Ohio Admin. Code 3750-60-20 - Substantiating claims of trade secrecy
(A) Claims of trade secrecy pertaining to
those additional extremely hazardous substances listed in paragraph (B) of rule
3750-20-30
of the Administrative Code or those additional hazardous chemicals identified
in paragraph (B) of rule
3750-30-25
of the Administrative Code shall be set forth on the report or other filing
otherwise required under sections
3750.04,
3750.05,
3750.07, and
3750.08 of the Revised Code and
must be substantiated by providing the specific answers including, where
applicable, specific facts, to each of the following questions with the
submission to which the trade secrecy pertains. The claimant must answer these
questions on a form entitled"Substantiation To Accompany Claims Of Trade
Secrecy" as set forth in rule
3750-60-23
of the Administrative Code.
(B)
The substantiation shall contain an explanation as to why the information
should be protected as trade secret information and shall include a specific
description of the substantiation factors listed below.
(1) Describe the specific measures the
claimant has taken to safeguard the confidentiality of the chemical identity
claimed as a trade secret, and indicate whether these measures will continue in
the future.
(2) Has the claimant
disclosed the information claimed as trade secret to any other person (other
than an officer or employee of the United States or a state or local
government, or claimant's employee) who is not bound by a confidentiality
agreement to refrain from disclosing this trade secret information to others?
(3) List all local, state, and
federal government entities to which the claimant had disclosed the specific
chemical identity. For each, indicate whether the claimant asserted a
confidentiality claim for the chemical identity and whether the government
entity denied that claim.
(C) In order to show the validity of a trade
secrecy claim, the claimant must identify the specific use of the chemical
claimed as trade secret and explain why it is a secret of interest to
competitors by addressing each of the following:
(1) Describe the specific use of the chemical
claimed as trade secret, identifying the product or process in which it is
used. (If the claimant uses the chemical other than as a component of a product
or in a manufacturing process, identify the activity where the chemical is
used).
(2) Has the claimant's
company or facility identity been linked to the specific chemical identity
claimed as trade secret in a patent, or in publications or other information
sources available to the public or the claimant's competitors (of which the
claimant is aware)? If so, explain why this knowledge does not eliminate the
justification for trade secrecy.
(3) If this use of the chemical claimed as
trade secret is unknown outside the claimant's company, explain how the
claimant's competitors could deduce this use from disclosure of the chemical
identity on submissions required by sections
3750.04, 3850.05,
3750.07, and
3750.08 of the Revised Code.
(4) Explain why the claimant's use
of the chemical claimed as a trade secret would be valuable information to the
claimant's competitors.
(5)
Indicate the nature of the harm to the claimant's competitive position that
would likely result from disclosure of the specific chemical identity, and
indicate why such harm would be substantial.
(6) To what extent is the chemical claimed as
trade secret available to the public or the claimant's competitors in products,
articles, or environmental releases.
(7) 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 contain the chemical
(e.g., whether the chemical is in pure form or is mixed with other substances).
(D) The answers to the
substantiation questions listed in paragraphs (B) and (C) of this rule are to
be submitted on the form identified in rule
3750-60-23
of the Administrative Code which shall be included with the claimant's trade
secret claim.
(E) The claimant,
owner, operator or senior official with management responsibility shall sign
the certification at the end of the substantiation form contained in rule
3750-60-23
of the Administrative Code. The certification in both the sanitized and
unsanitized versions of the substantiation must bear an original signature.
Notes
Rule promulgated under: RC Chapter 119.
Rule authorized by: RC 3750.02(B)(1)(i), 3750.02(B)(2)(d), 3750.02(B)(5), 3750.02(B)(14)
Rule amplifies: RC 3750.09
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