§2613. Confidential information

(a)

In general— Except as provided in this section, the Administrator shall not disclose information that is exempt from disclosure pursuant to subsection (a) of section 552 of title 5 by reason of subsection (b)(4) of that section—

(1)

that is reported to, or otherwise obtained by, the Administrator under this chapter; and

(2)

for which the requirements of subsection (c) are met.

In any proceeding under section 552(a) of title 5 to obtain information the disclosure of which has been denied because of the provisions of this subsection, the Administrator may not rely on section 552(b)(3) of such title to sustain the Administrator’s action.

(b)

Information not protected from disclosure—

(1)

Mixed confidential and nonconfidential information— Information that is protected from disclosure under this section, and which is mixed with information that is not protected from disclosure under this section, does not lose its protection from disclosure notwithstanding that it is mixed with information that is not protected from disclosure.

(2)

Information from health and safety studies— Subsection (a) does not prohibit the disclosure of—

(A)

any health and safety study which is submitted under this chapter with respect to—

(i)

any chemical substance or mixture which, on the date on which such study is to be disclosed has been offered for commercial distribution; or

(ii)

any chemical substance or mixture for which testing is required under section 2603 of this title or for which notification is required under section 2604 of this title; and

(B)

any information reported to, or otherwise obtained by, the Administrator from a health and safety study which relates to a chemical substance or mixture described in clause (i) or (ii) of subparagraph (A).

This paragraph does not authorize the disclosure of any information, including formulas (including molecular structures) of a chemical substance or mixture, that discloses processes used in the manufacturing or processing of a chemical substance or mixture or, in the case of a mixture, the portion of the mixture comprised by any of the chemical substances in the mixture.

(3)

Other information not protected from disclosure— Subsection (a) does not prohibit the disclosure of—

(A)

any general information describing the manufacturing volumes, expressed as specific aggregated volumes or, if the Administrator determines that disclosure of specific aggregated volumes would reveal confidential information, expressed in ranges; or

(B)

a general description of a process used in the manufacture or processing and industrial, commercial, or consumer functions and uses of a chemical substance, mixture, or article containing a chemical substance or mixture, including information specific to an industry or industry sector that customarily would be shared with the general public or within an industry or industry sector.

(4)

Bans and phase-outs—

(A)

In general— If the Administrator promulgates a rule pursuant to section 2605(a) of this title that establishes a ban or phase-out of a chemical substance or mixture, the protection from disclosure of any information under this section with respect to the chemical substance or mixture shall be presumed to no longer apply, subject to subsection (g)(1)(E) and subparagraphs (B) and (C) of this paragraph.

(B)

Limitations—

(i)

Critical use— In the case of a chemical substance or mixture for which a specific condition of use is subject to an exemption pursuant to section 2605(g) of this title, if the Administrator establishes a ban or phase-out described in subparagraph (A) with respect to the chemical substance or mixture, the presumption against protection under such subparagraph shall only apply to information that relates solely to any conditions of use of the chemical substance or mixture to which the exemption does not apply.

(ii)

Export— In the case of a chemical substance or mixture for which there is manufacture, processing, or distribution in commerce that meets the conditions of section 2611(a)(1) of this title, if the Administrator establishes a ban or phase-out described in subparagraph (A) with respect to the chemical substance or mixture, the presumption against protection under such subparagraph shall only apply to information that relates solely to any other manufacture, processing, or distribution in commerce of the chemical substance or mixture for the conditions of use subject to the ban or phase-out, unless the Administrator makes the determination in section 2611(a)(2) of this title.

(iii)

Specific conditions of use— In the case of a chemical substance or mixture for which the Administrator establishes a ban or phase-out described in subparagraph (A) with respect to a specific condition of use of the chemical substance or mixture, the presumption against protection under such subparagraph shall only apply to information that relates solely to the condition of use of the chemical substance or mixture for which the ban or phase-out is established.

(C)

Request for nondisclosure—

(i)

In general— A manufacturer or processor of a chemical substance or mixture subject to a ban or phase-out described in this paragraph may submit to the Administrator, within 30 days of receiving a notification under subsection (g)(2)(A), a request, including documentation supporting such request, that some or all of the information to which the notice applies should not be disclosed or that its disclosure should be delayed, and the Administrator shall review the request under subsection (g)(1)(E).

(ii)

Effect of no request or denial— If no request for nondisclosure or delay is submitted to the Administrator under this subparagraph, or the Administrator denies such a request under subsection (g)(1)(A), the information shall not be protected from disclosure under this section.

(5)

Certain requests— If a request is made to the Administrator under section 552(a) of title 5 for information reported to or otherwise obtained by the Administrator under this chapter that is not protected from disclosure under this subsection, the Administrator may not deny the request on the basis of section 552(b)(4) of title 5.

(c)

Requirements for confidentiality claims—

(1)

Assertion of claims—

(A)

In general— A person seeking to protect from disclosure any information that person submits under this chapter (including information described in paragraph (2)) shall assert to the Administrator a claim for protection from disclosure concurrent with submission of the information, in accordance with such rules regarding a claim for protection from disclosure as the Administrator has promulgated or may promulgate pursuant to this subchapter.

(B)

Inclusion— An assertion of a claim under subparagraph (A) shall include a statement that the person has—

(i)

taken reasonable measures to protect the confidentiality of the information;

(ii)

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

(iii)

a reasonable basis to conclude that disclosure of the information is likely to cause substantial harm to the competitive position of the person; and

(iv)

a reasonable basis to believe that the information is not readily discoverable through reverse engineering.

(C)

Additional requirements for claims regarding chemical identity information— In the case of a claim under subparagraph (A) for protection from disclosure of a specific chemical identity, the claim shall include a structurally descriptive generic name for the chemical substance that the Administrator may disclose to the public, subject to the condition that such generic name shall—

(i)

be consistent with guidance developed by the Administrator under paragraph (4)(A); and

(ii)

describe the chemical structure of the chemical substance as specifically as practicable while protecting those features of the chemical structure—

(I)

that are claimed as confidential; and

(II)

the disclosure of which would be likely to cause substantial harm to the competitive position of the person.

(2)

Information generally not subject to substantiation requirements— Subject to subsection (f), the following information shall not be subject to substantiation requirements under paragraph (3):

(A)

Specific information describing the processes used in manufacture or processing of a chemical substance, mixture, or article.

(B)

Marketing and sales information.

(C)

Information identifying a supplier or customer.

(D)

In the case of a mixture, details of the full composition of the mixture and the respective percentages of constituents.

(E)

Specific information regarding the use, function, or application of a chemical substance or mixture in a process, mixture, or article.

(F)

Specific production or import volumes of the manufacturer or processor.

(G)

Prior to the date on which a chemical substance is first offered for commercial distribution, the specific chemical identity of the chemical substance, including the chemical name, molecular formula, Chemical Abstracts Service number, and other information that would identify the specific chemical substance, if the specific chemical identity was claimed as confidential at the time it was submitted in a notice under section 2604 of this title.

(3)

Substantiation requirements— Except as provided in paragraph (2), a person asserting a claim to protect information from disclosure under this section shall substantiate the claim, in accordance with such rules as the Administrator has promulgated or may promulgate pursuant to this section.

(4)

Guidance— The Administrator shall develop guidance regarding—

(A)

the determination of structurally descriptive generic names, in the case of claims for the protection from disclosure of specific chemical identity; and

(B)

the content and form of the statements of need and agreements required under paragraphs (4), (5), and (6) of subsection (d).

(5)

Certification— An authorized official of a person described in paragraph (1)(A) shall certify that the statement required to assert a claim submitted pursuant to paragraph (1)(B), and any information required to substantiate a claim submitted pursuant to paragraph (3), are true and correct.

(d)

Exceptions to protection from disclosure— Information described in subsection (a)—

(1)

shall be disclosed to an officer or employee of the United States—

(A)

in connection with the official duties of that person under any Federal law for the protection of health or the environment; or

(B)

for a specific Federal law enforcement purpose;

(2)

shall be disclosed to a contractor of the United States and employees of that contractor—

(A)

if, in the opinion of the Administrator, the disclosure is necessary for the satisfactory performance by the contractor of a contract with the United States for the performance of work in connection with this chapter; and

(B)

subject to such conditions as the Administrator may specify;

(3)

shall be disclosed if the Administrator determines that disclosure is necessary to protect health or the environment against an unreasonable risk of injury to health or the environment, without consideration of costs or other nonrisk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use;

(4)

shall be disclosed to a State, political subdivision of a State, or tribal government, on written request, for the purpose of administration or enforcement of a law, if such entity has 1 or more applicable agreements with the Administrator that are consistent with the guidance developed under subsection (c)(4)(B) and ensure that the entity will take appropriate measures, and has adequate authority, to maintain the confidentiality of the information in accordance with procedures comparable to the procedures used by the Administrator to safeguard the information;

(5)

shall be disclosed to a health or environmental professional employed by a Federal or State agency or tribal government or a treating physician or nurse in a nonemergency situation if such person provides a written statement of need and agrees to sign a written confidentiality agreement with the Administrator, subject to the conditions that—

(A)

the statement of need and confidentiality agreement are consistent with the guidance developed under subsection (c)(4)(B);

(B)

the statement of need shall be a statement that the person has a reasonable basis to suspect that—

(i)

the information is necessary for, or will assist in—

(I)

the diagnosis or treatment of 1 or more individuals; or

(II)

responding to an environmental release or exposure; and

(ii)

1 or more individuals being diagnosed or treated have been exposed to the chemical substance or mixture concerned, or an environmental release of or exposure to the chemical substance or mixture concerned has occurred; and

(C)

the person will not use the information for any purpose other than the health or environmental needs asserted in the statement of need, except as otherwise may be authorized by the terms of the agreement or by the person who has a claim under this section with respect to the information;

(6)

shall be disclosed in the event of an emergency to a treating or responding physician, nurse, agent of a poison control center, public health or environmental official of a State, political subdivision of a State, or tribal government, or first responder (including any individual duly authorized by a Federal agency, State, political subdivision of a State, or tribal government who is trained in urgent medical care or other emergency procedures, including a police officer, firefighter, or emergency medical technician) if such person requests the information, subject to the conditions that such person shall—

(A)

have a reasonable basis to suspect that—

(i)

a medical, public health, or environmental emergency exists;

(ii)

the information is necessary for, or will assist in, emergency or first-aid diagnosis or treatment; or

(iii)

1 or more individuals being diagnosed or treated have likely been exposed to the chemical substance or mixture concerned, or a serious environmental release of or exposure to the chemical substance or mixture concerned has occurred; and

(B)

if requested by a person who has a claim with respect to the information under this section—

(i)

provide a written statement of need and agree to sign a confidentiality agreement, as described in paragraph (5); and

(ii)

submit to the Administrator such statement of need and confidentiality agreement as soon as practicable, but not necessarily before the information is disclosed;

(7)

may be disclosed if the Administrator determines that disclosure is relevant in a proceeding under this chapter, subject to the condition that the disclosure is made in such a manner as to preserve confidentiality to the extent practicable without impairing the proceeding;

(8)

shall be disclosed if the information is required to be made public under any other provision of Federal law; and

(9)

shall be disclosed as required pursuant to discovery, subpoena, other court order, or any other judicial process otherwise allowed under applicable Federal or State law.

(e)

Duration of protection from disclosure—

(1)

In general— Subject to paragraph (2), subsection (f)(3), and section 2607(b) of this title, the Administrator shall protect from disclosure information described in subsection (a)—

(A)

in the case of information described in subsection (c)(2), until such time as—

(i)

the person that asserted the claim notifies the Administrator that the person is withdrawing the claim, in which case the information shall not be protected from disclosure under this section; or

(ii)

the Administrator becomes aware that the information does not qualify for protection from disclosure under this section, in which case the Administrator shall take any actions required under subsections (f) and (g); and

(B)

in the case of information other than information described in subsection (c)(2)—

(i)

for a period of 10 years from the date on which the person asserts the claim with respect to the information submitted to the Administrator; or

(ii)

if applicable before the expiration of such 10-year period, until such time as—

(I)

the person that asserted the claim notifies the Administrator that the person is withdrawing the claim, in which case the information shall not be protected from disclosure under this section; or

(II)

the Administrator becomes aware that the information does not qualify for protection from disclosure under this section, in which case the Administrator shall take any actions required under subsections (f) and (g).

(2)

Extensions—

(A)

In general— In the case of information other than information described in subsection (c)(2), not later than the date that is 60 days before the expiration of the period described in paragraph (1)(B)(i), the Administrator shall provide to the person that asserted the claim a notice of the impending expiration of the period.

(B)

Request—

(i)

In general— Not later than the date that is 30 days before the expiration of the period described in paragraph (1)(B)(i), a person reasserting the relevant claim shall submit to the Administrator a request for extension substantiating, in accordance with subsection (c)(3), the need to extend the period.

(ii)

Action by Administrator— Not later than the date of expiration of the period described in paragraph (1)(B)(i), the Administrator shall, in accordance with subsection (g)(1)—

(I)

review the request submitted under clause (i);

(II)

make a determination regarding whether the claim for which the request was submitted continues to meet the relevant requirements of this section; and

(III)

(aa)

grant an extension of 10 years; or

(bb)

deny the request.

(C)

No limit on number of extensions— There shall be no limit on the number of extensions granted under this paragraph, if the Administrator determines that the relevant request under subparagraph (B)(i)—

(i)

establishes the need to extend the period; and

(ii)

meets the requirements established by the Administrator.

(f)

Review and resubstantiation—

(1)

Discretion of Administrator— The Administrator may require any person that has claimed protection for information from disclosure under this section, whether before, on, or after June 22, 2016, to reassert and substantiate or resubstantiate the claim in accordance with this section—

(A)

after the chemical substance is designated as a high-priority substance under section 2605(b) of this title;

(B)

for any chemical substance designated as an active substance under section 2607(b)(5)(B)(iii) of this title; or

(C)

if the Administrator determines that disclosure of certain information currently protected from disclosure would be important to assist the Administrator in conducting risk evaluations or promulgating rules under section 2605 of this title.

(2)

Review required— The Administrator shall review a claim for protection of information from disclosure under this section and require any person that has claimed protection for that information, whether before, on, or after June 22, 2016, to reassert and substantiate or resubstantiate the claim in accordance with this section—

(A)

as necessary to determine whether the information qualifies for an exemption from disclosure in connection with a request for information received by the Administrator under section 552 of title 5;

(B)

if the Administrator has a reasonable basis to believe that the information does not qualify for protection from disclosure under this section; or

(C)

for any chemical substance the Administrator determines under section 2605(b)(4)(A) of this title presents an unreasonable risk of injury to health or the environment.

(3)

Period of protection— If the Administrator requires a person to reassert and substantiate or resubstantiate a claim under this subsection, and determines that the claim continues to meet the relevant requirements of this section, the Administrator shall protect the information subject to the claim from disclosure for a period of 10 years from the date of such determination, subject to any subsequent requirement by the Administrator under this subsection.

(g)

Duties of Administrator—

(1)

Determination—

(A)

In general— Except for claims regarding information described in subsection (c)(2), the Administrator shall, subject to subparagraph (C), not later than 90 days after the receipt of a claim under subsection (c), and not later than 30 days after the receipt of a request for extension of a claim under subsection (e) or a request under subsection (b)(4)(C), review and approve, approve in part and deny in part, or deny the claim or request.

(B)

Reasons for denial— If the Administrator denies or denies in part a claim or request under subparagraph (A) the Administrator shall provide to the person that asserted the claim or submitted the request a written statement of the reasons for the denial or denial in part of the claim or request.

(C)

Subsets— The Administrator shall—

(i)

except with respect to information described in subsection (c)(2)(G), review all claims or requests under this section for the protection from disclosure of the specific chemical identity of a chemical substance; and

(ii)

review a representative subset, comprising at least 25 percent, of all other claims or requests for protection from disclosure under this section.

(D)

Effect of failure to act— The failure of the Administrator to make a decision regarding a claim or request for protection from disclosure or extension under this section shall not have the effect of denying or eliminating a claim or request for protection from disclosure.

(E)

Determination of requests under subsection (b)(4)(C)— With respect to a request submitted under subsection (b)(4)(C), the Administrator shall, with the objective of ensuring that information relevant to the protection of health and the environment is disclosed to the extent practicable, determine whether the documentation provided by the person rebuts what shall be the presumption of the Administrator that the public interest in the disclosure of the information outweighs the public or proprietary interest in maintaining the protection for all or a portion of the information that the person has requested not be disclosed or for which disclosure be delayed.

(2)

Notification—

(A)

In general— Except as provided in subparagraph (B) and subsections (b), (d), and (e), if the Administrator denies or denies in part a claim or request under paragraph (1), concludes, in accordance with this section, that the information does not qualify for protection from disclosure, intends to disclose information pursuant to subsection (d), or promulgates a rule under section 2605(a) of this title establishing a ban or phase-out with respect to a chemical substance or mixture, the Administrator shall notify, in writing, the person that asserted the claim or submitted the request of the intent of the Administrator to disclose the information or not protect the information from disclosure under this section. The notice shall be furnished by certified mail (return receipt requested), by personal delivery, or by other means that allows verification of the fact and date of receipt.

(B)

Disclosure of information— Except as provided in subparagraph (C), the Administrator shall not disclose information under this subsection until the date that is 30 days after the date on which the person that asserted the claim or submitted the request receives notification under subparagraph (A).

(C)

Exceptions—

(i)

Fifteen day notification— For information the Administrator intends to disclose under subsections (d)(3), (d)(4), (d)(5), and (j), the Administrator shall not disclose the information until the date that is 15 days after the date on which the person that asserted the claim or submitted the request receives notification under subparagraph (A), except that, with respect to information to be disclosed under subsection (d)(3), if the Administrator determines that disclosure of the information is necessary to protect against an imminent and substantial harm to health or the environment, no prior notification shall be necessary.

(ii)

Notification as soon as practicable— For information the Administrator intends to disclose under paragraph (6) of subsection (d), the Administrator shall notify the person that submitted the information that the information has been disclosed as soon as practicable after disclosure of the information.

(iii)

No notification required— Notification shall not be required—

(I)

for the disclosure of information under paragraphs (1), (2), (7), or (8) of subsection (d); or

(II)

for the disclosure of information for which—

(aa)

the Administrator has provided to the person that asserted the claim a notice under subsection (e)(2)(A); and

(bb)

such person does not submit to the Administrator a request under subsection (e)(2)(B) on or before the deadline established in subsection (e)(2)(B)(i).

(D)

Appeals—

(i)

Action to restrain disclosure— If a person receives a notification under this paragraph and believes the information is protected from disclosure under this section, before the date on which the information is to be disclosed pursuant to subparagraph (B) or (C) the person may bring an action to restrain disclosure of the information in—

(I)

the United States district court of the district in which the complainant resides or has the principal place of business; or

(II)

the United States District Court for the District of Columbia.

(ii)

No disclosure—

(I)

In general— Subject to subsection (d), the Administrator shall not disclose information that is the subject of an appeal under this paragraph before the date on which the applicable court rules on an action under clause (i).

(II)

Exception— Subclause (I) shall not apply to disclosure of information described under subsections (d)(4) and (j).

(3)

Request and notification system— The Administrator, in consultation with the Director of the Centers for Disease Control and Prevention, shall develop a request and notification system that, in a format and language that is readily accessible and understandable, allows for expedient and swift access to information disclosed pursuant to paragraphs (5) and (6) of subsection (d).

(4)

Unique identifier— The Administrator shall—

(A)

(i)

develop a system to assign a unique identifier to each specific chemical identity for which the Administrator approves a request for protection from disclosure, which shall not be either the specific chemical identity or a structurally descriptive generic term; and

(ii)

apply that identifier consistently to all information relevant to the applicable chemical substance;

(B)

annually publish and update a list of chemical substances, referred to by their unique identifiers, for which claims to protect the specific chemical identity from disclosure have been approved, including the expiration date for each such claim;

(C)

ensure that any nonconfidential information received by the Administrator with respect to a chemical substance included on the list published under subparagraph (B) while the specific chemical identity of the chemical substance is protected from disclosure under this section identifies the chemical substance using the unique identifier; and

(D)

for each claim for protection of a specific chemical identity that has been denied by the Administrator or expired, or that has been withdrawn by the person who asserted the claim, and for which the Administrator has used a unique identifier assigned under this paragraph to protect the specific chemical identity in information that the Administrator has made public, clearly link the specific chemical identity to the unique identifier in such information to the extent practicable.

(h)

Criminal penalty for wrongful disclosure—

(1)

Individuals subject to penalty—

(A)

In general— Subject to subparagraph (C) and paragraph (2), an individual described in subparagraph (B) shall be fined under title 18 or imprisoned for not more than 1 year, or both.

(B)

Description— An individual referred to in subparagraph (A) is an individual who—

(i)

pursuant to this section, obtained possession of, or has access to, information protected from disclosure under this section; and

(ii)

knowing that the information is protected from disclosure under this section, willfully discloses the information in any manner to any person not entitled to receive that information.

(C)

Exception— This paragraph shall not apply to any medical professional (including an emergency medical technician or other first responder) who discloses any information obtained under paragraph (5) or (6) of subsection (d) to a patient treated by the medical professional, or to a person authorized to make medical or health care decisions on behalf of such a patient, as needed for the diagnosis or treatment of the patient.

(2)

Other laws— Section 1905 of title 18 shall not apply with respect to the publishing, divulging, disclosure, or making known of, or making available, information reported to or otherwise obtained by the Administrator under this chapter.

(i)

Applicability—

(1)

In general— Except as otherwise provided in this section, section 2607 of this title, or any other applicable Federal law, the Administrator shall have no authority—

(A)

to require the substantiation or resubstantiation of a claim for the protection from disclosure of information reported to or otherwise obtained by the Administrator under this chapter prior to June 22, 2016; or

(B)

to impose substantiation or resubstantiation requirements, with respect to the protection of information described in subsection (a), under this chapter that are more extensive than those required under this section.

(2)

Actions prior to promulgation of rules— Nothing in this chapter prevents the Administrator from reviewing, requiring substantiation or resubstantiation of, or approving, approving in part, or denying any claim for the protection from disclosure of information before the effective date of such rules applicable to those claims as the Administrator may promulgate after June 22, 2016.

(j)

Access by Congress— Notwithstanding any limitation contained in this section or any other provision of law, all information reported to or otherwise obtained by the Administrator (or any representative of the Administrator) under this chapter shall be made available, upon written request of any duly authorized committee of the Congress, to such committee.

§2613. Confidential information

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Statutory Notes and Related Subsidiaries

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