«TSCA Chemical Data Reporting Fact Sheet: Reporting After Changes to Company Ownership or Legal Identity This fact sheet provides information for ...»
U.S. Environmental Protection Agency January 2016
TSCA Chemical Data Reporting
Fact Sheet: Reporting After Changes to Company Ownership
or Legal Identity
This fact sheet provides information for persons who may be subject to the Chemical Data
Reporting (CDR) rule about issues related to changes to company ownership or legal identity which
may affect reporting for the 2016 reporting period.
The primary goal of this document is to help the regulated community comply with the requirements of the CDR rule. This document does not substitute for that rule, nor is it a rule itself.
It does not impose legally binding requirements on the regulated community or on the U.S.
Environmental Protection Agency (EPA).
The CDR rule, issued under the Toxic Substances Control Act (TSCA), requires manufacturers (including importers) to give EPA information on the chemicals they manufacture domestically or import into the United States. EPA uses the data, which provides important screening-level exposure related information, to help assess the potential human health and environmental effects of these chemicals and makes the non-confidential business information it receives available to the public.
General Principles for Reporting Under 2016 CDR
• Under 40 CFR 711.8(a), the reporting obligation falls to the “person who manufactured.”
• EPA recognizes that in some cases, business transactions occurring between 2012 and 2015 have led to questions about who is now the “person who manufactured.” The scenarios below are intended to serve as a general aid in appropriately resolving these questions, but they will not necessarily account for all the relevant circumstances of a particular transaction.
• It is ultimately the manufacturer’s responsibility to report appropriately under CDR, notwithstanding the complexity of its own business transactions.
General Scenarios Involving Company Changes
1. One company changes its company and/or site name (e.g., a company has changed its company name and/or a site name since January 1, 2012).
• The company should report to CDR in 2016 using its current business name and the current site name. Use current information even if the reporting is with respect to manufacture that occurred while the manufacturer was doing business under a prior company or site name.
2. Two companies are co-manufacturers at a site (e.g., two parties undertake to manufacture a chemical substance at a single site)
• When two companies meet EPA’s definition of “manufacturer” because they comanufacture a particular volume of chemical substance at a particular site (see 40 CFR U.S. Environmental Protection Agency January 2016
711.3 for the definition of “manufacture” and “manufacturer”), the manufacturers may determine among themselves which one of them will report the full volume that they together manufactured at that site.
• However, if no report is submitted when one is required, EPA may hold each comanufacturer liable for the failure to report. See 40 CFR 711.8 (“any person who manufactured” is subject to CDR).
3. One company becomes two companies (e.g., a manufacturing division of Company X is separated from Company X to become Company Y)
• Company X and Company Y should determine, based on the circumstances of their reorganization, whether Company Y was created as the continuation of the part of Company X that previously conducted the manufacture of the pertinent substance(s).
If Company Y is the continuation of the part of Company X that manufactured the o pertinent substance(s), then Company Y reports based on all the manufacturing that Company X did in 2012-2015, including the manufacturing that it did while it was a unit of Company X.
If Company Y is not the continuation of the part of Company X that manufactured the o pertinent substance(s), then Company Y only reports based on the manufacturing that it did after it was created, and Company X reports separately based on its own manufacturing.
• If Company X is a U.S. company that owns at least 50% of Company Y’s voting stock, then Company Y reports Company X as its U.S. parent company. See 40 CFR 711.15(b)(2)(i).
4. Two companies become one company (e.g.,(1) one company ceases to have a separate identity, because it has been combined into another company; or (2) two companies cease to have their separate identities, because they have combined to form a new company.)
• The resulting company would report based on the combination of the manufacturing conducted by the original companies for the entire period from 2012-2015.
5. One company takes ownership of another company; the two companies maintain their separate identities (e.g., acquiring company buys at least 50% of the voting shares of an acquired company. The acquired company continues to exist as a separate legal entity.)
• The acquired company continues to report as usual, except that if its owner is a U.S. Company, the acquired company now reports its owner as its U.S. Parent Company.
• The owner does not submit duplicates of the reporting submitted by the acquired company.
6. A part of one company becomes a part of a different company; two companies continue to exist (e.g., Company X combines with a part of Company Y, acquiring all of the assets of that unit of Company Y and assuming all of its liabilities. The remainder of Company Y continues to exist as a separate legal entity.)
• Company X reports based on the manufacturing subject to CDR that it did between 2012 and 2015, including the manufacturing that the newly combined unit did before it combined with Company X.
• Company Y reports based on any manufacturing subject to CDR that it did between 2012 and 2015, excluding the manufacturing that the divested unit did between 2012 and 2015.
Chemical Data Reporting Fact Sheet: Reporting After Changes to Company Ownership or Legal Identity U.S. Environmental Protection Agency January 2016
7. One company purchases a site from another; two companies continue to exist (e.g., Company X purchases real estate and chemical manufacturing equipment from Company Y.
But Company X does not combine with Company Y. Both companies continue as separate legal entities)
• Company X is responsible for reporting the manufacturing that Company X itself conducted at the site from 2012-2015.
• Company Y is responsible for reporting the manufacturing that Company Y conducted at the site from 2012-2015.
8. One company closes a facility at a site; that company continues to exist (e.g., a company ceases manufacturing operations at a site, but the company continues to exist as a legal entity)
• The company reports based on the manufacturing it did at the site from 2012-2015, even though the site is now closed.
Accessing the 2012 Form U after Companies Combine EPA expects that the company remaining after two companies combine should generally have access to the records of the one or more prior organizations that have ceased to exist as separate entities. EPA expects that these records would include the XML file from the 2012 submission’s Copy of Record and the associated passphrases. These records would allow the remaining entity to access the appropriate 2012 Form U data for the organization(s) that have ceased to exist as separate entities.
However, if the remaining entity cannot obtain the records of an organization it recently combined with and/or cannot obtain access to that organization’s passphrase, the entity should mail a notarized letter on official letterhead to the Agency explaining why it is authorized to have the
information submitted in 2012. This letter should be sent to:
By U.S. Postal Service: By Hand Delivery or Courier:
CDR 2016 Coordinator (7407M) CDR 2016 Coordinator Office of Pollution Prevention and Toxics U.S. EPA – OPPT/CBIC U.S. Environmental Protection Agency William Jefferson Clinton East Building, William Jefferson Clinton Building Room 6428 1200 Pennsylvania Ave., N.W. 1201 Constitution Ave., N.W.
Washington, D.C.20460 Washington, D.C. 20004-3302 202-564-8930; 202-564-8940 Application of Reporting Requirements in Different Scenarios
1. Company Z manufactures Chemical A at 100,000 lbs/year in 2012, 2013 and 2014 at one site. In January 2015, Company Z manufactured 5,000 lbs of Chemical A at the same site. On February 1, 2015, Company Z sells, to Company Y, the unit of its business that manufactures Chemical A. This manufacturing unit becomes a part of Company Y. The remainder of Company Z still exists as a separate company, but it does not manufacture any more Chemical A after January 2015. The divested manufacturing unit, now a part of Company Y but still at the same site, manufactures an additional 95,000 lbs. of Chemical A in the remainder of 2015.
Assuming the reporting threshold is 25,000 lbs, what are the reporting obligations of each company?
Chemical Data Reporting Fact Sheet: Reporting After Changes to Company Ownership or Legal Identity U.S. Environmental Protection Agency January 2016 See the general discussion of when a part of one company becomes a part of a different company; two companies continue to exist. (Scenario F) It is given in the scenario that the entity which manufactured 100,000 lb/year in 2012, 2013, and 2014 is a part of Company Y by the time of report submission. Therefore, Company Y reports the 100,000 lbs/year it manufactured in 2012-2014. Company Y also reports the full 100,000 lbs that it manufactured in 2015. The unit that manufactured 100,000 lbs of Chemical A in 2015 is a part of Company Y at the time of reporting, and thus Company Y manufactured a total of 100,000 lbs of Chemical A at the site in 2015. Company Y reports processing and use information for its 2015 production volume along with the additional manufacturing information required.
Company Z does not report manufacturing any Chemical A, because (by 2016) it does not contain the unit that manufactured the Chemical A.
2. Company X manufactures 30,000 pounds of a chemical substance included in the TSCA inventory and not otherwise exempted from CDR reporting at Site A in January 2015 (principal reporting year). Company X forms a wholly owned subsidiary, Company Y, On February 1, 2015. Company Y assumes all rights and liabilities with respect to manufacturing activities at Site A and manufactures 180,000 pounds of the substance at Site A from February through June 2015. On July 1st, Company Y fully separates from the parent company and becomes an independent publicly-traded company. Company Y manufactures an additional 200,000 pounds of the substance at Site A from July through December 2015. How should the reporting of the volumes, processing and use information and additional manufacturing information be handled for Site A?
See the general discussion of when one company becomes two companies. (Scenario C) A 25,000 reporting threshold is assumed. It is given that Company Y was created as a subsidiary of Company X on February 1, 2015, but that it was not fully independent of Company X until July 1, 2015.
Company X and Company Y report differently depending on whether Company Y was created as the continuation of Company X’s unit for manufacturing the chemical substance.
If Company Y was created as the continuation of Company X’s unit for manufacturing the
chemical substance, then:
Company Y reports a total of 410,000 lb (30,000 + 180,000 + 200,000) for 2015 and reports processing and use information along with the additional manufacturing information required for 2015 using the total production volume. If the chemical substance was not manufactured in 2012-2014, then Company Y would report 0 lb for production volume for those years. If the unit (previously part of Company X) manufactured the chemical substance during 2012-2014, Company Y would report that data also.
Company X does not submit reports for any of this manufacture, because Company X is not the manufacturer.
If Company Y was not created as the continuation of Company X’s unit for manufacturing
the chemical substance, then:
Company Y reports the 380,000 lbs (180,000 + 200,000) it manufactured in 2015.