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BEFORE THE OFFICE OF MANAGEMENT AND BUDGET Pursuant To § 3517(b) Of The Paperwork Reduction Act Of 1995 (44 U.S.C. § 3517(b)):
II. Petition For Rulemaking Pursuant To The Administrative Procedure Act (5 U.S.C. § 553(e)):
Petitioner: Jim J. Tozzi Petitions Filed with OMB on: October
16, 2000 I. Petition For Review II. Petition For Rulemaking
I. Petition For Review A. Introduction In approximately May 2000, the Environmental Protection Agency (EPA), Region V, issued approximately 400 Clean Air Act (CAA) § 114 information demand letters to facilities that have applied for or obtained permits pursuant to Title V of the CAA. The letters asked questions that pertain to whether or not the facilities have complied with the Risk Management Plan (RMP) requirements of § 112(r) of the CAA and implementing regulations found at 40 CFR Part 68. The Center for Regulatory Effectiveness (CRE) believes that the approximately 400 CAA § 114 letters issued by Region V may constitute one or more "collections of information"(1) (COI) pursuant to the Paperwork Reduction Act of 1995 (PRA) that are subject to prior review and clearance by OMB in accordance with the PRA, including but not limited to §§ 3507(2) and 3508(3), before Region V may conduct the collections of information. Importantly, the PRA review and clearance process includes opportunity for public comment and requires OMB to independently assess the necessity for and "practical utility" of the information that EPA seeks to collect. EPA's view is that the CAA § 114 letters did not require prior review and approval by OMB pursuant to the PRA, because EPA claims that the letters are part of an EPA enforcement investigation or investigations and thus are exempt from such OMB review and clearance, due to the "enforcement exemption" in the PRA.(4) CRE is concerned that EPA may claim that it can satisfy the current OMB "enforcement exemption" regulation simply by opening a "case file"(5), absent any credible evidence of any violation of law by the intended recipient of the CAA § 114 letter. Such a practice by EPA may be a ploy to avoid application of the PRA with respect to information demands that EPA wishes to impose on hundreds -- perhaps thousands, nationwide -- of facilities. CRE believes that EPA Region V's issuance of hundreds of CAA § 114 information demand letters without obtaining prior OMB review and clearance pursuant to the PRA illustrates the potential for Federal agencies to abuse the PRA "enforcement exemption". CRE also believes that, to forestall such abuse of the PRA "enforcement exemption", OMB needs to assert its authority to determine the bounds of that exemption, as implemented by OMB's regulations and guidance documents. More specifically, OMB should review EPA Region V's issuance of approximately 400 CAA § 114 letters and should establish clearly that an agency must have in its possession sufficient specific evidence or sufficient specific credible allegation(s) that reasonably indicates the existence of a violation of law, before an agency may open a "case file" and assert that the PRA "enforcement exemption" applies to a subsequent COI. If OMB does not establish a clear standard for asserting the PRA "enforcement
exemption", and amend OMB's PRA regulations as requested in part II of this petition,
then agencies across the Government issuing any information demand that is even
remotely enforcement-related likely will spurn OMB's authority to review the COI.
Agencies will quickly learn that they can avoid OMB review and clearance of onerous
information demands on respondents simply by: (1) opening a pro forma "case file"; and
then (2) asserting that the COI is within the scope of the "enforcement exemption" of the
PRA as implemented by OMB's current regulations.
OMB clearly has legal authority to take those two actions. The PRA assigns OMB the lead responsibility within the Executive Branch for assuring the integrity and "practical utility" of Federal agencies' collection of information(6). Accordingly, pursuant to § 3517(b) of the PRA, I request you to assert OMB's jurisdiction over the approximately 400 Clean Air Act § 114 letters that EPA Region V issued concerning compliance with CAA § 112(r), to determine whether, under the PRA, a person shall maintain, provide, or disclose the requested information to or for the EPA.(7)
CRE recommends that OMB consider, as the appropriate standard for determining the sufficiency of evidence to support opening such a "case file", the standard set forth in the attached legal memorandum from CRE's legal counsel, Multinational Legal Services (MLS), "Legal Standard for a 'Case File' That Qualifies for the 'Enforcement Exemption' in the Paperwork Reduction Act of 1995", at page 8. As is explained in that MLS legal memorandum, that standard is derived from OMB's official guidance implementing the PRA. C. Request for Immediate, Interim Remedial Action The collection of information that Region V is conducting has created substantial concern among the recipients of the CAA § 114 letters, because they face potential legal consequences if they do not timely reply to the letters. Accordingly, I also request you to take immediate, interim remedial action pursuant to your authority under § 3517(b)(2) of the PRA. In order to maintain the status quo so as to prevent potential, substantial unwarranted harm and expense to affected facilities pending the conclusion of the requested review, I request you to immediately:
EPA's issuance of some 400 CAA § 114 letters to facilities without first obtaining OMB's clearance pursuant to the PRA may violate both the letter and the spirit of the Paperwork Reduction Act of 1995 and OMB's regulations and guidance implementing the PRA, or may be reasonably supported by facts not currently in evidence. CRE requests OMB to investigate whether, before EPA sent some 400 CAA § 114 letters to facilities, EPA had legitimate, sufficient evidence to justify opening a bona fide "case file" for each facility in order properly to assert the PRA "enforcement exemption". Finally, if OMB determines, with respect to 10 or more of the approximately 400 CAA § 114 letters that Region V issued, that EPA failed to meet the standard for a bona fide "case file" as recommended above, then the CRE requests that OMB direct EPA to:
I trust that you will complete your review of this petition within 60 days after your receipt of this request, as required by § 3517(b)(1) of the PRA. After you complete your review, I would appreciate receiving a written explanation of your findings and conclusions. For the reasons set forth above, OMB needs to amend its PRA regulations implementing the PRA to close the "case file" loophole in 5 CFR § 1320.4(c). OMB needs to establish a standard practice across agencies, to assure that Federal agencies possess a reasonable quantum of specific evidence or allegations to constitute and support the opening of a bona fide "case file" before an agency may claim that its information demands or requests to regulated facilities (or other persons) are exempt from OMB review and clearance on the basis that the information collections are within the scope of the PRA "enforcement exemption". Without effective OMB oversight and regulatory standards to define a bona fide "case file" for purposes of the PRA "enforcement exemption" and OMB's PRA regulations, all companies and individual citizens of this Nation who are subject to information collection demands from Federal agencies will face the prospect of a virtual "school" of Federal agencies embarking on enforcement-oriented "fishing expeditions". Accordingly, the CRE respectfully requests OMB to consider this as a petition for rulemaking, pursuant to the Administrative Procedure Act (5 U.S.C. § 553(e)), to conduct a rulemaking to define the term "case file" that is found in OMB's regulations at 5 CFR § 1320.4(c). Please note that CRE petitioned OMB on January 20, 1999 to conduct such a rulemaking to define the term "case file", but OMB never responded to that petition.(9) CRE trusts that OMB will respond to this petition. The CRE urges OMB to consider the standard that is set forth at page 8 of the accompanying MLS legal memorandum as an appropriate definition for the term "case file" in 5 CFR § 1320.4(c). Thank you for your prompt attention to this Petition for Review and Petition for Rulemaking.
Attachment: MLS Legal Memorandum Endnotes 1. The OMB regulations implementing the Paperwork Reduction Act of 1995 say, in relevant part:
The OMB regulations implementing the 1995 PRA were published at 60 Federal Register 44978 et seq., August 29, 1995. 2.. Section 3507 of the 1995 PRA says, in relevant part:
See also, the OMB regulations at 5 CFR §§ 1320.5(a) and (g). 3. Section 3508 of the 1995 PRA says:
4. Section 3518 of the 1995 PRA, the "enforcement exemption", says, in relevant part:
See also, OMB’s regulations at 5 CFR § 1320.4(a)(2) and (c). 5. OMB's PRA regulations explain that the PRA "enforcement exemption" with respect to a civil action or an administrative action or investigation (set forth in § 1320.4(a)(2)):
The OMB PRA regulations do not define the term "case file". 6. Section 3504 of the 1995 PRA says, in relevant part:
Moreover, OMB's PRA regulations state:
7. Section 3517(b) of the PRA (44 U.S.C. § 3517(b)) says:
8. If EPA cannot justify its claim that each of the CAA § 114 letters is properly within the scope of the PRA "enforcement exemption", then Region V's collection of information through each non-justified letter cannot legally proceed until after EPA submits to OMB, and OMB reviews and approves under the PRA's procedures and criteria, a proposed collection of information and the associated Information Collection Request (ICR) and supporting justification documents addressing the information that Region V seeks to collect, the agency's need for and the "practical utility" of the information, and the resulting burden on respondents. The OMB regulations implementing the 1995 PRA say, in part:
CRE is informed that the information demands in EPA's CAA § 114 letters are burdensome and in some instances duplicative of information previously submitted to EPA by the respondent facilities. 9. See, letter from CRE signed by Brooks J. Bowen, dated January 20, 1999, to the OIRA "Desk Officer for BLS, OSHA, ESA", concerning a collection of information by the U.S. Department of Labor, Employment Standards Administration, Office of Federal Contract Compliance Programs. |
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