Section 205.290  Trade Secret Procedures

a)         The Department shall determine that a toxic substance is a trade secret if:

1)         The employer, manufacturer, importer, or supplier has asserted a written trade secret claim which has not expired by its terms nor been waived or withdrawn and conforms to the following:

A)        The whole or any portion or phrase of any specific or technical information, design, process, procedure, formula or improvement or business plan which has not been published or disseminated or otherwise become a matter of general public knowledge and which has a competitive value.

B)        A trade secret is presumed to be a secret when the owner thereof takes reasonable measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto.

2)         The substance is identified by a generic chemical classification which would permit independent toxicological evaluation by a health professional.

3)         All other information on the properties and effect of the substance is contained in the MSDS as required by Section 3(j) of the Act.

4)         The MSDS indicates which category of the information is being withheld on trade secret grounds.

5)         The withheld information shall be provided by the trade secret holder on a confidential basis to a treating health care professional who states in writing that a patient's health problems may be the result of occupational exposure.

6)         A statement with the name of the holder of the trade secret information and an emergency telephone number shall be included on the MSDS.

7)         In an emergency medical situation, as determined by the fire department, user, employee, employee representative or treating health care professional, the holder of the trade secret shall disclose the trade secret to the treating health care professional without requiring the prior signing of any written statement (Ill. Rev. Stat. 1983, ch. 48, par. 1413).

b)         Until the trade secret designation is granted, the MSDS shall indicate all information required in Section 3(j) of the Act, except the chemical name which is the subject of the trade secret request.

c)         The manufacturer, importer, supplier or designated representative shall set an appointed time with the Department to deliver or mail the trade secret request.  The appointed time shall be agreeable to both parties and shall be confirmed in writing by the Director.

d)         Information needed by the Department to make a trade secret determination is as follows:

1)         Trade secret questionnaire completed (See Appendix B);

2)         A completed Material Safety Data Sheet without the chemical name;

3)         The information/chemical name which is the subject of the trade secret request;

4)         A description with detailed procedures on how the requester will deal with emergency and non-emergency requests for disclosures of the trade secret; and

5)         A description of the training program for preparing employees to deal with trade secret toxic substances.

e)         The Department will determine at the time of the trade secret review whether the information submitted pursuant to Subsection (d) is complete.

f)          If the trade secret request is deemed complete by the Department, a written statement to that effect will be provided by the Department.  This will include a statement as to whether the trade secret designation is approved or disapproved within 30 days of the receipt by the Department of the trade secret request.  All trade secret information shall be returned with the approval or disapproval.

g)         If the trade secret request is deemed to be administratively incomplete, the requester of the trade secret designation will be given clear, written indication of the additional information and documents needed within 30 days of the receipt by the Department of the trade secret request.

h)         When the additional information is obtained, the requester of trade secret designation shall repeat the steps in Subsections (c) through (e) above.

i)          No trade secret information will be left with or mailed to the Department without prior written confirmation as described.  If for some reason such information is left at or mailed to the Illinois Department of Labor without such prior written Confirmation by the Director, the Department will not take extraordinary precaution to protect the trade secret but will mail the information back to the provider of such information at the earliest convenience time.

j)          The Department shall maintain a log of trade secret approvals with at least the requester's name, product name, trade name, date of letter or confirmation or review, data of receipt, date of approval and duration of the trade secret.

k)         Only an authorized person shall have access to trade secret information which has arrived at the Department by appointment pursuant to Subsection 9(d) above.

(Source:  Added at 8 Ill. Reg. 22058, effective October 29, 1984)