Section 317.2. Trade secret claims

(a) Withholding of chemical name. An importer, employer, manufacturer or supplier may withhold the chemical name or other specific identification of a chemical as a trade secret, if the following conditions are met:

(1) The claim that the information withheld is a trade secret can be supported by the importer, employer, manufacturer or supplier making the claim.

(2) The MSDS discloses the information concerning the properties and effects of the hazardous substance or hazardous mixture.

(3) The label and MSDS show the following:

(i) The specific chemical identity is being withheld as a trade secret.

(ii) A trade secret for a special hazardous substance is being claimed.

(4) The specific chemical identity is made available to health professional under § 317.3 (relating to disclosure to health professionals).

(5) The importer, employer, manufacturer or supplier making the trade secret claim files a notice of the claim with the Department. This notice may not require the person making the claim to disclose the information which is claimed to be a trade secret. An MSDS containing a notation that the information is a trade secret is sufficient notice for this paragraph.

(b) Review of trade secret claims.

(1) An aggrieved person or employe representative may request a review of a trade secret claim, but an appeal from the decision of the Department does not give the person the right of access to information considered confidential in paragraph (4). The request shall contain the following:

(i) The name and address of the person requesting review.

(ii) A description of the type of work or business engaged in by the requestor.

(iii) The name and address of the entity whose trade secret is sought to be reviewed.

(iv) A certification that the requestor is not a competitor of the entity from whom the trade secret review is requested. The certification shall include the following language: ‘‘I hereby certify that, to the best of my knowledge, I nor any member of my immediate family am now, nor plan to be, a competitor or representative, employe or agent of a competitor of the entity from whom I am making this request.’’ This certification shall be signed and dated by the requestor.

(v) Other information which is supportive of the requestor’s claim that the information sought is not a trade secret.

(2) Within 30 days of the receipt of the aggrieved person’s or employe representative’s written request or, upon its initiative, the Department will notify the person claiming the trade secret to file an application and supporting evidence. The application shall be on a form supplied by the Department.

(3) Reviews of trade secret claims under this section shall give regard to similar decisions by other Federal or Commonwealth agencies or Pennsylvania courts, or both.

(4) Proceedings shall be in conformity with 1 Pa. Code Part II (relating to general rules of administrative practice and procedure) and shall be closed to persons except the employer, supplier, manufacturer or importer and the Department.

(i) Trade secret applications, pleadings, hearing transcripts, documents and other records filed with the Department or a court under a review of trade secret claims or appeals thereof shall be confidential and may not be disclosed to the public.

(ii) The notice of claim filed with the Department and a petition for review or other pleading filed with the courts which do not reveal either the trade secret or information claimed as confidential shall be considered as public records.

(iii) Records that reveal either the trade secret or information claimed as confidential shall be sealed and held as confidential by the Department or, upon request, returned to the employer, supplier, manufacturer or importer at the close of proceedings hereunder.

(5) If the Department finds that the information in question is not a trade secret as defined by the act and this part, it will order disclosure of the information. The order is a final adjudication appealable to the Commonwealth Court. An appeal shall act as a stay to an order of the Department or a court which requires disclosure.

Notation

Cross References

This section cited in 34 Pa. Code § 317.2 (relating to trade secret claims).