Confidentiality of Electric Power Data

Confidentiality of Information on EIA Electric Power Surveys

The Energy Information Administration (EIA) of the Department of Energy (DOE) is required to publish, and otherwise make available to the public, high-quality statistical data that reflect national electric supply and demand activity as accurately as possible. To meet this obligation, as well as internal DOE requirements for accurate data, the Electric Power Division of the EIA has developed statistical surveys that encompass each significant electric supply and demand activity in the United States.

The EIA recently updated its procedure on the confidential treatment of electric power data collected through its surveys. It was deemed an appropriate time to review and modify the confidential treatment of the electric power data, because implementation of Orders 888 and 889 of the Federal Energy Regulatory Commission facilitated the expansion of competition in wholesale trade. In addition, restructuring of the generation segment of the electric power industry is occurring, although retail competition is limited at this time.

The EIA requested comments from interested parties and those who might be affected by changes in the EIA confidentiality procedure. The call for comments was widely publicized through two Federal Register notices, announcements on the Internet, and a letter mailed to all current electricity respondents. (Federal Register: March 13, 2001 (Volume 66, Number 49) [p 14564] and Federal Register: March 13, 2001 (Volume 66, Number 49) [p 14562]). The changes to EIA's procedure on the confidential treatment of electric power data collected through its surveys were based on a review of all the comments received and consideration of the applicable laws and regulations.

The EIA implemented a procedure of equal public disclosure treatment for all market participants. The EIA weighed the concerns of the commentors with the legal implications of any action(s) taken and the laws governing the EIA survey collection series. The laws and regulations considered were:

Trade Secrets Act, (18 U.S.C. 1905)
Freedom of Information Act (FOIA), (5 U.S.C. 552)
Department of Energy, Freedom of Information Act (FOIA) Regulations, (10 C.F.R. 1004)
Paperwork Reduction Act, (44 U.S.C. 35).

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.

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. Where information is required to be submitted, the test for FOIA disclosure is whether disclosure would likely 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 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.

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. If underlying data are confidential, it is usually acceptable to disclose the data at an aggregated level without revealing the data submitter.

Paperwork Reduction Act

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 to avoid burdening industry with multiple submissions of the same information. The Office of Legal Counsel of the Department of Justice concluded on March 20, 1991, that the Federal Energy Administration Act requires the EIA to provide company-specific data to the Department of Justice, or to any other Federal Agency when requested for official use, which may include enforcement of Federal law. The information may also be made available, upon request, to:

another component of the Department of Energy (DOE)
any Committee of Congress,
the General Accounting Office or
Congressional agencies authorized by law to receive such information or
Court of competent jurisdiction.

Updated Procedure
(effective November 30, 2001)

The updated procedure makes two types of changes:

some data elements that were not considered confidential in the past will now be treated as confidential, and
some data collected from unregulated companies that were formerly treated as confidential will now be made publicly available.
Note: Confidential data collected prior to this change will still be held confidential.

The data elements listed in the table below will be treated as confidential. The EIA's provisions or confidentiality of the data elements are:

The EIA is required to provide company-specific data to the Department of Justice, or to any other Federal Agency when requested for official use, which may include enforcement of Federal law. The information may also be made available, upon request, to another component of the Department of Energy (DOE); to any Committee of Congress, the General Accounting Office; or to Congressional agencies authorized by law to receive such information. A court of competent jurisdiction may obtain this information in response to an order.
The information will be kept confidential and not disclosed to the public to the extent that it satisfies the criteria for exemption in the Freedom of Information Act (FOIA), 5 U.S.C. §552, the DOE regulations 10 C.F.R. §1004.11, implementing the FOIA, and the Trade Secrets Act, 18 U.S.C. §1905.
Upon receipt of a request for this information under the FOIA, the DOE shall make a final determination whether the information is exempt from disclosure in accordance with the procedures and criteria provided in the regulations. Respondents may be asked for additional information on how release of the information would be likely to cause substantial competitive harm. The respondents will be encouraged to provide a letter with their submission of data that explains (on an element-by-element basis) the reasons why the information would be likely to cause the respondent substantial competitive harm if released to the public. The letter would be kept on file to respond to requests for the information under the FOIA. A new justification would not need to be provided each time information is submitted on an EIA form if the justification has not changed.

Confidential Data Elements
Data Elements	Forms Affected
Costs of fuels for unregulated plants	EIA-423 - costs of coal, natural gas and petroleum at an unregulated power plant
Tested heat rates	EIA-411 - tested heat rate under full load EIA-860 - tested heat rate under full load
Fuel inventory - stocks	EIA-906 - end-of-month coal and petroleum stocks
Plant costs and expenses for unregulated plants	EIA-412 - generator plant cost and expenses for unregulated plants
Monthly electricity sales information reported for energy-only service	EIA-826 - monthly electric sales, revenue, and number of customers reported for energy-only service
Latitude and longitude	EIA-411 - latitude and longitude EIA-767 - latitude and longitude EIA-860 - latitude and longitude
Other data elements collected in the electric power surveys will not be treated as confidential.

Appealing EIA's Confidentiality Policies

Authority to waive reporting requirements, in the event of undue hardship or unusual circumstances, is vested in the Department of Energy’s Office of Hearings and Appeals. Exception provisions are contained in the Code of Federal Regulations 10 CFR 1003, Subpart B (see below). A request for exception should include your name, address, and telephone number; the number and name of the form; and a detailed description of the extent of the hardship caused by filing the form. It should be addressed to:

Mr. George B. Breznay
Director
Office of Hearings and Appeals
1000 Independence Avenue, S.W.
Washington, D.C. 20585

[Code of Federal Regulations]
[Title 10, Volume 4, Parts 500 to end]
[Revised as of January 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR1003]

[Page 559-561]

TITLE 10--ENERGY
CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)
PART 1003--OFFICE OF HEARINGS AND APPEALS PROCEDURAL REGULATIONS--
Table of Contents

Subpart B--Exceptions

Sec. 1003.20 Purpose and scope.

(a) This subpart establishes the procedures for applying for an exception or exemption, as provided for in section 504 (42 U.S.C. 7194) of the Department of Energy Organization Act (42 U.S.C. 7101 et seq.), from a rule, regulation or DOE action having the effect of a rule as defined by 5 U.S.C. 551(4), based on an assertion of serious hardship, gross inequity or unfair distribution of burdens, and for consideration of such application by the OHA. The procedures contained in this subpart may be incorporated by reference in another DOE rule or regulation which invokes the adjudicatory authority of the Office of Hearings and Appeals. The procedures may also be made applicable to proceedings undertaken at the direction of an appropriate DOE official if incorporated by reference in the delegation.

(b) The filing of an application for an exception shall not constitute grounds for noncompliance with the requirements from which an exception is sought, unless a stay has been issued in accordance with subpart D of this part.

[60 FR 15006, Mar. 21, 1995, as amended at 61 FR 35114, July 5, 1996]

Sec. 1003.21 What to file.

A person seeking relief under this subpart shall file an ''Application for Exception,'' which should be clearly labeled as such both on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing. The general filing requirements stated in Sec. 1003.9 shall be complied with in addition to the requirements stated in this subpart.

Sec. 1003.22 Where to file.

All applications for exception shall be filed with the OHA at the address provided in Sec. 1003.11.

Sec. 1003.23 Notice.

(a) The applicant shall send by United States mail a copy of the application and any subsequent amendments or other documents relating to the application, or a copy from which confidential information has been deleted in accordance with Sec. 1003.9(f), to each person who is reasonably ascertainable by the applicant as a person who would be aggrieved by the OHA action sought. The copy of the application shall be accompanied by a statement that the person may submit comments regarding the application within 10 days. The application filed with the OHA shall include certification to the OHA that the applicant has complied with the requirements of this paragraph and shall include the names and addresses of each person to whom a copy of the application was sent.

(b) Notwithstanding the provision of paragraph (a) of this section, if an applicant determines that compliance with paragraph (a) of this section would be impracticable, the applicant shall:

[[Page 560]]

(1) Comply with the requirements of paragraph (a) of this section with regard to those persons whom it is reasonable and practicable to notify; and

(2) Include with the application a description of the persons or class or classes of persons to whom notice was sent. The OHA may require the applicant to provide additional or alternative notice, may determine that the notice required by paragraph (a) of this section is not impracticable, or may determine that notice should be published in the Federal Register.

(c) The OHA shall serve notice on any other person readily identified by the OHA as one who would be aggrieved by the OHA action sought and may serve notice on any other person that written comments regarding the application will be accepted if filed within 10 days of service of such notice.

(d) Any person submitting written comments to the OHA with respect to an application filed under this subpart shall send a copy of the comments, or a copy from which confidential information has been deleted in accordance with Sec. 1003.9(f), to the applicant. The person shall certify to the OHA that he has complied with the requirements of this paragraph. The OHA may notify other persons participating in the proceeding of such comments and provide an opportunity for such persons to respond.

Sec. 1003.24 Contents.

(a) The application shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the application and to the OHA action sought. Such facts shall include the names and addresses of all affected persons (if reasonably ascertainable); a complete statement of the business or other reasons that justify the act or transaction; a description of the acts or transactions that would be affected by the requested OHA action; and a full discussion of the pertinent provisions and relevant facts contained in the documents submitted with the application. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the application.

(b) The applicant shall state whether he requests or intends to request that there be a conference or hearing regarding the application. Any request not made at the time the application is filed shall be made as soon thereafter as possible. The request and the OHA determination on the request shall be made in accordance with subpart F of this part.

(c) The application shall include a discussion of all relevant authorities, including, but not limited to, DOE rules, regulations, and decisions on appeals and exceptions relied upon to support the particular action sought therein.

(d) The application shall specify the exact nature and extent of the relief requested.

Sec. 1003.25 OHA evaluation.

(a)(1) OHA may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The OHA may solicit and accept submissions from third persons relevant to any application provided that the applicant is afforded an opportunity to respond to all third person submissions. In evaluating an application, the OHA may consider any other source of information. The OHA on its own initiative may convene a hearing or conference, if, in its discretion, it considers that such hearing or conference will advance its evaluation of the application. The OHA may issue appropriate orders as warranted in the proceeding.

(2) If the OHA determines that there is insufficient information upon which to base a decision and if upon request additional information is not submitted by the applicant, the OHA may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the OHA may dismiss the application with prejudice. If the applicant fails to provide the notice required by Sec. 1003.23, the OHA may dismiss the application without prejudice.

(b)(1) The OHA shall consider an application for an exception only when it determines that a more appropriate proceeding is not provided by DOE regulations.

[[Page 561]]

(2) An application for an exception may be granted to alleviate or prevent serious hardship, gross inequity or unfair distribution of burdens.

(3) An application for an exception shall be decided in a manner that is, to the extent possible, consistent with the disposition of previous applications for exception.

Sec. 1003.26 Decision and Order.

(a) Upon consideration of the application and other relevant information received or obtained during the proceeding, the OHA shall issue an order granting or denying the application, in whole or in part.

(b) The Decision and Order shall include a written statement setting forth the relevant facts and the legal basis of the order. The Decision and Order shall provide that any person aggrieved thereby may file an appeal in accordance with Sec. 1003.27.

(c) The OHA shall serve a copy of the Decision and Order upon the applicant, any other person who participated in the proceeding, and upon any other person readily identifiable by the OHA as one who is aggrieved by such Decision and Order.

Sec. 1003.27 Appeal of exception order.

(a) Except as provided in paragraph (b) of this section, any person aggrieved by an order issued by the OHA under this subpart may file an appeal with the OHA in accordance with subpart C of this part. Any appeal filed under this paragraph must be filed within 30 days of service, or constructive service under Sec. 1003.14, of the order from which the appeal is taken.

(b) Any person aggrieved or adversely affected by the denial of a request for exception relief filed pursuant to Sec. 504 of the Department of Energy Organization Act (42 U.S.C. 7194) may appeal to the Federal Energy Regulatory Commission, in accordance with the Commission's regulations.

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