OAR 837-085-0150: Trade Secrets — Claim Submissions

(1) To substantiate a trade secret claim, a covered employer, owner or operator must submit both of the following: (a) Hazardous Substance Report with the generic name included and the information being claimed as Trade Secret deleted. NOTE: Only the identity and percentage of the chemical components can be claimed as trade secrets; and (b) A Safety Data Sheet (SDS) (as released to the public) for each chemical or formulation for which the covered employer, owner, or operator is claiming trade secret protection. (2) A covered employer, owner, or operator must submit a justification to support their trade secret claims. In order to substantiate a claim, the following must be provided for each chemical or formulation for which trade secret protection is being requested: (a) The specific measures the covered employer, owner, or operator has taken to safeguard the confidentiality of any chemical identity claimed as trade secret; (b) Whether the chemical identity has been disclosed to any person not an employee of the covered employer, owner, or operator or of a local, state, or federal government entity, who has not signed a confidentiality agreement requiring the person to refrain from disclosing the chemical identity to others; (c) A list of all local, state and federal government entities to which the covered employer has disclosed the specific chemical identity. For each, indicate whether or not a confidentiality claim was asserted for the chemical identity, and whether or not the government entity denied that claim; (d) The measures that have been taken with respect to distribution of the product to maintain trade secrets; (e) Whether discovery of trade secret information is feasible by sophisticated chemical analysis ("reverse engineering"). The covered employer, owner or operator must provide evidence to support their answer; (f) An explanation of why the covered employer, owner or operator's use of the substance would be valuable information to their competitors; (g) An analysis of the nature of the harm to the covered employer, owner or operator's competitive position that would likely result from disclosure of the specific chemical identity, including an estimate of the potential loss in sales and profitability; and (h) Whether the substance, or the covered employer, owner or operator's use of it, is subject to any U.S. patent. If so, identify the patent and explain why this does not protect the covered employer, owner, or operator from competitive harm.