please the court my name is robert stockman here on behalf of the environmental defense fund i would like to reserve four minutes for a bottle we respectfully ask that this court grant the petition for review at issue here is the public's right to know the specific identity of chemicals being manufactured and processed in the united states and use that information to study the health and environmental effects of these chemicals we recognize the congress allowed confidentiality claims for certain information that would otherwise be available through the inventory congress put a number of strict limitations and requirements on those claims and at every turn e p a has disregarded the plain text of the statute in favor of greater concealment we asked this court to enforce the statute is written and to limit confidentiality claims to those permitted under the law first section eighty four b which governs the inventory provided that any manufacturer or processor may seek to maintain an existing claim for confidentiality personally to section fourteen under the plain language a person does not maintain an existing claim if they've never made that claim before this is particularly so with confidentiality claims person to section fourteen which are defined in both their procedure and substance to be person specific therefore they're not logically interchangeable or transferable section eight before b clearly does not permit new claims through this process and yet he adopted an interpretation and an approach that effectively allows such new claims indeed in its br have identified any way that their interpretation of the statute gives meaning to the word existing claim and despite working on this case for a year i've not figured out what they think existing means i thought that meant complaint made by someone else that that's what they mean you may disagree with it but that is what they mean as well so i suppose that must be what they mean though they didn't actually expressly say that in the rule making at j one thirty they didn't say the kinds were transferable but there are the claims transferable someone some other entity has made the claim it's on the list and they want to continue that claim of confidentiality not that they want to continue their claim it's that they want to continue so i think  that's already been made i think the problem with that is that the claims are all if you turn to the substance of what the claims are they all turn out to be person specific so for example under section fourteen when you assert a claim you have to assert that disclosure of this information would cause claim for company b to come in and say well actually it causes substantial competitive harm to my company these positions are different and that's not the only way in which section fourteen makes them different are going to have to substantiate their claims they will ultimately have to interpretations the actual rationale they gave in the rule is false what they said in the room a king is that only the original claim it would be in a position to support a claim which seems to suggest that in their view that when later people came in they didn't have to make any confidentiality claim and that in fact you could say have company b come in and say this isn't confidential and e p a will continue to conceal it that's not what the regulations said the regulations said that a person may very important to us which is that when the second kirk person comes in and says this is or doesn't submit a confidentiality claim our view is that means e p a should be sharing that information with the public it's not confidential at a minimum that means they should step back and say is this really secret company b doesn't even consider it confidential what e p a seems to be saying is that it can get a submission from company b company c company d none of which circumvent challis and will maintain the confidentiality even though it's no longer really a secret so part of our problem is with their rationale which we don't think is supported by the rule regulations that were in place at the time or with their public statements they have in fact in the past said that when one  reveals the chemical identity then it's generally no longer secret and so therefore it's no longer ever eligible for confidentiality they said that in the federal register notice of the sun or brief eighty three fed regs five six two three and also in the submission we  submitted through twenty eight j so the thing that i think gets it this is their rationale was fundamentally wrong it's fundamentally contrary to their regulations and it represents an approach to confidentiality that results in greater concealment from the public than public has a right to know so for that reason alone the fact that their rationale was arbitrary and capricious would be a reason to reverse that second i'd like to turn to the substantiation issue which is that when congress and acted section fourteen c one b which requires a statement a company the confidentiality claims congress clearly intended that the confidentiality claim should have to meet the requirements of that statement and specifically congress intended the congress that u p a should be considering whether the information is readily through reverse engineering and they should deny claims when it's not read it when it is readily discoverable through reverse engineering but they adopted a regulation that doesn't require them to consider that and in fact doesn't often rise them to deny a confidentiality claim on that basis so there's the adoption of to to a just straight up is it's a significant problem but you understand the government's position to be that if it is easily  reversible it's still confidential or you understand the government's position to be there just not asking another version of the same question included in the certificate i understand them to in the brief have taken the position that they don't have to consider th factor so they can they can decide whether or not to substantiate the claim without separately considering whether or not it meets this particular factor and at a minimum that's also what the regulations effectively do because by cutting every single question that gets this factor they'll have no information to go on when assessing this particular factor so i take there was leave aside the information question i guess i was reading pages thirty  nine and forty of the briefers saying that they're still going to follow you structure requirements that these are the substantive requirements for the confidentiality claim i guess we'll find out what you're reading is that they're going to  reversibility now my reading is that they'll ignore it or they eat or at a minimum they have not committed to reviewing it i mean i was there was only one question about were civility that was dropped right what was that actually there were two there were at least two more as one that really directly related to reversible so the first classic question is whether the product leaves whether the chemical leaves the facility in a product that's available to the public and whether then people should be able to discover it through reverse engineering a second question that gets at that last part part of the question i remember that last i guess about perfect technique technically they didn't technically the words the words i did i just read those last two questions which if i could to find them in my pile i would have read myself ok so here is one of the questions does this particular chemical substance leave the side of manufacturing any form for example as product effluent emission if so much measured what measures have been taken to guard against the discovery of its identity and then another is if the chemical substance leaves the site in a product that is available to the public or your competitors and the chemical substance be identified by analysis of the product so both of those neither of them uses the phrase reverse engineering but both of them clearly would at least get at that information and for someone to actually provide an account for why or why not there their product is x can be discovered the reverse engineering i know this is something we're particularly concerned about because i just tested then looking at the form that they ha before you look like there was much he has rather than yes or no was there a serious amount of additional supporting data that even even in the original notice that was supposed to be provided so the original notice looked sort of messy like i wasn't sure whether that was really what it would look like in the end it didn't provide the boxes for information to be provided but my eat to be brutally honest my assumption was that when they actually created the final form they would provide boxes for people to fill out and provide that information i mean the other thing is that i think a yes or a no is not a very good substantiation i mean if someone is someone's answer to that question is no and they provide no information about what that means i would submit that u p a should deny the claim as your is you understand that they don't do any independent review of their own after getting the answers to these questions or ask for any this is it is strictly interesting question historically they did not review i don't want to be interesting for this morning they did not review  historically they did not review many of the claims what they are supposed to do now is they are supposed to review these substantiation claims and i think theoretically they should do follow up where appropriate this sort of gets us to one of our other problems which is that they're not publishing any of their determination on these claims so it's actually sort of impossible for us to know whether or not they're reviewing the substantiations how and death they're growing whether or not i mean this up program operates like a black box so we don't know whether they're actually reviewing the substantiation questions or how much information they consider to be necessary to meet these requirements and that's one of the things that our third claim  set forth in fourteen c one b so our view is that here e p a needs to at least consider the need to substantiate that and that's our main objection here is they didn't even give an analysis of why they're not wider how they're going to figure out reverse engineering they just literally said we wanted to be more says st so we cut everything so even if they have to some discretion in shaping those regulations which they do our view is that it's an abuse of discretion or it's arb capricious to completely fail to consider relevant aspect of the problem which was the reverse engineering problem so our view is that it's they could come up with lots of different types of substantiation questions but they at least have to consider what they're trying to the thing is this in our view this is the rule making where they adopted how they're going to approach substantiation for the information that submitted under this rule so this is the set of regulations where we'll get an opportunity to challenge it we won't get a later opportunity to challenge how they're doing substantiation unless it's in i mean as so so this is the one opportunity to get it sort of how they're doing substantiation for information submitted under the inventory rule which is includes the information that was submitted as part of the inventory but also all the perspective moving from inactive to active notifications so we're not going to get a better opportunity to get at this i suppose we could bring in as applied challenge to specific determination think that i think that the the thing is then they'll say we're in compliance with our regulation and so it's too late you needed to challenge our regulation and they did set forth how they would do substantiation in this regulation they did specifically choose to address it in this rule making so in our view it is is right for challenge now and on rightness i would note that congress provided a very specific sixty day statutory deadline for us to sue which sort of counsels in favor of finding that we can sue early that there's an know that answer but they said that things would be treated as confidential if they meet the requirements of two to eight and two to eight does not require consideration of confidence yet reverse engineering so our concern is that later even if they say oh this is discoverable for reverse engineering someone could legitimately say well you said that it's confidential that means two to eight and that doesn't specifically require reverse engineering be considered so they've created a problem that needs to be on the market would allow somebody to sort of analyze and reverse engineer the content with that not be your position that would be hard but that third question i think a person could easily answer that question and just declined is unfavorable to them so if they don't you know if you can read a question to say like reverse engineering the ability to be reverse engineer is just the flip side of whether it's confidential because if you've got something out there and people can just dissect it then you're not going to be able to stamp establish a front that it's confidential right because it's out there and everybody's been able to figure out what it is so i would like to think that were true what is often i think the case is that it's known within  industry what these chemicals are many of these are known within industry because they have the resources to go about reverse engineering the problem is the public doesn't have the resources to reverse engineer each chemical that comes out so i mean in an ideal world we would do all that reverse engineering ourselves but we don't have the resources in the laboratories to do it so i think that i think that we were firing that they enquire into this particular facet is important because they could just say oh well you say it's a secret that's good enough for me and not inquire into this unless they're forced to do so i mean there's no evidence that they historically have inquired into this market he says readily discoverable for reverse engineering that it's under readily discoverable by reverse engineering was meant to get at the companies that would be engaged in reverse engineering so that sort of people who have the resources to do it the question isn't whether just any random person could reverse engineer it but whether the averaged competitor would be able to sit down and reverse engineer it because that's what congress was interested in and what congress was interested in getting at so i think that's what that standard should be trying to get out there and then i would be hard to say something i'm trying to figure out if by not having that specific question directed at that in terms of reverse engineering we can tell from the face of this challenge of this regulation that they are ignoring the statutory requirement to protect against reverse engineering as opposed to this and built into the very nature of demonstrating confidentiality up front because you just can't be confidential if other people can figure out what it is and so that it is that  brightness problem here to figure out what they meant by these questions so i think that part of the problem here is they didn't address this in the record we will making at all i mean it would be one thing if in the wool making they had sat down and said we're incorporating all of that into our confidentiality determination we have this plan to get it reverse engineering through x y and z and that's why you have nothing to be concerned about but the court can't just i mean that's that's not what they did they just chose to ignore it which in my view capricious so the problem is that they didn't address this issue in the rule making there may be more than one way to skin this particular cat but they have to actually do it i'd also note that this is a program that has had a long history of not of overt to many confidentiality we cited in our brief numerous g a o reports about how this program fails to hold confidentiality claimants to the requirements they're supposed to me so i think and congress very specifically revamped this whole program with the goal of getting more scrutiny on these confidentiality claims so i think that it isn't a situation where makes sense to say trust them they'll just get to it because historically they have not this is one of our biggest problems is we don't know that we don't have the information and that the problem hits at multiple points one when they don't make the terminations public we don't know that there even is information that's been submitted we don't know what the reasoning was behind why it's not beings why it why it's being held confidential and then even if we could break that all down we don't have the expertise the e p a has to scrutinize whether something is reverse engineer but this is something that the scientists would actually be quite good at doing if they put their scientists on the job of doing it so it's particularly important that they do it and create these robust records when they're reviewing confidentiality claims and it's not something that the outside community can do and i don't think it's something congress thought we should have to do to be able to get access to this information questions  remarked in your brief about the places where you say that the four certified questions are the substantive requirements of the statute for confidentiality was that indicate that agency doesn't believe that that is a substantive factor that has to be satisfied for confidentiality that the short answer is no the long answer is that the the the inclusion of the assertion you searches that need to be made on a confidentiality application that are listed and twenty six one not and has not been reasonable obtained reasonably obtainable without the business consent by other persons by use of legitimate means and so for example reverse engineering would fall into that category so that so saying again my question  i agree that if something is readily reversible the engine here and it's not doesn't qualify for confidential tree yes yes and so the only question here is whether you had asked a couple more be confidential if your product and the chemical can readily be reverse engineer i think it would be very very difficult very good night that wasn't possible if it's readily reversible reverse engineer a subject reverse engineering but how can central component of the confidentiality again what the substantive if we go to twenty six one three k which references the substance of requirements for sue for confidentiality except as provided in the section the administrator shall not disclose information that is exempt from disclosure pursuant to subsection of section five fifty two of title fired by reason of that that's i don't know i just don't have anything well i think what what is problematic is the petitioners reading is essentially saying that any scenario in which which would essentially defeat a confidentiality claim has to be substantiated and that's not at all crime no there aren't any meant is that there's a reason reverse engineering shows up in the assertions because that's critical to establishing confidentiality always has them and then you come along with your proposed of the proposed rules have to be clear that it's not as if that these are long standing questions these were e p a made a proposal and i think it's important to reference back the substantiation requirement section and here it says are you going to are you going to say then you need to you need to show that it's not sceptical to reverse engineering readily susceptible what i would tell them is that they need to meet the substance of confiden and addressed a more confidentiality application but i want to turn real quickly to the stage an argument we've made i know before you try to i get why you want to do that but to go to a very something and sign when you want to retreat like that you just se said they have to show that there's no legitimate means of acquiring this information and now you're saying i thought you just had and tell me if i misheard was that what they don't have to show that every legitimate means as far as i guess i guess honor is that what what the agency did here is it uses discretion and putting together substantiation questions and one of the questions they propose that they did not end up has to be made about know which intimate means that's your position as one answer if your position is no they wouldn't you wouldn't actually have to do that which is like you they don't have to do everything tom it sounded like to me i'm trying to figure  well and i think that i guess i guess i would say if you look at remind as well i think i think part of what's important to note is if you look at our question too will disclosure of the information likely result in substantial harm to your business  competitive position if you answered yes describe with specificity the spiritual harmful effects that would likely result to your present position it also asks about information  that the business has the efforts of the sacred to maintain confidentiality it looks at whether or not this information is in public documents all of these questions go confusing so congress statute requires a sort of the commission of only four things yes suggesting that all those four things are important to the congress correct and the fourth one says a reasonable basis to believe that the information is not readily discoverable through with verse engineering correct correct that's what you have to sort of write correct and then your brief says the four part statement generated generally more information than that already that is your new questions would just provide no more information than the statement already correct then i've page thirty nine you say indeed saying that these are the four subscribe scansion substantive requirements that we when we review these claims we will look at these four things that the only reason we didn't ask for this last question about reverse engineering is we didn't think it added anything to the others but we will still require that it not be readily discovered through reverse engineering now is that summary of your position incorrect in that i think it is incorrect and that the the statements that need to be certified under section fourteen that includes the reverse engineer statements our view of those is that those are statements that gucci to whether or not the substantive requirements of the  confidentiality provisions are met but are not necessarily independent substance of requirement of the confidentiality provisions themselves so for instance to the extent that someone certifies there  showing of a competitor harm would show that it can't be reverse engineering i mean nothing less and less you are assuming as i had started this conversation that it's the very essence of what it means to be confidential that it e some number of questions all the way through k a through k you drop all only really the ones about reverse engineering those are ones that are specifically mentioned in the statute how could commenters have known dropping of one of the questions that congress itself listed and how are they supposed to know that to object to the dropping of one of the four questions that congress and system well i think  which is great reverse engineering is included somehow in something else your honor it's important to recognize it's not that someone told the agency we don't think you need to include a reverse engineering question because reverse engineering is not itself a substance of criteria but just in a sense of a question or a wins through which to look at whether or not information should be kept confidential you know that view was always the agency's mission and so it was you know you don't say  that reverse engineering if it if the if a chemical is subject to reverse engineering it would it would likely not meet the substance of criteria for confidentiality but simply because that does not necessarily sure if i understand what you're saying you would rather have no confidentiality rules at all rather rather than one that's not quite as good as you want while they work on getting something so our main  promulgated a new rule governing confidentiality within we ask for six months but a year would also you're not asking to vacate the whole confidential we did originally ask for that you have a chance to think about that again now illegitimate rule and then get to the new rule making and say oh we're all done we don't have to look at them again but if you value the role or they do i mean i guess our position would be they should sit on the confidentiality claims until such time as they create confidentiality review process that actually will scrutinize these claims for these criteria but but we would be very happy with the rain and that directed them to promulgated a new rule that would address the flaws  're happy that they're finally adopting the identifier program but they have not yet done so and we have deep concerns that it may not happen they made a lot of progress once we brought this issue up in this lawsuit so one thing that would be disconcerted us is if this suddenly just dropped by the wayside but our goal is to get a unique identifier system so if they adopt one that actually applies unique identifiers the inventory we would be very pleased with that outcome our concern is that they may not do so and are in our view it's required by the seven that they apply unique identifiers to the new chemicals that are coming on to the inventory