The U.S. Environmental Protection Agency (EPA) recently released a pre-publication version of its final rule amending the Chemical Data Reporting (CDR) rule codified at 40 CFR Part 711. The changes to the CDR rule are intended to ensure alignment with the 2016 amendments to the Toxic Substances Control Act (TSCA). In a separate action, EPA extended the 2020 CDR submission period to November 30, 2020. Companies may therefore submit their CDR data anytime between June 1, 2020 and November 30, 2020. These regulatory actions establish new a process and substantive requirements for submitting companies and provide an additional window for companies to plan and complete their 2020 CDR submissions.

CDR overview

The CDR rule requires manufacturers (including importers) to provide EPA with data on the production and use of certain chemical substances listed on TSCA inventory. CDR occurs every four years and generally applies to the manufacture or importation of 25,000 pounds or more of a subject chemical substance in a given reporting year. EPA evaluates the CDR submissions to glean basic information on potential chemical exposure. Based on that information, EPA considers the need for regulatory action to protect public health and the environment.

Summary of rule changes for the 2020 CDR

  • Confidentiality claims – The 2020 CDR rule changes the process for claiming confidentiality to align with the 2016 amendments to TSCA. Most notably, the 2020 CDR rule requires upfront substantiation of confidentiality claims at the time data are submitted. The upfront substantiation requirement will not apply to production volume, but production volume may be subject to substantiation and confidentiality review through other mechanisms (e.g., agency discretion). Additionally, the 2020 CDR rule bars confidentiality claims for certain data including general processing and use information.     
  • Phase-in of Organization for Economic Co-operation and Development (OECD) Codes – CDR requires manufacturers and importers to report industrial, consumer, and commercial processing and use information for subject chemicals. This information is submitted using reporting codes. The 2020 CDR rule phases-in OECD codes in lieu of CDR codes. Therefore, submitters will report chemical use information using OECD codes. EPA has added features to the CDR electronic-reporting tool (e-CDRweb) to facilitate the transition to OECD codes.      
  • North American Industry Classification System (NAICS) code requirement – The 2020 CDR rule requires the reporting site to identify and report the NAICS code that best describes the manufacturing activities at the site. Companies should be aware that their selection of NAICS codes can have implications for other environmental and safety statutes and regulations. 
  • Reporting recycled material – The 2020 CDR rule changes the information that must be reported for chemical substances recycled or otherwise used for a commercial purpose. Previously, CDR required submitters to specify whether a chemical substance was recycled, remanufactured, reprocessed, reused, or otherwise used for a commercial purpose. The 2020 CDR rule eliminates the requirement to specify whether a chemical substance is remanufactured, reprocessed, or reused. Instead, submitters must only report whether a chemical substance is recycled or otherwise used for a commercial purpose.   
  • Voluntary reporting of percent byproduct – The 2020 CDR rule includes a voluntary reporting element for byproducts. Companies may now voluntarily report the percentage of total production volume (by weight) for a chemical substance that is a byproduct. EPA intends to use the voluntarily submitted information to better understand potential exposure scenarios and which industries primarily produce byproducts.   
  • Joint submissions – The 2020 CDR rule adds a requirement for the secondary submitter of a joint submission to report the specific chemical identity of the substances that comprise a mixture. According to the agency, EPA added this requirement because non-U.S. suppliers were not providing importers with the chemical identity of the substances in a mixture. 
  • Parent company information – The 2020 CDR rule changes the reporting requirements for sites with non-U.S. parent companies. Those sites must now report the name of the foreign parent company in addition to the name of the highest-level U.S. parent company. EPA will include information on providing parent company names in its instructions for the 2020 CDR submission process. 
  • Reporting process for co-manufacturers – The 2020 CDR rule provides two options for manufacturers reporting information on co-manufactured chemicals. One option allows the contracting company (e.g., toll manufacturer) to initiate a co-manufacturer report, which then prompts the reporting requirements for the other manufacturer. The other option allows the manufacturers to enter into an agreement to share the information needed for a complete submission for the co-manufactured chemical. Under this option, only one of the manufacturers needs to submit the report so long as it is complete. EPA states that these options are intended to provide flexibility where manufacturers coordinate to produce a chemical substance.    
  • Exemptions for byproducts – The 2020 CDR rule adds two exemptions that apply to byproducts. Byproducts within the scope of these exemptions do not need to be reported under CDR. The first exemption applies to byproducts of Portland cement manufacturing and kraft pulping processing that are recycled via enclosed site-limited systems. The second exemption applies to byproducts produced by non-integral pollution control equipment and boilers used to generate heat or electricity. For the purposes of this exemption, “non-integral” means not integral to the manufacture of the intended product. Examples include byproducts produced in wastewater treatment, flue gas desulfurization, and catalytic reduction systems. EPA states that it will draft guidance for this exemption.
  • Regulatory text – The 2020 CDR rule modifies the regulatory text in 40 CFR Part 711 to update references, delete duplication, and remove outdated information.