![](media/image1.png){width="2.6083333333333334in" height="0.4625in"}

December 22, 2006

Sarah P. Garman

OMB Desk Officer for DOE

Office of Information and Regulatory Affairs

Office of Management and Budget

726 Jackson Place, N.W.

Washington, D.C. 20503

E-mail*: <Sarah_P._Garman@omb.eop.gov>*

Re: Agency Information Collection Activities: EIA Submission of Form
EIA‑1605 and Associated Documents for OMB Review, for OMB Approval of
the Discontinuance of EIA-Form 1605 EZ, and for OMB Approval of

[Data Collection Extension, 71 *Fed. Reg*. 45786 (November 9,
2006)]{.underline}

Dear Ms. Garman:

The Edison Electric Institute (EEI) appreciates the opportunity,
pursuant to the above- referenced notice, to submit comments on the
submission by the Energy Information Administration (EIA) to the Office
of Management and Budget's (OMB) Office of Information and Regulatory
Affairs (OIRA) of a revised version of its proposed "Form EIA-1605,"
titled "Voluntary Reporting of Greenhouse Gases" and related
Instructions. Both have been prepared pursuant to section 1605(b) of the
Energy Policy Act of 1992, 42 U.S.C. § 13395(b), for purposes of
implementing the Department of Energy's (DOE) revised "Guidelines for
Voluntary Greenhouse Gas Reporting; Final Rule" issued on April 21, 2006
(71 *Fed. Reg.* 20784) and made effective on June 1, 2006.

According to EIA's "Supporting Statement," reporting under the revised
section 1605(b) General and Technical Guidelines is expected to occur in
the "late summer of 2007, for 2006 data." We also understand from the
notice that EIA is requesting OIRA/OMB approval for a maximum three-year
extension of existing Form EIA-1605, as revised, under section
3507(h)(1) of the Paperwork Reduction Act of 1995, 44 U.S.C. § 3501 *et
seq.* Although the notice does not refer to it, we further understand
from the Supporting Statement that EIA is once again requesting OIRA/OMB
approval for the discontinuance of existing Form EIA-1605 EZ, which is a
short form that was adopted in 1994 by EIA under section 1605(b).
Lastly, although this is also not mentioned in the above notice, EIA
made available for comment its "Simplified Emissions Inventory Tool"
that is referred to in the DOE Guidelines and which is intended for use
by entities choosing to participate in the revised voluntary reporting
program.

EEI is the association of U.S. shareholder-owned electric companies,
international affiliates and industry associations worldwide. Our U.S.
members serve 97 percent of all customers served by the investor-owned
segment of the industry. They generate more than 70 percent of all of
the electricity generated by the electric utilities in the United States
and serve more than 70 percent of all ultimate customers of the
electricity in the nation. EEI also participates as an official observer
at the meetings of the Conference of the Parties and their subsidiary
bodies to the Framework Convention on Climate Change (FCCC) and to the
FCCC's Kyoto Protocol.

In addition, EEI is one of six electric power trade associations in the
United States that -- acting through their member companies and along
with the Tennessee Valley Authority -- are collectively referred to as
the "Power Partners^SM^." On December 13, 2004, Power Partners^SM^
entered into the umbrella Climate VISION Memorandum of Understanding
with the DOE in support of the President's efforts to reduce the
greenhouse gas emissions intensity of the U.S. economy by 18 percent by
the end of 2012.

While the OMB notice called for comments by December 11, 2006, it also
provided an opportunity for extension of that deadline. By letter and
E-mail dated December 1, 2006, EEI requested such extension until
December 22, which was granted verbally by OMB on December 8, 2006.

Consistent with that extension, I enclose EEI's comments on the Form
EIA-1605, the related instructions, EIA's request to discontinue its
short form and EIA's request for an extension of the OMB approval of
Form EIA-1605 under the 1995 Act.

In making our request for an extension of time to comment, we also noted
from EIA's Supporting Statement that regarding prior OMB approvals of
"Information Collection Requests" (ICR) by EIA for the 1605(b) Forms,
OMB also provided "Terms of Clearance" to EIA in 2001 and 2005. EIA
states that it "will consider" "new methods to assess the accuracy of
the data reported" and "further disaggregation of the data by reasons
for reporting" once the "Guidelines" -- and presumably the Forms -- are
"finalized." While we do not know at this juncture what EIA has in mind
with respect to such consideration, we urge that OMB or EIA make such
"Terms of Clearance" available to EEI and others in connection with
future requests for information.

If you have any questions about our comments, please contact me
(202-508-5617, <bfang@eei.org>) or Eric Holdsworth, EEI's Director,
Climate Programs (202-508-5103, <eholdsworth@eei.org>).

Sincerely,

![](media/image2.png)

William L. Fang

Deputy General Counsel

and Climate Issue Director

WLF:ff

Enclosure

cc (enc):

Dr. Howard K. Gruenspecht

Deputy Administrator

Energy Information Administration

E-mail: <howard.gruenspecht@eia.doe.gov>

Dr. Paul McArdle

Program Manager

Energy Information Administration

E-mail: <paul.mcardle@eia.doe.gov>

Grace Sutherland

Statistics and Methods Group (EI-70)

Energy Information Administration

E-mail: [grace.sutherland@eia.doe.gov]{.underline}

Al Cobb

Senior Advisor

Office of Policy and International Affairs

Department of Energy

E-mail: <al.cobb@hq.doe.gov>

Mark Friedrichs, Esq.

Office of Policy and International Affairs

Department of Energy

E-mail: <mark.friedrichs@hq.doe.gov>

William Hohenstein

Global Change Program Office

Department of Agriculture

E-mail: <william.hohenstein@usda.gov>

> COMMENTS OF THE EDISON ELECTRIC INSTITUTE[^1] ON THE ENERGY
> INFORMATION ADMINISTRATION'S SUBMISSION TO THE OFFICE OF MANAGEMENT
> AND BUDGET OF REVISED DRAFT FORM EIA-1605, DRAFT INSTRUCTIONS AND
> RELATED MATTERS

**December 22, 2006**

**I. [Background And General Comments]{.underline}**

These Edison Electric Institute (EEI) comments respond to the Energy
Information Administration's (EIA) notice of its revision of the July
27, 2006, draft version of its existing Form EIA-1605, adopted in 1994,
to enable the annual reporting to EIA's data base by volunteering
entities of their emissions and reductions of GHGs; that it has
submitted a draft of such form, together with the relevant draft
Instructions and a Supporting Statement, to the Office of Management and
Budget's (OMB) Office of Information and Regulatory Affairs (OIRA) for
review; that it is requesting a three-year extension of an existing
OMB-approved request (OMB No. 1905-0194) for collection of GHG data
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. § 3501 *et
seq.*); and that it is providing an opportunity for comments thereon by
the public. 71 *Fed. Reg*. 45786 (November 9, 2006).

On September 25, 2006, EEI submitted comments to EIA on a July 27, 2006,
draft version of Form EIA-1605 (long form) and the related draft
Instructions for that form, which, like the current draft version, was
based on DOE's final revised General Guidelines of April 21, 2006, and
related Technical Guidelines, the latter of which are incorporated by
reference in the final Guidelines (see § 300.13 of the General
Guidelines). According to EIA's Supporting Statement of November 9,
2006, (p. 12), EEI was one of only nine organizations that commented on
the July 27 version. EEI had also previously commented in August 2005 on
a June 30, 2005, version of the Form and Instructions, which was then
based on DOE's March 2005 "Interim Final" General and Technical
Guidelines. We will refer to our September comments herein and also
incorporate them by reference in these comments.

Separately, on October 2, 2006, EEI responded to an August 3, 2006,
E-mail request from DOE to stakeholders to identify technical
corrections to the DOE Technical Guidelines that may be needed. That
request also afforded an opportunity to offer "clarifications,
interpretations and proposed changes" regarding DOE's Final General
Guidelines. Thus, our October 2 response included technical corrections
and changes to the General Guidelines as well. However, to our
knowledge, DOE has not formally indicated how or when it will consider
and address any or all such potential changes by EEI and others.[^2] In
some cases, such changes could affect the draft EIA Form and related
Instructions. Therefore, **it would be prudent for DOE to act on these
changes before OMB approves this revised collection of
information**.[^3]

We also take this opportunity to express our appreciation to EIA for
taking into consideration a number of our comments on the July version
of the draft Form and Instructions and for specifically providing a
response to a number of them in the Supporting Statement. While we still
have some concerns, as discussed below, EIA has made some significant
improvements in both documents.

At the same time, we reiterate the following comments that we made to
EIA, with a copy to DOE, about the Guidelines and the EIA
Forms/Instructions (footnote omitted):

> In 2004, as a result of aggressive reduction, avoidance and
> sequestration projects and other direct activities, EEI member
> companies and the entire power sector reported more than 282 million
> metric tons of GHGs, or 63 percent of all such reporting under the
> section 1605(b) Program. EEI would like to see this level of reporting
> continue and even grow with the adoption of the revised Program.
> However, we are concerned that may not materialize because the
> Guidelines themselves are rather daunting for current and potential
> **volunteers**. It is our hope that DOE, in administering them, will,
> through interpretation, technical corrections, and even amendments,
> make a serious effort to inject greater clarity and flexibility as a
> means of helping to achieve the goal of the President in calling for
> revisions of the Program.
>
> We cannot over-emphasize the fact that this is a "voluntary" Program
> established as such by Congress and that, even though the Guidelines
> are designated as "Final Rules," "\[e\]ntities, in their sole
> discretion," including those who have reported under the 1994
> guidelines, "may decide" *not* "to report under" the "Program" and
> further "\[t\]hose who do decide to report may, again in their sole
> discretion, decide" *not* to "be associated with registering their
> reductions." The flexibility, clarity, and ease of reporting afforded
> by the EIA draft "Instructions" and by "Form EIA-1605" and the related
> Appendices and "tools" could very well be the deciding factor for an
> entity in making either decision or the decision not to participate at
> all.

**II. [*Federal Register* Notice Issues]{.underline}**

A. [Comments on EIA Proposal to Discontinue Form EIA-1605 EZ (Short
Form)]{.underline}.

Last July, EIA proposed that EIA discontinue use of the above-referenced
short form and that it "will later seek approvals" by the OMB "under
section 3707(a)" of the 1995 Act for such "discontinuance." 71 *Fed.
Reg[.]{.underline}* 42637 (2006). There is no mention in EIA's November
9 notice of such proposed discontinuance, although it does refer to
EIA's "Supporting Statement" for more information "about the EIA request
to OMB." That Statement states (p. 3) that EIA is "requesting" such
discontinuance. In response to EEI's comments on this proposal, EIA said
(p. 14):

> EEI commented that EIA did not provide an explanation or reasons to
> support or justify the discontinuance of the Form 1605-EZ. EEI claims
> that the best and most logical approach is for EIA to reconstruct the
> so called "short form" to serve entities, large and small, that choose
> to report voluntarily GHG information without meeting the
> "requirement" of registration. EIA, however, [decided that its
> original decision to discontinue Form 1605-EZ is the best
> decision]{.underline} with respect to the Program. [There is no
> requirement under the legislation or guidelines requiring the "short
> form" and that the navigation controls of the reporting software will
> limit the number of form Schedules and Sections that small emitter,
> and entities reporting but not registering reductions, will be exposed
> to. Additionally, having a second form would increase the resource
> requirements of the Program, without a significant increase in data
> quality or utility]{.underline}.

(Emphasis added.)[^4]

While we agree there is no specific "requirement" in the statute or the
DOE Guidelines for a short form, there is also no prohibition against
its continued use. Moreover, the statute speaks of plural "forms."
Indeed, section 1605(b)(2) of the Energy Policy Act (EPAct) of 1992
provides that EIA "[shall develop forms]{.underline} for reporting under
the guidelines. . . and [shall make such forms]{.underline} available to
[entities wishing to report]{.underline} such information" (emphasis
added). Further, § 300.1(d) of the General Guidelines provides that
"\[a\]nnual reports of greenhouse gas emissions. . .[must be made on
forms or software made available]{.underline}" by the EIA (emphasis
added). 71 *[Fed. Reg.]{.underline}* 20806.[^5] Thus, like the
above-referenced notice of November 9, the plural word "forms" is used
both in the statute and the Guidelines, which can only mean that there
is a requirement for more than one form, although not for any particular
designated forms. However, since EIA adopted in 1994 with OMB approval
both short and long forms, it is reasonable for 1605(b) volunteers to
expect the availability of, and for EIA to continue the use, a short
form as the second form.

EIA's above comment that continuing to have a second form "would
increase the resource requirements of the Program" is difficult to
comprehend in light of the fact EIA has utilized, consistent with EPAct
1992, two such forms since 1994. Apparently the "resource" issue has not
arisen in its management of information received in its data base
through use of both forms. Moreover, EIA fails to provide any supporting
information or data on the nature of that "increase" in "resources."
Further, the resources of the volunteers are also an important
consideration. Clearly, there is an important and valuable benefit in
the availability of a short form from the standpoint of minimizing "the
paperwork burden" for volunteers.

In our September comments on this matter, we said (pp. 6-7):

> One of the "purposes" of the Paperwork Reduction Act of 1995,
> according to § 3501, is to "[minimize the paperwork
> burden]{.underline} for [individuals]{.underline}, [small
> businesses]{.underline}, . . . state, [local]{.underline} and tribal
> [governments]{.underline}, and [other persons]{.underline} resulting
> from the [collection of information]{.underline} by. . .the Federal
> Government" (emphasis added). Continuing to maintain a short form,
> albeit with revisions, is one of the ways of achieving that purpose.
> Instead, EIA proposes that [all]{.underline} large and small emitters,
> whether they propose to register or to only provide GHG information
> without registration, must use the same Instructions and [long
> form]{.underline} with all their accompanying details and complexity.
> Such a result leads to the inclusion of what we view as confusing and
> puzzling instructions/options and conditions.
>
> In questioning the lack of an explanation and justification by EIA for
> abandoning the short form concept and contending that such abandonment
> is inconsistent with the above purpose of the 1995 Act, we believe
> **the best and most logical approach is for EIA to reconstruct the
> so-called "short form" to serve entities, large and small, that choose
> to report voluntarily GHG information without meeting the
> "requirement" of registration**. **That would leave the long form for
> entities, large and small, who choose to register reductions.**

In short, EIA's justification for proposed discontinuance is not in
accord with EPAct 1992. **We urge that 1) OMB, consistent with both
EPAct 1992 and the Paperwork Reduction Act of 1995, not approve EIA's
request for discontinuance of the short form, and 2) EIA revise it for
use by entities that choose to report, but not register, or in the
alternative for small emitters.**

B.  [Comments on "Collection of Information" Burden under the Paperwork
    Reduction Act of 1995]{.underline}

EEI, together with several of the other commenters on EIA's July 27,
2006, version of the draft Form EIA-1605, questioned EIA's estimate of
the collection burden on respondents, which was stated to be a "range
between 32 hours to 64 hours per response, depending on the type of
report and level of detail the respondent chooses to report at, or an
average of 48 hours." To its great credit, EIA, in its November 9
Supporting Statement (pp. 12-13 and p. 21-23) makes an effort to respond
to the comments by saying (p. 13), in response to the several comments
on the "collection of information" burden, EIA "has increased its burden
hour estimate [per reporter]{.underline} [from 32-64 hours]{.underline}
to a [flat 60 hours per response]{.underline}" (emphasis added) to a
long form that now exceeds more than 115 pages and includes Instructions
of 162 pages. Sixty hours is the equivalent of 7.5 eight-hour working
days. However, it is an increase of just 20 hours[^6] over the burden
assigned to the current long form, which is 48 pages long with
instructions of 70 pages. EIA does not explain the basis for this new
60-hour estimate. Rather, EIA merely comments (p. 13) "that
[large/complex entities]{.underline} will be [above]{.underline} this
number while [smaller, less complex entities]{.underline} will be
[below]{.underline} this number" of 60 hours, and that "[EIA has strived
to keep data elements to an absolute minimum, only requesting data
required by the General and Technical Guidelines]{.underline}" (emphasis
added).

As to the latter comment, it has always been our assumption that the
only "data elements" actually "required" by such Guidelines would be
included in the Long Form and related Instructions. If our assumption is
incorrect, we have an added concern about EIA encompassing non-required
data elements therein. If our assumption is accurate, the above EIA
comment is not an adequate basis for the 60-hours estimate. We ask if
our assumption is accurate and, if not, why not?

Regarding to the former comment, Part 300 distinguishes only between
entities that are large emitters and small emitters, based on the
threshold of "10,000 metric tons of CO~2~ equivalent," with no reference
to the complexity of either. In short, the size of the emitters is the
distinguishing feature, not the complexity of the emitters. Indeed, both
smaller and larger emitters that choose to register must, according to
the Supporting Statement (pp. 4-5 n. 3), meet certain requirements with
"\[m\]inor exceptions to these requirements" for "small emitters" to
"register reductions as early as 2001" rather than 2003. The issue of
complexity arises from the Guidelines themselves and the implementing
Form EIA-1605 and the related Instructions, not from the nature and
composition of the entities that choose to report.

What might be significant is an estimate of the number of large versus
small emitters. EIA estimates (p. 21) the "\[e\]xpected number of Form
EIA-1605 Reporters" to be only 150 "based on the expectation that the
newness of the Program may initially reduce participation as some
reporters take a 'wait and see' approach." EIA apparently has not
attempted to estimate how many of the 150 reporters would likely be
large emitters and how many would be small emitters. However, the
Supporting Statement indicates (p. 22) that for the "previous data
collection":

1\) under the current Form EIA-1605 (Long Form), there were 200
respondents, and 2) under Form EIA-1605EZ (Short Form), there were 35
respondents. This past practice suggests that the vast majority of EIA's
estimated 150 initial respondents (although a significant drop in
respondents from the present Program) would be large emitters. It is
likely that they would exceed the 60-hour estimate because of the size
and diversity of their operations and facilities, and therefore
emissions, because of the number of subentities that report within the
reporting entities and because some of them may choose to register.

In sum, EIA's estimate of the long form collection burden of 60 hours
for large and small emitters, which is only an increase of 20 hours over
the current long form, is simply inadequate, taking into consideration
the information that we provided from member companies to EIA in
September 2006 (pp. 8-9) and August 2005, and is also inconsistent with
the requirements of the Paperwork Reduction Act of 1995. **OMB should
not approve that estimate. Moreover, EIA needs to provide a more
rational estimate and explanation thereof.**

The EIA Supporting Statement also provides an estimate of the
"Commercialized Cost to the Respondents" (p. 21) of "\$531,000,"
calculated by multiplying the "expected total estimated reporter burden
for 2007" of 9,000 hours (*i.e.,* 150 reporters x 60 hours) "x estimated
average respondent cost per hour" of \$59 (*i.e*., the "average loaded
(salary plus benefits) cost for an EIA employee." (EIA "assumes" that
the respondent work force "is comparable" to that of EIA.) EIA adds that
there are "no significant additional (a) capital and start-up cost or
(b) total operation and maintenance and purchase of service components"
for respondents, while noting such cost for EIA. EIA also notes (p. 22)
that the "Program is purely voluntary" and that the "type and level of
complexity. . .is completely self-determined by the respondents." We
disagree with this assertion. The "complexity" is entirely determined by
the General and Technical Guidelines and Form EIA-1605. Thus, as we said
in September, the program will entail significant costs for respondents,
both start-up and annually. The EIA estimates are far too law,
particularly in light of the requirements of §§ 300.9 and 10 with
specific application of 18 U.S.C. § 1001 and the possible additional
cost of § 300.11, which is not even estimated by EIA.

**III.** **[Comments On Introduction And General Instructions Of
November 9 Draft Revised Instructions]{.underline}**

While the draft Instructions for Form EIA-1605 have grown in length from
the 100-page version of last July to 162 pages in the November version,
we are pleased to see the addition of Appendices A through N[^7] that
were missing in the July version, as well as the addition of a "Glossary
of Selected Terms."

A. [Comments on EIA Effective Date and OMB Approval Issues]{.underline}

DOE's final Guidelines became effective on June 1, 2006 (71 *Fed. Reg.*
20784), although it is our understanding from Part 300 that the 1994
Guidelines have [not]{.underline} been terminated and thus remain in
effect for voluntary reports "received pursuant" to those guidelines
through calendar year 2005 (*id.* at 20806). In addition, we noted in
footnote 2 of our September 25 comments that "on May 2, 2005, OMB
approved" (pursuant to the Paperwork Reduction Act of 1995) "an
extension of its prior approval for continued use by EIA of the long
form and the companion short form EIA-1605 EZ until March 31, 2007 (OMB
No. 1905-0194)," which covers data collection at least through 2005.
Thereafter, according to EIA's Supporting Statement, this "first year of
reporting to the Program under the revised Guidelines is expected to
occur in the late summer of 2007, for 2006 data," which we understand
means data for calendar year 2006. However, there is some confusion with
the above statement and Figure 1( p. 5) of the November 9 revised draft
Instructions, which is referred to on p. 4 thereof under the title
"**Can I** **Both Register and Report but not Register Emission
Reductions?."** The confusion is that the Figure begins "Possible
Reports Submitted for Calendar Year 2007", instead of Calendar Year
2006. Moreover, while the figure could be helpful for the first calendar
year of reporting, its reference to this one specific calendar year
dates it for future years for which the long form will apply. In short,
it seems to be a one-calendar year figure that is not applicable to all
future calendar years. If that is intended, we have to question its
ongoing value.

We understand from the *Federal Register* notice that EIA proposes that
OMB apply the same "collection number" as applies to the long form
approved under the 1994 Guidelines, namely number "1905-0194," and that
OMB merely would extend the "existing approved request" for three years
beginning from the expiration of the current long form EIA-1605, which
is March 31, 2007. However, that will create a large gap of several
months between that approval date and the uncertain "late summer" date
for "reporting to the Program" that "is expected" by EIA, which means
that, in reality, the three-year approval period is shortened by that
gap and EIA will need to seek a new approval in 2½ or less years. At a
minimum, EIA should provide a date certain for the start of the revised
program, and OMB should grant its three-year approval beginning on that
date.[^8]

B. [Comments on "Introduction" of "Instructions**"** for Form
EIA-1605]{.underline}

In EEI's September comments on the Form EIA-1605 Instructions, we
referred (p. 20) to the question "**Why Report?**" under "Introduction"
and the question "**What Are Registered Reductions?**" under "General
Instructions" and pointed to a sentence in the response to each that
contained the words "special recognition." We noted that those words are
a "relic of past guideline iterations" and urged deletion of the
sentences containing those words. Our review of the response to the
above second question in the November 9 draft Instructions indicates
that these words have been deleted. However, the relevant sentence with
these "relic" words remains in response to the question "**Why
Report?.**" For the reasons we gave in September, we again urge deletion
of the second sentence with the words "special recognition" of that
response to the above question.

Regarding the question "**What Are Greenhouse Gases?**" (p. 1), the
November 9 version of the response to this question now conforms more
closely to the definition of GHGs in § 300.2 of DOE's guidelines.
However, the response now states that "this reporting program focuses"
on seven listed GHGs. That is inconsistent with § 300.6(i), which states
that "\[e\]ntity-wide inventories must include the emissions of the
first six categories of named gases" in § 300.2 and that entities "may
report chlorofluorocarbons and other greenhouse gases. . .as long as DOE
has established a method for doing so." Similarly, under the question
"**What Gases Can You Report?**" (p. 7), EIA states that "your
\[entity's\] report should cover" the same list of seven GHGs, but it
then includes these two footnotes:

> ^4^ Other gases or particles have been demonstrated to have
> significant, quantifiable climate forcing effects when released into
> the atmosphere in significant quantities. [DOE has not established or
> approved methods for estimating emissions of other gases or particles
> at this time]{.underline}.
>
> ^5^ [The reporting of CFC emissions on Form EIA-1605 is optional. CFC
> emissions cannot be included in total inventory emissions since
> reliable net global warming potentials are not available for these
> gases]{.underline}. [Reductions in CFC emissions may be reported but
> not registered]{.underline}.

(Emphasis added.)

Thus, in accordance with § 300.6(i), the focus is on six, not seven,
GHGs. Since DOE has not yet provided the relevant "global warming
potentials" for CFCs, there is in fact no current option to report CFCs,
nor is there any indication how DOE/EIA would inform entities when that
option meets § 300.6(i). Presumably, that would be part of the periodic
review under § 300.1(f). Therefore, the responses to the above two
questions need revision to conform to § 300.6(i), which refers to six,
not seven, GHGs.

In case of the question "**How Are The Instructions Organized?**" (p.
2), there should be listed the newly added "Glossary of Selected Terms."

C. [Comments on "General Instructions]{.underline}"

> 1\. [Comments on use of first person in questions and
> responses]{.underline}

In footnote 5 of our September comments, we said (p. 13):

> We note that, in the case of these questions and the responses thereto
> and elsewhere in the Draft revised Instructions, just as in the March
> 2006 Instructions under the 1994 Guidelines, the first person is often
> used, namely "you" or "your". However, the final, revised Guidelines
> address and use the terms "entity", "entities", "larger emitter" and
> "small emitter" (which refers to the term "entity" in the definitions
> of those terms), and "reporting entity" rather than the first person.
> Clearly, the definition of the term "entity" makes no reference to the
> first person, even in the case of a "household", and § 300.3(a) states
> that entities "may be defined by" one or more legal instruments, not
> with reference to an individual. For consistency with the Guidelines,
> the proper reference is to the "entity", etc., not the first person.

EIA has made a very good effort to respond to this comment with respect
to some questions and responses. However, the effort is far from
uniform, and more is needed. To illustrate this need, we offer the
following examples, which are not intended to be exhaustive:

-   In the first sentence under "**Who Can Report?**" (p. 3), change the
    words: "You can submit a report if you are an entity. . ." to "Your
    entity can submit a report if your entity. . . ."

-   Change the question "**What Can You Report?**" (p. 3) to "**What Can
    Your Entity Report?**", and in the first sentence of the response,
    change "you" to "Your entity."

-   In the question "**How Must You Estimate Emission Reductions?**" (p.
    6), change "You" to "Your Entity."

-   In the question "**Must I Calculate Emission Reduction at the Entity
    Level?**" (p. 6), change "I" to "My Entity," and in the question
    "**Can You** **Report Foreign Activities?**", change "You" to "Your
    Entity."

All of the above changes are consistent with those made in the second
and third questions on p. 3.

> 2\. [Comment on definition of an entity in general
> instructions]{.underline}

Under the question "**Who Can Report?**" (p. 3), the response includes
what purports to be a definition of the term "entity." However, the last
two bullets are inconsistent with the definition of that term in § 300.2
of the General Guidelines and the identical definition in the draft
Glossary to the **Instructions** (p. 156). The two bullets should be
revised as follows:

-   is located and operates, at least in part, in the United States; and

-   the emissions of such operations are released, at least in part, in
    the United States.

> 3\. [Comments on reporting versus registration]{.underline}

The EIA Supporting Statement notes (pp. 13-14) that "\[s\]everal
commentators," including EEI, said that EIA "should clearly distinguish
the difference between 'registering' reductions versus 'reporting'
reductions." In response, EIA states that "EIA has made a clear
distinction between these two types of reporters in both Forms and the
Instructions," which we welcome. Indeed, the response to the question
"**What Are Registered Reductions?**" (p. 3) is largely a restatement of
the Supporting Statement explanation (p. 13) of the term "Registered
Reductions," and it is helpful. Similarly, the response to the question
(p. 4) "**Can You Report But Not Register Reductions?**" is also
helpful, but, unlike the response to the above question on registration,
it fails to refer specifically to the Guidelines' sections that are
applicable to reporting only. Moreover, the response (particularly the
first three sentences) to the question "**Can I Both Register and Report
but Not Register Emission Reductions?**" seems non-responsive to the
question, as it deals largely with the "start year" and not the issue
purportedly raised by the question, which is itself confusing. More work
is needed regarding these questions and responses.

In addition, the draft Glossary does not include any
definition/explanation of the terms "Reported reductions" and
"Registered reductions." Footnotes 2 and 3 of the Supporting Statement
(p. 4), in the context of "Reporter Self-Certification," attempt to
provide such a definition/explanation. A definition/explanation of those
terms is important and should be included in the Glossary.

4.  [Comments on cross-referencing DOE sections of General Guidelines
    and Technical Guidelines]{.underline}

In our September 25 comments on Table 1 (now designated in the November
9 draft as Table 2, "Summary of Principal Reporting Requirements") and
elsewhere, we have continually urged EIA to do a better job of
cross-referencing the Instructions and Form EIA-1605 to the relevant
sections of Part 300 and the Technical Guidelines. EIA's Supporting
Statement replied (p. 19):

> Both EEI and Southern Company commented that EIA provide specific
> references to the General Guidelines in the Instructions for
> individual schedules and addenda. [Since most of the Instructions are
> based on requirements of the General and Technical Guidelines, EIA has
> tried to strike a balance on requirements of the General and Technical
> Guidelines only where it is believed that the reporter may need to
> reference the Guidelines]{.underline}.

(Emphasis added.)

Once again, by including the word "most," EIA's response implies that
the Instructions and Form may include "requirements" that go beyond
those "requirements of the General and Technical Guidelines" (see
section II.B above). **This data collection effort should not include
any "requirements" other than those necessary to implement the DOE
Guidelines (Part 300) and the Technical Guidelines.**

As to EIA's comments on striking a "balance. . .only where" EIA believes
"that the reporter may need to reference the Guidelines," we fail to
understand the apparent reluctance of the agency to assume that
volunteering entities "need" such cross-referencing. This need is
obvious given the complexity, detail and extensive length of both DOE
Guidelines documents and the fact that an entity, large or small, has
the options of "reporting but not registering reductions" and to
"register reductions." It is common sense for EIA to err on the side of
extensive cross-referencing as a means of alleviating the burden on
EIA's resources when applying § 300.12(a) ("\[a\]cceptance of reports").
For example, EIA should refer to § 300.10 of the Guidelines and portions
thereof in the response to the question "Who Must Certify Your
\[Entity's\] Report?" (p. 12) and in section 2 of Schedule IV of the
Form (p. 44). Section 1 of that Schedule, on Verification, refers to §
300.1l.

> 5\. [Comments on Table 2]{.underline}

For a large emitter registering reductions, Table 2 of the draft
Instructions (p. 9) provides that an entity-wide inventory is
"required." In the case of a small emitter registering reductions, the
third column states, "Entity wide inventory required for the first year
and after any significant increase in emissions, any change in
operations or boundaries, or every five years. In intervening years,
required only for activities for which reductions are reported." In the
case of section 2 of Schedule I of draft Form EIA-1605 (p.26), such
small emitters "must submit a comprehensive inventory[^9] of the portion
or problems of their entity associated with each of the activities
associated with registered emission reductions." However, § 300.6(a)
provides that small emitters "are eligible to register emission
reductions without also reporting an inventory" for any year, "but "they
should" (not must) "report the emissions associated with the specific
activity(ies)."

The draft table and Schedule and section 2 of the draft table appear to
be inconsistent with

§ 300.6(a).

> 6\. [Comments on confidentiality provisions]{.underline}

In our September 25 comments, EEI generally addressed the
confidentiality provisions of the draft Form EIA-1605 and the related
Instructions as follows (p. 21):

> Both section 1605(b) and the Energy Policy Act and § 300.9(e) of Part
> § 300 provide for the protection of "trade secrets and commercial
> information or financial information, as provided" in 5 U.S.C. §
> 552(b)(4). In this regard, it is our understanding of the provisions
> for confidentiality that an entity [may request]{.underline}
> confidentiality protection for the information included in a 1605(b)
> submitted report that meets one or more of the tests as a trade
> secret, commercial information, or financial information. [While it is
> possible that an entity may show that the entire report deserves such
> protection, the most likely scenario would be that the entity would
> request that some, but not necessarily all, of the collected
> information in its submitted 1605(b) report should be
> protected]{.underline}. In the latter scenario, we would expect that
> the rest of the report would be subject to § 300.12(d). However, the
> draft Instructions and Form do not appear consistent with our
> understanding. In fact, we see several problems.

(Emphasis added.) As indicated in its Supporting Statement (pp. 15--16),
EIA has recognized the problems and made some welcome improvements.
However, there still are some problems.

First, section 1605(b)(3) of the EPAct 1992 provides that "\[t\]rade
secrets and commercial or financial information that is privileged or
confidential shall be protected as provided in section 552(b)(4) of
title 5, United States Code" (42.U.S.C. § 13385 (b)(3)). In the case of
the General Instructions of the November 9 draft Instructions for Form
EIA-1605, confidentiality is first noted under the question "**What Are
the Provisions Regarding the Confidentiality of Your \[Entity's\]
Information?.**" The response is (p. 19) that in general all reported
information on Form EIA-1605 will be available to the public "in
identifiable form" and not treated as confidential. In this regard, the
Supporting Statement, but not the draft Instructions or Form, explains
(p. 20) that the "Federal Energy Administration Act requires the EIA to
provide company specific data to other Federal agencies when requested
for official use," as well as to another "component" of DOE and to
"Committees of Congress." While the above explanation is generally true,
the above Act also states that the Freedom of Information Act "shall
apply to public disclosure of information by the Administrator" and that
there are limits on disclosure to, and use by, such agencies and
Committees, etc. (see 15 U.S.C. § 773(b); 15 U.S.C. § 790h; and 42
U.S.C. § 7135(g)). In short, in light of the above statutory provisions,
the first paragraph under the above question and the Supporting
Statement are overly broad. Moreover, the following two paragraphs under
the above question clearly provide that an entity's "information" shall
be "treated as confidential" if the statutory and regulatory "criteria"
are satisfied. We urge a revision consistent with such statutory limits
on disclosure of use.

The response to the above question then states (p. 19):

> The information reported on Form EIA-1605 [may be treated as
> confidential]{.underline} if a respondent makes a [written
> request]{.underline} that its information is [financial or
> commercial]{.underline} [information]{.underline} and [is confidential
> or privileged]{.underline}, and they are able to [satisfy]{.underline}
> the criteria for exemption under 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.
>
> To assist us in this determination, respondents [should]{.underline}
> demonstrate to the DOE that, for example, their information contains
> [trade secrets or commercial or financial information]{.underline}
> whose release would be likely to cause substantial harm to their
> company's competitive position. [A letter accompanying the submission
> should explain]{.underline} (on an element-by-element basis) the
> reasons why reporting this information would be likely to cause
> substantial [competitive harm]{.underline} if released to the public.

(Emphasis added.)

Consistent with the above statutory provision, the word "may" in the
first sentence of the above first paragraph should be changed to
"shall." The word "may" indicates that DOE has discretion to grant
confidentiality status even "if" the entity is "able to satisfy the
criteria" therefore. Such discretion is not in accord with the above
statutory provision. In addition, "is" in the first sentence should be
changed to "contains trade secrets or." The adding of the words "trade
secrets" also conforms with EPAct 1992.

With respect to the second paragraph of the response, EIA's Supporting
Statement explains (p. 15) that "section 309.9(e) of the General
Guidelines states that an 'entity must clearly indicate in its 1605(b)
report the information for which it requests confidentiality'" and that
therefore EIA has "edited question 13" in the draft form "to require
respondents. . .to clearly indicate those data elements for which
confidentiality is requested and provide a justification" under the
provisions of EPAct 1992 and other statutes and DOE regulations cited by
EIA.[^10] Harm to competition should not be the sole basis for
confidentiality, particularly if the claim relates to "trade secrets,"
which may or may not be based on actual competition. Thus, consistent
with § 300.9(e) and question 13, we recommend that the second paragraph
be revised as follows:

> To assist us in determining whether your entity's entire report or
> portions thereof satisfies such criteria, you are required to
> demonstrate (on an element-to-element basis) to the DOE that your
> entity's information contains trade secrets or commercial or financial
> information that is privileged or confidential and that, for example,
> the release of which would cause substantial harm to your entity.

As noted in our September comments, confidentiality may be claimed for
the entire entity report or portions thereof. Our proposed revision
makes that clear. In addition, the Instructions should clearly state an
obligation of the entity that seeks confidentiality to demonstrate fully
that its claim satisfies the applicable "criteria" and not leave it to
DOE to decide, without such demonstration, whether it is valid. Thus, we
urge that EIA make it clear in the Instructions that such demonstration
is "required." Of course, if the entity fails to provide such
demonstration, that presumably would not be a basis under the statute or
regulation for rejection, even though that is implied by item 13 of
Schedule 1 of the draft form (p. 6).[^11] In addition, we do not
understand why a separate "letter" is necessary since question 13 of the
draft Form EIA-1605 (p. 21) provides "space," etc. to provide "reasons"
for seeking confidentiality.

Second, regarding the response to question 13 in draft Schedule 1 of the
Instructions and the draft form, the draft Instructions state (p. 23):

13. **Request Confidentiality of Entity Information:** If your report
    contains information you deem confidential, please check the box.
    [Checking this box will alert EIA that you are seeking to have your
    entire report classified as confidential and not be made publicly
    available]{.underline}. The information contained in the report will
    be kept confidential and not disclosed to the public to the extent
    that it satisfies the criteria for exemption under the Freedom of
    Information Act (FOIA), 5 USC § 552; the DOE regulations, 10 CFR §
    1004.11, implementing the FOIA; and the \[Trade Secrets Act, 18 USC
    § 1905.\]

(Emphasis added.) The draft Form EIA-1605 states (p. 21):

> 13\. Request Confidentiality of Entity Information
>
> Check box if applicable:
>
> □ Requesting confidential treatment for the information reported on
> this form. (NOTE that you [must provide]{.underline} the specific
> reasons in the [space below or]{.underline} [attached sheets for DOE
> to consider your request]{.underline}. Your reasons should explain
> that the information being reported is financial or commercial
> information and why you claim it is confidential or privileged.)

(Emphasis added.)

In the case of the above Instructions' paragraph, we urge deletion of
the second sentence, since it suggests that an entity can only request
confidentiality for an entire report and not portions thereof, which is
not true. It is more likely that DOE would reject a request of
confidentiality for an "entire report" as opposed to portions thereof.
Moreover, in the last sentence, there should be a reference to section
1605(b)(3) of the EPAct 1992, which directs DOE to consider
confidentiality requests.

In the case of question 13 of the Form, EIA should delete the words "is
financial or commercial information" in the second sentence of the
parenthetical and insert "contains trade secrets or financial or
commercial information that is privileged or confidential," which would
conform the sentence with the statute.

> 7\. [Comments on materials under "**Do You Need to Complete All of
> Form EIA-1605?"**]{.underline}[^12]

The first response to this question (p. 11) is that the "parts" of the
Form "that must be completed" by an entity either registering reductions
or reporting, but not registering reductions "depend" on a list of seven
so-called "characteristics" of the entity's "report." The paragraph
following this list then states that once the entity has "determined the
characteristics," the entity is urged to "select" and "use" one of the
"decision charts" (*i.e*., Tables 3-8) to identify which schedules, etc.
the entity "must complete." However, none of the headings of these
charts that distinguishes one from the other refers to such
characteristics as verification, subentities, methods, etc. The only
distinguishing characteristics for the tables or charts are:

-   Start Year or Reporting Year.

-   Small or large emitter.

-   Registered reductions included.

-   Report, but not register reductions.

They should be listed, in lieu of the list on pages 11-12. Indeed, their
listing is also consistent with the second sentence of the paragraph
preceding the bulleted headings (p. 12) for each table. In addition, in
the last sentence following the bulleted headings, there is no mention
of the several Addenda of Form EIA-1605. We suggest that the words "and
Parts" be changed to "Parts, and Addenda". In the tables themselves,
there is reference to Addenda A, but not Addenda B. We question why this
is the case.

Moreover, we see no need for the two columns in the Tables on
"Independent Verification" because it is an option, not a requirement or
characteristic. Moreover, the question is fully covered by Schedule IV,
section 1 (p. 41) titled "Independent Verification." The question, which
is required by § 300.10(c)(6), is repeated in question 1 of section 2 of
Schedule IV on self-certification (p. 44). It is duplicative here, and
it gives the impression of a requirement, not an option.

Finally, we suggest a caveat that the tables are an aid, not necessarily
an exact indication that in following one of them will assure acceptance
of an entity's report under § 300.12, taking into consideration the
uniqueness of an entity's particular circumstance.

> 8\. [Comments on "Glossary of Selected Terms]{.underline}"

We welcome the addition of the draft "Glossary of Selected Terms" to the
Instructions. However, there is no mention or discussion of it in the
General Instructions. The Glossary should be referred to in the
Instructions, since these terms are used in the Draft Form (*e.g*.,
question 8 ("Organizational Boundaries") of section 1 of Schedule 1 (p.
4)). However, the terms "Climate Leaders," "Climate VISION,"
"Distributed Energy," "DOE" and "EIA" -- all defined in § 300.2 of the
General Guidelines -- are missing from the Glossary. Yet all other terms
in

§ 300.2 are included in the draft Glossary. Hence, they should be
included also.

In addition, we have several specific comments about the draft Glossary
terms:

-   "**Activity**" (p. 153) -- The actual term in § 300.2 is "*Activity
    of a small emitter*." We think EIA should use that term and delete
    "With reference to a small emitter" from the definition/explanation.

-   In the case of the terms "**Emissions**" (p. 155) and "**Offset**"
    (p. 159), the word "part" appears. It is not defined. Either it
    should be defined or the words "General Guidelines" (p. 157) should
    be substituted. Further, the term "reporting entity" in the
    definition of an "**Offset**" is a defined term that refers to a
    report that has been "accepted" by EIA, and thus would not appear
    appropriate in this definition. Thus, in the first and third
    sentences, we recommend that EIA change "reporting entity" to
    "1605(b) entity."

-   "**Large emitters**" (p. 158) -- This definition/explanation differs
    from the definition of that term in § 300.2, particularly the
    reference to § 300.5(c). There should not be a difference.

-   "**Mobile source emissions**" (p. 159) and "**Transportation
    sources**" (p. 161) -- Both definitions/explanations seem to overlap
    with the words "such as," "include" and "\[e\]xamples." We question
    whether both definitions are needed. In the case of transportation
    sources, there is an exclusion for "farm equipment associated with
    particular farm premises," while there is no such exclusion in the
    case of mobile sources. This difference should be reconciled.

-   "**Organizational boundary**" -- This term is used in question 8 of
    section 1 of Schedule 1 of draft Form EIA-1605 (p. 4). The
    definition or explanation of this term in the draft Glossary
    (p. 159) is derived *verbatim* from the final Glossary in the
    Technical Guidelines (p. 308) as follows:

> Organizational boundary: The scope of the entity covered by 1605(b)
> reporting, as defined in the entity statement. Generally, the
> organizational boundary of an entity encompasses all facilities and
> operations that are under the [management control]{.underline} of the
> entity, which usually includes all land, facilities and vehicles that
> are [wholly or majority owned or under long-term lease]{.underline} by
> the entity, as well as certain other facilities, vehicles or land that
> are under the [management control of the entity]{.underline}. See also
> Entity Boundary.

(Emphasis added.) However, as we explained in September, the above
definition/explanation "is not entirely consistent with the second
sentence of § 300.4(a)(1), which states that the financial control
'approach should ensure that [all sources]{.underline}. . .that are
[wholly or largely owned by the entity]{.underline} are covered by its
reports' and that 'under long-term lease of the entity
[may]{.underline}, depending on the provisions of such lease, [also be
considered to be under the entity's financial control]{.underline}'"
(emphasis added). We added that the glossary explanation in the
Technical Guidelines and now the draft Instructions

> speaks of "management control" of the "entity sources" that are
> "[wholly or majority]{.underline} [owned or under long-term
> lease]{.underline}" by the entity, while the above Part 300 refers to
> [ownership]{.underline}, [not management]{.underline}. [Moreover, the
> above Part 300 provision applies to financial control, while the
> glossary term appears more generic]{.underline}. It would appear that,
> at least as to financial control, the glossary explanation of such
> boundaries is [not relevant]{.underline} and that the draft
> Instructions [need to so]{.underline} [indicate]{.underline}.

(Emphasis added.) The definition/explanation in both the final Technical
Guidelines and the draft Instructions should conform to § 300.4(a)(1).

-   "**Registration**" (p. 160) -- This definition/explanation differs
    from the definition in

> § 300.2. It should conform.

-   "**Reporting**" (p. 160) -- First, the Supporting Statement states
    (p. 14), "EIA now uses the terms 'reporting but not registering
    reductions,'" presumably in lieu of the term "reporting." In
    addition, the word "reporting" is used in the term "reporting
    entity" and applies to [all]{.underline} reports, including reports
    that register reductions. There is probably no need for a
    definition/explanation of "reporting."

**IV. [Comments On Schedule 1]{.underline}**

A. [General Comment]{.underline}

A cross-reference to the applicable section of the General Guidelines
should be included in the draft Instructions at least.

B. [Section 1. Entity Statement]{.underline}

> 1\. ["Note" at beginning of Form EIA-1605]{.underline}

Draft Form EIA-1605 begins (p. 1) with a "Note" in a box[^13] stating
that "Title 18 U.S.C. 1001 makes it a criminal offense for any person
knowingly or [willingly]{.underline} to make to any Agency . . . any
false, fictitious, or fraudulent statements as to any matter within its
jurisdiction" (emphasis added). In our written comments of August 2005
and September 2006 and in verbal comments to EIA, EEI pointed out that,
in accordance with 18 U.S.C. § 1001(a), the word "**willingly**" is a
typographical error.[^14] The word should be "willfully." In addition,
the note should not start with the word "Title." Rather, it should be
either "18 U.S.C. § 1001" or "Title 18 of the United States Code,
section 1001." We again urge that you make these corrections.

> 2\. [Entity identification]{.underline}

The term "reporting entity's" in paragraph 1, section 1 of Schedule 1
should be changed to "entity's" because the term "reporting entity" is
defined/explained in the draft Glossary (p. 156) to mean an entity that
has "submitted" a report to EIA that "has been accepted." Clearly, it is
not applicable when the entity is merely beginning to fill out the draft
Form.

> 3\. [Report characteristics]{.underline}[^15]

Paragraph 3.d. of section 1 of Schedule 1 of the draft Instructions (p.
21) and question 3.d. of the draft Form provides for checking whether
the entity's report has been "verified" by an "independent third party."
We fail to see the need for such checking here, as it is adequately
covered in section 1 of Schedule IV, which, as noted above, is requir4ed
by § 300.10(c)(6). Besides being duplicative, it is inconsistent with
EIA's assertion in its Supporting Statement (p. 13) that "EIA has
strived to keep data elements to an absolute minimum, only requesting
data required by the General and Technical Guidelines." The entity
statement provisions of the General Guidelines (§ 300.5) do not appear
to require this data element.

> 4\. [Organizational boundaries]{.underline}

The last sentence of paragraph 8.a of the draft Instructions (p. 22)
should be revised to refer to the draft "Glossary of Selected Terms"
that is now a part of the Instructions rather than the Technical
Guidelines.

In this regard, we urge DOE/EIA to ensure that all
definitions/explanations in the General Guidelines, the Technical
Guidelines and these Instructions conform and are uniform.

In the third bullet of paragraph 8.c., we suggest that EIA delete the
word "Reporting" because of the definition of the term "Reporting
entity," which is one that has submitted a report to EIA that has been
accepted.

> 5\. [Emissions offsets]{.underline}

EIA's Supporting Statement responds (p. 17) to EEI's comments on Part A
of Section 3 of Schedule 1 (p. 48) as follows:

> EEI commented that the statement in Schedule1, Section 3 (Emission
> Offsets),
>
> ". . .the reporter certifies the existence of an agreement between the
> other reporting entity and itself. . ." represents a
> double-certification, since Section 300.10(a) of the General
> Guidelines requires "a certification statement. . .signed by a
> certifying official of the reporting entity" and Section
> 300.10(c)(2)(ii) of the General Guidelines provides that such
> statement "must also certify that. . .\[a\]ny emission reductions
> reported or registered by the entity that were achieved by another
> entity. . .are included in the entity's report only if. . .\[t\]here
> exists a written agreement with each other entity." EIA has edited
> this portion of the form to make the statement more informational and
> to read as, "emission reductions from another entity may only be
> reported if an agreement exists . . ."

While there has been an improvement, there is still the suggestion of a
double certification. We recommend that the words "you are certifying"
in the second sentence of the first paragraph of Part A of Section 3 (p.
48) be changed to "your entity is confirming."

V. [**Comments On** **Schedule IV. Verification And
Certification**]{.underline}

A. [Independent Verification]{.underline}

Draft Form EIA-1605 provides (p. 41) that *"\[i\]f your \[entity's\]
report has been independently verified by a qualified auditor. . .that
auditor must complete Schedule IV, Section 1*." While the draft
Instructions for this section also includes the above statement (p. 59),
the first sentence thereof appears to require that the entity check an
"appropriate box" that the entity's form has been "independently
verified." However, there is no such box in section 1 of Schedule IV of
the Form, although there is one in section 2 (see item 1, p. 44). There
is no need for a check-off box, since this is adequately addressed in
section 2. Thus, we suggest that the sentence in the Instructions be
deleted. If there is a need for this check-off, the section needs to
include the box.

In addition, we question the use of the word "auditor," since § 300.11
does not refer to an "auditor," but rather to a "verifier" and to a
"lead verifier." According to § 300.11(b), a verifier may be an
individual or a company, and § 300.11(e) provides that the verification
statement must be signed by the verifier, and if relevant (*i.e*., if
the verifier organization is a company), an officer of the company.
Accordingly, "verifier" should be substituted for "auditor."

The second sentence of the first paragraph of section 1 states (p. 59)
that "you must still provide" a certification in the section even if
your entity's report has been independently verified. It is unclear who
the "you" refers to, since the person or persons filling out the
entity's form may or may not be the "certifying official" under §
300.10(a). We suggest deleting "you" and inserting "your entity's
certifying officer."

In the case of item 1, "**Name of Entity Report Independently
Verified,**" the first sentence also uses the word "you" regarding
verification. Presumably, the "you" is the verifier. The words "you
have" should be changed to "the verifier has." In addition, the second
sentence states that the name of the entity "should be unique and match
the name submitted" on the entity statement. The use of the word
"unique" is puzzling, since the name should simply "match" or be the
same as that on the entity statement. We suggest deleting "unique and."

In the case of item 2 of the draft Instructions for Schedule IV, Section
1 (p. 59) and of the draft Form (p. 41), there is a requirement to
identify the name of the "Verifying Company" and the identity of a
contact person "employed by the company who can answer questions about
the verification." In item 3.a, there is a requirement on accreditation
held by "your company." First, §§ 300.11(b) and (c) indicates that "DOE
envisions that independent verification" will be performed by
"verifiers" that could be "individuals or companies." The draft
Instructions and Form seems to limit them to "companies." That is
consistent with § 300.11. Second, we recommend that the "contact person"
always be the verifier who signs the verification statement and is
familiar with the verification, not some person who has little or no
first-hand knowledge

B. [Certification]{.underline}

In the first paragraph of the draft Instructions for section 2 of
Schedule IV, consistent with § 300.10(a), EIA should insert "an officer
or" before the word "employee."

Regarding "additional requirements" under the second paragraph
("Certification") of Section 2 of Schedule IV of draft Form EIA-1605,
several of the bulleted paragraphs are inconsistent with § 300.10(b)(c)
of the General Guidelines. Our suggested corrections to make them
consistent are:

-   In the first line of the second bulleted paragraph, insert the words
    "or registered by the entity" after the word "reported," and in the
    second line delete all after "another entity" and insert "(other
    than a very small emitter that participated in a demand-side
    management or other program) are included in this Form EIA-1605
    report only if" and then insert clauses (i) -- (iii) of §
    300.10(c)(2).[^16]

-   In the second line of the third bullet after "emissions," insert "to
    other entities or."

-   The last two lines of the fourth bullet, delete all after "unless"
    and insert "the entity's base period includes generation values from
    the acquiring facility's operation prior to its acquisition; and."

-   In the fifth bullet, delete all after the word "form" in the second
    line and insert "and records documenting the analysis and
    calculations underpinning the base values used in calculating annual
    reductions are maintained in accordance with § 300.9(d) of the
    General Guidelines; and."

C. [Appendices]{.underline}

Appendix D is titled "Voluntary Greenhouse Gas Reduction Initiatives"
(p. 123). First, under the title "Domestic Voluntary Initiatives" is
listed the "Regional Greenhouse Gas Initiative" (RGGI). First, RGGI is
intended as a mandatory, not a voluntary, program as it applies to
electric generators serving the RGGI states. Therefore, it should not be
included in Appendix D.

Second, under the title "Domestic Registries and Exchanges" in Appendix
D is listed the "California Climate Action Registry" (CCAR). While CCAR
is currently voluntary, it will become a mandatory registry once
implementation of AB 32 is effective.

Third, under the title "International Registries and Exchange" in
Appendix D is listed the "European Union Greenhouse Gas Emission Trading
Scheme (EU ETS)," which relates to the Kyoto Protocol. The E.U. ETS is
also not a voluntary program and should not be listed in this Appendix.

We urge that EIA assure OMB and us that all other programs listed in
Appendix D are in reality voluntary.

Regarding Appendix E (p. 124) on GHGs and global warming potentials, we
urge EIA to assure that it is consistent with the definition of GHGs in
Part 300 and the Glossary.

In the case of Appendix I, "System and Fuel Codes," etc. (p. 141),
electricity is listed under the heading "Other or Unknown Fuels," along
with the categories "Other" and "Unknown." Electricity should be listed
under its own Fuel Type.

Finally, Appendix N, "Emission Benchmarks for Purchased Steam and
Chilled/Hot Water," (p. 151) is blank.

[^1]: EEI is the association of U.S. shareholder-owned electric
    companies, international affiliates and industry associations
    worldwide. Our U.S. members serve 97 percent of all customers served
    by the investor-owned segment of the industry. They generate more
    than 70 percent of all of the electricity generated by the electric
    utilities in the United States and serve more than 70 percent of all
    ultimate customers of the electricity in the nation. EEI also
    participates as an official observer at the meetings of the
    Conference of the Parties and their subsidiary bodies to the
    Framework Convention on Climate Change (FCCC) and to the FCCC's
    Kyoto Protocol.

    EEI is also one of six electric power trade associations in the
    United States that -- acting through their member companies and
    along with the Tennessee Valley Authority -- are collectively
    referred to as the "Power Partners^SM^." On December 13, 2004, Power
    Partners^SM^ entered into the umbrella Climate VISION Memorandum of
    Understanding with the Department of Energy (DOE) in support of the
    President's efforts to reduce the greenhouse gas (GHG) emissions
    intensity of the U.S. economy by 18 percent by the end of 2012.

[^2]: According to the December 6 edition of BNA Inc.'s [Daily Report
    for Executives]{.underline}, DOE's Mark Friedrichs said at a
    conference on December 5 that DOE plans to publish "some minor
    technical corrections in late December to 'clean up the guidelines'"
    but "offered no details on the nature of the corrections."

[^3]: In its Supporting Statement, EIA states (p. 12) that it "is
    important to note" that there were "a number of commentators"
    raising issues that "would require changes" to the Guidelines.
    However, EIA said it "has no authority to change" the Guidelines and
    thus they "are not discussed" by EIA in the Statement. EEI was one
    of those commentators.

[^4]: In a separate E-mail of December 11, 2006, EIA added that "the
    reporting requirements embodied in the Technical and General
    Guidelines cannot be accommodated by Form EIA 1605-EZ." However, EIA
    fails to explain why. Form EIA 1605 was also not, prior to last July
    and November, capable of accommodating such "requirements" and had
    to be substantially revised by EIA. Surely, the short form could
    also be revised.

[^5]: In light of specific reference in the statute to "forms" and no
    mention of "software," EIA would not appear to have the discretion,
    as suggested by § 300.1(d), to provide software in lieu of "forms."
    Software complements the forms. Regarding software, the BNA, Inc.
    article referred to in footnote 2, *supra,* quotes DOE's Friedrichs
    as saying:

    > The revised guidelines issued last spring implemented a DOE final
    > rule, published in \[April\] 2006, that included significant
    > revisions to the program. [The final rule included new provisions
    > meant to encourage industries that had not participated in the
    > voluntary reporting effort, such as agriculture, and to promote
    > participation among smaller firms]{.underline}.
    >
    > Friedrichs said most participants in the voluntary program will
    > not use the paper form [but will wait until web-based software is
    > made available]{.underline} in mid-2007 from DOE that will
    > simplify reporting.
    >
    > "Our objective is to have a web-based electronic reporting system
    > in play by next summer," Friedrichs said. "That's when the
    > reporting under the revised guidelines will really begin," he
    > said.

    (Emphasis added.)

[^6]: For 2005 data, the Long Form burden is 40 hours and the Short Form
    is four hours. EIA's Supporting Statement (p. 13) indicates that for
    the Southern Company (an EEI member company) the burden for 2005
    data was 80-100 hours, which calls into question the accuracy of the
    40-hour burden estimate by EIA/OMB for 2005 data.

[^7]: In addition, the draft long form has also grown from 38 pages,
    plus Addenda A, B, and C, to 44 pages, plus a revision of Addenda A
    and B, with Addendum A now titled "Inventory of Foreign and
    Subentity Emissions" and Addendum B titled "Emission Reduction
    Methods."

[^8]: Section 300.1(f) of the General Guidelines states that DOE
    "intends periodically to review" both guidelines "to determine
    whether any changes are warranted" and "anticipates these reviews
    will occur approximately once every three years." It would seem that
    they should coincide with the expiration of the three-year OMB
    approval, but that will not be possible with this gap.

[^9]: It is unclear what the word "comprehensive" encompasses as
    compared to "entity-wide." It should be deleted.

[^10]: The Supporting Statement refers to the Freedom of Information Act
    (FOIA), etc., but not to section 1605(b)(3) of EPAct 1992, which
    specifically mandates confidentiality in accordance with FOIA.

[^11]: We note that question 13 of Schedule 1 of draft Form EIA-1605 (p.
    6) clearly states that "you \[*i.e*., your entity\]
    [must]{.underline} provide the [specific reasons]{.underline}. .
    .[for DOE to consider]{.underline} your \[entity's\]
    [request]{.underline}" (emphasis added). The Instructions and the
    Form should be consistent.

[^12]: Consistent with our comments above regarding use of first person
    (see section III.C.1 above), we recommend that the words "Do You" be
    changed to "Does Your Entity."

[^13]: This same box and "Note" appears again in Schedule IV, pp. 43 and
    44, and in each case has the same typographical error. In addition,
    we are not certain why it is necessary to include the box three
    times in the draft form. The two places where it is most relevant
    are in sections 1 and 2 of Schedule IV.

[^14]: [Random House Webster's College]{.underline} Dictionary (2^d^ ed.
    1998) defines "willing" to mean "1**.** disposed or consenting;
    inclined: *willing to go along*;" and "willful" to mean "1**.**
    deliberate, voluntary, or intentional*: willful murder.*"

[^15]: Regarding the parenthetical in paragraph 3.b of section 1 of
    Schedule 1 of the draft Instructions (p. 21), see the discussion of
    first person in section III.C.1 above.

[^16]: Section 300.10(c)(2)(iii) refers to reporting "directly to DOE."
    The reference to "DOE" should be changed to "EIA."