N.J. Admin. Code § 7:1G-6.6 - Procedure for filing trade secret claims and maintaining trade secret information

Current through Register Vol. 54, No. 7, April 4, 2022

(a) An employer who claims that disclosing information on an environmental survey would reveal a trade secret shall file a trade secret claim with the Department of Environmental Protection in accordance with (b) below.
(b) The following procedure shall apply to employers claiming trade secret protection on the environmental survey:
1. An employer shall submit two versions of the survey. The first version shall contain all information requested by the Department, including any information claimed to be a trade secret. The employer shall clearly indicate on this version, by highlighting, underlining or otherwise marking any information claimed to be a trade secret. The top of each page shall display the word "CONFIDENTIAL" in bold type or stamp.
2. An employer shall submit a second version to the Department which will go into the public files. This version shall be identical to the first version except that it shall not contain information which the employer alleges to be a trade secret. In order to provide public notice that information has been omitted from this version under a claim of confidentiality, the second version shall indicate "trade secret claimed" or "TSC" where such omissions have been made.
3. The surveys shall be accompanied by the summary information in (c) below when the claim is initially submitted. If the trade secret claim has been filed previously, an employer shall submit only new pertinent information affecting the pending or approved claim.
4. The Department may request complete trade secret information from an employer in order to make a determination on the trade secret claim or for public health or medical emergencies. The employer shall submit the information to the Department within 30 days of the request unless emergency circumstances apply, in which case the information shall be submitted within a shorter period of time, as specified by the Department.
(c) An employer shall submit a summary of the following information at the time of submittal of the trade secret claim except as provided in (k) below:
1. Prior trade secret determinations concerning the trade secret claim by the department, other agency or court, and a copy of such determination or reference to it;
2. Whether or not the information is known outside the employer's business;
3. Whether the information is patented;
4. What if any would be the harmful effects of its disclosure;
5. The period of time for which a trade secret designation is requested, if appropriate;
6. The ease or difficulty with which the information could be disclosed by analytical techniques, laboratory procedures, or other means;
7. Whether it is used in the research and development, or fabrication and production, of an article of trade or service; and
8. Whether the trade secret is a formula, plan, pattern, process, production data, information, or compilation of information.
(d) The Department may at any time subsequent to the filing of a trade secret claim, request, in writing, the information listed in (d)1 through 5 below. Within 30 days of such written request, an employer shall answer the request in writing. The department may extend the period for submitting an answer for good cause shown.
1. Whether disclosure of the trade secret information would be likely to result in harmful effects on the employer's competitive position, and, if so,
i. What those harmful effects would be;
ii. The competitive advantage the employer possesses over employers who do not possess it; and
iii. The value of the information to the employer or the employer's competitor.
2. The extent to which the trade secret information is known by employees and others involved in the employer's business;
3. The extent of measures taken by the employer to guard the secrecy of the trade secret information;
4. The amount of effort or money expended by the employer in developing the trade secret information; and
5. Any other relevant information to assist the department in determining the validity of a trade secret claim.
(e) In addition to any information an employer is required to submit pursuant to (c) and (d) above, an employer may submit any other information relevant to the trade secret claim.
(f) An employer shall provide, as part of any trade secret claim or submission the names of reference documents used as the basis for stated conclusions.
(g) An employer shall certify that its trade secret claim is true, accurate and complete.
(h) The department may limit the length of a claim or submissions and require that they be made on forms provided by the department.
(i) An employer shall update trade secret information affecting a pending or approved trade secret claim within 60 days of the employer's knowledge or receipt of new pertinent information.
(j) (Reserved)
(k) Unless otherwise requested by the department, an employer is not required to submit supporting information with its trade secret claims on Part II of the environmental survey regarding the description of the use of the environmental hazardous substance on the site, the quantity produced on site, the quantity brought on site, the quantity consumed on site, and the quantity shipped off site either as a product or in the product.
(l) Private employers claiming confidentiality for trade secrets for container labeling and public employers claiming confidentiality for labeling or for reporting on Right to Know surveys shall comply with the regulations at 8:59-3.6.

Notes

N.J. Admin. Code § 7:1G-6.6
Amended by R.1993 d.386, effective 8/2/1993.
See: 25 New Jersey Register 858(a), 25 New Jersey Register 3537(a).

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