Texas Blockchain Council v. Department of Energy — Entry #24: NOTICE of Agreement by Department of Energy, Energy Information Administration, Jennifer M

Case 6:24-cv-00099-ADA Document 24 Filed 03/01/24 Page 1 of 8


                       IN THE UNITED STATES DISTRICT COURT
                        FOR THE WESTERN DISTRICT OF TEXAS
                                  WACO DIVISION

TEXAS BLOCKCHAIN COUNCIL, a                      )
nonprofit association;                           )
RIOT PLATFORMS, INC.,                            )
                                                 )
Plaintiffs,                                      )
                                                 )
v.                                               )
                                                 )           Case No. 6:24-cv-99
DEPARTMENT OF ENERGY; JENNIFER                   )
M. GRANHOLM, in her official capacity as         )
Secretary of Energy; ENERGY                      )
INFORMATION ADMINISTRATION;                      )
JOSEPH DECAROLIS, in his official                )
capacity as Administrator of Energy              )
Information Administration; OFFICE OF            )
MANAGEMENT AND BUDGET;                           )
SHALANDA YOUNG, in her official                  )
capacity as Director of Office of Management     )
and Budget,                                      )
                                                 )
Defendants.                                      )


                                  NOTICE OF AGREEMENT

        Plaintiff Texas Blockchain Council; Plaintiff Riot Platforms, Inc. (collectively with Texas

Blockchain Council, “Plaintiffs”); Defendant Department of Energy (“DOE”); Defendant

Jennifer M. Granholm, in her official capacity as Secretary of Energy; Defendant U.S. Energy

Information Administration (“EIA”); Defendant Joseph DeCarolis, in his official capacity as

Administrator of EIA; Defendant Office of Management and Budget (“OMB”); and Defendant

Shalanda Young, in her official capacity as Director of OMB (collectively with the other

Defendants, “Defendants,”); and Proposed Intervenor Chamber of Digital Commerce (“Proposed


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Intervenor,” and collectively with the Plaintiffs and Defendants, the “Parties”) hereby enter into

this Agreement.

                                           RECITALS

       A.      On January 24, 2024, EIA requested that OMB approve the emergency collection

of information under Form EIA-862, Cryptocurrency Mining Facilities Survey (the “EIA-862

Emergency Collection Request”) pursuant to the emergency collection procedures of the

Paperwork Reduction Act (“PRA”) and its implementing regulations in 44 U.S.C. § 3507(j) and

5 C.F.R. § 1320.13.

       B.      On January 26, 2024, OMB approved the emergency collection of information

under Form EIA-862, Cryptocurrency Mining Facilities Survey (the “EIA-862 Emergency

Collection Approval”). OMB’s Notice of Action setting forth the EIA-862 Emergency

Collection Approval listed an expiration date of July 31, 2024.

       C.      In or around late January or February 2024, EIA sent Form EIA-862, as approved

through the EIA-862 Emergency Collection Approval (the “EIA-862 Emergency Survey”), to

certain parties engaged in cryptocurrency mining with an initial response deadline of February

23, 2024, and subsequent response deadlines of the last Friday of each month.

       D.      On February 9, 2024, EIA published a notice in the Federal Register pursuant to

the PRA’s notice-and-comment procedures, see 44 U.S.C. § 3506(c), that it was proposing a

three-year collection of a Cryptocurrency Mining Facilities Survey. See Energy Information

Administration, Agency Information Collection Proposed Extension, 89 Fed. Reg. 9,140 (Feb. 9,

2024) (“February 9 Notice”). The February 9 Notice invited public comments through April 9,

2024. It also described the EIA-862 Emergency Collection Request and the EIA-862 Emergency

Collection Approval.


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       E.       On February 22, 2024, Plaintiffs filed their Complaint in this action. ECF No. 1.

Plaintiffs’ Complaint alleges, among other things, that the EIA-862 Emergency Collection

Request, the EIA-862 Emergency Collection Approval, and the collection of information through

the EIA-862 Emergency Survey violate the PRA and the Administrative Procedure Act, and do

not comply with various statutory and regulatory requirements for the emergency collection of

information.

       F.       Also on February 22, 2024, Plaintiffs filed a Motion for a Temporary Restraining

Order. ECF No. 5.

       G.       On February 23, 2024, the Court entered an Order Granting Plaintiffs’ Motion for

Temporary Restraining Order, which ordered that “Defendants are: 1. restrained from requiring

Plaintiffs or their members to respond to the Survey, 2. restrained from collecting data required

by the Survey, and 3. shall sequester and not share any such data that Defendants have already

received from Survey respondents.” ECF No. 13, at 5. The Temporary Restraining Order

expires on March 8, 2024, unless extended by the Court or by Defendants’ consent. Id. at 6.

       H.       The Court set a Preliminary Injunction Hearing (“Hearing”) for February 28,

2024. ECF No. 14.

       I.       On February 26, 2024, Proposed Intervenor filed a Motion for Leave to Intervene

as a Plaintiff. ECF No. 16. That Motion indicated that if allowed to intervene, Proposed

Intervenor would seek the same relief sought by Plaintiffs. Id. at 2.

       J.       On February 26, 2024, Administrator DeCarolis informed OMB in a signed letter

that EIA was “immediately . . . discontinuing (that is, formally withdrawing and ceasing) that

emergency collection of Form EIA-862 and requesting that OMB approve EIA’s discontinuance

of the emergency authorization of the Form EIA-862 data collection.” Attachment 1, Suppl.


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DeCarolis Decl., Ex. A (“EIA-862 Emergency Collection Discontinuance Request”). EIA

further explained that it “has decided that it will not proceed through the emergency collection

procedures set forth in 44 U.S.C. § 3507(j) and 5 C.F.R. § 1320.13 with respect to an information

collection covering data of the type described in Form EIA-862.” Id. EIA explained that it “will

proceed through the PRA’s notice-and-comment procedures . . . to determine whether to request

that OMB approve any collection of information covering such data.” Id.

       K.       On February 26, 2024, OMB issued a Notice of Action granting EIA’s request

and approving EIA’s discontinuance of the emergency authorization of the Form EIA-862 data

collection. See Attachment 2, Suppl. Mancini Decl., Ex. A (“EIA-862 Emergency Collection

Discontinuance Approval”).

       L.       As a result of the EIA-862 Emergency Collection Discontinuance Request and the

EIA-862 Emergency Collection Discontinuance Approval, no person or entity is subject to any

obligation to respond to Form EIA-862.

       M.       On February 27, 2024, counsel for Plaintiffs and Defendants informed the Court

that they had reached an agreement-in-principle concerning this matter and jointly requested that

the Hearing be cancelled. The Court entered an order cancelling the Hearing and ordered the

parties to memorialize their agreement by filing it on the docket and attaching a proposed order

on or before March 1, 2024. ECF No. 17.

                                          AGREEMENT

The Parties agree as follows:

       1.       Defendants agree that EIA will destroy any information that it has already

received in response to the EIA-862 Emergency Survey. If EIA receives additional information

in response to the EIA-862 Emergency Survey, EIA will destroy that data. EIA will sequester


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and keep confidential any information it has received or will receive in response to the EIA-862

Emergency Survey until it is destroyed.

       2.       Defendants agree that EIA will publish in the Federal Register a new notice of a

proposed collection of information (“New Federal Register Notice”) that will withdraw and

replace the February 9 Notice. Defendants agree that EIA will allow for submission of

comments for 60 days, beginning on the date of publication of the New Federal Register Notice,

pursuant to 44 U.S.C. § 3506(c)(2)(A). If, after evaluating the received comments pursuant to 44

U.S.C. § 3506(c)(2), EIA decides to conduct a cryptocurrency mining survey, the Defendants

agree to do so in accordance with the provisions set forth in 44 U.S.C. § 3507(a)-(c), (e), (g) and

5 C.F.R. § 1320.10.

       3.       Defendants agree that in considering the comments submitted in response to the

New Federal Register Notice, EIA will also consider any comments submitted in response to the

February 9 Notice as if they had been submitted in response to the New Federal Register Notice.

       4.       Defendants will pay Plaintiffs $2,199.45 in full and complete satisfaction of any

claim by Plaintiffs or Proposed Intervenor for attorneys’ fees, costs, and litigation expenses under

the Equal Access to Justice Act (“EAJA”) in connection with this case, through March 1, 2024.

Defendants will pay the above amount by wire transfer or wire transfers to an account at a

financial institution designated in writing by counsel for Plaintiffs, consistent with normal

processing procedures. Plaintiffs’ counsel will provide Defendants’ counsel the bank routing and

account information for the account to receive such payment. Plaintiffs’ counsel will confirm this

information by phone with Defendants’ counsel before transmitting such payment.

       5.       Plaintiffs and Proposed Intervenor hereby withdraw their request that the Court

enter a preliminary injunction.


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          6.       Plaintiffs and Proposed Intervenor agree not to pursue any further relief,

including injunctive relief or a declaratory judgment, concerning the lawfulness of the EIA-862

Emergency Collection Request, the EIA-862 Emergency Collection Approval, and the EIA-862

Emergency Survey, which have been formally discontinued—that is, withdrawn and ceased—

through the EIA-862 Emergency Collection Discontinuance Request and the EIA-862

Emergency Collection Discontinuance Approval. This agreement is without prejudice to any

claims concerning the lawfulness of any collection of information that might be authorized in the

future.

          7.       Defendants hereby give notice that they consent to Proposed Intervenor’s Motion

to Intervene as Plaintiff.

          8.       The Parties agree to request jointly that the Court stay and administratively close

the case. Specifically, the parties request that the Court enter the Proposed Order submitted as

Attachment 3.

          9.       This Agreement is the result of compromise. Neither this Agreement nor any

representations made by any Party in the course of negotiating this Agreement shall constitute or

be construed as an admission of liability or wrongdoing by any Party, or by their officers,

employees, agents, successors, assigns, or representatives, related to any claims or defenses that

have been raised (or could have been raised) with regard to the claims asserted in this litigation.

          10.      In the event that one Party to this Agreement believes that another Party has

violated the Agreement, the Party that believes there has been a violation may, after giving

reasonable notice the other Party, move the Court to lift the stay (if a stay is then in effect) in

order to move the Court for appropriate relief.


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Dated: March 1, 2024                  For Defendants:

                                      BRIAN M. BOYNTON
                                      Principal Deputy Assistant Attorney General

                                      JULIE STRAUS HARRIS
                                      Assistant Director, Federal Programs Branch

                                        /s/ Jeremy S.B. Newman
                                      JEREMY S.B. NEWMAN
                                      Trial Attorney (D.C. Bar # 1024112)
                                      U.S. Department of Justice, Civil Division
                                      Federal Programs Branch
                                      1100 L St., NW
                                      Washington, DC 20530
                                      Tel: (202) 532-3114
                                      Fax: (202) 616-8470
                                      [email protected]

                                      Counsel for Defendants

                                       /s/ Kara Rollins
                                      Kara M. Rollins
                                      Russell G. Ryan*
                                      NEW CIVIL LIBERTIES ALLIANCE
                                      1225 19th St. NW, Suite 450
                                      Washington, DC 20036
                                      Tel: (202) 869-5210
                                      Fax: (202) 869-5238
                                      [email protected]
                                      [email protected]
                                      *Pro Hac Vice Motion Forthcoming

                                      Counsel for Plaintiffs

                                      Chris Davis
                                      Joshua Smeltzer
                                      GRAY REED
                                      1601 Elm St., Suite 4600
                                      Dallas, TX 75201
                                      Tel: (469) 320-6215
                                      Fax: (469) 320-6926
                                      [email protected]
                                      [email protected]


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Case 6:24-cv-00099-ADA Document 24 Filed 03/01/24 Page 8 of 8


                              Greg White
                              900 Washington Avenue
                              Suite 800
                              Waco, Texas 76701
                              Tel: (254) 342-3003
                              Fax: (469) 320-6926

                              Counsel for Plaintiffs and Proposed Intervenor

                              Mark D. Siegmund
                              State Bar Number 24117055
                              CHERRY JOHNSON SIEGMUND JAMES
                              PLLC
                              The Roosevelt Tower
                              400 Austin Avenue, 9th Floor
                              Waco, Texas 76701
                              Tel: (254) 732-2242
                              Fax: (866) 627-3509
                              [email protected]

                              Counsel for Plaintiffs and Proposed Intervenor


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