnel and among administrative units of the Commission, and 
(5) the procurement of services of experts and consultants in 
accordance with section 3109 of title 5, United States Code. 
The Secretary shall provide to the Commission such support and 
facilities as the Commission determines it needs to carry out 
its functions.
  (d) In the performance of their functions, the members, 
employees, or other personnel of the Commission shall not be 
responsible to or subject to the supervision or direction of 
any officer, employee, or agent of any other part of the 
Department.
  (e) The Chairman of the Commission may designate any other 
member of the Commission as Acting Chairman to act in the place 
and stead of the Chairman during his absence. The Chairman (or 
the Acting Chairman in the absence of the Chairman) shall 
preside at all sessions of the Commission and a quorum for the 
transaction of business shall consist of at least three members 
present. Each member of the Commission, including the Chairman, 
shall have one vote. Actions of the Commission shall be 
determined by a majority vote of the members present. The 
Commission shall have an official seal which shall be 
judicially noticed.
  (f) The Commission is authorized to establish such procedural 
and administrative rules as are necessary to the exercise of 
its functions. Until changed by the Commission, any procedural 
and administrative rules applicable to particular functions 
over which the Commission has jurisdiction shall continue in 
effect with respect to such particular functions.
  (g) In carrying out any of its functions, the Commission 
shall have the powers authorized by the law under which such 
function is exercised to hold hearings, sign and issue 
subpenas, administer oaths, examine witnesses, and receive 
evidence at any place in the United States it may designate. 
The Commission may, by one or more of its members or by such 
agents as it may designate, conduct any hearing or other 
inquiry necessary or appropriate to its functions, except that 
nothing in this subsection shall be deemed to supersede the 
provisions of section 556 of title 5, United States Code 
relating to hearing examiners.
  (h) The principal office of the Commission shall be in or 
near the District of Columbia, where its general sessions shall 
be held, but the Commission may sit anywhere in the United 
States.
  (i) For the purpose of section 552b of title 5, United States 
Code, the Commission shall be deemed to be an agency. Except as 
provided in section 518 of title 28, United States Code, 
relating to litigation before the Supreme Court, attorneys 
designated by the Chairman of the Commission may appear for, 
and represent the Commission in, any civil action brought in 
connection with any function carried out by the Commission 
pursuant to this Act or as otherwise authorized by law.
  (j) In each annual authorization and appropriation request 
under this Act, the Secretary shall identify the portion 
thereof intended for the support of the Commission and include 
a statement by the Commission (1) showing the amount requested 
by the Commission in its budgetary presentation to the 
Secretary and the Office of Management and Budget and (2) as 
assessment of the budgetary needs of the Commission. Whenever 
the Commission submits to the Secretary, the President, or the 
Office of Management and Budget, any legislative recommendation 
or testimony, or comments on legislation, prepared for 
submission to Congress, the Commission shall concurrently 
transmit a copy thereof to the appropriate committees of 
Congress.
  (k) Addressing Insufficient Compensation of Employees and 
Other Personnel of the Commission.--
          (1) In general.--Notwithstanding any other provision 
        of law, if the Chairman publicly certifies that 
        compensation for a category of employees or other 
        personnel of the Commission is insufficient to retain 
        or attract employees and other personnel to allow the 
        Commission to carry out the functions of the Commission 
        in a timely, efficient, and effective manner, the 
        Chairman may fix the compensation for the category of 
        employees or other personnel without regard to chapter 
        51 and subchapter III of chapter 53 of title 5, United 
        States Code, or any other civil service law.
          (2) Certification requirements.--A certification 
        issued under paragraph (1) shall--
                  (A) apply with respect to a category of 
                employees or other personnel responsible for 
                conducting work of a scientific, technological, 
                engineering, or mathematical nature;
                  (B) specify a maximum amount of reasonable 
                compensation for the category of employees or 
                other personnel;
                  (C) be valid for a 5-year period beginning on 
                the date on which the certification is issued;
                  (D) be no broader than necessary to achieve 
                the objective of retaining or attracting 
                employees and other personnel to allow the 
                Commission to carry out the functions of the 
                Commission in a timely, efficient, and 
                effective manner; and
                  (E) include an explanation for why the other 
                approaches available to the Chairman for 
                retaining and attracting employees and other 
                personnel are inadequate.
          (3) Renewal.--
                  (A) In general.--Not later than 90 days 
                before the date of expiration of a 
                certification issued under paragraph (1), the 
                Chairman shall determine whether the 
                certification should be renewed for a 
                subsequent 5-year period. 
                  (B) Requirement.--If the Chairman determines 
                that a certification should be renewed under 
                subparagraph (A), the Chairman may renew the 
                certification, subject to the certification 
                requirements under paragraph (2) that were 
                applicable to the initial certification.
          (4) New hires.--
                  (A) In general.--An employee or other 
                personnel that is a member of a category of 
                employees or other personnel that would have 
                been covered by a certification issued under 
                paragraph (1), but was hired during a period in 
                which the certification has expired and has not 
                been renewed under paragraph (3) shall not be 
                eligible for compensation at the level that 
                would have applied to the employee or other 
                personnel if the certification had been in 
                effect on the date on which the employee or 
                other personnel was hired.
                  (B) Compensation of new hires on renewal.--On 
                renewal of a certification under paragraph (3), 
                the Chairman may fix the compensation of the 
                employees or other personnel described in 
                subparagraph (A) at the level established for 
                the category of employees or other personnel in 
                the certification.
          (5) Retention of level of fixed compensation.--A 
        category of employees or other personnel, the 
        compensation of which was fixed by the Chairman in 
        accordance with paragraph (1), may, at the discretion 
        of the Chairman, have the level of fixed compensation 
        for the category of employees or other personnel 
        retained, regardless of whether a certification 
        described under that paragraph is in effect with 
        respect to the compensation of the category of 
        employees or other personnel.
          (6) Consultation required.--The Chairman shall 
        consult with the Director of the Office of Personnel 
        Management in implementing this subsection, including 
        in the determination of the amount of compensation with 
        respect to each category of employees or other 
        personnel.
          (7) Experts and consultants.--
                  (A) In general.--Subject to subparagraph (B), 
                the Chairman may--
                          (i) obtain the services of experts 
                        and consultants in accordance with 
                        section 3109 of title 5, United States 
                        Code;
                          (ii) compensate those experts and 
                        consultants for each day (including 
                        travel time) at rates not in excess of 
                        the rate of pay for level IV of the 
                        Executive Schedule under section 5315 
                        of that title; and
                          (iii) pay to the experts and 
                        consultants serving away from the homes 
                        or regular places of business of the 
                        experts and consultants travel expenses 
                        and per diem in lieu of subsistence at 
                        rates authorized by sections 5702 and 
                        5703 of that title for persons in 
                        Government service employed 
                        intermittently.
                  (B) Limitations.--The Chairman shall--
                          (i) to the maximum extent 
                        practicable, limit the use of experts 
                        and consultants pursuant to 
                        subparagraph (A); and
                          (ii) ensure that the employment 
                        contract of each expert and consultant 
                        employed pursuant to subparagraph (A) 
                        is subject to renewal not less 
                        frequently than annually.

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