N.J. Admin. Code § 7:31-10.6

Current through Register Vol. 56, No. 21, November 4, 2024

Section 7:31-10.6 - Petitions to withhold privileged trade secret or security information

(a) An owner or operator required to submit or disclose trade secret or security information pursuant to the Act or this chapter which the owner or operator believes must be kept privileged so as not to competitively disadvantage the covered process, or compromise the security of the covered process or its operations, may petition the Department for the right to withhold the privileged trade secret or security information by following the procedures set forth in this section and by paying the fee set forth in N.J.A.C. 7:31-1.11(r). Any owner or operator submitting such a petition shall provide complete responses on all required submissions to the Department except for those items which would require the disclosure of privileged trade secret or security information which the petitioner seeks to withhold. For those items, the petitioner shall note that a petition to withhold privileged trade secret or security information has been submitted, along with the date thereof.

(b) Any owner or operator petitioning the Department for the right to withhold privileged trade secret or security information shall do so in writing on a form provided by the Department at the time of initial document submittal, or within 30 days after receipt of a Department request for the site data for owners or operators with no risk management program as provided by 7:31-9.1(c), or within 30 days of the creation of new privileged trade secret or security information. A petitioner shall also submit in writing substantiation on a form provided by the Department to support its assertion that the information sought to be withheld is privileged trade secret or security information and pay the fee set forth in N.J.A.C. 7:31-1.11(r) for review of its petition and substantiation in accordance with the following:

1. A petitioner whose initial RMP submittal is accepted for further review in accordance with 7:31-7.3(c) shall submit its substantiation and fee within 30 days of receipt of a written request by the Department.

2. A petitioner whose risk management program is determined to be unacceptable shall submit its substantiation and fee at the time it submits the site data as required by 7:31-9.1(c), that is, within 30 days after receipt of notice that its risk management program is unacceptable.

3.

(Reserved)

4. A petitioner who creates new privileged trade secret or security information shall submit its substantiation and fee within 30 days after receipt of a written request by the Department.

(c) The substantiation shall include, but need not be limited to, the following:

1. Identification of the specific use of the trade secret and an explanation why it is of interest to competitors and should be treated as a privileged trade secret. Such identification shall include, but not be limited to, the following:

i. A description of the specific use of the trade secret, identifying the product, process, or activity in which it is used;

ii. If the petitioner's company or facility has been linked to the trade secret in publications or other information available to the public, an explanation why this knowledge does not eliminate the justification for trade secrecy;

iii. If the trade secret is unknown outside of the petitioner's company, an explanation how competitors could deduce this information from any disclosure required under the Act or this chapter; and

iv. An explanation why the trade secret information sought to be withheld would be valuable to competitors;

2. A description of the specific measures taken to safeguard the confidentiality of the trade secret or security information;

3. Identification of any and all persons, including employees of the covered process, to whom the trade secret or security information has been disclosed, including a copy of any signed confidentiality agreement requiring the person to refrain from disclosing the information sought to be withheld, or a description of any other methods used to ensure the confidentiality of the trade secret or security information. Officers or employees of the United States government to whom the information was disclosed for use in national defense purposes are not to be identified;

4. An indication of the number of and location of all documents which contain the allegedly privileged trade secret or security information;

5. A list of all local, state and Federal government entities to which the trade secret or security information has been disclosed. For each entity, whether a confidentiality claim for the information was asserted and whether the government entity granted or denied that claim shall be indicated;

6. A description of the harm to the petitioner's competitive position that would likely result from disclosure of the trade secret, including an estimate of the potential loss in sales or profitability;

7. A description of the extent to which the trade secret information is discoverable through the process of reverse engineering, including a description of the factors which influence the cost of discovering the trade secret by reverse engineering and a rough estimate of the cost of such discovery;

8. Identification of any patent to which the trade secret or petitioner's use of the trade secret is subject and an explanation why the patent:

i. Does not connect the petitioner with the trade secret; and

ii. Does not protect the petitioner from competitive harm;

9. A description of how disclosure of the trade secret or security information would likely affect the security of the facility or national defense; and

10. Any other relevant information to assist the Department in determining the validity of the petition to withhold privileged trade secret or security information.

(d) The petition and substantiation form shall contain the certification specified at 7:31-8.2(c).

(e) The owner or operator petitioning to withhold privileged trade secret or security information may claim as confidential any confidential information contained in the substantiation form by following the procedures set forth 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 petitioner.

(f) The petitioner 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).

(g) The Department may request supplemental information from the petitioner in support of its petition and substantiation to withhold trade secret or security information. The Department may specify the kind of information to be submitted, and the petitioner may submit any additional detailed information which further supports the information previously supplied to the Department in the petitioner's initial substantiation within 30 days of receipt of the Department's request. The petitioner may claim as confidential any confidential information included in the supplemental information, and shall clearly designate those portions of the supplemental information claimed as confidential in the manner described in 7:31-10.4(d) and (e). Information not properly marked will be treated as public information and may be disclosed without notice to the petitioner. A petitioner submitting supplemental information shall include a certification specified at 7:31-8.2(c). If supplemental information is submitted by the petitioner and the petitioner claims portions of it as confidential information, then the petitioner shall initially submit to the Department only the confidential copy of the supplemental information as prescribed in 7:31-10.4(c).

(h) The confidential copy of any petition to withhold privileged trade secret or security information, and the substantiation form or supplemental information which contains confidential information shall be enclosed in envelopes in accordance with the procedures set forth in 7:31-10.4(f) and be forwarded to the address Provided therein.

(i) To ensure proper delivery, the methods specified in 7:31-10.4(g) shall be followed.

(j) A petitioner shall update information submitted to the Department regarding a pending or approved petition within 30 days of the petitioner's knowledge or receipt of new information which could affect the petition to withhold privileged trade secret or security information.

N.J. Admin. Code § 7:31-10.6

Amended by R.1993 d.358, effective 7/19/1993.
See: 25 N.J.R. 1425(b), 25 N.J.R. 3156(a).
Amended by R.1998 d.355, effective 7/20/1998.
See: 30 N.J.R. 908(a), 30 N.J.R. 2728(a).
Substituted references to owners and operators for references to registrants and changed N.J.A.C. references throughout; in (a), substituted references to covered processes for references to facilities throughout; in (b), substituted "initial document submittal" for "filing of the summary risk management program statement" in the first sentence, substituted "initial RMP submittal" for "summary risk management program statement" in 1, and reserved 3; in (c), substituted a reference to covered processes for a reference to facilities; and in (d) and (g), substituted CFR references for N.J.A.C. references.
Amended by R.2009 d.85, effective 3/16/2009.
See: 40 N.J.R. 5109(a), 41 N.J.R. 1206(b).
In (b)2, inserted the first occurrence of "program"; rewrote (d); and in (g), substituted "specified at N.J.A.C. 7:31-8.2(c)" for "which shall contain the signatures and two part certification specified in 40 C.F.R. 68.185(b)".