New Policy on TSCA CBI Notices of Deficiency

For Release: July 15, 2019

Thirty days after publication in the Federal Register, EPA will stop sending notices of deficiency to businesses whose submissions do not meet all the statutory requirements. Instead, the Agency will provide written notice to affected business submitters that because they submitted procedurally flawed CBI claims, including unsubstantiated CBI claims, those CBI claims are invalid, and the underlying information is not protected from disclosure under TSCA Section 14.

Unlike the notice of deficiency, the written notice does not provide affected businesses 30 calendar days to remedy their deficient CBI claims. Rather, the written notice informs affected businesses that their procedurally flawed CBI claims may be disclosed to the public without further notice. TSCA section 14 requires that businesses seeking to protect information from disclosure must assert the claim for protection concurrent with submission of the information, including substantiating claims and meeting other procedural requirements. Read the Federal Register notice announcing this change.

Background:

On January 19, 2017, EPA announced an interpretation of section 14 of TSCA. Under this interpretation, non-exempt CBI claims must be substantiated at the time the information claimed as CBI is submitted to EPA, and non-exempt CBI claims submitted without a substantiation are considered deficient. To facilitate compliance with the change in interpretation, EPA announced it would send notices of deficiency to affected businesses that submitted non-exempt CBI claims without a substantiation, providing an opportunity to correct the deficiency.  The Agency also sent out these notices in instances where there were other procedural flaws in the submission, namely where the required CBI certification statement was not provided, or no generic name was provided when a specific chemical identity was claimed as CBI. 

For further information, see https://www.epa.gov/tsca-cbi.