Statement Supporting the Renewal of the 

Information Collection Procedure for Title III

Trade Secrecy Regulations

1.	Identification of the Information Collection

1 (a)	Trade Secret Claims for Community Right-to-Know and

          		Emergency Planning (EPCRA Section 322)(Renewal) - EPA ICR
No. 1428.08

1 (b)  Short Characterization

		

This information collection request pertains to trade secrecy claims
submitted under section 322 of the Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA), also known as Title III of SARA, the
Superfund Amendments and Reauthorization Act.  Title III contains
provisions requiring facilities to report to State and local
authorities, and EPA, the presence, use and release of extremely
hazardous substances (described in sections 302 and 304) and hazardous
and toxic chemicals (described in sections 311, 312 and 313
respectively).  Section 322 of Title III allows a facility to withhold
the specific chemical identity from these Title III reports if the
facility asserts a claim of trade secrecy for that chemical identity. 
The provision establishes the requirements and procedures that
facilities must follow to request trade secrecy treatment of chemical
identities, as well as the procedures for submitting public petitions to
the Agency for review of the “sufficiency” of trade secrecy claims. 
EPA published the trade secrecy regulations on July 29, 1988 (58 FR
28772), codified in 40 CFR Part 350.

Trade secrecy protection is provided for specific chemical identities
contained in reports submitted under each of the following Title III
sections:

303 (d)(2)  Facility notification of changes that have or are about to
occur;

303 (d)(3)  Local Emergency Planning Committee (LEPC) requests for
facility information to develop or implement emergency plans;

311 Material Safety Data Sheets (MSDSs) submitted by facilities, or list
of those              chemicals submitted in place of the MSDSs;

312 Tier II emergency and hazardous chemical inventory forms; and,

313 Toxic chemical release inventory forms.

Section 322 requires that facilities requesting trade secrecy protection
submit to EPA, in conjunction with their Title III report, an
explanation showing that their claim for the chemical identity meets the
four statutory criteria of trade secrecy enumerated in subsection (b) of
that provision.

Facility owners and operators submit trade secrecy claims only to EPA. 
Claims consist of either one or two versions of the Title III report
depending on the type of report, and two versions of an up-front
substantiation of the trade secrecy claim.  The substantiation is
designed to gather sufficient factual support to indicate whether the
claim will meet the four statutory criteria of trade secrecy.  It is an
EPA-developed form, and is discussed in detail in Part 3(b)(i) below.

Section 322(d) also provides for a public petition process to request
the disclosure of chemical identities claimed as trade secret.  The
final rule does not specify a petition format, but does require that a
petition contain certain elements set forth below in Part 3(b)(ii).

EPA is required by section 322(h) to identify the adverse health and
environmental effects associated with the section 313 toxic chemicals
claimed as trade secret and to include this information in the Toxic
Chemical Release Inventory database required by section 313(j).

This provision also instructs the governor or State Emergency Response
Commission to identify the adverse health effects of the chemicals
claimed as trade secret under sections 303, 311 and 312 and provide this
information to persons requesting the information. 

Section 323 regulations contain provisions allowing health professionals
to gain access to trade secret chemical identities under three different
circumstances:

Non-emergency treatment and diagnosis.  The chemical identity of a
hazardous chemical, extremely hazardous substance or toxic chemical must
be given to a health professional if the information is needed in the
diagnosis or treatment of an exposed individual;

Medical emergencies.  Expedited access to the identity of chemicals to
which people have been exposed is provided for health professionals;
and,

Preventative measures.  Health professionals studying chemical exposure
and health effects for local governments are also given access to
chemical identities upon written request.

Two preconditions must be met in order for health professionals to gain
access to trade secret chemical identity in non-emergency and
preventative measure situations: they must submit a written statement of
need and a written confidentiality agreement to the facility owner or
operator prior to obtaining the information.  No such requirements exist
in the medical emergency situation, but the owner or operator disclosing
the information may require a written confidentiality agreement and
statement of need as soon as circumstances permit. 

The Offices that will use trade secret information are the Office of
Emergency Management (OEM) in the Office of Solid Waste and Emergency
Response (OSWER) and the TRI Program Division in the Office of
Environmental Information (OEI).  Trade secrecy claims are stored in
areas designed to assure the confidentiality of the collected
information. 

2.  Need/Authority for Collection; Use/Users of the Data

2 (a)  Need/Authority for Collection

The specific provision of Title III authorizing this collection is
section 322 of EPCRA..  Congressional intent in writing trade secrecy
provisions under Title III was to balance industry's concern with the
protection of legitimate trade secrets, with communities’
right-to-know chemical identification information.  Congress established
procedures for companies to assert claims, for the public to obtain
review of their validity, and for an Agency claim review process which
eliminates legally invalid and frivolous claims.

Section 322(a)(1)(B) requires a facility that requests trade secrecy
protection for a Title III chemical to substitute a generic chemical
class or category name in the place on the Title III submittal where the
withheld specific chemical identity is normally reported.  A copy of
this Title III submittal, as well as the chemical identification
information that is withheld, are to be submitted separately to the EPA
pursuant to sections 322(a)(2)(A)(iii) and (a)(2)(B)(ii).

A facility is entitled to withhold chemical identification information
according to section 322(a)(2)(A)(i), only if that facility claims that
such information is a trade secret on the basis of the following four
factors which are enumerated in the provisions of section 322(b)(1)-(4):

The facility has not disclosed the chemical identity to any other
person, other than a member of a local emergency planning committee, an
officer or employee of the United States or a State or local government,
an employee of such person, or a person who is bound by a
confidentiality agreement, and the facility has taken reasonable
measures to protect the confidentiality of such information and will
continue to take such measures;

The information is not required to be disclosed or otherwise made
available to the public under any other Federal or State law;

Disclosure of the information is likely to cause substantial harm to the
competitive position of the facility; and,

The chemical identity is not readily discoverable through reverse
engineering.

A facility is required under section 322(a)(2)(A) to make its claim of
trade secrecy by submitting, in conjunction with its Title III report,
an explanation containing the reasons, including specific descriptions,
why the subject information satisfies the four statutory criteria. 
Within 30 days after receipt of a public petition, EPA is required under
section 322(d) to review the information contained in a claimant’s
explanation to determine whether a claim is “sufficient.”  If the
Agency determines a claim is sufficient, section 322(d)(3)(A) provides
for the claimant's submission of supplemental information to establish
the veracity of the assertions contained in the substantiation.  If the
Agency determines that a claim is insufficient, or that the chemical
identity is not a trade secret, and further determines that the claim is
frivolous, section 325(d) requires that the Agency assess a civil or
administrative penalty for the claim.

Section 322(f) permits a facility to designate, apart from the specific
chemical identity, information which is contained in their claim
explanation to be entitled to protection under the Trade Secrets Act, 18
U.S.C., section 1905.  Except for information entitled to such
protection, the provision requires that the Agency make all claim
explanations publicly available.  Further, Title III section 324(a)
mandates that EPA, the States, and local authorities, make each hardcopy
Title III report publicly available during normal working hours at
locations designated by the above entities, as appropriate, in a manner
consistent with the provisions of section 322, (i.e., with the generic
chemical name substituted for the specific chemical identity where a
trade secrecy claim is made for the latter).

The regulations contained in 40 CFR Part 350 provides for the submission
of two versions of the report and the substantiation, enables EPA, State
Emergency Response Commissions (SERCs) and LEPCs to fulfill the
statutory mandate that public access be readily available to documents
containing only the generic chemical descriptions, and that the specific
chemical identity and other designated trade secret information be
accorded confidential treatment. 

	

The regulations also provides for submission to EPA of a sanitized and
an unsanitized version of the substantiation form, a sanitized and where
indicated, an unsanitized version of the Title III report by a facility
requesting trade secrecy protection for a Title III reported chemical. 
The sanitized and unsanitized versions of these documents are identical
in all respects except that the trade secret chemical identification
information reported in the unsanitized version is deleted from the
sanitized version and a generic class or category name is substituted in
its place.  Also, other information provided in the unsanitized
substantiation that is designated as a trade secret by a facility is
deleted from the sanitized substantiation.  Claimants submit only a
sanitized version of section 303(d)(2) and (d)(3) reports, and section
311 MSDS’ to appropriate State and local authorities.

Answers to the substantiation questions described below provide the
“specific description” stipulated in section 322(a)(2)(ii) on why a
facility believes trade secrecy should apply.  Without this information,
the Agency would not be in a position to evaluate whether or not a claim
to withhold the chemical identity is sufficient, nor would it have the
time (statutorily set at 30 days) required to request and review the
data in response to a petition for identity disclosure.  Further, this
information is needed in order for the Agency to evaluate claims for
frivolousness and seek related penalties under section 325.  On a
broader scale, the information collection request is also necessary in
order for EPA to evaluate whether the claim is complete under sections
322(a)(1) and (a)(2).

The Agency developed a standardized claim substantiation form to help
it assess the sufficiency, validity and frivolousness of claims.  The
Agency anticipated that the form would reduce confusion about what
information is to be supplied to meet the four statutory criteria.  The
Agency also anticipated that the form would help submitters more easily
determine if they have a sufficient basis to make trade secrecy claims,
ensure that all submissions are evaluated on the basis of comparable
information, and “flag” the documents for procedural safeguards to
quickly identify, review and protect the confidentiality of the claim.

Based on reviews of the substantiations submitted in past reporting
years, EPA's experience has been that use of a standardized
substantiation form has: (1) enabled submitters to adequately understand
and develop information necessary to submit a sufficient claim; (2)
enabled EPA to ensure that all submissions are evaluated on the basis of
comparable information, and; (3) served as an efficient identifier of
the trade secret status of the document and associated report, and
hence, has ensured the use of appropriate Agency handling and routing
procedures protective of their confidentiality.

2 (b)  Use/Users of the Data				

The trade secrecy claim information is used only by OSWER and OEI and is
needed by these Offices in order to: (1) perform the Agency’s review
of claims as required by section 322(d) to determine whether the claims
are sufficient to support a finding that the specific chemical identity
withheld is a trade secret; (2) ensure that claims for all withheld
chemical identities are complete in accordance with the requirements of
sections 322 (a)(1) and (a)(2), and; (3) evaluate claims for
frivolousness and the attendant assessment of penalties stipulated in
section 325 (d)(1).

3.	Respondents/SIC/NAICS Codes; Information Requested

3 (a)  Respondents/SIC/NAICS Codes

Sections 303, 311 and 312 claims are submitted by both the manufacturing
sector, (SIC 20-39, NAICS 311-562), coal and metal mining, (SIC 10-12,
NAICS 212), electric utilities, (SIC 49, NAICS 221) and the
non-manufacturing sector.  No range of SIC codes exists for the
non-manufacturing sector.  Examples of this sector include the
construction industry and dry cleaners.  Examples of the manufacturing
sector include chemical manufacturers and paper manufacturers. 

Section 313 claims are submitted by covered sectors, include: metal
mining; coal mining; manufacturers; electric utilities (limited to
facilities that combust coal and/or oil for the purpose of generating
electricity for distribution in commerce); commercial hazardous waste
treatment (limited to facilities regulated under the RCRA Subtitle C, 42
U.S.C. section 6921 et seq.)); chemical and allied products-wholesale;
petroleum bulk terminals and plants (also known as stations)-wholesale;
and, solvent recovery services (limited to facilities primarily engaged
in solvents recovery services on a contract or fee basis).  EPA has
required reporting using North American Industry Classification System
(NAICS) codes beginning with TRI Reporting Year 2006.  The following
table provides a crosswalk from TRI-covered Standard Industrial
Classification (SIC) codes to TRI-covered NAICS codes.  For a complete
list of TRI-covered NAICS codes that includes certain industry
exceptions and limitations, please refer to the EPA TRI web site at  
HYPERLINK "http://www.epa.gov/tri/lawsandregs/naic/ncodes.htm" 
http://www.epa.gov/tri/lawsandregs/naic/ncodes.htm .  

TRI  SIC-NAICS Table 

INDUSTRY	SIC	NAICS

Coal Mining              	1221, 1222, 1231	212111, 212112, 212113

Metal Mining	10a	212221,  212222, 212231, 212234, 212299  

Electric Utilities	4911, 4931, 4939	221111, 221112, 221113, 221119,
221121, 221122, 221330* 

Food	20	311b, 111998* 

Beverage and Tobacco Products	20, 21	312c

Textiles	22	313d

Textiles Products	22	314e

Apparel and Accessories	23	315f

Leather and Allied Products	31	316

Wood Products	24	321, 113310

Paper	26	322

Printing and Publishing	27	323g, 511110, 511120, 511130, 511140*,511191,
511199,  512220, 512230*, 519130*

Petroleum and Coal Products	29	324

Chemicals	28	325h, 211112*

Plastics and Rubber	30	326i

Stone, Clay, Glass and Cement	32	327j, 212324*, 212325*, 212393*,
212399*

Primary Metals	33	331

Fabricated Metal Products	34	332

Machinery	35	333

Computers 	35	334k

Electronic Products	36, 38	335l

Transportation Equipment	37	336, 488390*, 541712*, 811490              

Furniture	25	337m

Miscellaneous Manufacturing	39	339n

Chemical Wholesalers	5169	424690, 425110*, 425120*

Petroleum Bulk Terminals	5171	424710

Hazardous Waste	4953	562211*, 562212*, 562213*, 562219*, 562920*

Solvent Recovery	7389	562112*



* --> With limitations

a --> Does not include SIC 1011, 1081, 1094

b --> Does not include NAICS 311811; Exemptions exist for NAICS 311119,
311330, 311340, 311611, 311612

C --> Exemptions exist for NAICS 312112, 312229

d --> Exemptions exist for NAICS 313311, 313312

e --> Exemptions exist for NAICS 314121, 314129, 314999

f --> Exemptions exist for NAICS 315222, 315223, 315233.

g --> Exemptions exist for NAICS 323114.

h --> Exemptions exist for NAICS 325998.

i --> Does not include NAICS 326212.

j --> Exemptions exist for NAICS 327112.

k --> Does not include NAICS 334611; Exemptions exist for NAICS 334612

l --> Exemptions exist for NAICS 335312

m --> Exemptions exist for NAICS 337110, 337121, 337122.

n --> Does not include NAICS 339111, 339116; Exemptions exist for NAICS
339113, 339115

3 (b)  Information Requested

     

       (i)  Data Items for Trade Secrecy Claims 

Based on the four substantiation requirements in section 322(b), the
Agency developed six core questions to comprise a standard
substantiation form.  (See Attachment 1)

Questions one and two refer directly to the first criterion of section
322(b).  The first question, on “specific measures” is the detail
required by the submitter to prove to the EPA reviewer that reasonable
safeguards have been taken to prevent unauthorized disclosure of the
specific chemical identity.  Answers to the second question will be used
by the Agency to evaluate the facility's claim that the specific
chemical identity has not been disclosed to anyone not bound by a
confidentiality agreement.

Question three corresponds to the statute’s second criterion that the
submitter show either that a State or Federal agency has not already
determined that the chemical identity is not a trade secret, or that no
existing State or Federal statutes prohibit claiming the chemical
identity as a trade secret.

Questions four and five require information about the facility’s known
connection with the use of the chemical, and estimates of competitive
harm that would result from disclosure.  Submitters must provide EPA
with a description of their unique use of the chemical (3.4i), known
linkages of the chemical to the facility in publications and patents
(3.4ii), an explanation of how competitors could deduce use from
disclosure of the chemical identity (3.4iii), and why knowledge of this
use would be valuable to competitors (3.4iv).  Specific indications of
the competitive harm resulting from disclosures must be provided in
question five.  These questions refer back to the third criterion of
section 322.

Question six enables EPA to identify the prevalence of the chemical in
the company’s products or releases, and the corresponding ability of
competitors to identify the chemical through reverse engineering.  This
issue is specifically addressed in the fourth criterion.

In addition, blocks on the first page of the form provide space for
accurate identification of the claimed trade secret chemical (CAS
number, chemical identity), a field for substitution of the generic
class or category, a check-off box to clearly identify the type of Title
III report for which the claim is being asserted, and the facility’s
Dun and Bradstreet number (for precise facility and record
identification).  Collecting this information generates no additional
burden because it is transferred directly from the reports required
under the various sections of Title III for which a claim is being made.

Finally, the submitter must sign a certification statement, found on the
last page of the form that the information is true to the best knowledge
and belief of the submitter.

  (ii)  Data Items for Public Petition Process			

No specific petition format is required.  However, the rule does require
that the following be included in a petition:

The name, address and telephone number of the petitioner;

The name and address of the company claiming the chemical identity as
trade secret;

A copy of the relevant sanitized Title III report (e.g., MSDS, Tier II
or toxic chemical release form); and,

A specific indication of the chemical identity that is being requested
for disclosure.

EPA requires a copy of the Title III report in order to prevent any
confusion about the particular disclosure in question.  By statute,
copies of facility filings are available at the offices of designated
State or local entities.  In writing the proposed and final regulations,
the Agency considered these elements to be the minimum needed to
successfully identify and begin the review of a trade secrecy claim.

4.	The Information Collected -- Agency Activities, Collection
Methodology, and Information Management

4 (a) Agency Activities

Process and store the data;

Review the claims for completeness, sufficiency, and frivolousness;

Respond to requests for confidential information from State governors,
and non-confidential information from the public;

Respond to petitions from the public for disclosure of chemical
identities claimed as trade secret; and,

Prepare adverse health and environmental effects data for relevant
chemical identities claimed as trade secret. 



4 (b) Collection Methodology and Management

The collection of trade secrecy claims is accomplished by respondents
sending their claim submissions to EPA.  The sanitized or non-trade
secret versions of the Title III report and the substantiation are
stored so as to be easily accessible to the public.  Data reported on
the sanitized version of a Title III, section 313 report are entered in
the Toxic Chemical Inventory database. The unsanitized versions of the
Title III report and the substantiation are handled, labeled and stored
in a manner protective of their confidentiality.

The unsanitized trade secret versions of these documents are reviewed to
determine the sufficiency, validity and frivolousness of the claims. 
Both the sanitized and unsanitized documents are used to review the
generic chemical class or category name in light of the specific
chemical identity claimed as trade secret, to ensure the appropriateness
of the generic description.  For section 313 claims, both chemical
descriptions are reviewed and used to develop adverse health and
environmental effects data which are representative of the
characteristics of the specific chemical identity withheld, and
protective of the trade secret chemical identity.

While use of information technology is being encouraged in the
relatively uniform Title III reporting sections, the unique nature and
length of trade secrecy substantiation responses will not confer any
special advantage to their being reported on alternative media. 
Standardized responses are not expected, or encouraged, to questions
about facility safeguards to protect confidentiality of a chemical; the
extent of disclosure to local, State and Federal government entities;
discussions of the use of the chemical and competitors’ ability to
discover it; and, statements on harm to competitive position.

The public petition process applies only to a chemical identity that a
facility claims as trade secret, and not to other information contained
in a substantiation which a facility has claimed as a trade secret. 
After receiving a petition, EPA has 30 days to determine whether the
assertions on a facility’s substantiation form (if true) would form a
sufficient basis for a trade secrecy claim.  If the form meets the
criteria of sufficiency, EPA will notify the submitter that they have 30
days to submit supplemental material supporting the truth of the
assertions made in the substantiation.  If the claim does not meet the
criteria of sufficiency, EPA will notify the submitter that the claim
will be denied.  The facility may appeal to the Office of General
Counsel or submit a statement of good cause to amend the substantiation.
 EPA will then accept or reject the statement, allowing or disallowing
the submission of additional information.  Finally, based on all the
information a facility has submitted, EPA will determine whether the
claim warrants trade secrecy protection.

 EPA-initiated reviews are conducted following the same steps involved
in the public petition process and may result in an Agency decision
regarding the sufficiency of the trade secrecy claims.  However,
EPA-initiated reviews may be less formal and culminate in the withdrawal
of a claim by a facility prior to the issuance of a formal Agency
decision on the merits of the claim.  The less formal reviews usually
involve claims which are determined incomplete upon EPA review or
complete claims which are thought by EPA to demonstrate obvious problems
or weaknesses.  In the circumstance of an incomplete package (no
substantiation form), the Agency issues an NDC (Notice of Data Change). 
In those instances when a complete but deficient package is submitted,
the Agency issues a notice of insufficiency which is some times accepted
by the facility and on one occasion during the last ICR timeframe,
appealed to OGC.   

4 (c) Small Entity Flexibility

The regulatory provisions of sections 311/312 and the statutory
provision of section 313 inherently minimize the burden for small
entities.  Sections 311/312 have reporting thresholds below which
facilities are not required to report.  Section 313 applies only to
facilities with 10 or more full-time employees.

The decision to submit a trade secrecy claim on a Title III report is
voluntary.  Facilities that submit trade secrecy claims are doing so
because they believe it is to their benefit.  In addition, the need to
claim trade secrecy protection for a chemical identity is just as
important to small companies as it is to large companies.  Therefore,
the need to supply information to support a submission, as well as to
review it, is dependent upon a firm’s demonstration that it can
adequately answer the four criteria found in the statute.  Any firm,
regardless of size, need only provide as much, or as little, detail as
it feels necessary to support its claim under the statute.   

4 (d) Collection Schedule

Under section 322, a specific chemical identity claimed as a trade
secret is withheld from the face of Title III reports.  That provision
requires that claim explanations, and the information claimed as a trade
secret, be submitted concurrently with the submission of the Title III
reports.  Apart from the statutory mandate that requires the filing of a
claim each time the subject chemical is reported in a Title III
submission, an updated claim is necessary to establish the current
applicability of the four statutory criteria of trade secrecy.  Even the
slightest change in the circumstances which support the claim can be
pivotal to the sufficiency, validity, and frivolousness of the claim. 
Even where previously created substantiations are relevant and
appropriate for use at a later time, EPA encourages submitters to
carefully review the substantiations.

In the case of sections 312 and 313, the reporting is annual and
facilities submit a current claim annually with those reports.  Under
section 311, a claim must be resubmitted to EPA if an MSDS or list is
updated.  Under section 311, an initial MSDS or list must be updated
within three months after the facility owner or operator discovers
significant new information regarding an aspect of a hazardous chemical.
 Under section 303(d)(2) and (d)(3), a claim need not be resubmitted to
EPA after the initial communication to the relevant LEPC unless further
communication follows between the facility and LEPC which discusses the
specific chemical identity in question.

5.	Nonduplication, Consultations, and other Collection Criteria

 (a) Nonduplication

The information that EPA requires from trade secrecy claim submitters is
not duplicated by any other Agency collection because the collection of
information is entirely Title III oriented.  In addition, unlike other
statutes permitting confidential business information claims, Title III:
(1) permits trade secrecy claims only for specific chemical
identification information; (2) permits claims for a chemical identity
only in very narrowly defined circumstances which are stipulated in the
statute; and, (3) requires an up-front substantiation of the
applicability of those narrowly defined circumstances by a claimant at
the time the report for a chemical claimed as trade secret is filed.

 (b) Consultations

EPA contacted few facilities that submitted trade secrecy claims to
develop an average estimate on how much burden the trade secrecy
regulations impose on the facilities.  The following facilities were
contacted.

Diane Erb					Lee Moisio

American Acryl L.P.				Vertex Chemical Corp.

Pasedena, TX					Dupo, IL

(281) 909-2651					(314) 471-0500	

				

Roxanna Huffman				Debra Larkey

Cryotech Deicing Technology			Eastman Chemical Company

Fort Madison, IA				Kingsport, TN

(319) 372-6012					(423) 224-0670

Emily Petrucelli					Karen Burquest

BKY USA, Inc.					3M

Wallingford, CT				Brownwood, TX

(203) 265-2086					(651) 736-3132

	Todd Foster

	Messier-Bugatti, USA

	Walton, KY 41094

	(859) 817-3105

(c) Public Notice

In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et seq.),
the Agency notified the public through a Federal Register notice on the
resubmission of this ICR on February 27, 2009 (74 FR 8937).   EPA did
not receive any comments.

(d) Effects of Less Frequent Collection

Although submitting answers to the questions on the trade secrecy
substantiation form is a necessary step towards ensuring eventual
protection of a chemical identity, the decision to seek that protection
is entirely voluntary.  The submission process involves one initial
collection of information for sufficiency, with the possibility of a
request for supplementary information [as provided in section 322
(d)(3)(A)] to establish veracity of the assertions stated in the
substantiation if EPA determines that a claim is initially sufficient
during a review initiated by public petition or the Agency.

 (e) Confidentiality and Sensitive Questions

All trade secrecy claims submitted to EPA under Title III are handled
and stored according to procedures set out in the Manual for Physical
Handling, Security, and Protection of files containing Trade Secret
Claims submitted under Sections 303, 311, 312 and/or 313 of the
Emergency Planning and Community Right-to-Know Act (EPCRA).   These
procedures were developed expressly for Title III trade secrecy claims
with the knowledge that these documents are sensitive.  Handling and
review of documents containing Title III trade secret information is
permitted only by persons who have obtained formal clearance to access
the information based on a work-related need to engage in these
activities.  When not being processed or reviewed by authorized
individuals, the claim submissions containing trade secret information
are stored in restricted access areas.  To ensure that appropriate
handling procedures are activated and the confidentiality of Title III
trade secret submissions is maintained, the Agency attaches a cover
sheet to the top of each trade secret document and otherwise marks the
document to clearly identify the document as Title III confidential.

6.   Estimating the Burden and Cost of the Collection

(a)  Estimated Number of Trade Secrecy Claims

Costs to the Government and to respondents are based on actual numbers
of trade secrecy claims received during reporting years (RYs) 2006
through 2008 and on estimates of future activity for the upcoming
three-year period.  The reporting year corresponds to the calendar year.
The deadline for submitting claims for a given reporting year falls in
the following calendar year.  For example, the deadline for submitting
claims under section 311/312 for RY 2007 is March 1, 2008 (the deadline
for submitting the hazardous chemical inventory reports under section
312), and the deadline for RY 2007 for section 313 claims is July 1,
2008 (the deadline for submitting Toxic Chemical Release Reporting
Form).  Any facilities that wish to file trade secrecy claims in these
reporting forms must submit the trade secrecy claim package with these
reports.  

Table 1 presents the actual number of submissions indicating trade
secret claims for all sections of Title III for FY07 to FY09
(corresponding to RY06 through RY08).  For the three-year period, the
total number of claims submitted under section 313 was 29 (24 of which
are comprised of the same 8 claims filed by 2 facilities (6 claims by
one facility and 2 claims by the other facility) for each of the three
years, RY05 - RY07).  In summary, there were 11 claims by 3 facilities
in RY 05, 9 claims by 4 facilities in RY 06, and 9 claims by 4
facilities in RY 07.  In previous ICRs, the number of claims submitted
under section 313 was reported to be much higher, because the number
included claims that were later withdrawn by submitters.  This year, all
claims fell under one of two categories.  They were either submitted
complete, with the necessary supporting documentation, or submitters had
mistakenly checked the trade secret claim box on Form R or Form A but
had no intention of actually submitting a claim.  EPA is not reporting
as actual trade secret claims cases where the box was checked purely in
error and no supporting documentation was submitted.  No burden was
incurred by the facility, and EPA corrected the error with a Notice of
Data Change (NDC).  The facility has an opportunity to refute the NDC,
but no facilities chose to do so. (Memorandum from Steven DeBord,
OEI/EPA 05/14/09).  

Table 2 shows the estimated numbers of trade secret claims under
sections 303, 311, 312 and 313 expected to be filed by facilities in the
new ICR period of RY08 through RY10.  No claims are expected to be filed
under section 303. 

Table 1

	Actual Number of Trade Secret Claims

 

________________________________________________________________________
_

SARA Section			RY06		RY07		RY08     	Total

________________________________________________________________________
_

303(d)2 and (d)(3)		  	0	       	0         		0        		0	

311					20		16		29		65

312					337		272		280		889

					RY05		RY06		RY07		Total

313					11	       	9		9	          	29

Table 2

	Estimated Number of Trade Secret Claims

 _______________________________________________________________________
___

SARA Section			RY09		RY10		RY11     	Total 

________________________________________________________________________
__

303(d)2 and (d)(3)		  	0	       	0         		0        		0

311					22		22		22		66

312					296		296		296		888

					RY08		RY09		RY10		Total

313					 9		9		9		27

------------------------------------------------------------------------
-----------------------------------------

Total					327		327		327		981

(b)  Estimating Agency Burden and Cost

Costs to the Federal Government for processing trade secret claims, the
petition and review processes are explained below.

(i)  Processing and Storage of Trade Secret Claims

EPA incurs expenses to process and store each trade secret claim
submission.  These activities include affixing document control number
labels and trade secret cover sheets, processing basic information about
the claims, checking for completeness, and storing the submissions.  EPA
must store all trade secret submissions and be prepared to respond to
public petitions for disclosure of the subject chemical identities. 
Both fixed and variable costs are estimated.

Fixed costs are incurred for maintenance and operation of the existing
storage and filing system for trade secret claims.  Fixed costs for the
three-year period (RY05 through RY07) covered by the expiring ICR for
storage space were $2,550 (Memorandum from Steven DeBord, OEI/EPA,
05/14/09).  Fixed costs for 311/312 claims for the three-year period
(RY06 through RY08) covered by the expiring ICR were $5,200.  

Variable costs are estimated by program.  For sections 303 and 311/312
of EPCRA, costs supporting inventory of new claims; and storage,
retrieval, and checking of claims for completeness, are estimated to be
approximately $11,000.  Variable costs associated with processing
section 313 claims are estimated to be approximately $2000. 

Based on these figures, costs for processing trade secret submissions
for OEI and OSWER are estimated to be $20,750 per year or a total of
$62,250 for the three-year period covered by this ICR. 

 (ii)  Petition/Claim Review

In addition to the costs associated with processing and storing trade
secret claim documents, the Federal government will also incur costs by
responding to petitions filed by the public requesting the Agency’s
review of specific claims, and as a result of EPA initiated review of
claims.

The actual number of petitions which has been filed over the history of
the program is two; the first petition in 1989 pertained to one claim,
and the second in 1990 pertained to 10 claims asserted by one facility. 
No new petitions have been received by the Agency since 1990.  

In the previous ICR, the Agency based its estimates of future burden
and costs for complex reviews on data pertaining to actual reviews
conducted under section 313, which were estimated to be five per year.
However, no high level, complex reviews were performed in the previous
three-year ICR period. This ICR is estimating that three high-level
Agency reviews, 

or nine for the three-year period of FY05 through FY07, will take place
during the next three-year period.(Memorandum from Steven DeBord,
OEI/EPA, 05/14/09). The average burden per complex review is estimated
at 37 hours, and the average cost per review is estimated to be $1,747
(all labor at fully-loaded GS 13, Step 5, rate for 2009).  The annual
burden for three complex reviews is thus estimated to be 111 hours and
the total annual cost, $5,240.  For the three-year period, the total
burden is estimated to be 333 hours, and the cost, $15,720.  All
Agency-initiated reviews were carried out under section 313.  The Agency
does not initiate reviews of claims made under sections 311 and 312 

Under section 322(g), EPA has the responsibility to provide trade secret
information to States that request such information.  One such request
was received, but the company withdrew its trade secret claim. 
Therefore, this ICR does not estimate costs or burdens because no
additional requests are expected, and the Agency does not have adequate
experience on which to base an estimate.							

6(c) Estimating Respondent Burden and Costs

One of the major cost components associated with trade secret claims is
the cost to facilities to prepare substantiations.  The time required to
complete this process for each chemical will vary with the complexity of
the situation, the number of chemicals that a facility seeks to claim as
trade secrets, and the amount of detail that a facility includes in each
answer.  

EPA contacted few facilities (see section 5 of this document) to
estimate the time it takes to fill out the substantiation form submitted
with each claim.  The average number of hours per chemical reported by
facilities is 7.4 hours. Although the facilities that the Agency
contacted informed us that it takes less time to re-submit claims that
were submitted previously, EPA is using the conservative estimate of 9.5
hours that has been used in previous ICRs. For each claim, EPA assumes
that the technical personnel will spend 5.5 hours to prepare answers to
each question in the substantiation form, management will spend 3.0
hours to review the claim and substantiation and the attorney will spend
0.5 hours to review the claim.  Finally, clerical staff will spend 0.5
hours to make copies and mail the package to EPA. The number of claims
submitted in the past three years is lower than the years covered by the
previous ICR.  Therefore, EPA assumes that there will not be any new
facilities submitting trade secret claims.   

 	The cost to respondents is estimated based on the time needed to
complete the substantiation forms and submit to EPA.  Hourly wage rates,
including fringe costs and overhead, are $77.00 for management labor,
$56.90 for lawyer, $60.00 for technical labor, and $16.50 for clerical
labor1.  For one claim at a facility, the unit cost is estimated to be
$597.70.  

	EPA estimates that approximately 327 facilities (Table 2) may submit
trade secret claims annually under sections 303, 311, 312 and 313 of
EPCRA.  The estimated burden for 327 facilities is 3,106 hrs at a cost
of $195,447 annually (9,318 hours at a cost of $586,343 for three years
covered by this ICR).

Petition and Review

	As mentioned in the previous section of this document, EPA does not
expect any petitions under any of the sections of EPCRA during the
period covered by this ICR. EPA only has received two petitions as of
1990.  Therefore, we do not expect any burden associated with this
activity.  

(iv)  Capital and O&M Costs

No capital and operation and maintenance costs are associated with any
requirements in this ICR.

(v)  Explanation of Difference of Annual Reporting Burden

The previous ICR requested an average annual burden of 4,658 hours,
while this ICR requests 3,106 hours.  The decrease in burden is due to
the decrease in the number of facilities that EPA estimates for the next
three years covered by this ICR.  

The estimated annual number of facilities making trade secrecy claims
under sections 303, 311/312, and 313 is 327 for the next three years.  

6(d) Burden Statement

The annual public reporting and recordkeeping burden for this collection
of information is estimated to average 9.5 hours per claim.  Burden
means the total time, effort, or financial resources expended by persons
to generate, maintain, retain, or disclose or provide information to or
for a Federal agency.  This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, and verifying
information, processing and maintaining information, and disclosing and
providing information; adjust the existing ways to comply with any
previously applicable instructions and requirements; train personnel to
be able to respond to a collection of information; search data sources;
complete and review the collection of information; and transmit or
otherwise disclose the information.  An agency may not conduct or
sponsor, and a person is not required to respond to a collection of
information unless it displays a currently valid OMB control number. 
The OMB control numbers for EPA's regulations are listed in 40 CFR part
9 and 48 CFR chapter 15.     					

To comment on the Agency's need for this information, the accuracy of
the provided burden estimates, and any suggested methods for minimizing
respondent burden, including the use of automated collection techniques,
EPA has established a public docket for this ICR under Docket ID Number
EPA-HQ-SFUND-2006-0361, which is available for online viewing at
www.regulations.gov, or in person viewing at the Superfund Docket in the
EPA Docket Center (EPA/DC), EPA West, Room 3334, 1301 Constitution
Avenue, NW, Washington, D.C.  The EPA Docket Center Public Reading Room
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays.  The telephone number for the Reading Room is (202)
566-1744, and the telephone number for the Superfund Docket is (202)
566-0276.  An electronic version of the public docket is available at
www.regulations.gov.  This site can be used to submit or view public
comments, access the index listing of the contents of the public docket,
and to access those documents in the public docket that are available
electronically.  When in the system, select “search,” then key in
the Docket ID Number identified above.  Also, you can send comments to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, 725 17th Street, NW, Washington, D.C. 20503, Attention: Desk
Officer for EPA.  Please include the EPA Docket ID Number
EPA-HQ-SFUND-2006-0361 and OMB Control Number 2050-0078 in any
correspondence. 

 TRI Form R reporting deadline is July 1 annually.  Submissions for RY
08 is only due by July 1, 2009.  Therefore, the data related to trade
secrets under section 313 is only available for RY 05, RY06, and RY 07. 


     Government labor costs are calculated using the following fully
loaded wage rates for 2009: GS-12, Step 5, $39.70/hr; GS-13, Step 5,
$47.21/hr, GS-14, Step 5, $55.78/hr; GS-15 Step 5, $65.62/hr. 

     1Bureau of Labor Statistics, Occupational Employment and Wages,
September 2008.

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