Current through Register Vol. 56, No. 6, March 18, 2024
(a) Information for which a confidentiality claim has been asserted will be treated by the Department as entitled to confidential treatment, unless the Department determines that the information is not entitled to confidential treatment as provided in this section.
(b) The Department shall act upon a confidentiality claim and determine whether information is or is not entitled to confidential treatment whenever the Department:
1. Receives a request under 47:1A-1 et seq. to inspect or copy such information;
2. Decides to determine whether information in its possession is entitled to confidential treatment; or
3. Desires for any reason in the public interest to disclose the information to persons not authorized by this subchapter to have access to confidential information.
(c) Whenever the Department is required to or decides to make a determination whether information is entitled to confidential treatment, the Department shall first make a determination that the information claimed as confidential has not been the subject of a prior confidentiality determination by the Department concerning the same covered process, or if it has, that the prior determination upheld the owner or operator's claim. If such a prior determination held that the confidentiality claim was invalid, the Department shall notify the claimant by registered mail, return receipt requested, that the information claimed as confidential is the subject of a prior determination concerning the confidentiality of the same information in which it was held that such claim was invalid and the Department will treat the information as public information.
(d) If the Department determines that the information is not the subject of a prior confidentiality determination, the Department shall notify the claimant by certified mail, return receipt requested, of the claimant's right to submit substantiation in support of its claim that the information is entitled to be treated as confidential. The substantiation shall be submitted in writing on a form provided by the Department, shall be accompanied by the public copy of the information and the fee set forth in N.J.A.C. 7:31-1.11(q) for review of the substantiation, and shall be received by the Department within 30 days of receipt of the Department's notice. The substantiation shall include, but need not be limited to, the following:
1. The reasons why the information needs to be treated as confidential;
2. The extent to which disclosure of the information would result in damage to the claimant, including a description of the damage, and an explanation of the relationship between disclosure and the damage;
3. The period of time for which confidential treatment is desired by the claimant (for example, until a certain date, until the occurrence of a specified event, or permanently);
4. The measures taken by the claimant to guard against undesired disclosure of the information to others, and claimant's intention to continue such measures and any new measures the claimant intends to implement in the future to protect the information;
5. The extent to which the information has been published or otherwise disclosed to others, including employees, and the precautions taken in connection therewith;
6. Prior confidentiality determinations concerning the information made by the Department, another agency or a court, and a copy of such determination;
7. Whether the information is patented and, if so, identification of the patent and an explanation why the patent:
i. Does not connect the claimant with the confidential information; and
ii. Does not protect the claimant from competitive harm.
8. The ease or difficulty with which the information could be discovered through reverse engineering and an estimate of the cost;
9. Whether any Federal or state statute or regulation requires the public disclosure of the information, and a copy thereof; and
10. For security information, a description of the adverse impact disclosure would have on either the facility's security or its operations.
(e) Failure of a claimant to furnish the public copy, the confidentiality claim substantiation form or to pay the required fee within 10 days of receipt of the Department's second notice provided in accordance with 7:31-10.4(c), waives the claimant's confidentiality claim and the information will be treated as public information.
(f) The owner or operator may assert a confidentiality claim for any confidential information contained in its substantiation form submitted to the Department pursuant to (d) above. To claim this material as confidential, the claimant shall clearly designate those portions of the substantiation form claimed as confidential in accordance with the procedures provided in 7:31-10.4(d) and (e). Information not properly marked will be treated as public and may be disclosed without notice to the claimant.
1. The claimant shall initially submit to the Department only the confidential copy of any substantiation form which contains confidential information prepared in accordance with the provisions specified in 7:31-10.4(c). The certification on the substantiation form shall be executed as provided in 7:31-10.4(h).
(g) The substantiation form shall be enclosed in envelopes as specified in 7:31-10.4(f) and be forwarded to the address provided therein. To ensure proper delivery, the methods specified in 7:31-10.4(g) shall be followed.
(h) The Department may extend the time limit for submitting substantiation pursuant to (d) above to not more than 60 days upon receipt of a request in writing for good cause shown.
(i) After receiving the substantiation, the Department shall make a final confidentiality determination in accordance with the criteria set forth in (j) below.
1. If, after review, the Department determines that the information is not entitled to confidential treatment, the Department shall so notify the claimant by certified mail, return receipt requested. The notice shall state the basis for the determination, and shall advise the claimant of its right to request an adjudicatory hearing in accordance with the procedures specified in 7:31-11.3(b). The notice shall also advise the claimant that the Department shall make the information available to the public on the 30th day following receipt by the claimant of the written notice, unless the Department has received a timely written request for an adjudicatory hearing to contest such decision.
2. If, after review, the determination is made that information is entitled to confidential treatment, the information shall not be disclosed, except as otherwise provided by this subchapter. The claimant shall be notified of the Department's determination by regular mail. The notice shall state the basis for the determination and that it constitutes final agency action.
(j) If the claimant satisfies each of the following substantive criteria, the Department shall determine that the information for which a confidentiality claim has been asserted shall be treated as confidential:
1. The claimant has established a reasonable basis for treating the information as confidential;
2. Except for security information, the claimant has shown that disclosure of the information would be likely to cause damage to its competitive position;
3. The claimant has asserted a confidentiality claim which has not expired by its terms, been waived or withdrawn;
4. The claimant has shown that reasonable measures have been taken to protect the confidentiality of the information and that the claimant intends to continue to take such measures;
5. The information is not, and has not been, available or otherwise disclosed to persons other than employees, except under a confidentiality or non-disclosure agreement, without the claimant's consent (other than by subpoena or by discovery based on a showing of special need in a judicial or quasi-judicial proceeding, as long as the information has not become available to a person not involved in the proceeding);
6. Any prior confidentiality determinations concerning the information made by the Department, another agency or a court approved or upheld the registrant's confidentiality claim;
7. The information is not the subject of a patent, or if patented, the patent does not connect the claimant with the confidential information and does not protect the claimant from competitive harm;
8. The confidential information is not readily discoverable through reverse engineering;
9. No statute or regulation requires public disclosure of the information; and
10. For security information, the claimant has shown that disclosure of the information would likely have an adverse effect on the security of the facility or its operations.
