
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC11042]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
       CHAPTER 116--EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW
 
                   SUBCHAPTER III--GENERAL PROVISIONS
 
Sec. 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) of this 
    section, 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) of this 
        section,
            (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) of this section, 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

        The authority under this subsection to withhold information 
    shall not apply to information which the Administrator has 
    determined, in accordance with subsection (c) of this section, is 
    not a trade secret.

(b) Trade secret factors

    No person required to provide information under this chapter may 
claim that the information is entitled to protection as a trade secret 
under subsection (a) of this section 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

    As soon as practicable after October 17, 1986, the Administrator 
shall prescribe regulations to implement this section. With respect to 
subsection (b)(4) of this section, such regulations shall be equivalent 
to comparable provisions in the Occupational Safety and Health 
Administration Hazard Communication Standard (29 C.F.R. 1910.1200) and 
any revisions of such standard prescribed by the Secretary of Labor in 
accordance with the final ruling of the courts of the United States in 
United Steelworkers of America, AFL-CIO-CLC v. Thorne G. Auchter.

(d) Petition for review

                           (1) In general

        Any person may petition the Administrator for the disclosure of 
    the specific chemical identity of a hazardous chemical, an extremely 
    hazardous substance, or a toxic chemical which is claimed as a trade 
    secret under this section. The Administrator may, in the absence of 
    a petition under this paragraph, initiate a determination, to be 
    carried out in accordance with this subsection, as to whether 
    information withheld constitutes a trade secret.

                         (2) Initial review

        Within 30 days after the date of receipt of a petition under 
    paragraph (1) (or upon the Administrator's initiative), the 
    Administrator shall review the explanation filed by a trade secret 
    claimant under subsection (a)(2) of this section and determine 
    whether the explanation presents assertions which, if true, are 
    sufficient to support a finding that the specific chemical identity 
    is a trade secret.

                (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\ may seek judicial review of the 
    determination.
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    \1\ So in original. Probably should be ``claimant''.
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               (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

    Nothing in this section, or regulations adopted pursuant to this 
section, shall authorize any person to withhold information which is 
required to be provided to a health professional, a doctor, or a nurse 
in accordance with section 11043 of this title.

(f) Providing information to Administrator; availability to public

    Any information submitted to the Administrator under subsection 
(a)(2) of this section or subsection (d)(3) of this section (except a 
specific chemical identity) shall be available to the public, except 
that upon a showing satisfactory to the Administrator by any person that 
the information (or a particular part thereof) to which the 
Administrator has access under this section if made public would divulge 
information entitled to protection under section 1905 of title 18, such 
information or part shall be considered confidential in accordance with 
the purposes of that section, except that such information or part may 
be disclosed to other officers, employees, or authorized representatives 
of the United States concerned with carrying out this chapter.

(g) Information provided to State

    Upon request by a State, acting through the Governor of the State, 
the Administrator shall provide to the State any information obtained 
under subsection (a)(2) of this section and subsection (d)(3) of this 
section.

(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

    Notwithstanding any limitatio \2\ contained in this section or any 
other provision of law, all information reported to or otherwise 
obtained by the Administrator (or any representative of the 
Administrator) under this chapter shall be made available to a duly 
authorized committee of the Congress upon written request by such a 
committee.
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    \2\ So in original. Probably should be ``limitation''.
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(Pub. L. 99-499, title III, Sec. 322, Oct. 17, 1986, 100 Stat. 1747.)

                  Section Referred to in Other Sections

    This section is referred to in sections 11043, 11044, 11045, 11046, 
13106 of this title.
