§ 41-06 Trade Secrets.
RCNY § 41-06
(a)A responsible party withholding the specific chemical identity of a hazardous substance pursuant to subdivision (b) of this section, or requesting non-disclosure of the specific chemical identity of a hazardous substance pursuant to subdivision (c) of this section, shall file a sanitized version of an MSDS for such hazardous substance.
(b)Procedure for withholding information based on a federal or state claim.
(1)A responsible party may withhold from the FIF and FIF UPDATE and/or risk management plan the specific chemical identity of a hazardous substance, including the chemical name and other specific identification, and the method or process in which an EHS or regulated toxic substance is used, if a trade secret claim has been filed pursuant to § 322 of the Federal Emergency Planning and Community Right-to-Know Act of 1986 or such information has been registered as a trade secret pursuant to Article 48 of the New York State Public Health Law or Article 28 of the New York State Labor Law. The responsible party must submit a notarized statement verifying the facts of the claim or registration, including the date, place and recipient of the claim or registration, and that the chemical identity, or the method or process in which an EHS or regulated toxic substance is used, continues to be treated as confidential by the governmental authorities with whom such claim or registration has been filed. The responsible party must also affirm that the claim or registration complied with the requirements for such a submission, that reasonable measures have been taken to safeguard the confidentiality of the chemical identity claimed or registered as a trade secret, and such measures will continue in the future.
(2)The responsible party must indicate in the manner provided on the FIF, FIF UPDATE and/or risk management plan that information has been withheld because of a trade secret claim or registration.
(c)Procedure for requesting non-disclosure based on DEP determination of trade secret status.
(ii)Have you disclosed the information claimed as trade secret to any other person (other than a member of a local emergency planning committee, officer or employee of the United States or a State or local government, or your employee) who is not bound by a confidentiality agreement to refrain from disclosing this trade secret information to others? (iii) List any municipal, State, and Federal government entities to which you have disclosed the specific chemical identity, method or processes. For each, indicate whether you asserted a confidentiality claim for the chemical identity, method or process and whether the government entity granted or denied that claim.
(iv)In order to show the validity of a trade secrecy claim, you must identify your specific use of the chemical, method or process claimed as trade secret and explain why it is a secret of interest to competitors. (A) Describe the specific use of the chemical claimed as trade secret, identifying the product or process in which it is used. (If you use the chemical other than as a component of a product or in a manufacturing process, identify the activity where the chemical is used.) (B) Has your company or facility identity been linked to the specific chemical identity, method or process claimed as trade secret in a patent, or in publications or other information sources available to the public or your competitors (of which you are aware)? If so, explain why this public information does not eliminate the need for protection of the trade secret. (C) If this use of the chemical, method or process claimed as trade secret is unknown outside your company, explain how your competitors could infer the use, method or process from disclosure of the chemical identity, method or process together with other information on the FIF, FIF UPDATE and/or risk management plan. (D) Explain why your use of the chemical, method or process claimed as trade secret would be valuable information to your competitors.
(v)Indicate the nature of the economic harm that would likely result from disclosure of the specific chemical identity, and indicate why such harm would be substantial.
(vi)(A) To what extent is the chemical, method or process claimed as trade secret available to the public or your competitors in products, articles, or environmental releases? (B) Describe the factors which influence the cost of determining the identity of the chemical claimed as trade secret by chemical analysis of the product, article, or waste which contains the chemical (e.g., whether the chemical is in pure form or is mixed with other substances).
(3)The responsible party must include and sign the following certification at the end of the Verification: "I certify under penalty of law that I have personally examined the information submitted in this and all attached documents. Based on my inquiry of those individuals responsible for obtaining the information, I certify that the submitted information is true, accurate, and complete. I acknowledge that I may be asked by DEP to provide further detailed factual evidence relating to this claim of trade secrecy, and certify to the best of my knowledge and belief that such information is available. I understand that knowingly or recklessly making any false statement, representation or certification could subject me to a penalty of $1,000, or imprisonment of up to one year, or both." (4) A responsible party may request an extension of time for the submission of the Trade Secret Verification form by including in the FIF filing or risk management plan filing a notarized statement requesting additional time to fully comply with the verification requirements of this section.
(5)(i) DEP may request supplemental information from the responsible party in support of its trade secret claim. DEP may specify the kind of information to be submitted, or the responsible party may submit any additional detailed information which further supports the truth of the information previously supplied to DEP in its initial verification under this section. Any request for supplemental information must be submitted to DEP.
(6)If a trade secret claim is submitted after DEP has received the information to which such claim relates, DEP may make reasonable efforts to process the late claim with the previously submitted information.
(7)No information claimed as a trade secret shall be disclosed by DEP prior to an affirmative determination by DEP as to the validity of the claim.
(8)(i) The responsible party shall be notified in writing of DEP's determination as to the validity of the claim.
(iii)The appeal shall be determined within 20 business days of the receipt of the appeal. Written notice of the Commissioner's determination shall include a statement of the reasons for the determination.
(9)Pursuant to § 24-709(c) of the New York City Community Right-to-Know Law, the Commissioner shall disclose trade secret information in the emergency circumstances specified in Paragraph 1 of that section, and the responsible party shall disclose trade secret information for medical diagnosis and treatment purposes specified in Paragraph 2 of that section. (Amended City Record 1/5/2018, eff. 2/4/2018)
