IN THE UNITED STATES DISTRICT COURT
JIM J. TOZZI, President, Multinational Business
Services, et al.,
UNITED STATES ENVIRONMENTAL
DECLARATION OF ROBERT G. DAMUS
I, Robert G. Damus, make the following declaration based on personal knowledge, information and belief:
1. I am the General Counsel of the Office of Management and Budget ("OMB"). I have been General Counsel since March 1994. I was named Deputy General Counsel in 1988, and was Acting General Counsel from 1989 until March 1994. I make the following statements based upon information obtained by me personally during the course of my official duties.
Background -- The Paperwork Reduction Act
2. One of OMB’s major statutory responsibilities is to review and approve Federal collections of information under the Paperwork Reduction Act (PRA), codified at 44 U.S.C. Chapter 35. The PRA was enacted in 1980 and amended in 1986 and 1995. The OMB Director’s responsibilities under the PRA are carried out by the Administrator for the Office of Information and Regulatory Affairs (OIRA), an office in OMB. 44 U.S.C. § 3503. OMB’s regulations implementing the Paperwork Reduction Act are found at 5 C.F.R, 1320.
3. Under the PRA, an agency must submit proposed collections of information to OMB for review and approval before undertaking the collection. 44 U.S.C. §§ 3504(c)(1), 3507(a).
4. As amended in 1995, the PRA defines "collection of information" as including "the obtaining, causing to be obtained, soliciting, or requiring the disclosure to third parties or the public, of facts or opinions by or for an agency, regardless of form or format, calling for either – (i) answers to identical questions posed to, or identical reporting or recordkeeping requirements imposed on, ten or more persons, other than agencies, instrumentalities, or employees of the United States . . . ." 44 U.S.C. § 3502(3)(A). A collection of information may be "mandatory, voluntary, or required to obtain or retain a benefit." 5 C.F.R. § 1320.3(c). In the 1995 amendments to the PRA, Congress amended the definition of "collection of information," and that of "recordkeeping requirement" (id § 3502(13)), to expressly cover "third-party" disclosure requirements, which the Supreme Court in Dole v. Steelworkers, 494 U.S. 26 (1990), had held were not subject to OMB review and approval under the PRA.
5. The PRA provides that "[b]efore approving a proposed collection of information, the Director shall determine whether the collection of information by the agency is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility." 44 U.S.C. § 3508.
6. If OMB approves a collection of information, OMB assigns a "control number" to the collection, which must be "displayed" on the collection. 44 U.S.C. § 3507(a)(2)-(3); see also 5 C.F.R. § 13203(f) (definition of "display"). "An agency may not make a substantive or material modification to a collection of information after such collection has been approved by the Director, unless the modification has been submitted to the Director for review and approval under this chapter." Id. § 3507(h)(3).
7. Under the PRA, OMB "may not approve a collection of information for a period in excess of 3 years." 44 U.S.C. § 3507(g). If an agency would like to continue collecting the information, after the approval period has expired, it must "submit the collection of information to OMB for review and approval under this section, which shall include an explanation of how the agency has used the information that it has collected." Id § 3507(h)(1)(B).
8. If OMB disapproves a collection of information, an agency shall not engage in it. 44 U.S.C. §§ 3507(a), 3508; see id. § 3507(h)(2) (procedures that apply when OMB disapproves a collection of information in an existing rule).
9. Under the PRA’s "public protection" provision, a person may not be "subject to any penalty for failing to comply with a collection of information" if the collection of information "does not display a valid control number assigned by the Director" (in addition, for collections of information subject to the 1995 amendments to the PRA, an agency must also provide a specified notice to respondents). 44 U.S.C. § 3512(a).
10. Under the PRA, a person may ask OMB to review any Federal collection of information "to determine if, under this chapter, a person shall maintain, provide, or disclose the information to or for the agency." 44 U.S.C. § 3517(b).
Mr. Tozzi’s Petition to OMB under 44 U.S.C. § 3517(b)
11. By letter dated June 12, 1997, Mr. Jim Tozzi, as Director of Multinational Business Services, Inc., submitted a petition to OMB under 44 U.S.C. § 3517(b). (A true copy of the letter and petition is enclosed as Attachment A hereto.) The petition concerned the planned Sector Facility Indexing Project (SFIP) of the Environmental Protection Agency (EPA). The petition asked OMB "to determine whether, under the 1995 PRA, a person shall maintain, provide, or disclose" the data or information that EPA would disseminate through the SFIP (Petition, p.2). In particular, the petition focused on EPA’s plans to disseminate information through the SFIP.
12. By letter dated July 24, 1997, Brooks J. Bowen of Multinational Legal Services, P.C., asked to meet with me to discuss the June 12, 1997 petition. (A true copy of the July 24, 1997, letter is enclosed as Attachment B hereto.) Mr. Bowen’s letter related to "our concerns why EPA’s SFI Project is presently conceived would violate the Paperwork Reduction Act of 1995."
13. By letter dated August 11, 1997, OMB responded to Mr. Tozzi’s petition of June 12, 1997. OMB’s response was from the OIRA Administrator, Sally Katzen. (A true copy of Administrator Katzen’s letter is enclosed as Attachment C hereto.) In her letter, Administrator Katzen explained that 44 U.S.C. § 3517(b) is related to the PRA’s "public protection" provision in 44 U.S.C. § 3512. In this regard, Administrator Katzen stated that, in response to the petition, EPA "has stated to us that, to the best of its knowledge, the collections of information associated with the SFIP have all been approved by OMB and assigned control numbers, these control numbers continue to be in effect, and EPA has complied with the requirements in 44 U.S.C. 3512 that the collections of information display the applicable control number and (for those approved under the 1995 Act) that respondents be provided the required notice." In addition, Administrator Katzen stated that "OMB is not aware of any information contained within the SFIP that was collected in a manner that does not comply with the applicable requirements of 44 U.S.C. 3512." Accordingly, Administrator Katzen went on to explain that "[i]n the absence of any contrary evidence regarding compliance with the requirements of 44 U.S.C. 3512, OMB has concluded that the PRA’s ‘public protection’ provision does not preclude the enforcement of any of the collections of information drawn upon by the SFIP." Therefore, in response to the petition, Administrator Katzen stated that "OMB has determined that respondents to the collections of information drawn upon by the SFIP ‘shall maintain, provide, or disclose the information to or for the agency.’ 44 U.S.C. 3517(b)."
14. By letter dated November 21, 1997, Mr. Tozzi submitted to OMB a "Pre-Filing Review Draft" of a complaint for judicial review and accompanying brief. (A true copy of the letter, and accompanying draft complaint and brief, are enclosed as Attachment D hereto.) As had the petition of June 12, 1997, the letter and enclosed draft complaint and brief concerned EPA’s planned dissemination of information through the SFIP. In these materials, Mr. Tozzi contended that, under the PRA, EPA cannot proceed with disseminating the information until OMB had reviewed and approved this particular use of the information. In his letter, Mr. Tozzi asked to meet with Administrator Katzen on the matter.
15. On December 22, 1997, I met with Mr. Tozzi to discuss his legal concerns regarding the SFIP and the PRA. Also attending the meeting were a staff attorney in my office and counsel for Mr. Tozzi. During the meeting, Mr. Tozzi and his counsel outlined their legal position regarding the SFIP and the PRA.
16. By letter to Mr. Tozzi dated January 26, 1997, I responded to the legal concerns that he had raised in his submission of November 21, 1997, and at our meeting of December 22, 1997. (A true copy of my letter to Mr. Tozzi is enclosed as Attachment E hereto.) In my letter, I addressed the contention in the draft complaint and accompanying brief "that the PRA requires EPA to obtain OMB’s approval before it publicly disseminates, through the SFIP, information that it has collected under OMB-approved collections of information." In my letter, I stated that "OMB disagrees with this reading of the PRA." I explained that, in OMB’s view, "the PRA requires agencies to receive OMB’s approval before they collect information"; that "[w]hen OMB approves a particular collection of information, the agency may proceed with the collection"; and that "[t]he PRA does not require an agency to receive OMB’s approval before it publicly disseminates information" (emphasis in original). Finally, I addressed Mr. Tozzi’s reliance (in the materials he submitted on November 21, 1997) on OMB’s regulations implementing the PRA and on OMB "implementing guidance" for the PRA. Regarding his reliance on OMB’s regulations, I explained that the provisions on which he relied, which concern the "disclosure" of information, actually relate to "third-party" disclosure requirements (in which an agency requires one person to disclose information to another person, see ¶4 above) rather than to an agency’s public dissemination of information. See 5 C.F.R. § 1320.3(c) (definition of "collection of information"). Regarding his reliance on the OMB "implementing guidance," I explained that the February 1997 document is only a "preliminary draft" (as the document itself clearly states) and that it has "never been formally adopted by OMB." See Plaintiff’s Complaint, Exhibit C (cover page and selected pages from the "preliminary draft").
17. By letter dated January 26, 1997, Mr. Tozzi acknowledged receiving my letter to him. (A true copy of the letter is enclosed as Attachment F hereto.)
The Complaint Regarding the SFIP and the PRA
18. In his Complaint, and accompanying submissions, Plaintiff alleges that planned "new uses" by EPA, through the SFIP, of information collected under OMB-approved collections of information constitute a "substantive or material modification" of those collections (within the meaning of 44 U.S.C. § 3507(h)(3)), thereby requiring EPA to obtain OMB review and approval of the "new uses" under the PRA. See Complaint ¶¶30-34; Memorandum of Points and Authorities in support of Plaintiff’s Motion for Preliminary Injunction, pp. 7-14. Plaintiff contends that his reading of Section 3507(h)(3) reflects "OMB’s interpretation" of the provision. Id., Memorandum of Points and Authorities, pp.9-10.
19. Contrary to the Plaintiff’s contention, OMB does not agree with his reading of 44 U.S.C. § 3507(h)(3). The PRA defines a "collection of information" (and the related term "recordkeeping requirement") by reference to the actions that a Federal agency asks or requires respondents to undertake (e.g., answer questions, maintain records, disclose information to third persons). 44 U.S.C. § 3502(3), (13). Accordingly, in OMB’s view, an agency makes a "modification" to a "collection of information" (or to a "recordkeeping requirement") when it makes a change to the actions that it asks or requires respondents to undertake (e.g., by adding questions to a form); whether a particular "modification" must be reviewed and approved by OMB depends, under 44 U.S.C. § 3507(h)(3), on whether it is "substantive or material." However, if an agency has not changed what the agency asks or requires respondents to do, then the agency has not modified the collection of information. Thus, if an agency identifies an additional ("new") way in which the agency will use the information the that it collects, the agency has not thereby modified the "collection of information" because the agency has not changed what it asks or requires respondents to do. Accordingly, as explained in Administrator Katzen’s letter of August 11, 1997, and in my letter of January 26, 1998, an agency’s decision to disseminate information that it has collected does not trigger the PRA’s "public protection" provision, and does not require the agency to obtain OMB approval for the dissemination.
20. In addition to his argument based on Section 3507(h)(3), Plaintiff also argues, along similar lines, that OMB’s approval of a collection of information is limited to particular uses of the collected information, and that an agency must therefore obtain OMB approval before it uses collected information in any additional ("new") ways. See Complaint ¶¶35-38; Memorandum of Points and Authorities, pp. 14-15. Again, OMB does not agree with Plaintiff’s reading of the statute. As I have noted above (¶5), the PRA provides that OMB, "[b]efore approving a proposed collection of information, . . .shall determine whether the collection of information by the agency is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility." 44 U.S.C. § 3508. Thus, an element of OMB’s analysis under the PRA is an assessment of the expected usefulness of the information to be collected (i.e., the information’s "practical utility"); another element of OMB’s analysis is an assessment of the estimated "burden" that the collection of information will impose on respondents. See 44 U.S.C, § 3502(2), (11) (definitions of "burden" and "practical utility"), 5 C.F.R. § 1320.5(d)-(e). However, while OMB’s analysis includes an assessment of how the information is expected to be used, the object of OMB’s review and approval under the PRA remains the "collection of information" itself. In other words, it is the agency’s collection of information, not the agency’s subsequent use of the collected information, that requires OMB’s approval and that is assigned (and must display) an OMB control number. Accordingly, contrary to Plaintiff’s argument, the PRA does not require an agency to obtain OMB approval in order for the agency to use information that it collects in additional ("new") ways. Any new uses will be included in OMB’s assessment of the collection of information when it is next submitted to OMB for approval, which must occur within three years (as noted above (¶7), the PRA limits an OMB approval to a maximum of three years). When asking OMB to extend its approval for a continuing collection of information, the agency shall submit to OMB "an explanation of how the agency has used the information that it has collected." 44 U.S.C. § 3507(h)(1)(B).
21. Finally, the Complaint alleges that EPA’s planned dissemination of information through the SFIP violates the PRA’s "information dissemination" provisions at 44 U.S.C. § 3506(d)(2),(3). See Complaint ¶¶39-44. In contrast to those provisions in the PRA that address "collections of information" (see especially 44 U.S.C. §§ 3506(c), 3507, 3508, 3512, 3517(b)), the provisions in the PRA that address "information dissemination" do not establish a formal notice-and-comment process, do not require OMB to review and approve "information dissemination," and do not provide any private remedies.
In accordance with 28 U.S.C. 1746, I hereby declare and affirm under penalty of perjury that the foregoing is true and correct.
Executed at Washington, District of Columbia, this 12th day of February 1998.
Robert G. Damus