[Federal Register Volume 68, Number 4 (Tuesday, January 7, 2003)]
[Notices]
[Pages 756-759]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-259]


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DEPARTMENT OF ENERGY

Energy Information Administration


Policy Statement; Policy for Statistical Tables Based on 
Historical Electric Power Survey Information Collected Under a Pledge 
of Confidentiality

AGENCY: Energy Information Administration (EIA), Department of Energy 
(DOE).

ACTION: Policy statement.

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[[Page 757]]

SUMMARY: The EIA has established a policy regarding the use of 
disclosure limitation methods for statistical tables derived from 
historical electric power survey information collected under a pledge 
of confidentiality. Disclosure limitation methods are used to ensure 
that sensitive table cell values are suppressed; i.e., withheld from 
public release. A sensitive data cell value is one that, if publicly 
disseminated, may be used to closely estimate confidential information 
that an individual survey respondent reported to EIA.
    Under this policy, EIA will use disclosure limitation methods on 
statistical tables based on aggregated historical electric power survey 
information collected under a pledge of confidentiality only if the 
information is currently collected under a pledge of confidentiality. 
(As of December 2002, electric power information collected under a 
pledge of confidentiality includes costs of fuels for unregulated 
plants, tested heat rates, fuel inventories, plant costs and expenses 
for unregulated plants, monthly electricity sales information reported 
for energy-only service, and latitude/longitude for electric power 
facilities.) For information not currently collected under a pledge of 
confidentiality, EIA will not use disclosure limitation methods for 
statistical tables derived from the historical electric power survey 
information previously collected under a pledge of confidentiality.
    This policy applies to any information collected in an EIA electric 
power survey under a pledge of confidentiality during a survey period 
at least three years prior to the date of its proposed release in a 
statistical table. The three-year period includes the reporting year 
(the year for which information is currently being collected) and two 
prior years where information has been finalized. In accordance with 
applicable laws and regulations, EIA will continue to not publicly 
release survey forms collected under a pledge of confidentiality.
    This policy is based on the need to provide additional statistical 
tabulations that will improve and broaden the understanding of the 
United States electric power industry by releasing additional 
statistical tabulations. These tables may present information at the 
national, State, and/or regional levels in various EIA information 
products. (EIA's electric power information is available on the web at 
http://www.eia.doe.gov/.)

DATES: This policy becomes effective on January 7, 2003.

ADDRESSES: Requests for additional information or questions about this 
policy should be directed to Dean Fennell. He may be contacted by FAX 
(202-287-1934), e-mail ([email protected]), or telephone (202-
287-1744). These contact methods are recommended to expedite contact. 
His mailing address is Energy Information Administration, EI-53, U.S. 
Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585-
0650.

FOR FURTHER INFORMATION CONTACT: Requests should be directed to Mr. 
Fennell at the address listed above. EIA's electric power information 
is available on the web at http://www.eia.doe.gov/.

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Comments
III. Current Actions

I. Background

    The Federal Energy Administration Act of 1974 (Pub. L. 93-275, 15 
U.S.C. 761 et seq.) and the DOE Organization Act (Pub. L. 95-91, 42 
U.S.C. 7101 et seq.) require the EIA to carry out a centralized, 
comprehensive, and unified energy information program. This program 
collects, evaluates, assembles, analyzes, and disseminates information 
on energy resource reserves, production, demand, technology, and 
related economic and statistical information. This information is used 
to assess the adequacy of energy resources to meet near and longer-term 
domestic demands.
    The EIA conducts surveys to collect information about the electric 
power industry from companies and organizations involved in the 
generation, transmission, distribution, and sales of electric power. 
This survey information is disseminated in a variety of information 
products and electronic data files used by government and private 
sector policymakers and analysts.
    On October 24, 2002, EIA issued a Federal Register notice (67 FR 
65345) requesting public comments on a proposed policy regarding the 
use of disclosure limitation methods for statistical tables derived 
from historical electric power survey information collected under a 
pledge of confidentiality. A second notice was issued on November 4, 
2002 (67 FR 67253) to correct a publication mistake in the date for 
submission of comments. In the October 24 notice, EIA discussed the 
reasons for the proposed policy as well as reasons for proposing it. In 
addition to publishing the notice, EIA sent a copy of the notice to 
each of its over 6,000 electric power survey respondents.
    The proposed policy was based on the need to provide additional 
statistical tabulations that will improve and broaden the understanding 
of the electric power industry. These statistical tables will provide 
electric power information at national, State, and/or regional levels. 
(An example of this is publishing national level fuel consumption 
information in EIA's Annual Energy Review, or publishing State or 
regional level information for fuel consumption, useful thermal output, 
or generation in reports such as EIA's Electric Power Monthly or 
Natural Gas Annual.)

II. Discussion of Comments

    In response to the Federal Register notice and EIA's mailing of the 
notice to its survey respondents, EIA received 19 sets of comments. 
Most of the comments were from electric power companies and trade 
groups.
    Of the comments received, nine were in favor of a policy of not 
using disclosure limitation methods on statistical tables based on 
historical electric power survey information, nine objected to the 
proposal, and one commenter did not take a position. After analyzing 
the comments, EIA decided to propose using disclosure limitation 
methods on statistical tables based on historical electric power survey 
information collected under a pledge of confidentiality only if the 
survey information is currently collected under a pledge of 
confidentiality. If the historical survey information was collected 
under a pledge of confidentiality but is not currently collected under 
such a pledge, EIA will not use disclosure limitation methods on 
statistical tables based on the aggregated historical information.
    The decision is based on the fact that for information not 
currently collected under a pledge of confidentiality, the public has 
access to the most recent information in individually-identifiable 
form. Therefore, the release of statistical tables not subjected to 
disclosure limitation methods for historical survey information 
previously collected under a pledge of confidentiality should not cause 
substantial competitive harm to the position of any survey respondent. 
Examples of information meeting this criteria include generation and 
fuel consumption information collected under a pledge of 
confidentiality prior to 1999 on the Form EIA-867, but the generation 
and fuel consumption information are currently collected with no pledge 
of confidentiality.

[[Page 758]]

    Following is a summary of the major supporting and opposing 
arguments received in response to EIA's proposed policy.

General Concerns--Arguments for Release of Aggregated Information 
Collected Under a Pledge of Confidentiality

    Nine responders to the October 24, 2002, Federal Register notice 
generally supported EIA's approach to not using disclosure limitation 
methods before disseminating information collected under a pledge of 
confidentiality at an aggregate level in statistical tables after a 
three-year period. They stated that the release of such information at 
least three years after collection and aggregated at the State, 
regional, or national level will adequately safeguard the competitive 
position of any survey respondent. If an affected survey respondent 
disagrees, the respondent has the option to request confidential 
treatment through the DOE's Office of Hearings and Appeals or in court. 
Further, some stated that disseminating historically confidential 
information at the State level is especially important as States move 
into an era characterized by the need for portfolio management of power 
supply, demand, and related factors. Others believe that the release of 
aggregated information after a three-year period expands the historical 
information available and has the potential to benefit information 
users, researchers, and policymakers.
    Other persons argued that the industry has failed to document any 
specific harm that will arise from the release of EIA aggregated survey 
information despite the fact that competition has existed in the 
industry for several years. They also stated that much of the 
information is already available, that the statistical tables will not 
have any competitive impact by the time they are released by EIA, and 
that public policy goals depend on this information.
    Some supporters of the release of aggregated information after 
three years believe that both EIA's enabling statute and the Freedom of 
Information Act (FOIA) mandate that EIA disseminates its information. 
They state that the FOIA contains nine exemptions from public 
disclosure, and only Exemption 4 (which protects against release of 
confidential commercial or financial information), potentially relates 
to the type of information collected on EIA's electric power surveys. 
In fact, one commenter stated that the purpose of FOIA is to promote 
disclosure, not to justify secrecy.
    Another commenter in favor of the release of historical information 
stated that with the movement toward a more competitive market, it 
should be clear to all that energy markets can function best in the 
presence of wide access to information.
    Also in support of the proposed policy, many commenters to previous 
EIA Federal Register notices published March 13, 2001 (Vol. 66, No. 49) 
who opposed the release of individually-reported information believed 
that EIA could fulfill its statutory duties without disclosure of 
individual plant level information by disseminating the information in 
an aggregated form. In addition, several supported a delay in the 
disclosure of sensitive information to protect against competitive 
harm.

General Concerns--Arguments Against Release of Aggregated Information 
Collected Under A Pledge of Confidentiality

    Nine responders to the October 24, 2002, Federal Register notice 
opposed EIA's proposal to release information collected under a pledge 
of confidentiality at an aggregate level after a three-year period. 
They believe that disclosure even at an aggregate level of 
competitively sensitive information will harm respondents, the 
electricity market, and the consumer. In particular, some believe their 
entities hold market share in certain States and regions. If the number 
of entities included in the aggregate is small, they believe that their 
information could be easily discerned. Others understood that the 
confidential information would remain proprietary even when 
disseminated at aggregate levels. They stated that EIA is changing its 
policy on confidentiality.
    Some had an issue with the three-year time period. Their concern is 
that much of the information provided in the responses to the EIA 
surveys would potentially change little over time. Thus, if the number 
of entities included in a particular aggregate is small, individually 
reported information could be discerned. If the information changes 
little over time, competitive harm could occur with respect to fuel 
purchase prices and plant operating costs.
    One commenter opposed the proposal to release aggregate information 
collected under a pledge of confidentiality after three years stating 
that the proposal is too broad and unfounded. The person also stated 
that the new proposal violates the expectations of companies that have 
submitted the information in reliance on confidentiality assurances. 
The person went on to say that the mere passage of time does not ensure 
that information treated as confidential because of commercial and 
security concerns no longer need to be treated as confidential. The 
commenter believes that the proposal is a generalization, which can not 
be made for all categories of information or for all facilities and 
companies. Also, companies have provided the information in reliance on 
EIA assurances, which should not now be withdrawn after the information 
has been submitted.

EIA's Response to Comments

    EIA finds that the comments on the issue are thoughtful and reflect 
the nature of the tradeoff in ensuring information is available for 
monitoring and analyzing the electric power industry and markets while 
at the same time ensuring that information collected under a pledge of 
confidentiality in EIA's electric power surveys is not released in 
statistical tables in such a way as to cause potential substantial 
competitive harm to the survey respondents.
    EIA's final policy is to discontinue the use of disclosure 
limitation methods such as suppression and complimentary suppression 
for statistical tables derived from historical electric power survey 
information collected under a pledge of confidentiality only if the 
information is not currently collected under a pledge of 
confidentiality. This decision is based on the need to provide 
additional tabulations that will improve and broaden the understanding 
of the electric power industry by releasing more aggregated information 
(State, regional, or national level) while using disclosure limitation 
methods to ensure the confidentiality of information currently 
collected under a pledge of confidentiality. The potential disclosure 
of data that were confidential and older than three years will not have 
a major impact on the competitiveness of the respondents, as their 
current data are no longer confidential.

III. Current Actions

    The EIA is establishing a policy regarding the use of disclosure 
limitation methods for information in statistical tables derived from 
historical electric power survey information collected under a pledge 
of confidentiality. (Disclosure limitation methods are used to ensure 
that sensitive table cell values are suppressed; i.e., withheld from 
public release.) Under this policy, disclosure limitation methods will 
be used on statistical tables based on aggregated historical electric 
power survey information collected under a pledge of confidentiality 
only if the information is

[[Page 759]]

currently collected under a pledge of confidentiality. (As of December 
2002, electric power survey information collected under a pledge of 
confidentiality includes costs of fuels for unregulated plants, tested 
heat rates, fuel inventories, plant costs and expenses for unregulated 
plants, monthly electricity sales information reported for energy-only 
service, and latitude/longitude for electric power facilities.) If the 
survey information is not currently collected under a pledge of 
confidentiality, EIA will not use disclosure limitation methods for 
statistical tables derived from the historical electric power survey 
information.
    This policy would apply to any information collected in an EIA 
electric power survey under a pledge of confidentiality during a survey 
period at least three years prior to the date of its proposed release 
in a statistical table. The three-year period includes the reporting 
year (the year for which information is currently being collected) and 
two prior years where information have been finalized. In accordance 
with applicable laws and regulations, EIA will not publicly release 
survey forms collected under a pledge of confidentiality.

    Statutory Authority: Section 52 of the Federal Energy 
Administration Act (Pub. L. No. 93-275, 15 U.S.C. 790a).

    Issued in Washington, DC, December 31, 2002.
Guy F. Caruso,
Administrator, Energy Information Administration.
[FR Doc. 03-259 Filed 1-6-03; 8:45 am]
BILLING CODE 6450-01-P