Free Declaration in Support - District Court of California - California

Case 3:07-cv-04997-MHP

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JOSEPH P. RUSSONELLO (CSBN 44332) United States Attome JOANNM. S W A N S ~ N (CSBN 88143) Chief, Civil Division MICHAEL T. PYLE (CSBN 172954 ) Assistant United States Attorney 450 Golden Gate Avenue, Box 36055 San Francisco, California 94102-3495 Tele hone: (415) 436-7322 (415) 436-6748 email: [email protected]

FA

1 Attorneys for Defendant Oflice of Management and Budget
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION CENTER FOR BIOLOGICAL DIVERSITY, a non-profit organization, Plaintiff, v.

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No. C 07-4997 MHP

THE OFFICE OF MANAGEMENT AND BUDGET,
Defendant.

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DECLARATION OF JOHN E MORRALL, III IN SUPPORT OF DEFENDANT OFFICE OF MANAGEMENT AND BUDGET'S MOTION FOR SUMMARY ADJUDlCATION OF FEE WAIVER ISSUE
Date: February 25,2008 Time: 2:00 p.m. Judge: Honorable MariIyn Hall Pate1 Coutroom 15

I, John F. Morrall Ill, Ph.D., make the following declaration based on personal
howledge:

I.

I am the Chief of the Health, Transportation and General Government Branch of the

Office of Information and Regulatory Affairs ('DIRA")of the Office of Management and Budget ("OMB"), which is an oftice within the Executive Office of the President ("EOP"). I have been the Chief of the Health, Transportation and General Government Branch since 1989, and have been employed at OIRA since its establishment in 1981. From June, 2006, to August, 2007, I DECLARATION OF JOHN F. MORRALL, 111I S 0 DEF.'S MOT. FOR SUMM.. ADJ. C 07-4997 MHP 1

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served as the Acting Deputy Administrator of OIRA. I make the following statements based upon my personal experience and information obtained by me pasonally during the course of mj official duties.
2. The purpose of this declaration is to (I) describe OMB's involvemenl in the review ofthe

Corporate Average Fuel Efficiency ("CAFE").regulation issued by the National Highway Traffic Administration CWHTSA"); and (ii) describe the plaintiffs August 29,2006 Freedom of Information Act (''FOIA") request and the subsequent correspondence between OMB and the Center for Biological Diversity ("CBD"or "plaintilf') and the factors which led to OMB's decision to deny (SBD's fee waiver request.

I. BACKGROUND
A. RESPONSIBlLlTIES O F THE OFFICE OF MANAGEMENT AND BUDGET
3. OMB assists the President in the discharge of his budgetary, management, and other

executive responsibilities (Reorganizalion Plan No. 2 of 1970 (5 U.S.C. App.)). More speciAcally, OM6 assists the hesident in the preparationofthe federal budget and in managing its execution by the agencies. OMB works to assure that ~roposed legislalion (as well as testimony, reports and is consistent with Administration policies, including the

President's budget. OMB also has a central role in providing leadership in the development. oversight and coordination of the Federal government's policies in procurement, Enancia1 management and the information, statistical, and regulatory arenas as well as in the implementation of those policies. OMB promotes better prograrn management, strengthens administrative management, develops agency-perlome measures and improves coordination of the Executive Branch's various operations.
4. OMB has approximately 490 employees, whose offices are in ihe Eisenhower and New

Executive Omce Buildings in Washington. D.C. (OMB does not have regional or Iield o6ces.) OMB comprises the OMB Director's office; several small staff ofiices (General Counsel, Legislative Affairs, Communications, AdminisIration and Economic Policy); the Budget Review Division (which provides support in the development and execution of the Federal budget); the Legislative Reference Division (which develops and supports the President's management and DECLARATION OF JOHN F. M O W L , ID I S 0 DEF.'S MOT.FOR SUMM.. AD]. C 07-4997 MHP 2

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budget agenda by carrying out OMB's interagency legislative review function); four Resource the Management Offices (which develop and suppo~t President's budget); and four statutory offices (the Ofice of Infonuation and Regulatory Affus, the Ofice ofFederal Financial Management, the Ofice ofFederal Procurement Policy, and the Offrce of Electronic Government and InformationTechnology).
5. OIRA was established as part of OMB by Congress in the 1980 Paperwork Reduction

Act. In addition to OIRA's role reviewing collections of information and informalion policy issues under the Paperwork Reduction Act, OlRA designates and reviews significant regulations under presidential Executive Order 12866 (1993). Under Executive Order 12866, OlRA consult!

with Federal agencies and reviews draft significant regulations and regulatory analyses
concerning the regulations' potential effects on society, both their benefits and costs. Aa the Executive Order directs, OIRA reviews significant regulations (approximately 600 per year), in draft form before publication to ensure agency compliance with the Executive Order. OIRA has been conducting this centralized regulatory review function sincc 1981.
6. OIRA staff work with Federal agencies to review and evaluate planned agency
16 regulations on a wide variety of matters (e.g., energy, transportation, environment, health,

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homeland security, housing. education and natural resources, etc.) OIRA staffreview an agency's draft regulation and discuss the regulation with the agency s M a s well as with other agencies that might be affected by the draft regulation before it is issued publicly in the Federal Register as either an Advanced Notice of Proposed Rulemaking C'ANPRM"), Notice of Proposed Rulemaking ("NF'RM") or Final Rule.

B.

OMB's Review 01NHTSA's Proposed Rule
7. Under Executive Order 12866, OIRA has responsibility for coordinating intemgency

review of significant Federal regulations. To facilitate interagency review, OIRA sometimes makes use of informal intcragcncy panels Lo review a significant regulation. In the specific case of the draft NHTSA proposed rule on CAFE. OIRA consulted with an interagency panel consisting of Executive Branch agencies that had an interest in Corporate Average Fuel Efficiency(such as NHTSA, Departinent of Energy, EPA, etc.). OIRA used this group as a
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mechanism for interagency comment on the draft proposed rule. Any comments OIRA received during this process were provided to NHTSA for its consideration. OlRA staffpmicipating in the review mandated by Executive Order 12866 for this particular draR NHTSA mle included staff with scientific expertise, i.e., a PhD, in public policy.

8. Pursuant to OIRA's authorib under Executive Order 12866, OKRA conducted a review
prior to publication of NHTSA's drafl Final Rule regarding NHTSA's standards for CAFE. blHTSA published its Final Rule in the Federal Register on April 6,2006. Thc documents ultimately at issue in this case concern the internal inta-governmental deliberations leading up ta various decisions related to issuance ofthe Final Rule, including communications among OMB staff. In a separate and earlier litigation concerning a FOlA request made by the Attorney General for the State of California (People ojthe State ojCalijornia a rel. Edmund G. Brown, ttorney General ofthe Stnte of Calijornia v. NHTSA et nl., Case No. 06-2654) which sought to tain OMB documents related to NHTSA's proposed rulemaking on the standards for CAFE, I iewed the documents and determined that the documents in question contained internal inter intra-governmental predecisional deliberations leading up to various decisions related to the ance of the NPRM. I am informed and believe that the Honorable United States District Samuel Conti granted summaryjudgment in favor of OMB in May 2007 and entered nt in favor of OMB on or about June 13,2007.
FOIA Request to OMB, and OMB's Denial of CBD's Fee Waiver Request

MB received a FOIA request from the plaintiff in a letter dated August 29,2006 for
ents relating to the development of the Final Rule setting average fuel economy

r light bucks for model years 2008-201 1 (71 Fed. Reg. 17566-17679) ("~lemalting")
lready posted on the internet in Docket Nos. 2005-22223 and 2006-24309. This

s communicalions among staff and others that were created during the
the F i a l Rule and the Proposed Rule (70 Fed. Reg. 51414-51466). %s request ot limited to e-mail exchanges or other correspondence among agency staffand ts, internal reviews and critiques, inter-agency reviews, agency meeting e letter CBD requested a fee waiver, asking OMB and h e other recipients DECLARATION OF JOHN F. MORRALL, 111 IS0 DEF.'S MOT. FOR SUMM..ADI. C 074997 MHP 4

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to "wave all fees in connection with this matter." A true and comect copy of this letter is attached as Exhibit 1 to this declaration.

10. On October 12,2006, OMB replied to CBD's FOIA request in a letter stating that the
FOIA request was "overly broad" and inviting CBD to narrow its request. A true and corncopy of this letter is attached as Exhibit 2 to this declmation.
1 1. On November 7,2006. CBD submitted a idter that it styled as a "Freedom of Infomatior

Act Appeal" to OMB. The letter did not narrow or otherwise refie the scope ofCBD's FOIA request. A true and correct copy of this letter is attached as Exhibit 3 to thjs declaration. 12. On January 26,2007, OMB responded to CBD's "Freedom of Information Act Appeal" ofNovember 7,2006. OMB stated that it did not consider CBD's letter to be an appeal because
, OMB had yet to make a determination as u whether to grant or deny the FOIA request. OMB's

letter then processed CBD's request for a fee waiver. OMB determined that "the vast majority of the documents that arc the subject of yourFOIA request would v e y likely be withheld from mandatory disclosure under FOIA exemption 5 (5 U.S.C. §552@)(5))" and that CBD had thus hiled to satisfy the standard in 5 C.F.R. $1303.70 because the FOIA request would not lead to a release that would "contribute significantly to public understanding of the operations or activities o f G o v m e n t . " OMB further advised CBD that it had determined that CBD was a non-wmmercial requester and advised CBD that the FOIA request would not be processed by OMB until the fee Issue had been resolved. A true and correct copy of this letter is attached as Exhibit 4 to this declaration.
13. On January 29,2007, CBD submitted another "Freedom of Information Act Appeal" to

OMB. In this letter CBD argued that it should be granted a full fee waiver by OMB. A true and correct copy of this letter, without the exhibits thereto, is attached as Exhibit 5 to this declaration.
14. On June 12,2007, OMB denied CBD's appeal ofthe denial of its request fora fee

waiver. OMB advised CBD in this letter that ' b e have again roicwed your request for a fm waiver." OMB expla~ned four reasons for its decision to deny CBD's appeal: (I) NHTSA, not the OMB, issued the proposed and final rules at issue and NHTSA has already made public a substantla1 amount of information about the rulemaking: (2) OMB would be unlikely to release a DECLARATION OF JOHN F. MORRALL, II IS0 DEF.'S MOT. FOR SUMM..ADJ. I C 07-4997 MHP 5

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ignificant amount of information not already in the public domain; (3) OMB would be unlikely
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release information "likely to contribute significantly" to the public's understanding of

~hether not OMB had complied with certain statutes; and (4) CBD had not established that or isclosure of documents to it would contribute to the understanding of the public at large. A u e and correct copy of this letter, without the exhibits thereto, is attached as Exhibit 6 to this eclaration.

5.

On July 19,2007, CBD made a final submission to OMB, in a letter it styled as

Additional Information In Support of Fee Waiver Request." A true and correct copy of this
a m , without the exhibits thereto, is attached as Exhibit 7 to this declaration. In accordance with 28 U.S.C. 51746,I hereby declan and afr under penalty ofpejury that fim

he foregoing is truc and correct. Executed at Wahington, District of Columbia, this 15Ihday of January, 2008.

Health, Transportation and General Government Branch Office of Inhrmation and Regulatory Affairs Office of Management and Budget

IECLARATION OF JOHN 074997 MHP

F.MORRALL, n I ISO DEF:S MOT.FOR SUMM.. D . A]
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