[Federal Register Volume 75, Number 118 (Monday, June 21, 2010)]
[Notices]
[Pages 35003-35007]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14953]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. IC10-580-001]


Commission Information Collection Activities (FERC Form No. 580); 
Request; Submitted for OMB Review June 15, 2010.

AGENCY: Federal Energy Regulatory Commission.

ACTION: Notice.

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SUMMARY: In compliance with the requirements of section 3507 of the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3507, the Federal Energy 
Regulatory Commission (Commission or FERC) has submitted the 
information collections described below to the Office of Management and 
Budget (OMB) for review of the information collection requirements. Any 
interested person may file comments directly with OMB and should 
address a copy of those comments to the Commission as explained below. 
The Commission issued a Notice in the Federal Register (74 FR 66114, 
12/14/2009) requesting public comments. FERC received comments from 
Edison Electric Institute (EEI), American Electric Power Company (AEP), 
MidAmerican Energy Company (MidAmerican) and Pacific Gas and Electric 
Company (PG&E) and has made this notation in its submission to OMB.

DATES: Comments on the collections of information are due by July 21, 
2010.

ADDRESSES: Address comments on the collections of information to the 
Office of Management and Budget, Office of Information and Regulatory 
Affairs, Attention: Federal Energy Regulatory Commission Desk Officer. 
Comments to OMB should be filed electronically, c/o [email protected] and include the appropriate OMB Control 
Number(s) and collection number(s) as a point of reference. The Desk 
Officer may be reached by telephone at 202-395-4638.
    A copy of the comments should also be sent to the Federal Energy 
Regulatory Commission and should refer to Docket No. IC10-580-001. 
Comments may be filed either electronically or in paper format. Those 
persons filing electronically do not need to make a paper filing. 
Documents filed electronically via the Internet must be prepared in an 
acceptable filing format and in compliance with the Federal Energy 
Regulatory Commission submission guidelines. Complete filing 
instructions and acceptable filing formats are available at http://www.ferc.gov/help/submission-guide/electronic-media.asp. To file the 
document electronically, access the Commission's Web site and click on 
Documents & Filing, E-Filing (http://www.ferc.gov/docs-filing/efiling.asp),

[[Page 35004]]

and then follow the instructions for each screen. First time users will 
have to establish a user name and password. The Commission will send an 
automatic acknowledgement to the sender's e-mail address upon receipt 
of comments.
    For paper filings, the comments should be submitted to the Federal 
Energy Regulatory Commission, Secretary of the Commission, 888 First 
Street, NE., Washington, DC 20426, and should refer to Docket Nos. 
IC10-580-001.
    All comments may be viewed, printed or downloaded remotely via the 
Internet through FERC's homepage using the ``eLibrary'' link. For user 
assistance, contact [email protected], or call toll-free at 
(866) 208-3676, or for TTY, contact (202) 502-8659.

FOR FURTHER INFORMATION CONTACT: Michael Miller may be reached by 
telephone at (202) 502-8415, by fax at (202) 273-0873, and by e-mail at 
[email protected].

SUPPLEMENTARY INFORMATION: For the purpose of publishing this notice 
and seeking public comment, FERC requests comments on the following 
information collections: FERC Form No. 580 ``Interrogatory on Fuel and 
Energy Purchase Practices Pursuant to Section 205(f)(2) of the Federal 
Power Act'', OMB Control No. 1902-0137.
    The Public Utility Regulatory Policies Act (PURPA), enacted 
November 8, 1978, amended the Federal Power Act (the Act) and directed 
the Commission to make comprehensive biennial reviews of certain 
matters related to automatic adjustment clauses in wholesale rate 
schedules used by public utilities subject to the Commission's 
jurisdiction. Specifically, the Commission is required to examine 
whether the clauses effectively provide the incentives for efficient 
use of resources and also whether the clauses reflect only those costs 
that are either ``subject to periodic fluctuations'' or ``not 
susceptible to precise determinations'' in rate cases prior to the time 
the costs are incurred. The Commission is also required to review the 
practices of each public utility under automatic adjustment clauses 
``to insure efficient use of resources under such clauses.'' \1\ In 
response to the PURPA directive, the Commission (in Docket No. IN79-6) 
established an investigation and began in 1982, to collect every other 
year, the FERC Form No. 580 ``Interrogatory on Fuel and Energy Purchase 
Practices.''
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    \1\ The review requirement is set forth in two paragraphs of 
Section 208 of PURPA, 49 Stat. 851; 16 U.S.C. 824d.
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    Public Comments and FERC Responses. A summary of the comments on 
the major issues filed by the public on the FERC Form No. 580 reporting 
requirements and FERC's response, including proposed changes to the 
requirements is provided below. For a more detailed explanation please 
see the Commission's submission at http://www.reginfo.gov/public/do/PRAMain, scroll to ``Currently under Review'', key in ``Federal Energy 
Regulatory Commission'' and scroll to 1902-0137, ``Interrogatory on 
Fuel and Energy Purchase Practices Pursuant to Section 205(f)(2) of the 
Federal Power Act'', (FERC-580).

Public Disclosure

    Fuel and Purchase Policies and Procedures (Question No. 5): 
Commenters stated the information requested in response to this 
question should be treated as privileged. If the information is 
released, potential fuel sellers would be given a road map to a 
purchaser's buying policies and practices. This public disclosure of 
bidding and bid evaluation practices could facilitate gaming by 
potential suppliers. In addition, this disclosure would subject the 
utility to a greater risk of litigation from fuel suppliers.
    FERC Response: The Commission has developed an addendum which sets 
forth a duplicate question 5 which may be filed as privileged, if the 
filer should choose to do so. The Commission has also added additional 
instructions to question 5 for those respondents who choose to label as 
privileged their response(s) to question 5. (For sub questions within 
question 5, please see item no. 8 of the FERC submission).
    Contract Shortfalls, Buy-downs and Buy-outs (Questions 7 & 8): 
Commenters indicated that the information requested in these two 
questions is commercially sensitive if reported when they are 
identified, instead of when these activities are later settled. If this 
information is made publicly available, at the earlier identification 
stage, disclosure of such information would impair a company's 
bargaining power.
    FERC Response: The Commission has reworded the question to request 
information on shortfalls, buy-downs and buy-outs for aged cases only. 
Respondents need not submit information for cases that are involved in 
ongoing litigation.

Prior Submissions

    Submission of Previously Filed Information: One commenter requested 
that the Commission acknowledge data filed in 2008 in the format 
requested by the Commission for that submission.
    FERC Response: The Commission will not enter previously filed data 
into the new form for two reasons: (1) A significant portion of the 
data filed two years ago was not entered into the preferred Excel 
format properly. Some filers did not even use the form and many filers 
that did, did not properly identify each contract's fuel cost with its 
corresponding delivery information. The required use of the new 
electronic format will eliminate these issues; (2) the new Adobe PDF 
platform is not compatable with the previously preferred Excel platform 
therefore the data cannot be flowed from one format to the other.
    The Commission will however, provide the data filed in 2010 for 
2012 filers in the appropriate electronic format thus requiring filers 
to update information previously filed and eliminating the burden of 
subsequently entering data that doesn't change from year to year.
    Reporting Burden: Several commenters have challenged the 
Commission's burden estimates and indicated that several questions in 
particular are burdensome in their preparation.
    FERC Response: The Commission is eliminating the requirement to 
file question 6 information for contracts of one year or less and the 
question 5 requirement to attach copies of utility fuel procurement 
policies and practices and related studies. In addition, the Commission 
has increased its burden figures for the 2010 collection to incorporate 
an added 450 hours of burden to cover training, initial data entry, 
understanding of the new electronic filing software, etc., which 
increased the total burden to 4,150 hours. The total burden will revert 
back to 3,600 hours for the 2012 collection.

Public Comments That Were Not Incorporated and the FERC Responses

AAC

    AAC Definition: EEI challenges the Commission's interpretation of 
what clauses should be considered ``automatic adjustment clauses.'' 
Section 205(f)(4) defines ``automatic adjustment clauses'' as ``a 
provision of a rate schedule which provides for increases or decreases 
(or both), without prior hearing, in rates reflecting increases or 
decreases (or both) in costs incurred by an electric utility.'' It goes 
on to exclude ``any rate which takes effect subject to refund and 
subject to a later determination of the appropriate amount of such 
rate.'' Based on this latter exclusion, EEI argues that formula rate 
tariffs and agreements that are subject to public true-up proceedings 
and/or refund should not be included within the scope of Form

[[Page 35005]]

580. As such, EEI asserts a simple pass-through component, which does 
not include a pre-established rate, should not be considered an AAC 
under the proposed changes.
    FERC Response: The Commission disagrees with EEI's reading of 
Section 205(f)(4). Form 580 is an information collection, issued to 
support the preparation of the review called for by section 205(f) of 
the FPA.\2\ That section requires the Commission, at least every two 
years, to ``review, with respect to each public utility, practices 
under any automatic adjustment clauses of such utility to insure 
efficient use of resources (including economical purchase and use of 
fuel and electric energy) under such clauses.'' \3\
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    \2\ 16 U.S.C. 824d(f) (2006).
    \3\ 16 U.S.C. 824d(f)(b) (2006).
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    Many rate schedules contain provisions for adjustments to rates 
based on changes in one or more elements of the cost incurred to 
provide the service, the adjustments being calculated using procedures 
that have had prior regulatory approval. Where such adjustments in 
charges are permitted to occur automatically, without specific 
regulatory review of each adjustment, the rate schedule provisions are 
referred to as ``automatic adjustment clauses.'' Many of the wholesale 
electric rate schedules filed with the Commission by public utilities 
contain provisions for automatic adjustment of rates. Current 
Commission policy permits acceptance of these types of energy cost 
rates, as well as comprehensive cost-of-service formula rates. These 
operate to adjust rates automatically. The effect of the clause may be 
reflected in rates charged by the utility without notification to or 
filing with the Commission. These types of automatic adjustment clauses 
correspond to the definition of AAC in PURPA. What was not included in 
this definition were so-called ``periodic review-of-rate clauses,'' 
where the Commission has routinely required filing of changes in rates 
pursuant to implementation of a review-of-rate clause.
    The definition of an automatic adjustment clause incorporated in 
the Form 580--``a provision of a rate schedule which provides for 
increases or decreases (or both), without prior hearing, in rates 
reflecting increases or decreases (or both) in costs incurred''--which 
EEI complains of, see EEI comments at 5, is consistent with the 
longstanding understanding of Congress' intent. The fact that a rate 
may be subject to an after-the-fact public true-up proceeding and/or 
later refund is a rate that is not subject to prior hearing; a rate 
that adjusts only subject to after-the-fact review, and not prior 
review, is thus a rate that can and should be legitimately considered 
an automatic adjustment clause.
    In any event, even if EEI were correct in its interpretation of the 
definition of automatic adjustment clause, the Commission's authority 
to collect information on such rates is not limited by section 205(f). 
Section 304 of the FPA \4\ provides that ``every public utility shall 
file with the Commission such annual and other periodic or special 
reports as the Commission may by rules and regulations or order 
prescribe as necessary or appropriate to assist the Commission in the 
proper administration of this Act.'' That section goes on to provide 
that the Commission may ``require from such persons specific answers to 
all questions upon which the Commission may need information.'' 
Similarly, section 307 of the FPA \5\ provides for investigation of 
``any facts, conditions, practices, or matters which [the Commission] 
may find necessary or appropriate.'' \6\ Thus, even if EEI's claim as 
to the definition of automatic adjustment clause were valid, the 
Commission may still seek the information it deems necessary to meet 
its requirements under the statute.
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    \4\ 16 U.S.C. 825c (2006).
    \5\ 16 U.S.C. 825f (2006).
    \6\ Cf. 16 U.S.C. 825j (2006) (section 311 of the Federal Power 
Act provides for collection of information necessary or appropriate 
as a basis for recommending legislation).
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    Basic AAC Identification (Question No. 2): Commenters requested 
that the Commission change the wording of the question to make clear 
that information regarding only AACs active during the reporting period 
are the subject of the question. In addition, the revised form should 
not cover non-power tariffs or agreements such as transmission tariffs 
as it would be discriminatory to require transmission owners that own 
steam generation to report on their non-power tariffs while not 
requiring competing transmission owners that do not own steam 
generation over 50MW to do so.
    FERC Response: Question 2 reads: ``(a) Provide the following 
information regarding the AACs your utility had on file with the 
Commission during calendar years 2008 and 2009 and (b) If any of the 
Utility's wholesale rate and/or service agreements containing an AAC, 
that was used during 2008 and/or 2009, was filed with the Commission 
before January 1, 1990, and attach an electronic copy of it with this 
filing.''
    The Commission is not changing the wording of these two questions 
because the question clearly states the AAC must have been active 
during 2008 and/or 2009 for the requirement to be applicable. However, 
a note will be added for this question in the Desk Reference to 
reiterate that only tariffs active during the reporting period are the 
subject of the question.
    Confidential Treatment of Information (Question 6): EEI believes 
that fuel costs should be treated as privileged information. 
Specifically, delivered fuel characteristics, including the quantity 
may be competitively sensitive, particularly when reporting at the 
facility level. EEI also believes that information in response to 
question no. 6 should be limited to the cost of fuels that are passed 
through an Automatic Adjustment Clause (AAC). Further, question no. 6 
should only ask for data on the cost of primary fuels, not the costs 
from incidental use or other fuels for auxiliary or start-up purposes.
    FERC Response: While the Commission understands the desire of some 
of the respondents to treat the cost data in the Form 580 as privileged 
information, it is necessary that this data continue to be publicly 
reported for two reasons. First, the Commission and other government 
agencies need this data to carry out their statutory responsibilities 
(e.g., to ensure that the rates are just and reasonable and customers 
are protected from undue discrimination). Second, ratepayers need this 
information to evaluate whether the rates they are being charged are 
just and reasonable and not unduly discriminatory or preferential.
    The delivered fuel characteristics and quantities have been 
historically treated as public by both FERC and EIA at the plant level. 
EEI's comments are not sufficient to persuade the Commission to change 
its historic practice.
    Duplicative Reporting: Commenters stated that the Commission should 
not require reporting of information that is already collected 
elsewhere, particularly with regard to formula rates and fuel costs. 
The formula rate information is already collected in a new schedule at 
page 106 of Form 1. The Commission should also not require the 
submittal of fuel costs as this information is already submitted on the 
Energy Information Administration's EIA-923 ``Power Plant Operations 
Report.''
    FERC Response: The information collected in the EIA-923 and FERC 
Form No. 1 is insufficient for the Commission to meet its statutory 
requirements related to AACs. Both the EIA-923 and FERC Form No. 1 
collections are designed for a different purpose than the Form 580. As 
such, the information in these collections that is similar to the Form 
580 information

[[Page 35006]]

does not have the granularity required for the FPA 205(f) review.
    The Form 580 analysis requires the collection of fuel information 
by contract. In contrast, the EIA-923 form collects fuel information by 
supplier, and, in some cases, supplier information is further 
aggregated into line item information for ``various suppliers''.
    FERC's Form No. 1 p. 106 only collects one data element related to 
the Form 580: rate schedule or tariff number. This data element will be 
used to help bridge the FERC Form No. 1 and Form 580 collections so 
that each can be used to support the analysis of the other. If the FERC 
Form No. 1 respondent files formula rate input changes at least 
annually, then an additional common data element is collected: the 
``docket number.'' The identification of the service schedule that 
contains the AAC and the rate schedule that houses the service schedule 
are needed for the efficiency and completeness of the Commission's Form 
580 analysis. If only the rate schedule number were provided and not 
the service schedule identification, Commission staff would be required 
to search the many service schedules filed under each rate schedule to 
locate the AACs.
    Reporting Thresholds: Commenters asked that the Commission only 
require information on natural gas contracts if such contracts in total 
account for more than, for example, 20% of the total recoveries under 
AACs during the period.
    FERC Response: If a utility has a specific circumstance under which 
they think there is a compelling reason not to answer a particular 
question in the interrogatory, they can apply for a waiver of that 
particular question. It is not possible for the Commission to 
anticipate every individual circumstance under which it would not make 
sense for a particular utility to answer any given question.
    Action: The Commission is requesting a three-year extension of the 
FERC Form No. 580 requirements, with changes to the FERC Form No. 580. 
The redesign of the FERC Form No. 580 provides for electronic 
submission in a user-friendly format.
    Burden Statement: The table below provides an estimate of the 
annual public reporting burdens followed by the associated public 
costs.\7\
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    \7\ These figures may not be exact, due to rounding and/or 
truncating.

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                                                              Annual No. of    Average burden
                                               No. of         responses per       hours per       Total annual
                                             respondents       respondent         response        burden hours
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                                                       (1)               (2)               (3)       (1)x(2)x(3)
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Respondents with FACs...................                45               0.5            103[7]              2310
Respondents with AACs but no FACs.......               125               0.5                20              1250
Respondents with no AACs (no FACs)......                40               0.5                 2                40
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    Sub Total...........................  ................  ................  ................              3600
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One-time burden of learning new software                45                .5                20               450
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    Total...............................  ................  ................  ................              4150
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    The total annual cost to respondents \8\ is estimated as follows.
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    \8\ Using 2,080 hours/year, the estimated cost for 1 full-time 
employee is $137,874/year. The estimated hourly cost is $66.29 (or 
$137,874/2,080).

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                                                                                                                             Estimated total annual cost
                     FERC Data collection                         Total annual burden hours     Estimated hourly cost ($)       to respondents ($)\7\
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                                                                                        (1)                           (2)                     (2) X (1)
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Form 580......................................................                         4150                        $66.29                      $275,104
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    The reporting burden includes the total time, effort, or financial 
resources expended to generate, maintain, retain, disclose, or provide 
the information including: (1) Reviewing instructions; (2) developing, 
acquiring, installing, and utilizing technology and systems for the 
purposes of collecting, validating, verifying, processing, maintaining, 
disclosing and providing information; (3) adjusting the existing ways 
to comply with any previously applicable instructions and requirements; 
(4) training personnel to respond to a collection of information; (5) 
searching data sources; (6) completing and reviewing the collection of 
information; and (7) transmitting, or otherwise disclosing the 
information.
    The estimate of cost for respondents is based upon salaries for 
professional and clerical support, as well as direct and indirect 
overhead costs. Direct costs include all costs directly attributable to 
providing this information, such as administrative costs and the cost 
for information technology. Indirect or overhead costs are costs 
incurred by an organization in support of its mission. These costs 
apply to activities which benefit the whole organization rather than 
any one particular function or activity.
    Comments are invited on: (1) Whether the proposed collections of 
information are necessary for the proper performance of the functions 
of the Commission, including whether the information will have 
practical utility; (2) the accuracy of the agency's estimates of the 
burden of the proposed collections of information, including the 
validity of the methodology and assumptions used; (3) ways to enhance 
the quality, utility and clarity of the information to be collected; 
and (4) ways to minimize the burden of the collections of information 
on those who are to respond, including the use of appropriate 
automated, electronic,

[[Page 35007]]

mechanical, or other technological collection techniques or other forms 
of information technology, e.g., permitting electronic submission of 
responses.

Kimberly D. Bose,
Secretary.
[FR Doc. 2010-14953 Filed 6-18-10; 8:45 am]
BILLING CODE 6717-01-P