REGULATION & COMPLIANCE
authority to make that promise. If it does not, a legal challenge could jeopardise expiring CBI claims that were not re asserted and re substantiated within the statutory deadline. Companies should monitor developments closely and consult counsel if the tool remains unavailable as the deadline approaches.
What to do now
Every company’ s situation is different, and the following is not legal advice, companies should work with qualified counsel to develop an approach suited to their specific circumstances. That said, many companies would likely benefit from some of the following steps.
Firstly, get your company’ s CDX access in order. Ensure you can log in to any CDX accounts associated with your TSCA submissions, and update contact information so that EPA notices reach someone currently at the company. If you have lost access to an account or no longer have the passphrase for a TSCA submission, contact the CDX helpdesk now.
Secondly, catalogue your company’ s CBI claims. Developing a catalogue of all CBI claims will help a company identify expiring claims and allow for easier crossreferencing against the public list of expiring claims on EPA’ s website. Although rare, do not forget to check for CBI claims made on paper TSCA submissions, such as filings predating electronic filing requirements or physical materials provided to EPA pursuant to a subpoena or inspection. The catalogue should itself be treated as confidential.
Determine expiration dates. For most information, the answer is ten years from the date of assertion. For chemical identity claims, verify against the Inventory and be prepared for an earlier than expected expiration. Note also that a subset of claims, covering manufacturing process descriptions, marketing and sales information, and supplier or customer identification, among others, never expire and do not need to be renewed.
Decide what is worth protecting. With the passage of time, some information claimed as CBI may no longer be commercially sensitive. Before filing requests for extension, companies should evaluate whether every claim is still worth renewing.
Actively monitor EPA notices. Regularly review CDX account inboxes and the EPA’ s public list of expiring claims on its website to ensure that no CBI claim expiration is overlooked. Keep abreast of Federal Register notices and updates to the EPA’ s website, the EPA has promised to provide additional guidance beyond what is available as of this writing in mid March.
Submit timely, substantiated requests for extension. Requests must be submitted no later than 30 days before expiration. They must include substantiation meeting the same requirements as an initial claim. Companies may be able to rely on substantiation previously provided to the EPA but should consider whether additional explanation of why protection remains warranted would strengthen the request.
Conclusion
The CBI expiration and renewal process presents serious risks and Inventory Reset is an object lesson in how quickly things can go wrong. Companies that do not act with diligence may find that highly sensitive information has been irreversibly disclosed. The time to start is now. ●
Philip A. Moffat
PRINCIPAL
VERDANT LAW, PLLC k + 1 202 828 1233 J pmoffat @ verdantlaw. com j www. verdantlaw. com
52 SPECIALITY CHEMICALS MAGAZINE ESTABLISHED 1981