OMB and CSB’s New Reporting Rule – 4-9-20

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) published a notice that it had assigned an OMB Control Number (3301-0001) for an information collection request (ICR) submitted by the Chemical Safety and Hazard Investigation Board (CSB) in support of the CSB’s rule on Accidental Release Reporting. OIRA also reported that they had filed comments on the ICR on the rulemaking docket (not yet posted as of this writing; it could take a day or two).

The ‘Terms of Clearance’ in yesterday’s notice specifically states that: “This OMB action is not an approval to conduct or sponsor an information collection under the Paperwork Reduction Act of 1995.” Thus while the CSB’s final rule has been published, OIRA has not yet approved the CSB’s collection of reports under that rule.

Commentary

There are a couple of oddities with yesterday’s notice. First, OIRA reports that the ICR paperwork was submitted to them on April 2^nd, 2020. All of the data submitted was based upon the publication of the December 2019 notice of proposed rulemaking, not the final rule. Now CSB was required to submit that information as part of their NPRM processing. In the normal course of events the OIRA comments on that request would have been reviewed and acted upon as necessary by CSB as part of the preparation of the final rule. Unfortunately, the abbreviated time frame between the NPRM and the publication of the final tule would probably not have allowed for normal OIRA review and reply, but apparently the CSB never gave OIRA that chance.

I do not think that this was deliberate malfeasance on the part of CSB. This was, after all, the first ICR submission made by the Board. I suspect that CSB attempted to submit the initial ICR when they published their NPRM, but somehow failed to properly submit the documents and never made an actual connection at OIRA.

Apparently, the CSB recently realized that they had not followed proper procedures in the initial ICR submission process (probably when someone pointed out the lack of an OMB approved control number) and worked with OIRA to correct that issue. Unfortunately, this probably means that CSB will have to publish a 30-day ICR notice to complete the OIRA process.

In the meantime, until OIRA approves the ICR, the CSB cannot legally require (regardless of the publication of the final rule and the effective date – March 23^rd, 2020 – having passed) anyone to provide information to the CSB under that rule.