N.J. Admin. Code § 8:59-3.6

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

Section 8:59-3.6 - Procedure for filing trade secret claims and maintaining trade secret information

(a) Reporting shall be done as follows:

1. A public employer that claims that disclosing information on a Right to Know Survey would reveal a trade secret shall list a trade secret registry number in place of the trade secret information in the Right to Know Survey to be distributed to the Department and all county and local agencies that are required by law, rule, or regulation to receive the survey. The employer shall derive the registry number by adding a numeral beginning with "5000" at the end of its Department of Labor and Workforce Development employer identification number (EIN) separated by a dash and preceded by the words, "Trade secret registry." See (b)2 below for examples. Each new trade secret claim shall be numbered consecutively. A second version of the Right to Know Survey that includes both the trade secret registry number and the trade secret information shall be filed with the Department along with the information required in (c) below, at the time of submission of the first survey.

2. A public employer may assign trade secret registry numbers to ingredients or products.

(b) Labeling shall be done as follows:

1. An employer, claiming that labeling a container at his or her facility with the chemical name and CAS number of the hazardous or other substance in the container would reveal a trade secret, shall file a trade secret claim with the Department by:

i. Submitting the trade secret information and the summary information required in (c) below; or

ii. Notifying the Department, in writing, that the employer intends to conceal the chemical name and CAS number of ingredients on a label for one or more ingredients or products. If a notification is filed, the employer shall certify that the trade secret information required in (b)4 below is being maintained, advise the Department of the trade secret registry numbers being assigned, and provide the Department the name(s) and emergency phone number(s) of the employer representative(s) available in case of a public health or medical emergency whom the employer authorizes to release trade secret information to the Department, or to others under such circumstances. The notification must be updated if the employer assigns a new employee to communicate with the Department regarding trade secrets, if the employer assigns a new emergency representative, or if the employer uses a new alpha and/or numeric numbering system for its trade secret registry numbers. One notification may be filed by an employer for the trade secret claims at each facility, and an employer with multiple facilities may file one notification for the trade secret claims at all of its facilities.

2. An employer shall derive the trade secret registry number to use on containers in either of two ways:

i. By adding a numeral beginning with "5000" at the end of its Department of Labor and Workforce Development employer identification number (EIN), separated by a dash, and preceded by the words "Trade Secret Registry #." Each new trade secret registry number shall be numbered consecutively. Examples of acceptable numbers include:

Trade Secret Registry Number 12345600-5000

Trade Secret Registry # 12345600-5000

TSRN 12345600-5000

NJ TSRN 12345600-5000; or

ii. By using its own alpha and/or numeric numbering system. If this option is chosen, the trade secret registry number shall be preceded by the words "New Jersey Trade Secret Registry Number." The acronyms and symbols "NJ," "TSRN," "TSR," "No.," and "# " may be used.

3. Trade secret registry numbers may be assigned to ingredients or products. If assigned to products, the employer must keep a list of those ingredients in the product which are considered trade secrets. Those ingredients in the product which are not trade secrets must be listed on the label in accordance with N.J.A.C. 8:59.

4. If an employer chooses to file a notification with the Department pursuant to (b)1 above, the employer shall maintain the trade secret information on site or at the corporate facility. This information shall include the chemical names and CAS numbers of all trade secret ingredients and products and the trade secret registry numbers that the employer has assigned to the ingredients and products.

5. A Right to Know enforcement officer shall be allowed to see the area where the trade secret information is kept and the system which has been established by the employer to maintain the trade secret information, but shall not be allowed to see the trade secrets unless authorized to do so by the employer or this Subchapter.

6. Trade secret numbers shall be affixed to containers in accordance with 8:59-3.17.

7. The DOH/DEP may request complete trade secret information from an employer in order to make a determination on the validity of the trade secret claim or for public health or medical emergencies. The employer shall submit the information to the DOH/DEP within 30 days of the request unless emergency circumstances apply, in which case the employer shall submit the information within a shorter period of time as the DOH/DEP specifies. Trade secret information submitted to the DOH/DEP shall include the information required in (c) below.

8. Trade secret information that is currently on file with the DOH/DEP will be returned to the employer upon request.

(c) An employer shall submit a summary of the following information at the time of submittal of the trade secret claim except when a notification is filed pursuant to (b) above:

1. Prior trade secret determinations concerning the trade secret claim of the DOH/DEP, another agency, or a 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;

8. Whether the trade secret is a formula, plan, pattern, process, production data, information, or compilation of information; and

9. The name(s) and emergency phone number(s) of the employer representative(s) available in case of a public health or medical emergency, whom the employer authorizes to release trade secret information to the DOH/DEP, or to others under such circumstances.

(d) The DOH/DEP, at any time subsequent to the filing of a trade secret claim, may 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 DOH/DEP 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;

5. Any other relevant information to assist the DOH/DEP 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 DOH/DEP may limit the length of a claim or submission and require that they be made on forms that the DOH/DEP provides.

(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) At the time a public employer receives notification from the Department that a determination of a trade secret claim is being considered, this notification shall be posted on bulletin boards readily accessible to employees. Every public employer that employs persons whose native language is Spanish shall also post the notice in Spanish, such notice to be provided by the Department. The notice shall state for which survey the claim was made and shall invite any person to submit comments on the claim to the Department.

N.J. Admin. Code § 8:59-3.6

Amended by 50 N.J.R. 1036(a), effective 3/19/2018