Agency Information Collection and Dissemination Activities: Comment Request

DEPARTMENT OF ENERGY

Energy Information Administration

Agency Information Collection and Dissemination Activities:

Comment Request

AGENCY: Energy Information Administration, DOE.

ACTION: Agency electric power information collection and dissemination

activities: Proposed confidentiality comment request.

-----------------------------------------------------------------------

SUMMARY: The Energy Information Administration (EIA) is soliciting

comments concerning the proposed revision to the EIA procedure of

confidentiality treatment given to electric power data collected and

disseminated by the EIA through a series of primarily mandatory surveys

(Form EIA-411 is voluntary). This notice lists the electric power data

elements the EIA considers could cause substantial competitive harm if

made available to the public and EIA is proposing that these elements

will be considered confidential if the provider documents substantial

harm due to unrestricted disclosure.

DATES: Written comments must be submitted by August 31, 1998. The

urgency to review and implement this policy requires close adherence to

the scheduled comment period. If unusual circumstances arise during the

comment period which could cause a delay in meeting the scheduled

response date, please notify the contact person listed below at once.

Effort will be made to accommodate all interested responders to this

notice.

ADDRESSES: Send comments to John G. Colligan, EI-53; Energy Information

Administration, U.S. Department of Energy, 1000 Independence Avenue,

S.W.; Washington, D.C. 20585-0650; (202) 426-1174; e-mail

[email protected]; and fax (202) 426-1311.

FOR FURTHER INFORMATION CONTACT: Requests for additional information or

copies of the electric power forms and instructions should be directed

to John Colligan at the address listed above. Please note, the EIA is

not seeking comments on the survey forms per se, but rather on the

level of confidentiality of specific data elements. A separate notice

regarding forms design is being published and distributed.

SUPPLEMENTARY INFORMATION:

I. Background

II. Current Actions

III. Request for Comments

I. Background

In order to fulfill its responsibilities under the Federal Energy

Administration Act of 1974 (FEAA) (Pub. L. 93-275) and the Department

of Energy Organization Act (Pub. L. 95-91), the Energy Information

Administration (EIA) is obliged to carry out a central, comprehensive,

and unified energy data and information program. As part of this

program, EIA collects, evaluates, assembles, analyzes, and disseminates

data and information related to energy resource reserves, production,

demand, and technology, and related economic and statistical

information relevant to the adequacy of energy resources to meet

demands in the near and longer term future for the Nation's economic

and social needs.

The EIA, as part of its continuing effort to reduce paperwork and

respondent burden (required by the Paperwork Reduction Act of 1995

(Pub. L. 104-13)), conducts a presurvey consultation program to provide

the general public and other Federal agencies with an opportunity to

comment on proposed and/or continuing reporting forms. This program

helps to prepare data requests in the desired format, minimize

reporting burden, develop clearly understandable reporting forms, and

assess the impact of collection requirements on respondents. Also, EIA

will later seek approval by the Office of Management and Budget (OMB)

for the collections under Section 3507(h) of the Paperwork Reduction

Act of 1995 (Pub. L. 104-13, Title 44, U.S.C. Chapter 35).

The EIA conducts surveys to collect electric power data from

electric utilities, electric power marketers, nonutility electric power

producers (cogenerators, small power producers, and other nonutility

electric power generators), and the North American Electric Reliability

Council regions. The electric power data collected include but are not

limited to: ownership; accounting/financial; generation; type and

character of fuels consumed; capacity; heat rates; heat rate

components; demand; purchases; sales; peak loads; imports/exports;

revenues; plants; equipment; distribution systems; reliability; load

management; and environmental data. EIA also collects projections of

load, capacity, and other related information.

The EIA surveys used to collect this data and other information

are:

EIA-411, ``Coordinated Bulk Power Supply Program;''

EIA-412, ``Annual Report of Public Electric Utilities;''

[[Page 38621]]

EIA-417R, ``Electric Power Systems Emergency Report;''

EIA-759, ``Monthly Power Plant Report;''

EIA-767, ``Steam-Electric Plant Operation and Design Report;''

EIA-826, ``Monthly Electric Utility Sales and Revenue Report with State

Distributions;''

EIA-860, ``Annual Electric Generator Report;''

EIA-861, ``Annual Electric Utility Report;''

EIA-867, ``Annual Nonutility Power Producer Report;'' and

EIA-900, ``Monthly Nonutility Sales for Resale Report.''

(The surveys currently in use to collect electric power data are

subject to change reflecting the transformation of the electric power

industry. The EIA is also publishing a notice in the Federal Register,

at this time outlining proposed individual forms changes.)

II. Current Actions

With the restructuring of the generation segment of the electric

power industry, the question of confidential treatment of the electric

power data collected and disseminated by the EIA has become preeminent.

Under existing EIA procedure, in accordance with the Freedom of

Information Act (FOIA), all electric utility data, except heat rate,

are available to the public. Most electric power data collected from

the nonutility industry are treated as commercially sensitive and not

releasable in disaggregated form. The EIA has followed this procedure

since inception of the nonutility form(s) based on the nature of that

market.

With the implementation of the Federal Energy Regulatory Commission

(FERC) Orders 888 and 889, which facilitated wholesale electricity

generation competition, and the initiation of retail competition in

some states, the EIA is addressing the concern of data confidentiality,

through a series of notices to the public which address the need for a

change to the confidentiality of submitted data survey forms. This will

result in an amended procedure that will both balance the public's

right-to-know, and the proprietary right of the electric power

generators to conduct business.

The EIA's initial action was a request for comment(s) from

interested parties and those who might be affected by changes in the

EIA confidentiality procedure. The call for comments was widely

publicized through a Federal Register notice (FRn), and announcements

on the Internet. (Refer to Federal Register: January 13, 1998 (Volume

63, Number 8) [pp 1960-1962]. The EIA extended the comment period of

the notice beyond the customary 60 days, to accommodate all potential

responders. EIA received 116 responses, (Appendix A) several from

organizations representing more than a single entity. Many of the

comments discussed the legal requirements related to confidentiality of

data submitted to the EIA. The respondents presented cogent arguments

on all sides of the issue which is the foundation of the EIA procedure

being presented here.

In developing a policy of confidential treatment of electric power

data collected by the EIA that is fair and equitable, the EIA weighed

the concerns of the industry (as reported in their comments) with the

legal implications of any action(s) taken and the laws governing the

EIA survey collection series. The laws and regulations considered are:

a--Trade Secrets Act, (18 U.S.C. 1905)

b--Freedom of Information Act (FOIA), (5 U.S.C. 552)

c--Department of Energy, Freedom of Information Act (FOIA) Regulations,

(10 C.F.R. 1004)

d--Clean Air Act (as it applies to emissions data), (42 U.S.C. 85)

e--Paperwork Reduction Act, (44 U.S.C. 35)

a--Trade Secrets Act

A trade secret is defined in narrow terms: as a secret commercially

valuable plan, formula, process, or device that is used for the making,

preparing, compounding or processing of trade commodities and that can

be said to be the end product of either innovation or substantial

effort. The collection and dissemination, by the EIA of electric power

data does not include trade secret information or data. By definition

the Trade Secrets Act is not pertinent to the issue of confidentiality

of the EIA electric power data collection series.

b--Freedom of Information Act (FOIA)

The concept of FOIA is an open policy favoring disclosure. There is

a presumption that disclosure is appropriate, with some limited

exemptions. Exemption 4 of FOIA covers confidential commercial or

financial information. However, exemptions to FOIA are narrowly

construed. The test, under exemption 4 of FOIA, of whether to disclose

or to withhold data at the company/plant level is a two prong

examination depending on whether the submission is voluntary or

required. FOIA does not contain specific provisions on information

sharing.

Where information is submitted voluntarily, disclosure under FOIA

is appropriate only if the data provider and/or industry organizations

(in which the data provider holds membership) customarily make the data

available to the public. The fact that a custodian of the data makes it

available to the public is not considered voluntary submission by the

submitter.

All EIA electric power data collections (except Form EIA-411) are

mandatory surveys. Where information is required to be submitted, the

test for FOIA disclosure is whether disclosure would cause substantial

competitive harm. The question of whether substantial competitive harm

will in fact occur (by release of data to the public) is a highly fact-

specific one. The harm must be substantial, a mere negative effect

alone does not meet the standard of substantial harm. Actual

competition is a prerequisite if seeking exception from disclosure

under FOIA. The entity must be operating in a competitive market, not a

non-competitive market. Blanket allegations of harm will not suffice as

proof of substantial harm. The burden is on the entity seeking

confidential treatment of data. When granting an exemption under FOIA,

the question of balance between public interest and the rights of the

submitter are always at issue.

c--Department of Energy (DOE), FOIA Regulations

The DOE complies with the FOIA regulations both in letter and in

spirit. The fact that the EIA has considered specific data elements

nonconfidential or confidential in the past does not preclude a

reevaluation of its position on confidentiality of individual data

elements at any time. The electric power industry changes as do the

circumstances of data reporting. The change in circumstances could

affect disclosure of data collected in prior years by the EIA. For

example, if data are relatively unchanged but the disclosure rule is

now different, the new rule might prevail for disclosure of all such

data collected in prior years. The final EIA procedure will clarify

this point. If underlying data are confidential it is usually

acceptable to disclose the data at an aggregated level without

revealing the data submitter. DOE also complies with the Paperwork

Reduction Act of 1995 which provides that a Federal agency may make

confidential information available to another Federal agency if the

disclosure is not inconsistent with applicable law. The EIA may make

confidential information available to another Federal Agency if it will

be used for statistical purposes only. In accordance with section 12(f)

of the FEAA, the

[[Page 38622]]

Comptroller General or the Secretary shall disclose information in a

manner designed to protect its confidentiality to (1) other Federal

government departments, agencies, and officials for official use upon

request; (2) committees of Congress upon request; and (3) a court in

any judicial proceeding under court order.

d--Clean Air Act

The Clean Air Act prohibits confidential treatment of emissions

data. The Environmental Protection Agency's (EPA) FOIA implementing

regulations has determined that emissions data are defined broadly and

includes ``information necessary to determine the identity, amount,

frequency, concentration, or other characteristics (to the extent

related to air quality) of any emission which has been emitted by the

source * * *''. (EPA is one of the sponsors of Form EIA-767.)

Proposed Procedure

The EIA is proposing an update to its procedure on the confidential

treatment of electric power data collected through the survey series

listed above. The proposed changes are based on the review of the

comments received from all sectors of the industry, and consideration

of the laws and regulations discussed above.

It is the intent of the EIA to establish a procedure of equal

public disclosure treatment for all market participants. The data

elements designated in this document (Table 1) have a potential to be

harmful to the submitter, if released without restriction. Such harm,

if it exists, could qualify the individual submitter's data for

exemption from unrestricted release under the provision(s) of FOIA.

Circumstances vary from reporting entity to reporting entity. It is the

responsibility of the respondent(s) seeking protection under FOIA to

declare the fact-specific occasions that will cause damages, and

explain how their company is directly affected. The burden is on the

respondent to authenticate and document the likelihood of substantial

harm, and the need for nondisclosure of specific data. To show

substantial competitive harm, the respondent must document the

existence of actual competition, how a competitor would use the data to

gain a substantial competitive advantage, and that the data are not

available from another source. Even if the respondent appears to meet

the burden of proof, the EIA is required to balance the harm to the

respondent against the public interest severed by disclosure.

It should be understood that the EIA's identification of these

elements is based on the comments received from the January 1998

solicitation and a thorough review of the laws and regulations. Each

respondent seeking nondisclosure protection, for individually-

identifiable data, should establish that prerogative when submitting

that entity's data to the EIA on the applicable survey(s).

All other data collected by the EIA on the surveys listed in

Section I, Background, will be treated as nonconfidential. Listed in

Appendix B are most of the major data elements ( by Form) that will not

be treated as confidential.

Table 1.--Confidential Data Elements

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Data elements Forms affected

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Future--generating capacity: EIA-411 generator(s)

1--retirement dates planning data for: (a)

2--changes to existing units existing (changes to); (b)

3--planned generating unit data retirement date(s) (c) new

generators (all

information)

EIA-767 planning data for:

(a) new plants/equip.; (b)

equipment updates; (c)

retirement date(s)

EIA-860 planning data for:

(a) generator updates; (b)

retirement date(s); (c) new

generator(s)

EIA-867 planning data for

equipment

Heat rates: EIA-411 (a) heat rate data

EIA-767 (a) boiler

efficiency

EIA-860 (a) heat rate data

1--Sales for resale EIA-412 name(s), quantities,

demand charges, energy/

other charges, revenue/

settlements

2--Contracts

EIA-867 names, maximum

contract amount, amount

delivered

Wholesale purchases/contracts with sellers EIA-412 name(s), quantities,

demand charges, purchased/

exchanged, energy/other

charges, total costs

EIA-867 name(s), maximum

contract amount, amount

delivered

Fuel inventory--stocks EIA-759

Financial data--environmental equipment EIA-767

Sales end user(s) name(s) EIA-867 name(s), maximum

contract, amount delivered

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III. Request for Comments

Prospective respondents and other interested parties should comment

on the actions discussed in Section II, Current Actions. We are seeking

comments on the issue of confidentiality only at this time. General

comments on the forms themselves will be solicited under another FRn

soon to be published. The EIA is taking this approach in order not to

confuse form(s) design and survey coverage(s) with the issue of

confidentiality of the electric power data. The following guidelines

are provided to assist in the preparation of responses.

General Issues

The general issue of this notice is to advise and seek comments on

the EIA's proposed revised procedure of confidentiality treatment of

data elements collected on its several electric power survey form(s),

from all interested parties. Table 1 lists the electric power data

elements the EIA considers could cause substantial competitive harm if

made available to the public. The EIA is proposing that these elements

will be considered confidential if the provider documents substantial

harm due to unrestricted disclosure. Please comment on this proposal.

As a Potential Respondent

While the general rule under FOIA is full disclosure there are

limited

[[Page 38623]]

exemptions. The question of whether data collected by the EIA's

electric power survey(s) series will qualify for an exemption is not

exact. The critical test is: will the release of the data element (at

the plant identifiable unit level) cause or is likely to cause

substantial competitive harm? The presumption of the FOIA favors

disclosure, placing the burden on the data provider to document the

likelihood of such harm.

As a potential respondent to an EIA electric power survey, please

discuss what data elements collected on EIA's electric power surveys

would cause you substantial competitive harm if your individually-

identifiable data were released. Specifically, you should address the

following: (1) is your information available from other public sources;

and (2) how would release of your data cause you substantial

competitive harm. Your response must be specific; broad statements not

addressing specific data elements are not useful in deciding on what

data elements, if any, should be considered as confidential.

As a Potential User

A. As a potential user of data collected in EIA's electric power

surveys, please discuss what data you need in company-identifiable form

and why aggregate data where individual confidentiality is maintained

would not be adequate for your needs. Additionally, please document the

harm and the extent of loss you would endure by not having

individually-identifiable specific data.

As new data needs on electric power are identified in the future

and are considered for inclusion in EIA's surveys, the confidentiality

treatment of any new data element(s) will be subject to the same

procedure and considerations discussed above. Before new element(s) are

included in surveys, EIA will request comments through its presurvey

consultation program and will seek OMB approval.

Comments received in response to this Federal Register notice may

be included in materials submitted to OMB and will be available to the

public.

Statutory Authority: Section 3506 (c)(2)(A) of the Paperwork

Reduction Act of 1995 (Pub. L. No. 104-13).

Issued in Washington, D.C. July 14, 1998.

Jay E. Hakes,

Administrator, Energy Information Administration.

Appendix A

List of Companies Responding to Federal Register Notice of January 13,

1998

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ID Company Type

------------------------------------------------------------------------

1................ Alaska Electric Light & Utility.

Power Co.

2................ Allegheny Power......... Utility.

3................ American Public Power Association.

Association.

4................ American Corporate Consultant.

Resources, Inc.

5................ Arizona Corporation State/Regulator.

Commission.

6................ Association of Electric Association.

Cooperatives.

7................ Baltimore Gas & Electric Utility.

Co.

8................ Bernadette K. Geyer..... Private Citizen.

9................ Bonneville Power Federal Gov.

Administration.

10............... Brickfield/Burchette-For Electric Coop.

3 Texas Coop's.

11............... California Energy State/Regulator.

Commission.

12............... Carolina Power & Light Utility.

Co.

13............... Center for Clean Air Environmental.

Policy.

14............... Central & South West Utility.

Services, Inc.

15............... Coalition For Local Citizen Group.

Power.

16............... Colorado/Dept. Public State/Regulator.

Health/Environment.

17............... Colorado/Dept. State/Regulator.

Regulatory Agencies.

18............... Commonwealth Edison Co-- Utility.

Environmental.

19............... Commonwealth Edison Co-- Utility.

Attorney For.

20............... Commonwealth Edison Co-- Utility.

Law Dept.

21............... Conservation Citizen Group.

Consultants, Inc.

22............... CONSOL Inc.............. Energy Co.

23............... Consumers Energy........ Utility.

24............... Coordinated Energy Ltd.. Consultant.

25............... Detroit Edison.......... Utility.

26............... Duke Energy Corporation. Utility.

27............... Edison Electric Association.

Institute.

28............... Electric Power Group.... Consultant.

29............... Electric Power Supply Association.

Association.

30............... Energy Market & Policy Consultant.

Analysis, Inc.

31............... Energy.................. Utility.

32............... First Energy............ Utility.

33............... Friends Of The Earth.... Environmental.

34............... Groundwork.............. Environmental.

35............... Hawaiian Electric Co. Utility.

Inc.

36............... Illinois Power.......... Utility.

37............... Indiana Dept. Commerce.. State/Regulator.

38............... Iowa Dept. Natural State/Regulator.

Resources.

39............... J.D. McKenzie........... Consultant.

40............... James Kotcon............ Consultant.

41............... Kansas City Power & Utility.

Light Co.

42............... Katherine M. Phillips... Private Citizen.

43............... Kenneth D. Hammett...... Private Citizen.

44............... Komanoff Energy Consultants.

Associates.

45............... Laclede Gas Co.......... Energy Co.

46............... Land & Water Fund....... Environmental.

47............... M. Cubed................ Consultant.

[[Page 38624]]

48............... Maryland Energy State/Regulator.

Administration.

49............... MDU Resources Group..... Utility.

50............... Michigan State--College College/Univ.

of Business.

51............... Michigan Municipal Association.

Electric Association.

52............... Michigan--Dept Consumer State/Regulator.

& Industry Services.

53............... Mid Atlantic Area Association.

Council.

54............... Mid American............ Utility.

55............... Mike Turcotte........... Private Citizen.

56............... Missouri--Dept. of State/Regulator.

Natural Resources.

57............... Missouri--Division of State/Regulator.

Energy.

58............... MSB Energy Associates, Consultant.

Inc.

59............... N. Carolina Dept. State/Regulator.

Environment/Natural

Resources.

60............... National Mining Association.

Association.

61............... National Association of Association.

State Officials.

62............... National Resources Association.

Defense Council.

63............... National Rural Electric Electric Coop.

Cooperative Association.

64............... National Assoc. Association.

Regulatory Utility

Commissioners.

65............... National Assoc. State Association.

Utility Consumer

Advocates.

66............... Native Forest Network... Citizen Group.

67............... New York Energy Research/ State/Regulator.

Development Authority.

68............... New England Conference Association.

PUC Commissioners, Inc.

69............... New Century Energies.... Utility.

70............... New Jersey Dept. State/Regulator.

Environmental

Protection.

71............... North American Electric Association.

Reliability Council.

72............... Northeast States Association.

Coordinated Air Use

Management.

73............... Nuclear Energy Institute Association.

74............... Pacific Gas & Electric Utility.

Co.

75............... Paine Webber............ Financial.

76............... PECO Energy Co.......... Utility.

77............... Pete Salinas, Jr........ Private Citizen.

78............... Philadelphia Public State/Regulator.

Health/Services Air/Man.

79............... Potomac Electric Power Utility

Co.

80............... Public Citizen.......... Citizen Group

81............... Public Service Company Utility.

of New Mexico.

82............... Public Citizens Critical Citizen Group.

Mass Energy Project--1.

83............... Public Citizens Critical Citizen Group.

Mass Energy Project--2.

84............... Public Citizens Critical Citizen Group.

Mass Energy Project--3.

85............... PUC of Ohio............. State/Regulator.

86............... Puget Sound Energy, Inc. Utility.

87............... Resource Data Consultant.

International.

88............... Resources for the Future Consultant.

89............... Right-to-Know Energy Citizen Group.

Information.

90............... Sigcorp Inc............. Utility.

91............... Southern California Utility.

Edison.

92............... Southern Company........ Utility.

93............... Southern Environmental Environmental.

Law Center.

94............... Steve Osterday.......... Private Citizen.

95............... Tampa Electric Co....... Utility.

96............... Terrence Kurtz.......... Private Citizen.

97............... Texas Utilities Electric Utility.

Co.

98............... Tucson Electric Power Co Utility.

99............... U. of Delaware Energy & College/Univ.

Environmental Policy.

100.............. Union of Concerned Environmental.

Scientists.

101.............. University of Wisconsin- College/Univ.

Madison.

102.............. U.S. Senate James M. Federal Gov.

Jeffords (Vermont).

103.............. U.S. Environmental Federal Gov.

Protection Agency.

104.............. U.S. Dept Comm. Bureau Federal Gov.

Economic Analysis.

105.............. U.S. Dept. of Federal Gov.

Agriculture.

106.............. Utility Power Group..... Consultant.

107.............. Vanston Shaw............ Private Citizen.

108.............. Virginia Tech Center/ College/Univ.

Coal & Energy Research.

109.............. Virginia Power.......... Utility.

110.............. Washington-Dept./ State/Regulator.

Community/Trade/Econ-

Devel..

111.............. Washington-Utilities/ State/Regulator.

Transport Commission.

112.............. Western Resources....... Utility.

113.............. William Kreuter......... Consultant.

114.............. Wisconsin--Dept. of State/Regulator.

Justice.

115.............. Wisconsin Public Service Utility.

Corporation.

116.............. Working Assets.......... Consultant.

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[[Page 38625]]

Appendix B

List of Data Elements That Will Not Be Held Confidential

------------------------------------------------------------------------

Data elements Forms affected

------------------------------------------------------------------------

Existing generating capacity EIA-411 all data not listed as

confidential on existing generating

units such as identifiers, type,

capacity, fuel, commercial operation

date

EIA-767 all data not listed as

confidential on steam-electric plant

configuration such as existing

boiler design parameters (excluding

heat rates & retirement date),

existing plant configuration,

existing generator information

EIA-860 all data not listed as

confidential on existing generating

units such as identifiers, type,

capacity, fuel, commercial operation

date

EIA-867 existing facility QF or EWG

status, nameplate rating, existing

electric generator identification/

nameplate rating/ generating unit

type/prime mover type/energy source

Net or Gross Generation EIA-412 net generation by steam,

nuclear, hydro, other

EIA-759 net generation by plant &

energy source

EIA-767 net monthly generation by

generator

EIA-867 gross generation by generator

EIA-900 gross generation by facility

Fuel Consumption EIA-759 fuel consumption

EIA-767 fuel consumed by boiler

(quantity and quality)

EIA-867 quantity and quality of fuel

consumed

Environmental Characteristics EIA-767 byproduct distribution for

the year, air emission standards by

boiler, existing cooling system/

particulate collector/flue gas

desulfurization/stack and flue

design parameters and information

EIA-867 facility environmental

equipment information

Financial Data EIA-412 public electric utility

financial data not listed as

confidential: balance sheet, income

statement, cash flows, cost of plant

in service, taxes, O&M expenses,

employee statistics

Emergency Reports EIA-417R

Retail Sales, Revenue, & Number EIA-826 monthly sales, revenue,

of Consumers number of consumers by customer

class by State

EIA-861 annual sales, revenue, number

of consumers by customer class by

State, electric operating revenues

EIA-867 sales to end users

EIA-900 monthly sales to end users

Sources & Disposition of EIA-861

Energy

EIA-867

EIA-900 monthly sales for resale

Demand Side Management EIA-861

Information

Distribution System Information EIA-861

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[FR Doc. 98-19126 Filed 7-16-98; 8:45 am]

BILLING CODE 6450-01-P