Current through Register Vol. 56, No. 24, December 18, 2024
(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.
(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
N.J.A.C.
8:59-3.6.
