Additional Management Improvements Are Needed To Speed Case Processing at the Federal Energy Regulatory Commission

EMD-80-54: Published: Jul 15, 1980. Publicly Released: Jul 15, 1980.

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Created as an independent regulatory agency within the Department of Energy (DOE), the Federal Energy Regulatory Commission (FERC) is primarily responsible to regulate directly or indirectly electric power, natural gas, and oil in interstate commerce. Under the law, it has also been assigned most of the functions of the former Federal Power Commission, jurisdiction over oil pipeline rates, and other functions previously the responsibilities of the Federal Energy Administration, the Energy Research and Development Administration, and other agencies. The Natural Gas Policy Act of 1978 imposed upon FERC new additional regulatory responsibility for 45 percent of the market for natural gas by bringing much of the previously unregulated intrastate market under FERC jurisdiction. Effective administration of these responsibilities is necessary to provide consumers adequate supplies of energy at reasonable prices and give energy producers the incentives necessary to increase domestic supplies. FERC carries out its assigned functions either through rulemaking or adjudicatory procedures. However, its ability to carry out its responsibilities has been severely hampered by an inefficient case management process; it has a backlog of more than 10,000 unresolved cases, some as old as 17 years.

Despite the progress FERC has made toward improving case management, it needs to be even more aggressive in expediting case processing in each of its major case processing phases of technical analysis, hearings, and Commission decisionmaking. Two major factors contributing to unnecessary delays in processing time are the large numbers of deficient or incomplete applications received and the extensive delays in the FERC preparation of environmental impact statements. Deficient applications are caused by the FERC lack of clarity in defining the required data. Delays in completing environmental impact statements are attributable to poor interagency coordination and inordinate delays in starting environmental reviews. While less than 1 percent of the FERC cases go to hearing, they include almost half of those having a significant impact on the Nation's nonnuclear energy supplies and policy. The hearing process can take from 2 to 5 years. The principal cause of this delay was inadequate incentives for administrative law judges (ALJ) and for FERC itself to expedite the hearing process. Decisionmaking, the final phase of the caseload management process, often consumes one-half to three-fourths of total case processing time. Procedural problems collectively delaying this phase for over 1 year include: inefficient intermediate legal review procedures, inadequate managerial accountabililty for new cases and reconsiderations, and insufficient delegation of authority to expedite considerations of high priority energy decisions.

Matters for Congressional Consideration

  1. Status: Closed - Implemented

    Comments: When we determine what steps the Congress has taken, we will provide updated information.

    Matter: Congress should assign the responsibility for periodic evaluation of ALJ performance to an organization other than the employing agency, such as the Office of Personnel Management or the Administrative Conference of the United States Courts.

  2. Status: Closed - Implemented

    Comments: When we determine what steps the Congress has taken, we will provide updated information.

    Matter: Congress should, to increase incentives for ALJ's to expedite the hearings process, require regulatory agencies such as FERC to develop ALJ performance standards.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should increase incentives for expediting case processing by: (1) establishing and strictly enforcing reasonable target dates and deadlines for all parties to a case with the deadlines based on periodically updated historical case completion times; (2) requiring project managers to provide explanations for failure to meet prescribed deadlines in the FERC monthly MIS case status reports for all cases assigned and identify the appropriate actions needed to resolve these cases within the prescribed timeframes; and (3) using currently available monetary penalties as well as seeking authority to dismiss cases in order to discourage unnecessary delay by applicants when prescribed deadlines have not been met and such action is in the public interest. FERC should also actively seek from Congress new legislative authority to imposed increased monetary civil penalties of up to $25,000 per day.

    Agency Affected: Federal Energy Regulatory Commission

  2. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should direct its Chief Administrative Law Judge to encourage more active exercise of ALJ controls over unnecessary delays during the hearing process by urging that all ALJ's require all parties to a proceeding to at least agree on what the major issues are at the prehearing conference or prior to the commencement of formal hearings.

    Agency Affected: Federal Energy Regulatory Commission

  3. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should direct its Chief Administrative Law Judge to encourage more active exercise of ALJ controls over unnecessary delays during the hearing process by urging that ALJ's resolve discovery requests as early as possible, preferably at the prehearing conference, and to establish strict deadlines for submission of discovery data and completion of settlement negotiations.

    Agency Affected: Federal Energy Regulatory Commission

  4. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should direct its Chief Administrative Law Judge to encourage more active exercise of ALJ controls over unnecessary delays during the hearing process by urging that all ALJ's more critically evaluate requests for time extensions, particularly those which violate the FERC four-fifths rule, and grant them only in the most exceptional circumstances, in accordance with specific criteria established by FERC and set forth in its rules of practice.

    Agency Affected: Federal Energy Regulatory Commission

  5. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should intensify its efforts to enter into written interagency coordination agreements with cognizant agencies which establish a reasonable time period for these agencies to comment on the environmental impact of hydroelectric projects.

    Agency Affected: Federal Energy Regulatory Commission

  6. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should expand the use of generic rulemaking to prevent unnecessary relitigation of common, or generic, issues and include these rulemakings among what FERC considers to be its highest priority actions.

    Agency Affected: Federal Energy Regulatory Commission

  7. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman, FERC, should improve the efficiency and effectiveness of FERC legal review procedures by summarily affirming all ALJ initial decisions not meeting the aforementioned criteria.

    Agency Affected: Federal Energy Regulatory Commission

  8. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should establish a mandatory rather than voluntary rule that FERC staff schedule uncontested settlements on the agenda within 30 days after the settlement offer.

    Agency Affected: Federal Energy Regulatory Commission

  9. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should urge ALJ's to review all settlements and provide FERC with position statements on the fairness and public interest of these settlements to expedite and enhance reasoned FERC decisionmaking.

    Agency Affected: Federal Energy Regulatory Commission

  10. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should require its staff to begin preparing environmental impact statements immediately after completion of its initial review of an application.

    Agency Affected: Federal Energy Regulatory Commission

  11. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should develop and use a centralized filing requirements sourcebook and conduct seminars for the education of industry and FERC staff regarding current FERC rules on filing requirements.

    Agency Affected: Federal Energy Regulatory Commission

  12. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should continue and expand efforts to simplify and clarify current application data requirements.

    Agency Affected: Federal Energy Regulatory Commission

  13. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should discontinue the present practice of routinely accepting and processing incomplete or deficient filings.

    Agency Affected: Federal Energy Regulatory Commission

  14. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should use fines and reject incomplete applications to discourage unnecessary applicant delays in resolving deficiencies, when such action is in the public interest.

    Agency Affected: Federal Energy Regulatory Commission

  15. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should impose reasonable, but strict, deadlines on applicant response time to staff inquiries and on staff review time.

    Agency Affected: Federal Energy Regulatory Commission

  16. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should direct its Chief Administrative Law Judge to encourage more active exercise of ALJ controls over unnecessary delays during the hearing process by requesting that ALJ's include in their initial decisions a brief summary of (1) specific findings of fact and conclusions of law, and (2) more frequent transcript citations to expedite subsequent review of ALJ decisions.

    Agency Affected: Federal Energy Regulatory Commission

  17. Status: Closed - Not Implemented

    Comments: An improved management information system at FERC eliminates the need for this recommendation.

    Recommendation: FERC should direct its Chief Administrative Law Judge to encourage more active exercise of ALJ controls over unnecessary delays during the hearing process by using the FERC monthly hearing status report to aid in assigning cases, consulting ALJ's on their performance, and making recommendations to the Office of Personnel Management on the need for disciplinary action.

    Agency Affected: Federal Energy Regulatory Commission

  18. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should revise current rules of practice and procedure to require applicants, staff, intervenors, and all other parties to a proceeding to file statements of issues and position prior to the commencement of hearings, preferably at the prehearing conference and also at the close of hearings.

    Agency Affected: Federal Energy Regulatory Commission

  19. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should increase the accuracy, completeness, and efficiency of the present management information system by: (1) incorporating verified historical data on average case processing time; (2) centralizing the Management Information System (MIS) subsystem databases; (3) supplementing the present MIS manual report system with more detailed information to meet the needs of lower level management; and (4) fully automating the current manual method for preparing monthly MIS status reports.

    Agency Affected: Federal Energy Regulatory Commission

  20. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should increase managerial accountability for processing delays, efficiency, and overall work performance by: (1) increasing the number of staff members designated as project managers; (2) expanding the role of project managers to include full accountability to top management for delays in case processing until a case reaches hearing or final FERC decision; and (3) holding project managers responsible for supervising and coordinating staff reviews on all their cases.

    Agency Affected: Federal Energy Regulatory Commission

  21. Status: Closed - Not Implemented

    Comments: As discussed on page 32 of GAO/RCED-83-51, FERC states that the delegation authority is not now needed because few delegated decisions have been appealed. Although GAO agrees that there is no immediate need to implement the recommendation, FERC should closely monitor the situation.

    Recommendation: FERC should increase the delegation of agency authority for routine, noncritical case decisionmaking by formally requesting from Congress authority to delegate final decisionmaking authority for those remaining functions it deems appropriate.

    Agency Affected: Federal Energy Regulatory Commission

  22. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should increase the delegation of agency authority for routine, noncritical case decisionmaking by reviewing all nondelegated functions to determine which can be transferred or delegated to key staff, subject to appeal, and delegating these functions immediately.

    Agency Affected: Federal Energy Regulatory Commission

  23. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should increase managerial accountability for cases pending final FERC action or reconsideration by formally requesting from Congress appropriate legislative authority to permit FERC to waive rehearing provisions in appropriate cases.

    Agency Affected: Federal Energy Regulatory Commission

  24. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should increase managerial accountability for cases pending final FERC action or reconsideration by placing a higher priority on FERC action in cases pending rehearing by initially limiting extensions of time for decisions on rehearing requests to a firm but reasonable time period and thereafter allowing further extensions only upon finding certain exceptional case characteristics specifically defined in its rules of practice and procedure.

    Agency Affected: Federal Energy Regulatory Commission

  25. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should increase managerial accountability for cases pending final FERC action or reconsideration by developing a more reliable program branch recordkeeping and casetracking system to monitor cases pending completion of Office of the General Counsel review and final FERC decision.

    Agency Affected: Federal Energy Regulatory Commission

  26. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman, FERC, should improve the efficiency and effectiveness of FERC legal review procedures by developing and periodically updating a legal precedents manual for use throughout FERC, particularly the Office of the General Counsel, OOR, and ALJ's. Once developed, the manual should then be used as a research tool to speed the identification of appropriate legal precedents, trends in FERC policy, and issues conducive to generic rulemaking.

    Agency Affected: Federal Energy Regulatory Commission

  27. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman, FERC, should improve the efficiency and effectiveness of FERC legal review procedures by requiring exception briefs filed subsequent to an initial decision to: follow a standard format; list errors of fact or law asserted; summarize the writer's arguments; and present a concise discussion of policy considerations that warrant FERC review.

    Agency Affected: Federal Energy Regulatory Commission

  28. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman, FERC, should improve the efficiency and effectiveness of FERC legal review procedures by reviewing options for limiting and expediting the OOR review process and revising OOR review policy to reflect those options which would best accomplish this objective.

    Agency Affected: Federal Energy Regulatory Commission

  29. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman, FERC, should improve the efficiency and effectiveness of FERC legal review procedures by encouraging the Director of the Office of Opinions and Review (OOR) and the Chief ALJ to meet periodically to resolve their mutual concerns and establish reasonable constraints on the form, content, citations, support, and summary of ALJ initial decisions.

    Agency Affected: Federal Energy Regulatory Commission

  30. Status: Closed - Not Implemented

    Comments: FERC stated that this recommendation is not feasible because technical memos contain staff analyses it does not wish to make available to the public by including this information in a draft order. FERC has initiated an alternative method of expediting OGC review of cases. Specifically, on many "routine" cases OGC merely agreed with them rather than preparing a legal analysis.

    Recommendation: The Chairman, FERC, should improve the efficiency and effectiveness of FERC legal review procedures by requiring technical staff to prepare memos in the form of draft orders as a means of accelerating the Office of the General Counsel review process.

    Agency Affected: Federal Energy Regulatory Commission

  31. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: The Chairman, FERC, should improve the efficiency and effectiveness of FERC legal review procedures by encouraging the heads of the Office of the General Counsel and technical staff offices to meet periodically to resolve their mutual concerns and establish reasonable constraints on the format, content, and support of technical staff input to the Office of the General Counsel.

    Agency Affected: Federal Energy Regulatory Commission

  32. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should impose reasonable deadlines on final FERC action on all settlements, particularly uncontested ones.

    Agency Affected: Federal Energy Regulatory Commission

  33. Status: Closed - Implemented

    Comments: When we confirm what actions the agency has taken in response to this recommendation, we will provide updated information.

    Recommendation: FERC should strictly adhere to its own rules on interlocutory appeals by allowing exceptions to the FERC automatic denial of these appeals only in the most extraordinary circumstances. In addition, FERC should seriously consider whether it can delegate the review of interlocutory appeals to a single Commissioner to expedite and enhance reasoned FERC decisionmaking.

    Agency Affected: Federal Energy Regulatory Commission

 

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