# Agency Information Collection and Dissemination Activities: Comment Request

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URL: https://www.frixlaw.com/law-library/documents/fr%3A98-19126

## Record

- **Collection:** Federal Register
- **Document type:** Notice
- **Published:** July 17, 1998
- **Citation:** 63 FR 38620

## Text

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
------------------------------------------------------------------------
Data elements Forms affected
------------------------------------------------------------------------
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
------------------------------------------------------------------------

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
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

[[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
------------------------------------------------------------------------

[FR Doc. 98-19126 Filed 7-16-98; 8:45 am]
BILLING CODE 6450-01-P

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A98-19126. Public record. Not legal advice.