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8 CAR § 100-109. Trade secrets
8 CAR § 100-109. Trade secrets.
(a) The chemical manufacturer or employer may withhold the specific chemical identity, including the chemical name and other specific identification of a hazardous chemical, from the material safety data sheet, provided that:
(1) The claim that the information withheld is a trade secret can be supported;
(2) Information contained in the material safety data sheet concerning the properties and effects of the hazardous chemical is disclosed;
(3) The material safety data sheet indicates that the specific chemical identity is being withheld as a trade secret; and
(4) The specific chemical identity is made available to health professionals, employees, and designated representatives in accordance with the applicable provisions of this part.
(b)(1) Where a treating physician or nurse determines that a medical emergency exists and the specific chemical identity of a hazardous chemical is necessary for emergency or first-aid treatment, the chemical manufacturer or employer shall immediately disclose the specific chemical identity of a trade secret chemical to that treating physician or nurse, regardless of the existence of a written statement of need of a confidentiality agreement.
(2) The chemical manufacturer or employer may require a written statement of need and confidentiality agreement, in accordance with the provisions of subsections (c) and (d) of this section, as soon as circumstances permit.
(c) In nonemergency situations, a chemical manufacturer or employer shall, upon request, disclose a specific chemical identity, otherwise permitted to be withheld under subsection (a) of this section, to:
(1) A health professional, i.e., physician, industrial hygienist, toxicologist, epidemiologist, or occupational health nurse, providing medical or other occupational health services to exposed employees; and
(2) Employees or designated representatives, if:
(A) The request is in writing;
(B) The request describes with reasonable detail one (1) or more of the following occupational health needs for the information to:
(i) Assess the hazards of the chemicals to which employees will be exposed;
(ii) Conduct or assess sampling of the workplace atmosphere to determine employee exposure levels;
(iii) Conduct pre-assignment or periodic medical surveillance of exposed employees;
(iv) Provide medical treatment to exposed employees;
(v) Select or assess appropriate personal protective equipment for exposed employees;
(vi) Design or assess engineering controls or other protective measures for exposed employees; and
(vii) Conduct studies to determine the health effects of exposure;
(C) The request explains in detail why the disclosure of the specific chemical identity is essential and that, in lieu thereof, the disclosure of the following information to the health professional, employee, or designated representative, would not satisfy the purposes described in subdivision (c)(2)(B) of this section:
(i) The properties and effects of the chemical;
(ii) Measures for controlling workers’ exposure to the chemical;
(iii) Methods of monitoring and analyzing workers’ exposure to the chemical; and
(iv) Methods of diagnosing and treating harmful exposures to the chemical;
(D) The request includes a description of the procedures to be used to maintain the confidentiality of the disclosed information; and
(E) The health professional, and the employer or contractor of the services of the health professional, i.e., downstream employer, labor organization, or individual employee, employee, or designated representative, agree in a written confidentiality agreement that the health professional, employee, or designated representative will not use the trade secret information for any purpose other than the health need or needs asserted and agree not to release the information under any circumstances other than to the Director of the Division of Labor as provided in subsection (f) of this section except as authorized by the terms of the agreement or by the chemical manufacturer or employer.
(d) The confidentiality agreement authorized by subdivision (c)(2)(D) of this section:
(1) May restrict the use of the information to the health purposes indicated in the written statement of need;
(2) May provide for appropriate legal remedies in the event of a breach of the agreement, including stipulation of a reasonable pre-estimate of likely damages; and
(3) May not include requirements for the posting of a penalty bond.
(e) Nothing in this standard is meant to preclude the parties from pursuing noncontractual remedies to the extent permitted by law.
(f) If the health professional, employee, or designated representative receiving the trade secret information decides that there is a need to disclose it to the director, the chemical manufacturer or employer who provided the information shall be informed by the health professional, employee, or designated representative prior to, or at the same time as, such disclosure.
(g) If the chemical manufacturer or employer denies a written request for disclosure of a specific chemical identity, the denial must:
(1) Be provided to the health professional, employee, or designated representative within thirty (30) days of the request;
(2) Be in writing;
(3) Include evidence to support the claim that the specific chemical identity is a trade secret;
(4) State the specific reasons why the request is being denied; and
(5) Explain in detail how alternative information may satisfy the specific medical or occupational health need without revealing the specific chemical identity.
(h) The director, upon his or her initiative, or upon request by the health professional, an employee, designated representative, or public employer, shall request any or all of the data substantiating the trade secret claim to determine whether the claim is valid.
(i)(1) The director shall:
(A) Protect from disclosure all information coming into his or her possession that is marked as confidential; and
(B) Return all information so marked at the conclusion of his or her determination.
(2) Any information marked confidential pursuant to this part shall not be disclosed during any administrative proceeding held pursuant to this part.
(3) Administrative hearings held pursuant to this part shall not be open to the public, but otherwise shall be held in a manner consistent with that provided for in the Arkansas Administrative Procedure Act, Arkansas Code § 25-15-201 et seq., for hearings in contested cases.
(4) The proponent of disclosure shall also have the right to be heard.
(j) No employee of the State of Arkansas shall disclose any information designated as a trade secret other than within the provision of Arkansas Code § 8-7-1001 et seq.
(k) Nothing in this part shall be construed as requiring the disclosure under any circumstances of process or percentages of mixture information that is a trade secret.
(l) Any administrative order issued by the director with respect to any trade secret claim is subject to appeal as provided in the Arkansas Administrative Procedure Act.