United States Office of Solid Waste and 550-B-14-001 Environmental Protection Emergency Response January 2014 Agency (5104A) http://www2.epa.gov/ epcra-tier-i-and-tier-ii-reporting

Instructions for Completing the EPCRA Trade Secret Substantiation Form

General Information

Facilities that wish to claim trade secrets for chemicals reported under the Emergency Planning and Community Right-to-Know Act (EPCRA) are required to submit a substantiation to justify the claim of trade secrecy as specified in the regulations at 40 CFR part 350. At the time an EPCRA report is submitted, the submitter is required to provide responses to the six questions on the substantiation form, as well as certify the assertions made in the claim. Details on the proper procedures to submit a trade secret package are described below.

What May Be Withheld • Section 312 submission of the Only the specific chemical identity Emergency and Hazardous required to be disclosed in EPCRA Chemical Inventory Form, Tier sections 303, 311, 312, and 313 II; and submissions may be claimed trade secret on the EPCRA report. (Other trade • Section 313 submission of Toxic secret or confidential Chemical Release Inventory information (CBI) included in an answer (TRI) form. to a question on the substantiation form may be claimed trade secret or Note: The location information claimed confidential, as described below.) The as confidential under EPCRA Section trade secret claim must be submitted to 312 (d) (2) (F) should not be sent to EPA as specified in 40 CFR part 350. EPA. This information should only be sent to the State Emergency Response Specifically, facilities may claim Commission (SERC), the Local specific chemical identity from the Emergency Planning Committee following EPCRA reports: (LEPC), and the local fire department.

• Sections 303(d)(2) and 303(d)(3) for information related to the Trade Secret Claim Package development and revision of the emergency response plan; The trade secret claim package must be submitted to EPA at the same time that • Section 311 submission of the an EPCRA report is submitted. For Safety Data Sheet (SDS), also example, the Tier II form is required to known as the Material Safety be submitted to the SERC, the LEPC and Data Sheet (MSDS); or the list of the local fire department on or before hazardous chemicals; March 1, annually. Therefore, the trade secret claim package must be submitted

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to EPA at the same time that the Tier II Note: The Federal Emergency and is submitted to the SERC, the LEPC and Hazardous Chemical Inventory Form, the fire department. A trade secret claim Tier II, can be accessed on EPA’s package must contain all of the website: http://www2.epa.gov/epcra- following as stated in the regulations at tier-i-and-tier-ii-reporting 40 CFR 350.5. • An unsanitized version of the EPA cannot process incomplete Trade Secret Substantiation packages properly. Form.

• An unsanitized version of the • A sanitized version of the Trade required EPCRA report Secret Substantiation Form, which includes a generic class or Note: If you are submitting an MSDS category name, instead of the under EPCRA Section 311, you are not specific chemical identity name. required to submit an unsanitized MSDS. For all other EPCRA reports, an Note: A separate substantiation form, unsanitized version is required to be (sanitized and unsanitized) should be submitted. submitted for each chemical being claimed trade secret. • A sanitized version of the required EPCRA report, which For details on the assertion of claims of includes a generic class or trade secrecy, see 40 CFR 350.5.

category name, instead of the specific chemical identity name. Sanitized and Unsanitized Copies The sanitized version of the EPCRA of the EPCRA Report and report must be sent to the appropriate Substantiation Form state and local agencies as specified in the regulations at 40 CFR parts 355, 370 The unsanitized version of the EPCRA and 372. report and the substantiation form must contain the specific chemical identity Note: To avoid confusion, it is suggested name and CAS number and may include that the sanitized and unsanitized copies other trade secret or confidential of the EPCRA report(s) be clearly business information (CBI), which marked to indicate whether it is the should be clearly labeled as such. Failure “sanitized” or the “unsanitized” copy. to claim other information trade secret or confidential will make that information For Section 312, please submit the publicly available. ENTIRE sanitized and unsanitized Federal Emergency and Hazardous Note: If CAS Number is not available or Chemical Inventory Form, Tier II, not not assigned for a mixture or product just the page on which the chemical you are claiming trade secret, you may being claimed as trade secret is found enter N/A. upon.

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In the sanitized version of the EPCRA Fed Ex and Courier Packages should be report and the substantiation form, the sent to the following address: specific chemical identity name and CAS number must be replaced with the EPCRA Trade Secrets chemical’s generic class name or c/o CGI Federal, Inc. category name. Any other trade secret or 12601 Fair Lakes Circle confidential business information should Fairfax, VA 22033 be deleted.

You should only send the sanitized How to Obtain Trade Secret copies of the EPCRA report and the Substantiation Form and Other substantiation form, for each chemical Information being claimed as trade secret, to the relevant state and local authorities (the • Visit the EPCRA Tier I and Tier SERC, the LEPC, and the local fire II Reporting website: department), which would then be made http://www2.epa.gov/epcra/epcr publicly available. If the unsanitized a-trade-secret-forms-and- copies of the EPCRA report and instructions substantiation are sent to the state and local authorities, then the trade secret • Contact the Superfund, TRI, claim is no longer valid. EPCRA, RMP and Oil Information Center at 800-424- 9346 (toll free) or 703-412-9810 Each question on the substantiation form (metropolitan DC area) must be answered. Submitters are encouraged to answer in the space provided. If you need more space to Substantiation Form: answer a particular question, please use additional sheets. Instructions for Completing Specific Section of the Form Note: You must submit a sanitized and an unsanitized substantiation form for Part 1. Substantiation Category each chemical (or mixture) you are claiming as trade secret. 1.1 Title III Reporting Section. Check the box corresponding to the section for which this particular claim of trade

secrecy is being made. Checking off Where to Send the Trade Secrecy more than one box on one form for a Claim claim is not permitted.

All trade secrecy claims should be sent 1.2 Reporting Year. Enter the year to to the following address: which the reported information applies, not the year in which you are submitting EPCRA Trade Secrets the report. c/o CGI Federal, Inc. P.O. Box 10162 Fairfax, VA 22038

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1.3a Sanitized. If this copy of the appropriate section of the rule for the submission is the “public” or sanitized chemical being reported on the version, check this box and complete unsanitized form only, if one is 1.3.1a, which asks for generic class available. Use leading place holding name or category name. Do not zeros. If you are reporting a chemical complete the information required in the category (e.g., copper compounds), enter unsanitized box (1.3b.). N/A in the CAS number space. Also, if a CAS number is not assigned to the 1.3.1a Generic class or Category. You chemical or mixture you are claiming must complete this section if you are trade secret, you may enter N/A. claiming the specific chemical identity as a trade secret and have marked the 1.3.2b Specific Chemical Identity. Enter box in 1.3a. The generic chemical name the name of the chemical or chemical must be structurally descriptive of the category as it is listed in the appropriate chemical. Each individual chemical that section of the reporting rule on the is submitted should be distinguishable unsanitized form only. from every other individual chemical that is being submitted. Thus, each Part 2. Facility Identification generic class or category should be Information unique. 2.1-2.3 Facility Name and Location. For example: If a facility wishes to claim You must enter the name of your facility ten chemicals that may belong to the (plant site name or appropriate facility same generic class or category, facility designation), street address, city, state may use one generic name, however, and ZIP Code in the space provided. each compound or product should have You may not use a post office box additional labeling such as compound number for this location. #1, compound #2, etc. (e.g. Amine compound #1, Amine compound #2, etc.) 2.4 Dun and Bradstreet Number. You must enter the number assigned by Dun Note: The sanitized and unsanitized and Bradstreet (D&B) for your facility chemical name(s) used on the or each establishment within your substantiation form(s) must be the same facility. If the establishment does not or correspond to the names used on the have a D&B number, enter N/A in the sanitized and unsanitized EPCRA boxes reserved for those numbers. Use reports. leading place holding zeros.

1.3b Unsanitized. Check the box if this Part 3. Responses to Substantiation version of the form contains the specific Questions chemical identity, the CAS number, or any other trade secret or confidential The six questions posed in this form are business information. based on the four statutory criteria found in section 322(b) of EPCRA. The 1 3.1b CAS Number. You must enter the information you submit in response to Chemical Abstract Service (CAS) these questions is the basis for EPA’s registry number that appears in the initial determination as to whether the

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substantiation is sufficient to support a 4.3 Date. Enter the date when the claim of trade secrecy. EPA has certification was signed. indicated in 40 CFR 350.13 of the final rule the specific criteria that it regards as Definition of trade secret. (Appendix the legal basis for evaluating whether the A-Restatement of Torts Section 757.) answers you have provided are sufficient A trade secret may consist of any to warrant protection of the chemical formula, pattern, device or compilation identity. You are urged to review those of information which is used in one’s criteria before preparing answers to the business, and which gives him an questions on the form. opportunity to obtain an advantage over competitors who do not know or use it. Part 4. Certification It may be a formula for a chemical compound, a process of manufacturing, An original signature is required for each treating or preserving materials, a pattern trade secret substantiation form (both for a or other device, or a list of sanitized and unsanitized), submitted to customers. It differs from other secret EPA. The EPCRA report(s) submitted, information in a business (see section within the trade secret claim package, 759) in that it is not simply information should also have the signature of the as a single or ephemeral event in the owner or operator or the conduct of the business. For example, a authorized representative. The signature trade secret is not like the amount or indicates that the submitter is certifying other terms of a secret bid for a contract that the information provided is or the salary of certain employees, or the complete, true, and accurate, and that it security investments made or is intended to support the specific trade contemplated, or the date fixed for the secret claim being made. Non- announcement of a new policy or for compliance with this certification bringing out a new model or the like. A requirement may jeopardize the trade trade secret is a process or device for secret claim. continuous use in the operation of the business. Generally it relates to the 4.1 Name and Official Title. Print or type production of goods, as, for example, a the name and title of the person who machine or formula for the production of signs the statement at 4.2. an article. It may, however, relate to the sale of goods to other operations in the 4.2 Signature. This certification must be business, such as a code for determining signed by the owner or operator, or a discounts, rebates or other concessions senior official with management in a price list or catalogue, or a list of responsibility for the person (or persons) specialized customers, or a method of completing the form. An original bookkeeping or other office signature is required for each trade secret management. substantiation submitted to EPA, both sanitized and unsanitized. Since the Secrecy. The subject matter of a trade certification applies to all information secret must be secret. Matters of public supplied on the forms, it should be knowledge or of general knowledge in signed only after the substantiation has an industry cannot be appropriated by been completed. one as his secret. Matters which are

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completely disclosed by the goods which These requirements are essential to one markets cannot be his secret. patentability because a protects Substantially, a trade secret is known against unlicensed use of the patented only in the particular business in which device or process even by one who it is used. It is not requisite that only the discovers it properly through proprietor of the business knows it. He independent research. The patent may, without losing his protection, is a reward to the inventor. communicate it to employees involved But such is not the case with a trade in its use. He may likewise communicate secret. Its protection is not based on a it to others pledged to secrecy. Others policy of rewarding or otherwise may also know of it independently, as, encouraging the development of secret for example, when they have discovered processes or devices. The protection is the process or formula by independent merely against breach of faith and invention and are keeping it secret. reprehensible means of learning Nevertheless, a substantial element of another’s secret. For this limited secrecy must exist, so that, except by the protection it is not appropriate to require use of improper means, there would be also the kind of novelty and invention difficulty in acquiring the information. which is a requisite of patentability. The An exact definition of a trade secret is nature of the secret is, however, an not possible. Some factors to be important factor in determining the kind considered in determining whether given of relief that is appropriate against one information is one’s trade secret are: (1) who is subject to liability under the rule The extent to which the information is stated in this section. Thus, if the secret known outside of his business; (2) the consists of a device or process which is a extent to which it is known by novel invention, one who acquires the employees and others involved in his secret wrongfully is ordinarily enjoined business; (3) the extent of measures from further use of it and is required to taken by him to guard the secrecy of the account for the profits derived from his information; (4) the value of the past use. If, on the other hand, the secret information to him and to his consists of mechanical improvements competitors; (5) the amount of effort or that a good mechanic can make without money expended by him in developing resort to the secret, the wrongdoer’s the information; (6) the ease or difficulty liability may be limited to , and with which the information could be an against future use of the properly acquired or duplicated by improvements made with the aid of the others. secret may be inappropriate.

Novelty and . A trade secret may be a device or process which is patentable; but it need not be that. It may be a device or process which is clearly anticipated in the prior art or one which is merely a mechanical improvement that a good mechanic can make. Novelty and invention are not requisite for a trade secret as they are for patentability.

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References

• Trade Secrecy Claims for Emergency Planning and Community Right-to-Know Information; and Trade Secret Disclosures to Health Professionals, July 29, 1988. (53 FR 28814)

• Trade Secrecy Claims for Emergency Planning and Community Right-to-Know Information; and Trade Secret Disclosures to Health Professionals; Amendment, November 14, 2003. (68 FR 64720)

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