Trade Secret Claims - Private Sector

United States
Environmental Protection
Agency

Office of Solid Waste and
Emergency Response
(5104A)

550-B-14-001
January 2014
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
Only the specific chemical identity
required to be disclosed in EPCRA
sections 303, 311, 312, and 313
submissions may be claimed trade secret
on the EPCRA report. (Other trade
secret or confidential business
information (CBI) included in an answer
to a question on the substantiation form
may be claimed trade secret or
confidential, as described below.) The
trade secret claim must be submitted to
EPA as specified in 40 CFR part 350.
Specifically, facilities may claim
specific chemical identity from the
following EPCRA reports:
•

•

Sections 303(d)(2) and 303(d)(3)
for information related to the
development and revision of the
emergency response plan;
Section 311 submission of the
Safety Data Sheet (SDS), also
known as the Material Safety
Data Sheet (MSDS); or the list of
hazardous chemicals;

Office of Emergency Management

•

Section 312 submission of the
Emergency and Hazardous
Chemical Inventory Form, Tier
II; and

•

Section 313 submission of Toxic
Chemical Release Inventory
(TRI) form.

Note: The location information claimed
as confidential under EPCRA Section
312 (d) (2) (F) should not be sent to
EPA. This information should only be
sent to the State Emergency Response
Commission (SERC), the Local
Emergency Planning Committee
(LEPC), and the local fire department.

Trade Secret Claim Package
The trade secret claim package must be
submitted to EPA at the same time that
an EPCRA report is submitted. For
example, the Tier II form is required to
be submitted to the SERC, the LEPC and
the local fire department on or before
March 1, annually. Therefore, the trade
secret claim package must be submitted
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Instructions for Completing the EPCRA Trade Secret Substantiation Form

to EPA at the same time that the Tier II
is submitted to the SERC, the LEPC and
the fire department. A trade secret claim
package must contain all of the
following as stated in the regulations at
40 CFR 350.5.

Revised January 2014

Note: The Federal Emergency and
Hazardous Chemical Inventory Form,
Tier II, can be accessed on EPA’s
website: http://www2.epa.gov/epcratier-i-and-tier-ii-reporting
•

An unsanitized version of the
Trade Secret Substantiation
Form.

•

A sanitized version of the Trade
Secret Substantiation Form,
which includes a generic class or
category name, instead of the
specific chemical identity name.

EPA cannot process incomplete
packages properly.
•

An unsanitized version of the
required EPCRA report

Note: If you are submitting an MSDS
under EPCRA Section 311, you are not
required to submit an unsanitized MSDS.
For all other EPCRA reports, an
unsanitized version is required to be
submitted.
•

A sanitized version of the
required EPCRA report, which
includes a generic class or
category name, instead of the
specific chemical identity name.

The sanitized version of the EPCRA
report must be sent to the appropriate
state and local agencies as specified in
the regulations at 40 CFR parts 355, 370
and 372.
Note: To avoid confusion, it is suggested
that the sanitized and unsanitized copies
of the EPCRA report(s) be clearly
marked to indicate whether it is the
“sanitized” or the “unsanitized” copy.
For Section 312, please submit the
ENTIRE sanitized and unsanitized
Federal Emergency and Hazardous
Chemical Inventory Form, Tier II, not
just the page on which the chemical
being claimed as trade secret is found
upon.

Office of Emergency Management

Note: A separate substantiation form,
(sanitized and unsanitized) should be
submitted for each chemical being
claimed trade secret.
For details on the assertion of claims of
trade secrecy, see 40 CFR 350.5.

Sanitized and Unsanitized Copies
of the EPCRA Report and
Substantiation Form
The unsanitized version of the EPCRA
report and the substantiation form must
contain the specific chemical identity
name and CAS number and may include
other trade secret or confidential
business information (CBI), which
should be clearly labeled as such. Failure
to claim other information trade secret or
confidential will make that information
publicly available.
Note: If CAS Number is not available or
not assigned for a mixture or product
you are claiming trade secret, you may
enter N/A.

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Instructions for Completing the EPCRA Trade Secret Substantiation Form

Revised January 2014

In the sanitized version of the EPCRA
report and the substantiation form, the
specific chemical identity name and
CAS number must be replaced with the
chemical’s generic class name or
category name. Any other trade secret or
confidential business information should
be deleted.

Fed Ex and Courier Packages should be
sent to the following address:

You should only send the sanitized
copies of the EPCRA report and the
substantiation form, for each chemical
being claimed as trade secret, to the
relevant state and local authorities (the
SERC, the LEPC, and the local fire
department), which would then be made
publicly available. If the unsanitized
copies of the EPCRA report and
substantiation are sent to the state and
local authorities, then the trade secret
claim is no longer valid.

How to Obtain Trade Secret
Substantiation Form and Other
Information

Each question on the substantiation form
must be answered. Submitters are
encouraged to answer in the space
provided. If you need more space to
answer a particular question, please use
additional sheets.
Note: You must submit a sanitized and
an unsanitized substantiation form for
each chemical (or mixture) you are
claiming as trade secret.

Where to Send the Trade Secrecy
Claim
All trade secrecy claims should be sent
to the following address:
EPCRA Trade Secrets
c/o CGI Federal, Inc.
P.O. Box 10162
Fairfax, VA 22038

Office of Emergency Management

EPCRA Trade Secrets
c/o CGI Federal, Inc.
12601 Fair Lakes Circle
Fairfax, VA 22033

•

Visit the EPCRA Tier I and Tier
II Reporting website:
http://www2.epa.gov/epcra/epcr
a-trade-secret-forms-andinstructions

•

Contact the Superfund, TRI,
EPCRA, RMP and Oil
Information Center at 800-4249346 (toll free) or 703-412-9810
(metropolitan DC area)

Substantiation Form:
Instructions for Completing
Specific Section of the Form
Part 1. Substantiation Category
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
more than one box on one form for a
claim is not permitted.
1.2 Reporting Year. Enter the year to
which the reported information applies,
not the year in which you are submitting
the report.

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Instructions for Completing the EPCRA Trade Secret Substantiation Form

1.3a Sanitized. If this copy of the
submission is the “public” or sanitized
version, check this box and complete
1.3.1a, which asks for generic class
name or category name. Do not
complete the information required in the
unsanitized box (1.3b.).
1.3.1a Generic class or Category. You
must complete this section if you are
claiming the specific chemical identity
as a trade secret and have marked the
box in 1.3a. The generic chemical name
must be structurally descriptive of the
chemical. Each individual chemical that
is submitted should be distinguishable
from every other individual chemical
that is being submitted. Thus, each
generic class or category should be
unique.
For example: If a facility wishes to claim
ten chemicals that may belong to the
same generic class or category, facility
may use one generic name, however,
each compound or product should have
additional labeling such as compound
#1, compound #2, etc. (e.g. Amine
compound #1, Amine compound #2, etc.)
Note: The sanitized and unsanitized
chemical name(s) used on the
substantiation form(s) must be the same
or correspond to the names used on the
sanitized and unsanitized EPCRA
reports.
1.3b Unsanitized. Check the box if this
version of the form contains the specific
chemical identity, the CAS number, or
any other trade secret or confidential
business information.
1 3.1b CAS Number. You must enter the
Chemical Abstract Service (CAS)
registry number that appears in the

Office of Emergency Management

Revised January 2014

appropriate section of the rule for the
chemical being reported on the
unsanitized form only, if one is
available. Use leading place holding
zeros. If you are reporting a chemical
category (e.g., copper compounds), enter
N/A in the CAS number space. Also, if a
CAS number is not assigned to the
chemical or mixture you are claiming
trade secret, you may enter N/A.
1.3.2b Specific Chemical Identity. Enter
the name of the chemical or chemical
category as it is listed in the appropriate
section of the reporting rule on the
unsanitized form only.
Part 2. Facility Identification
Information
2.1-2.3 Facility Name and Location.
You must enter the name of your facility
(plant site name or appropriate facility
designation), street address, city, state
and ZIP Code in the space provided.
You may not use a post office box
number for this location.
2.4 Dun and Bradstreet Number. You
must enter the number assigned by Dun
and Bradstreet (D&B) for your facility
or each establishment within your
facility. If the establishment does not
have a D&B number, enter N/A in the
boxes reserved for those numbers. Use
leading place holding zeros.
Part 3. Responses to Substantiation
Questions
The six questions posed in this form are
based on the four statutory criteria found
in section 322(b) of EPCRA. The
information you submit in response to
these questions is the basis for EPA’s
initial determination as to whether the

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Instructions for Completing the EPCRA Trade Secret Substantiation Form

substantiation is sufficient to support a
claim of trade secrecy. EPA has
indicated in 40 CFR 350.13 of the final
rule the specific criteria that it regards as
the legal basis for evaluating whether the
answers you have provided are sufficient
to warrant protection of the chemical
identity. You are urged to review those
criteria before preparing answers to the
questions on the form.
Part 4. Certification
An original signature is required for each
trade secret substantiation form (both
sanitized and unsanitized), submitted to
EPA. The EPCRA report(s) submitted,
within the trade secret claim package,
should also have the signature of the
owner or operator or the
authorized representative. The signature
indicates that the submitter is certifying
that the information provided is
complete, true, and accurate, and that it
is intended to support the specific trade
secret claim being made. Noncompliance with this certification
requirement may jeopardize the trade
secret claim.
4.1 Name and Official Title. Print or type
the name and title of the person who
signs the statement at 4.2.
4.2 Signature. This certification must be
signed by the owner or operator, or a
senior official with management
responsibility for the person (or persons)
completing the form. An original
signature is required for each trade secret
substantiation submitted to EPA, both
sanitized and unsanitized. Since the
certification applies to all information
supplied on the forms, it should be
signed only after the substantiation has
been completed.

Office of Emergency Management

Revised January 2014

4.3 Date. Enter the date when the
certification was signed.
Definition of trade secret. (Appendix
A-Restatement of Torts Section 757.)
A trade secret may consist of any
formula, pattern, device or compilation
of information which is used in one’s
business, and which gives him an
opportunity to obtain an advantage over
competitors who do not know or use it.
It may be a formula for a chemical
compound, a process of manufacturing,
treating or preserving materials, a pattern
for a machine or other device, or a list of
customers. It differs from other secret
information in a business (see section
759) in that it is not simply information
as a single or ephemeral event in the
conduct of the business. For example, a
trade secret is not like the amount or
other terms of a secret bid for a contract
or the salary of certain employees, or the
security investments made or
contemplated, or the date fixed for the
announcement of a new policy or for
bringing out a new model or the like. A
trade secret is a process or device for
continuous use in the operation of the
business. Generally it relates to the
production of goods, as, for example, a
machine or formula for the production of
an article. It may, however, relate to the
sale of goods to other operations in the
business, such as a code for determining
discounts, rebates or other concessions
in a price list or catalogue, or a list of
specialized customers, or a method of
bookkeeping or other office
management.
Secrecy. The subject matter of a trade
secret must be secret. Matters of public
knowledge or of general knowledge in
an industry cannot be appropriated by
one as his secret. Matters which are

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Instructions for Completing the EPCRA Trade Secret Substantiation Form

completely disclosed by the goods which
one markets cannot be his secret.
Substantially, a trade secret is known
only in the particular business in which
it is used. It is not requisite that only the
proprietor of the business knows it. He
may, without losing his protection,
communicate it to employees involved
in its use. He may likewise communicate
it to others pledged to secrecy. Others
may also know of it independently, as,
for example, when they have discovered
the process or formula by independent
invention and are keeping it secret.
Nevertheless, a substantial element of
secrecy must exist, so that, except by the
use of improper means, there would be
difficulty in acquiring the information.
An exact definition of a trade secret is
not possible. Some factors to be
considered in determining whether given
information is one’s trade secret are: (1)
The extent to which the information is
known outside of his business; (2) the
extent to which it is known by
employees and others involved in his
business; (3) the extent of measures
taken by him to guard the secrecy of the
information; (4) the value of the
information to him and to his
competitors; (5) the amount of effort or
money expended by him in developing
the information; (6) the ease or difficulty
with which the information could be
properly acquired or duplicated by
others.

Revised January 2014

These requirements are essential to
patentability because a patent protects
against unlicensed use of the patented
device or process even by one who
discovers it properly through
independent research. The patent
monopoly is a reward to the inventor.
But such is not the case with a trade
secret. Its protection is not based on a
policy of rewarding or otherwise
encouraging the development of secret
processes or devices. The protection is
merely against breach of faith and
reprehensible means of learning
another’s secret. For this limited
protection it is not appropriate to require
also the kind of novelty and invention
which is a requisite of patentability. The
nature of the secret is, however, an
important factor in determining the kind
of relief that is appropriate against one
who is subject to liability under the rule
stated in this section. Thus, if the secret
consists of a device or process which is a
novel invention, one who acquires the
secret wrongfully is ordinarily enjoined
from further use of it and is required to
account for the profits derived from his
past use. If, on the other hand, the secret
consists of mechanical improvements
that a good mechanic can make without
resort to the secret, the wrongdoer’s
liability may be limited to damages, and
an injunction against future use of the
improvements made with the aid of the
secret may be inappropriate.

Novelty and prior art. 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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Instructions for Completing the EPCRA Trade Secret Substantiation Form

Revised January 2014

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)

Office of Emergency Management

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