On September 20, 2017, a notice was published by the Environmental Protection Agency (EPA) in the Federal Register extending the deadline for those who submitted confidential business information (CBI) claims under the Toxic Substances Control Act (TSCA) between June 22, 2016 and March 21, 2017 to submit the required substantiation of those claims. As a result of this notice, businesses that submitted CBI claims before March 21, 2017 now have until October 19, 2017 (as opposed to September 19, 2017) to substantiate those claims. The EPA states that it is extending the deadline to provide additional flexibility for stakeholders in light of recent hurricanes Harvey and Irma.
TSCA was amended in June 2016 by the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Included among the amendments is the requirement for affected businesses to assert a claim for protection of CBI from disclosure (and submit the information it seeks to protect along with the claim) and a separate requirement for businesses submitting a CBI claim to substantiate that claim (with the exception of claims for information subject to TSCA § 14(c)(2)). After the amendments were signed into law in June 2016, affected businesses began to submit CBI claims to the EPA; however, not all of those claims included the substantiation required by the amendments – the language in the amendments regarding the requirement for substantiation of CBI claims was not clear with regards to when and how substantiation was to be provided to the EPA.
The EPA accordingly published a notice in the Federal Register on January 21, 2017 interpreting the amendments as requiring submission of substantiation of non-exempt CBI claims at the time the claims are submitted to the EPA – in other words, “up-front substantiation of confidentiality claims” is required. Affected businesses that submitted CBI claims without the required substantiation before the March 21, 2017 effective date of the EPA’s January 2017 notice (extended from March 20, 2017 by a notice published on February 21, 2017) were given until September 18, 2017 to provide the EPA with substantiations. It is that deadline that is now extended by one month to October 19, 2017.
For information on how to provide the required substantiations, please review the EPA’s January 21 notice published at 82 Fed. Reg. 6,522.
Source: Notice of Compliance Date Extension; Statutory Requirements for Substantiation of Confidential Business Information (CBI) Claims Under the Toxic Substances Control Act (TSCA), 82 Fed. Reg. 43,964 (Sept. 20, 2017).