FERC Filings
EIA INFORMATION COLLECTION AND DISSEMINATION ACTIVITIES
I.
March 31, 1998
Mr. John G. Colligan (EI-524)
Energy Information Administration
U.S. Department of Energy
Forrestal Building
1000 Independence Avenue, S.W.
Washington, D.C. 20585
RE: Information Collection and Dissemination Activities
Dear Mr. Colligan:
The Electric Power Supply Association (EPSA) is pleased to submit these comments in response to the Energy Information Administration’s (EIA) request for comments on what data collected by EIA should be considered confidential in light of the changes occurring in the electric power industry.
The Electric Power Supply Association (EPSA) is the national trade association representing competitive power suppliers active in U.S. and global power markets. EPSA’s members, which include power generators, power marketers and suppliers of goods and services to the electric power supply industry, share a commitment to bring the benefits of competition to all electric customers. Using a broad spectrum of fossil-fuel and renewable technologies, EPSA power generation members produce reliable, competitively priced electricity, steam and other forms of useful energy from environmentally-responsible facilities.1Because EPSA’s members will be directly impacted by the proposals outlined in the Federal Register on January 13, 1998, 63 Fed. Reg., Vol. 8, pp. 1960-62, EPSA has a direct interest in the outcome of this proceeding.
EPSA appreciates and supports EIA’s data collection mission. Under current filing requirements, EIA is able to compile accurate data concerning generating capacity, actual generation and fuel consumption from both utilities and competitive power suppliers (historically called independent power producers or IPPs) in order to assess the United States’ energy reserves and forecast future electricity demand. Historically, EIA has collected confidential data from IPPs and reported it only in aggregated form. Now, EIA is considering what data should continue to be treated confidentially.
Although the electric power industry is in the process of radical transformation, that process is still far from complete. The industry still includes both traditional regulated utility generators and competitive power suppliers. Therefore, the current rules, which treat utility data as nonconfidential, while preserving the confidential nature of competitive power suppliers data, are still the best approach.
To the extent that some generation facilities remain part of regulated utility companies, there is no reason to provide confidential treatment of the data they provide to EIA. Those generators are still subject to rate regulation and costs are recovered through cost-of-service rates approved by state public utility commissions. The public has a direct and real interest in the data collected by EIA. This will remain true as long as those facilities are owned by public utilities and operated outside the realm of a competitive market.
However, when a generation facility is operated in a competitive market, confidential treatment of the data collected by EIA should be the rule. In a competitive market, generation is priced at market-based, not cost-based, rates. Public release of information from such individual generating facilities concerning their generating and fuel costs is not appropriate. These costs are not passed through to utility ratepayers because competitive generators, unlike the utilities, bear the risk of these costs. This is true for all competitive power suppliers, whether the facility is a QF, a utility plant which has been sold, or a merchant plant. Historic ownership is not the test; competitive status is.
The electric generation industry is in a transition to a fully competitive marketplace, but full competition is not in place yet. Public disclosure of non-utility generating costs, fuel costs, efficiencies, productivity and profitability will have an unquestionably negative impact on competitive generators as they enter into negotiations with customers to sell the output of their facilities. There are many sound policy reasons why public disclosure of competitively sensitive information is inappropriate. First, in a competitive market, the information EIA collects would not otherwise be available among market participants. In fact, the information provided to EIA is the type of information generally protected from disclosure under the Freedom of Information Act, 5 U.S.C. Section 552(b)(4), which exempts from disclosure requirements privileged or confidential commercial or financial information.
Cost, pricing, efficiency and productivity data is information a company normally keeps confidential for the purpose of enhancing its ability to compete. Publicly releasing this information will chill rather than foster the development of a competitive wholesale power market. In fact, EIA has accorded confidential status to information provided by independent power producers on Form EIA-867 and a federal court has confirmed that the information provided on that form is protected from disclosure by FOIA Exemption 4. See, Niagara Mohawk Power Corp. v. U.S. Department of Energy et al., Case No. 95-952 (D.D.C. Feb. 22, 1996). EIA should continue to preserve the confidential treatment of information provided by competitive generators to EIA.
Second, EIA is required by law to collect and report certain critical information about the nation’s energy resources, production, demand, and technology. EIA is already collecting such information and competitive power suppliers are cooperative with EIA efforts. Confidential treatment of commercially sensitive data still allows EIA to aggregate and report important statistical information about the electric power industry. Public release of the information does nothing to further EIA’s goals or objectives and will harm the competitive power industry in the fledgling competitive environment which now exists. In fact, current compliance with EIA’s data collection efforts by competitive power suppliers is based, at least in part, on the expectation that confidential treatment of the information will be provided. If that confidentiality is compromised, some competitive power suppliers may be inclined to be more restrictive and less inclusive in their reports in order to protect commercially sensitive information.
On the other hand, where facilities remain subject to cost of service regulation, confidential treatment of data collected by EIA is inappropriate. That information is needed to support the cost-based rate treatment of those facilities. Under the protective wing of regulation, and without the impact of competitive pressures, no public purpose is served by providing confidential treatment of the data collected by EIA. For those utility facilities not operating in a competitive environment there can, by definition, be no adverse competitive impact of information disclosure.
For the reasons discussed herein, EIA should continue its present practice of public release of data for regulated utility generation facilities, while preserving the current practice of confidential treatment of commercially sensitive data collected on competitive power suppliers. That data should be published on an aggregate basis.
EPSA understands that some have suggested that EIA publication of fuel use and other data for all market participants is necessary to the success of "green power" initiatives. While green marketing depends on disclosure of fuel source and other information, EIA data collection efforts are far from the only source for this information. As a first step, EPSA believes that only those companies marketing green power should have an obligation to disclose fuel source and related data. Where competitive power suppliers choose not to make environmental claims, no disclosure obligation is appropriate. Further, EIA data is far from the only source for this information. As part of any rules implementing green marketing rules, states are free to impose appropriate disclosure requirements on the participants in those programs. EPSA’s Position Statement on Environmental Disclosure is attached.
Thank you for the opportunity to provide comments on this critical issue to the competitive power supply industry. Please do not hesitate to call if we can be of any further assistance.
Sincerely,
Lynne H. Church
Executive Director