EIA Plan for More Confidentiality Takes Heat

If the Energy Information Administration (EIA) follows through on plans to expand the confidential treatment of data it receives from electric power plants, the move could stifle efforts to promote electric competition in the United States and hamstring state and federal regulators from effectively fulfilling their oversight responsibilities.

That's the reaction of a number of commenters in response to a proposal by the EIA to treat as confidential certain additional operational data that it gathers from fossil-fueled steam electric power plants. EIA recently solicited comments from interested parties related to its proposed revisions and three-year extensions of electric power survey forms.

For its part, the American Public Power Association (APPA) said that it is "deeply troubled" by EIA's proposal. In its comments, APPA said that it "strongly believes" that EIA's proposal to make more of its data confidential is "misguided" and "ill timed." The public power association goes on to argue that EIA "offers virtually no justification" for these confidentiality provisions, only the "unsubstantiated statements" that the degree of competition continues to grow sporadically, and this increase creates a corresponding increase in the need for protection from disclosure of individually identifiable, commercially sensitive information. "Quite the contrary, it is necessary that EIA data remain publicly available to promote the development of competition in markets that have been shown recently in the west and elsewhere to be dysfunctional," APPA argued. At the same time, the association asserted that given the time lag in the availability of the data to the public, there is no threat of lessening competition.

"Our basic concern about the EIA proposal to treat additional categories of information as confidential is that it may be premature and may reduce the effectiveness of regulatory reform planning and market monitoring efforts of state and Federal regulatory and law enforcement agencies during the critical, early stages of the transition from regulation to competition," wrote the staff of the Federal Trade Commission's (FTC) Bureau of Economics and Policy Planning.

The FTC staff noted that the ability of state and federal regulators and competition agencies to understand the complexities of the existing transmission system, and proposed changes to the system, may depend upon computer simulations and other analytical techniques that rely on comprehensive, plant-level EIA data. By way of example, the FTC staff pointed out that antitrust and regulatory agencies often use these computer simulation models of the electric power grid in designing regulatory reform proposals and evaluating prospective mergers.

In the event that EIA does opt for confidential treatment of plant-level data as proposed, FTC staff said that some of the "harm" to effective regulatory and law enforcement oversight might be alleviated by creating a system for selective access to the data for state as well as federal agencies. "The Commission encourages EIA to assess the costs and benefits of the EIA proposals and of alternative approaches before reaching a final determination on expanding confidential treatment of EIA survey data," FTC staff added.

Meanwhile, the National Governors Association, the National Association of Regulatory Utility Commissioners, the National Association of State Energy Officials and the National Association of State Utility Consumer Advocates filed a joint letter in opposition to EIA's proposal. "As our country grapples with what Secretary of Energy Spencer Abraham has called an 'energy crisis,' the need to ensure healthy and competitive markets could not be more acute," the letter asserts. "By limiting state access to data collected by the EIA, the current proposal undermines an individual state's ability to protect consumers from unjust and unreasonable electricity rates, and hinders the state's ability to promote robust economic development and address vital state interests," the letter adds.

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