View all text of Subchapter III [§ 11041 - § 11050]
§ 11042. Trade secrets
(a) Authority to withhold information
(1) General authority
(A) With regard to a hazardous chemical, an extremely hazardous substance, or a toxic chemical, any person required under section 11003(d)(2), 11003(d)(3), 11021, 11022, or 11023 of this title to submit information to any other person may withhold from such submittal the specific chemical identity (including the chemical name and other specific identification), as defined in regulations prescribed by the Administrator under subsection (c), if the person complies with paragraph (2).
(B) Any person withholding the specific chemical identity shall, in the place on the submittal where the chemical identity would normally be included, include the generic class or category of the hazardous chemical, extremely hazardous substance, or toxic chemical (as the case may be).
(2) Requirements
(A) A person is entitled to withhold information under paragraph (1) if such person—
(i) claims that such information is a trade secret, on the basis of the factors enumerated in subsection (b),
(ii) includes in the submittal referred to in paragraph (1) an explanation of the reasons why such information is claimed to be a trade secret, based on the factors enumerated in subsection (b), including a specific description of why such factors apply, and
(iii) submits to the Administrator a copy of such submittal, and the information withheld from such submittal.
(B) In submitting to the Administrator the information required by subparagraph (A)(iii), a person withholding information under this subsection may—
(i) designate, in writing and in such manner as the Administrator may prescribe by regulation, the information which such person believes is entitled to be withheld under paragraph (1), and
(ii) submit such designated information separately from other information submitted under this subsection.
(3) Limitation
(b) Trade secret factorsNo person required to provide information under this chapter may claim that the information is entitled to protection as a trade secret under subsection (a) unless such person shows each of the following:
(1) Such person has not disclosed the information to any other person, other than a member of a local emergency planning committee, an officer or employee of the United States or a State or local government, an employee of such person, or a person who is bound by a confidentiality agreement, and such person has taken reasonable measures to protect the confidentiality of such information and intends to continue to take such measures.
(2) The information is not required to be disclosed, or otherwise made available, to the public under any other Federal or State law.
(3) Disclosure of the information is likely to cause substantial harm to the competitive position of such person.
(4) The chemical identity is not readily discoverable through reverse engineering.
(c) Trade secret regulations
(d) Petition for review
(1) In general
(2) Initial review
(3) Finding of sufficient assertions
(A) If the Administrator determines pursuant to paragraph (2) that the explanation presents sufficient assertions to support a finding that the specific chemical identity is a trade secret, the Administrator shall notify the trade secret claimant that he has 30 days to supplement the explanation with detailed information to support the assertions.
(B) If the Administrator determines, after receipt of any supplemental supporting detailed information under subparagraph (A), that the assertions in the explanation are true and that the specific chemical identity is a trade secret, the Administrator shall so notify the petitioner and the petitioner may seek judicial review of the determination.
(C) If the Administrator determines, after receipt of any supplemental supporting detailed information under subparagraph (A), that the assertions in the explanation are not true and that the specific chemical identity is not a trade secret, the Administrator shall notify the trade secret claimant that the Administrator intends to release the specific chemical identity. The trade secret claimant has 30 days in which he may appeal the Administrator’s determination under this subparagraph to the Administrator. If the Administrator does not reverse his determination under this subparagraph in such an appeal by the trade secret claimant, the trade secret claimaint 1
1 So in original. Probably should be “claimant”.
may seek judicial review of the determination.(4) Finding of insufficient assertions
(A) If the Administrator determines pursuant to paragraph (2) that the explanation presents insufficient assertions to support a finding that the specific chemical identity is a trade secret, the Administrator shall notify the trade secret claimant that he has 30 days to appeal the determination to the Administrator, or, upon a showing of good cause, amend the original explanation by providing supplementary assertions to support the trade secret claim.
(B) If the Administrator does not reverse his determination under subparagraph (A) after an appeal or an examination of any supplementary assertions under subparagraph (A), the Administrator shall so notify the trade secret claimant and the trade secret claimant may seek judicial review of the determination.
(C) If the Administrator reverses his determination under subparagraph (A) after an appeal or an examination of any supplementary assertions under subparagraph (A), the procedures under paragraph (3) of this subsection apply.
(e) Exception for information provided to health professionals
(f) Providing information to Administrator; availability to public
(g) Information provided to State
(h) Information on adverse effects
(1) In any case in which the identity of a hazardous chemical or an extremely hazardous substance is claimed as a trade secret, the Governor or State emergency response commission established under section 11001 of this title shall identify the adverse health effects associated with the hazardous chemical or extremely hazardous substance and shall assure that such information is provided to any person requesting information about such hazardous chemical or extremely hazardous substance.
(2) In any case in which the identity of a toxic chemical is claimed as a trade secret, the Administrator shall identify the adverse health and environmental effects associated with the toxic chemical and shall assure that such information is included in the computer database required by section 11023(j) of this title and is provided to any person requesting information about such toxic chemical.
(i) Information provided to Congress
(Pub. L. 99–499, title III, § 322, Oct. 17, 1986, 100 Stat. 1747.)