PROPOSED RULES
LABOR AND INDUSTRIES
Original Notice.
Preproposal statement of inquiry was filed as WSR 03-04-097.
Title of Rule: Chapter 296-816 WAC, Protecting trade secrets and chapter 296-62 WAC, General occupational health standards.
Purpose: The department is rewriting and clarifying requirements relating to trade secrets. The preproposal for trade secrets was filed with access to records on February 4, 2003, as WSR 03-04-097. However, L&I decided to file access to records and trade secrets as two separate proposed rules. As a result, access to records was filed as a proposed rule on November 18, 2003, as WSR 03-23-101. This will make the trade secret requirements easy to read and understand, making them more useful for employers. This proposal will move trade secret requirements from chapter 296-62 WAC, General occupational health standards, to a new chapter, chapter 296-816 WAC, Protecting trade secrets.
NEW SECTIONS WAC 296-816-100 Scope, 296-816-200 Protecting trade secrets, 296-816-20005 Meet certain conditions in order to withhold trade secret information, 296-816-20010 Provide trade secret information in a medical emergency, 296-816-20015 Respond to requests for trade secret information in nonemergency situations, 296-816-20020 Provide trade secret information when requested by WISHA, and 296-816-300 Definitions; and amending WAC 296-62-05305 Meet certain conditions if you withhold trade secret information.
| • | A note will be added stating that requirements relating to trade secrets have been moved and the requirements in WAC 296-62-05305 through 296-62-05325 only apply to agriculture. |
Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060.
Statute Being Implemented: Chapter 49.17 RCW.
Summary: The department is rewriting and clarifying requirements relating to trade secrets. This will make the trade secret requirements easy to read and understand, making them more useful for employers. This proposal will move trade secret requirements from chapter 296-62 WAC, General occupational health standards, to a new chapter, chapter 296-816 WAC, Protecting trade secrets.
Reasons Supporting Proposal: See Purpose above.
Name of Agency Personnel Responsible for Drafting: Tracy Spencer, Tumwater, (360) 902-5530; Implementation and Enforcement: Michael A. Silverstein, Tumwater, (360) 902-5495.
Name of Proponent: Department of Labor and Industries, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: The trade secrets rule, in chapter 296-62 WAC, General occupational health standards, contains requirements for withholding and disclosing trade secrets. These requirements will be rewritten and moved into chapter 296-816 WAC, Protecting trade secrets. There are no anticipated effects of this rule making.
Proposal does not change existing rules.
No small business economic impact statement has been prepared under chapter 19.85 RCW. A number of criteria and exemptions were established by the small business economic impact statement (SBEIS) analysis. One key criteria that allows rule changes to be exempt from preparation of an SBEIS is presented in RCW 34.05.310 (4)(d): "rules that only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect" are not subject to the SBEIS requirements. Because the proposed rule changes make clarifying and organizational changes for ease of understanding and use, but do not in any way alter the content of the original rules, there should not be an economical impact on Washington state business.
The analysis of the rule reveals that in addition to not imposing new costs on businesses, these revisions will actually make WISHA rules easier for employers and employees to understand and use, and thus actually save them time.
RCW 34.05.328 does not apply to this rule adoption. Significant rule-making criteria does not apply to the rule amendments because the changes simply clarify the language of the rule without changing its effect.
Hearing Location: Department of Labor and Industries Building, Rooms S117 and S118, 7273 Linderson Way S.W., Tumwater, WA, on April 29, 2004, at 2:30 p.m.
Assistance for Persons with Disabilities: Contact Sally Elliot by April 22, 2004, at (360) 902-5484 or yous235@lni.wa.gov.
Submit Written Comments to: Kimberly Johnson, Administrative Regulations Analysis, WISHA Services, P.O. Box 44620, Olympia, WA 98504, fax (360) 902-5529, by May 6, 2004.
Date of Intended Adoption: June 1, 2004.
March 23, 2004
Paul Trause
Director
OTS-7041.1
AMENDATORY SECTION(Amending WSR 01-11-038, filed 5/9/01,
effective 9/1/01)
WAC 296-62-05305
Meet certain conditions if you withhold
trade secret information.
| Note: | The requirements in WAC 296-62-05305 through 296-62-05325 apply only to agriculture. The requirements for all other industries relating to trade secrets have been moved to chapter 296-816 WAC, Protecting trade secrets. |
You:
• Can support the claim that the information withheld is a trade secret.
• Disclose all other available information about the properties and effects of the toxic substance.
• Disclose the information in the material safety data sheet about the properties and effects of the hazardous chemical.
• Inform the person requesting the information, or the material safety data sheet states that the specific chemical identity is being withheld as a trade secret.
• Make available the specific chemical identity to health professionals, employees, and their designated representatives according to the provisions of this rule.
Nothing in this rule hinders an employer from deleting from records requested by a health professional, employee, or designated representative any trade secret data which discloses manufacturing processes, or discloses the percentage of a chemical substance in a mixture.
You must notify the health professional, employee, or designated representative requesting records that information about the trade has been deleted from the records.
If deleting trade secret information from a record substantially impairs evaluation of the location or the time when exposure to a toxic substance occurred, you must provide alternative information that enables the requesting party to identify where and when the exposure occurred.
[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. 01-11-038, § 296-62-05305, filed 5/9/01, effective 9/1/01.]
OTS-6936.2
NEW SECTION
WAC 296-816-100
Scope.
This chapter applies to both:
• Withholding trade secret information from material safety data sheets (MSDSs) and employee exposure records;
AND
• Providing trade secret information in medical emergencies and nonemergency situations.
Definition:
Trade secrets: Any confidential information that is used in an employer's business and gives an opportunity to gain an advantage over competitors who do not know or use it. It can be a:
• Formula.
• Pattern.
• Process.
• Device.
• Information.
• Collection of information.
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Your responsibility:
To meet requirements that apply to your workplace when withholding or providing trade secret information.
You must:
Indicate when trade secret information has been withheld.
Provide trade secret information in a medical emergency.
Provide trade secret information in nonemergency situations.
Provide trade secret information when requested by WISHA.
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You must:
• Indicate clearly in the MSDS or employee exposure records that trade secret information has been withheld.
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You must:
• Immediately provide the specific chemical identity to the treating physician or nurse when they determine:
– That a medical emergency exists;
AND
– The specific chemical identity is necessary to treat the employee involved in the medical emergency.
| Note: | • You may require a written statement of need and confidentiality agreement from the treating physician or nurse receiving the trade secret information as soon as circumstances of the medical emergency permit. |
| • If the health care professional receiving the trade secret information decides that there is a need to disclose it to WISHA, they need to inform you prior to, or at the same time as, disclosure being made to WISHA. |
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You must:
• Provide trade secret information in nonemergency situations when a written request by a health professional, employee, or designated representative, includes the following:
– Details showing that the trade secret information is needed for one or more of the following occupational health reasons:
&sqbul; Assessing the hazards of the chemicals employees will be exposed to.
&sqbul; Conducting or assessing sampling of the workplace atmosphere to determine employee exposure levels.
&sqbul; Conducting medical surveillance of exposed employees.
&sqbul; Providing medical treatment to exposed employees.
&sqbul; Selecting or assessing personal protective equipment for exposed employees.
&sqbul; Designing or assessing engineering controls or other protective measures.
&sqbul; Conducting studies to determine the health effects of exposure.
– Details showing why the following alternative information does not meet the needs of the requestor:
&sqbul; The properties and effects of the chemical.
&sqbul; Measures for controlling employees' exposure to the chemical.
&sqbul; Methods of monitoring and analyzing employee exposure to the chemical.
&sqbul; Methods of diagnosing and treating harmful exposures to the chemical.
– The procedures that will be used to keep the information confidential.
• Meet all the following requirements if you decide not to provide the requested trade secret information:
– Provide a written denial within thirty days that includes the following information:
&sqbul; The reasons for denying the request.
&sqbul; Evidence that the requested information is a trade secret.
&sqbul; A detailed explanation of how alternative information may satisfy the requesting party's needs without revealing any specific chemical identity.
– Provide alternative information that allows the requesting party to identify where and when an exposure occurred, if trade secret information was deleted.
– Make available all other information about the properties and effects of the specific chemical.
| Note: | • WISHA may issue orders or impose additional limitations or conditions on the release of the information to make sure that the occupational health needs are met without risk to you when you show WISHA that a confidentiality agreement will not provide enough protection against harm that could be caused to your business by disclosing a specific chemical identity. |
| • If the health care professional, employee, or designated representative receiving the trade secret information decides that there is a need to disclose it to WISHA, they need to inform you prior to, or at the same time as, disclosure being made to WISHA. |
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IMPORTANT:
If you deny a request for trade secret information, the requestor may refer the written denial, along with the original request, to WISHA for consideration. WISHA will review the denial and determine if it meets the requirements of this chapter.
You must:
• Provide trade secret information to WISHA when requested.
– Make any trade secret claim, including supporting documentation, by the time you provide WISHA with the information.
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Designated representative:
• Any individual or organization to which an employee gives written authorization.
• A recognized or certified collective bargaining agent without regard to written employee authorization.
• The legal representative of a deceased or legally incapacitated employee.
Employee exposure record:
A record containing any of the following information:
• Environmental (workplace) monitoring or measuring of a toxic substance or harmful physical agent, including personal, area, grab, wipe, or other form of sampling, as well as related collection and analytical methodologies, calculations, and other background data relevant to interpretation of the results obtained.
• Biological monitoring results which directly assess the absorption of a toxic substance or harmful physical agent by body systems, such as the level of a chemical in the blood, urine, breath, hair, or fingernails, but not including results which assess the biological effect of a substance or agent or which assess an employee's use of alcohol or drugs.
• Material safety data sheets (MSDSs) indicating that the material may pose a hazard to human health;
OR
• In the absence of the above:
– A chemical inventory or any other record that reveals where and when used and the identity (e.g., chemical, common or trade name) of a toxic substance or harmful physical agent.
– Exposure records of other employees with past or present job duties or related working conditions.
Exposure or exposed:
The contact an employee has with a toxic substance, harmful physical agent, or oxygen deficient condition. Exposure can occur through various routes, such as inhalation, ingestion, skin contact, or skin absorption.
Health professional:
A physician, occupational health nurse, industrial hygienist, toxicologist, or epidemiologist, providing medical or other occupational health services to exposed employees.
Record:
Any item, collection, or grouping of information. Examples include:
• Paper document.
• Microfiche.
• Microfilm.
• X-ray film.
• Computer record.
Specific chemical identity:
Any information that reveals the precise chemical designation of the substance, such as:
• Chemical name;
OR
• Chemical abstracts service (CAS) registry number.
Trade secret: Any confidential information that is used in an employer's business and gives an opportunity to gain an advantage over competitors who do not know or use it. It can be a:
• Formula.
• Pattern.
• Process.
• Device.
• Information.
• Collection of information.
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