ILLIN~I~

POLLUTION CONTROL BOARD

February

10,

1983

I~T

THE

MATTER OF:

)

IDENTIFICATION AND PROTECTION

)

R81-30

OF TRADE SECRETS

)

Pro~sed

Rule.

First

Notice

ORDER OF THE BOARD

(I.

G. Goodman):

It

is

the

Order

of

the

Board

that

the

abtacheci

regulatory

proposal

be adopted for First

Notice

publication

in

the

Illinois

Recjister.

IT

tS SO ORDERED.

I,

Christan

L. Moffett,

Clerk

of the Illinois Pollution

Control Board, hereby certify

that

the above Order was adopted

on

the

r~ day of ~

1983 by a vote of

‘~:

i.

1-

Christan

L. Moffett,

Clerk

Illinois

Pollution ‘Cöntrol

Board

51453

---

____

FiLl

NOIS_REGISTER

ILLINOIS

POLLUTION

CONTROL BOARD

TEXT

OF

PROPOSED

RULES

TITLE

31F

ENVIRONMENTAL

PROTECTION

SUBTITLE

A~

GENERAL

PROVISIONS

CHAPTER I:

POLLUTION

CONTROL BOARD

PART

120:

IDENTIFICATION AND

PROTECTION OF TRADE SECRETS

SUBPART

A:

GENERAL PROVISIONS

Section 120.101

Purpose

This Part establishes

uniform

procedures

for the identification

and protection of

articles

which

represent trade secrets and

which are

reported

to

or

otherwise

obtained by the Illinois

Environmental

Protection

Agency,

the

Illinois

Pollution Control

Board

(Board),

or

the Illinois t~epartn~ent

of

Energy and Natural

Resources (Department).

Section 120.102

Superseding

Requirements

Regulations adopted

by the Board

for

particular programs or

orders of the

Board

in particular

proceedings

shall supersede

any conflicting

requirements in this

Part.

Section 120.103

Definitions

a)

Except as

otherwise

defined

in

subsection

(b), definitions

of terms used

in

this

Part

shall be

those

used in the

Environmental

Protection Act (Ill,

Rev.

Stat.

198l~ ch. 111½,

par. 1001

et seq~)

and in 35

Ill. Mm. Code 101.

b)

The following definitions

shall

apply

to this Part only:

“Agency”

means

any

of the following:

The Illinois Pollution Control Board;

or

The

Illinois

Environmental

Protection Agency; or

The

Illinois Department

of

Energy and Natural Resources.

“Article” means

any object,

material, device or substance o~

whole or

partial

copy

thereof,

including any writing,

record,

document,

recording,

drawing,

sample,

specimen, prototype,

model, photograph,

culture,

microorganism, blueprint or map.

---

ILLINOIS

REGISTER

ILLINOIS POLLUTION

CONTROL BOARD

TEXT OF PROPOSED RULES

“Authorized

Representative”

means any person who is

authorized to

represent an

agency on a contractual

basis.

“Copy”

means

any

facsimile,

replica, photograph,

or other

reproduction

of an

article,

and any note, drawing or sketch

made of or

from

an article,

“Owner”

means

any person who owns an article reported to or

obtained by an

agency or

any authorized representative of

such person.

“Proceeding”

means

ant rulemaking,

adjudication, certifica-

tion,

or

permitting conducted

by

an agency under the Act or

regulations

promulgated

thereunder.

“Representing”

means describing,

depicting,

containing, con-

stituting,

reflecting

or recording.

“Requester” means

any

person who makes a request to an agency

to review an article.

“Trade Secret”

means the

whole

or any portion or phase of

any scientific

or

technical

information, design, process

(including a

manufacturing

process), procedure,

formula or

improvement,

or

business

plan which is secret in that it

has not been

published

or

disseminated or otherwise become

a matter of

general

public

knowledge,

and which has cornpe—

titive value.

A

trade

secret

is presumed to be 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 for limited purposes.

SUBPART B:

PROCEDURES

FOR IDENTIFYING ARTICLES

WHICH

REPRESENT

TRADE SECRETS

Section 120.201

Claim

That

Article

Represents A Trade

Secret

a)

Any article submitted

to

or

otherwise obtained by an agency

shall

be considered

tn he

claimed to represent a trade secret

and shall be

protected

from

disclosure by the agency pursuant

to Subpart C of

this

Part,

if

and only if the agency is pro-

vided with the

following:

---

ILLINOIS REGISTER

ILLINOIS

POLLUTION CONTROL BOARD

TEXT OF PROPOSED RULES

1)

A claim letter which clearly states that the article

is claimed to

represent a trade secret,

as defined

in these

rules

and the Act, and names and briefly

describes the

article; and

2)

A copy of the

article marked as provided

in Section

120,302;

and

3)

Either a Statement

of Justification

for the claim

meeting the requirements

of Section

120.204(c);

or

a limited waiver of

the statutory

deadlines for any

agency decision as

provided in

subsection

(b)

of

this section.

b)

In lieu of submitting a

Statement of

Justification at the

time a claim

is made,

the owner of an article

claimed to

represent a trade secret

may submit a written

waiver of

any statutory deadlines

for agency decisions

which may be

delayed due to a subsequent

justification

and determination

process.

Such waiver

shall extend the

deadline for decision

for a period equal

to the

period by

which the decision

is

delayed plus

10

working

days.

c)

At any time, the owner

of any article in the

possession of

the agency may

claim that the article represents

a trade

secret pursuant to the

procedures in

subsection

(a),

d)

Any article submitted

to or otherwise obtained

by the agency,

but not determined to

represent

a trade

secret,

prior

to the

effective date of this Part,

shall

be

deemed to be claimed

to represent a trade

secret for 30 working

days after the

effective date of

this Part,

e)

This Section

shall

not apply to any article submitted

to

or otherwise

obtained

by the agency which was

determined

by the agency to

represent

a

trade secret

prior to the

effective date of

these

rules,

Section 120.202

Request

for

Disclosure of An Article Which

Is Claimed

to Represent A Trade Secret

Any person may make

a request

for the disclosure

of information

which has been claimed to

represent a trade

secret pursuant to

51-157

---

—

ILLINOIS REGISTER

ILLINOIS POLLUTION

CONTROL

BOARD

TEXT

OF PROPOSED RULES

Section 120.201 by submitting

to the agency a

written request

which names

or describes

the

article

as

it is

named or described

in the claim

letter

submitted by the owner.

Section 120.203

Agency Request

for

Justification of Claim

Any employee of the agency who

is

authorized

to make

determina-

tions pursuant

to

Section

120,305(a)

may request that the owner

of

an article claimed to represent a

trade

secret submit a jus-

tification meeting the

requirements of Section 120.204.

Such

request may be made when the

article

is submitted

or

obtained,

or at any time thereafter.

The request shall

be in written form,

shall

be signed by the authorized

empLoyee,

and shall state the

circumstances warranting the request.

Circumstances in

which

such a request may be warranted

inc:iude,

but

are not limited to,

the following:

a)

Reasonable

anticipation

of requests from

the public

for disclosure of

the

article; or

b)

Facilitation

of

public

participation

in

proceedings

before

the

agency

where

notice

and/or

comment

periods

are

short

relative

to the

time

required

for

a

final

determination

in

accordance

with

the

requirements

of

this Part;

or

c)

A practice,

on the part

of an owner of

an article,

of indiscriminately

claiming

that articles submitted

to the agency represent trade secrets;

or

d)

The requirement in

a

specific regulation that

a

determination of whether

the

article

represents

a

trade secret be made at the

time

that it is sub-

mitted to or obtained by

the agency.

Section 120.204

Justification of

Claim

That-.

An Article

Represents

A

Trade Secret

a)

Upon receipt of a written

request

for the

disclosure or

justification of an article

pursuant to

Sections 120,202

or 120.203,

the agency

shall

send written

notification of

the request, return receipt

requested,

to

the owner of the

article as identified

in the claim

letter

submitted pursuant

---

ILLINOIS REGISTER

______

ILLINOIS

POLLUTION CONTROL

BOARD

TEXT OF

PROPOSED RULES

to Section

l20,201(a)(l).

As a minimum,

this notification

shall

contain

the

following:

1)

A

copy of the

written request; and

2)

A

list of the

standards

to

be

used in

the

Agency’s

determination

and the information

required to be

supplied in a

statement

of

justification; and

3)

A notice

of the

time period prescribed

by subsection

(c)

for the return

of

a

complete statement

of justification

to the agency,

including notice of

the availability of

an extension

of

that

time

period,

b)

The owner shall have

10

working

days

from

the date of

receipt of the notification

required

by

subsection

(a)

of this section to

submit

the

statement

of

justification

to the agency.

This

time

period

may

be

extended by the

agency for a second period

of

10

working

days

if, within

the first

10 day period,

the owner submits a

request for

an extension.

c)

A

statement of

justification shall contain the

following:

1)

A detailed

description

of

the

procedures used by the

owner to safeguard the article from becoming available

to persons other

than those selected by

the owner to

have access thereto

for

limited

purposes; and

2)

~ detailed statement

identifying

the

persons or class

of persons to

whom

the

article

has

been

disclosed;

and

3)

A certification

that the owner has

no knowledge that

the article has ever

been published,

disseminated or

otherwise become a

matter

of

general

public knowledge;

and

4)

A detailed

discussion of

why

the

owner believes the

article to be of

competitive

value;

and

5)

Any other pertinent

information

which

will support the

claim.

~1-1~a

---

ILLINOIS_REsISIC

______________

ILLINOIS POLLU!tO~ ‘ONflO

TEXT OF PROP PED

I LEG

Section 120.205

Agency De

r

r

‘

‘r

do

°ecret

Status

of An

Arti’

e

a)

Within 10 working

days

L om tic.

ste ot rc.ceipt of a

com-

plete statement of ju.ti ica

rescribed in Section

120.204, the agency shal

.ru.

net er the article

represents a trade secret.

It s tne period may be ex-

tended for a second

period

of

J working days,

if within

the

first

10 day period

tha aaenc.y

otifies the owner and

requester

of the extension.

b)

An

article

shall

be

deternined

to

ripresent

a

trade

secret

if

and

only

if:

1)

The owner

has

substantially complied with the pro-

cedures for making a clair and justification as

prescribed by this Part,

and

2)

The statement of just fic-ati

deironstrates that:

A)

The article

has

not been published, disseminated

or otherwise

bec.oire

knowledge;

and

B)

The article has

c.

~r

tittve vazue.

c)

There shall be a rebuttab1e

rreslmpt.on

that an article

has not been published,

aab,,’

•:c’

~

~e

therwise become

a matter of general pub.

c.

it

wli..

f

1)

The owner has taken reo4orable -teas res to prevent

the article from bec.

r

ig av

3

cble to persons other

than those selectea by

Is aner to have access thereto

for

limited

purposes

at’

2)

The

statement

of

justifi~.otio

c.ortains

a

certification

that

the

owner

has

no

knowiedge

that

the

article has

ever been published. dissemin:ted

or otherwise become

a

matter

of

generaz

pubti

knawle~ge

d)

The

agency

may

determine

that

any

part

or

portion

of

the

article

represents

a

trade

secrot

whic.I

meets

the

ments

of

subsection

(b

e)

Notwithstanding the requiremen

of subsections (a)—(d),

any article which was dete

i

r d b

51-160

---

ILLI~

CI

1’

ILLINOIS tO I

TEXT OP

~ro

00

I45

a

trade

secret

con0

st

in effect prior to t~.etC

t

be deemed to hive be~

t

secret

for

the

purpo..

o

‘

Section

120.206

Agency

Ac.

1

.3

a)

If the agency determiies t

i

portion thereof, does not

ifos

Section l20.205(b)(l)

r

claim for trade secret ar.

e t

or portion thereof, aid

denial

to

the

owne:

of

tic.

es or procedures

°

~ nt a trade

~

cgative

Determination

t

~r

t,.

e,

or

any

part

or

~

‘t.tr

lards

specified

in

e

°

~y

shall

deny

the

!o

tie

article

or

part

i

e~ notice

of

such

i

u

t to subsection

(b).

b)

Written

notice

of

tIo

e

I

a

r

trade

secret

protection

shall

be

v~

.~

a.

rett.rn recipt

requested, and sha’l c ntt~

tic

f

.ov”tq

information:

1)

A

statement

of

tie

;e’t’j

claim;

and

2)

A

notification of

-1..

i

~

la

agency decision par

a

t.

in Section 12

205

$

•

t

n

Ccr

denying the

y

-

review

of

the

,.

oc.Cdures

prescribed

3)

A notification that

h

a4

c.

or

he

part

or

portion thereof,

vii

i-c

suIja.t

~o lisclosure

unless, within SO

/

c~

-

~tto

f notice to

the

owner

t!e

ace.

s

tice of the

filing of apetit or 4r

I

c)

If the agency is served w

s~t~

e ‘iling of a

petition for review ot

-

~s

is

U.

r w.~thin30 days of

the notice to the

subn

‘te

I

og

cy 0hall notify the

requester of such actio

erA

tJ

or’ nue to protect the

article, or

the

part or

por-

i

r tIe

sot, pursuant to Subpart

C until such time as it re eives

1. cial notification of a

final, non—appealable orler by

r$ a~propriatereviewing body

which does not reverse

‘

e

-

r

‘-err3nation

d)

If the agency does not

e

:ve

e.

r

t fication of a

petition for review or d.t s

o.e’

c

f cial notification

of a final, non-appealable a’

r

h does not reverse

the agency determination, the article 3hall not be pro-

tected pursuant to Subpar

C

n

.

-

gency shall notify

both the owner

and

tic.

n

c

c

It article, or the

part or portion thereof

a

I

i

‘o ed.

---

IL

ILLINOI~P

ThE

r

Ui?

I’

BOARD

Section 120.207

Ags y

a)

If

the

agency

Set°

-

portion

tneref

t

120.2O5(b)(l)

a-i

for trade

sec-re

p

e

of such granting to t

requestor pursia t

o s

b)

Written notice of

tin

gr

t

protection shall be

; v~

requested, and shall c nt

,

o,. ‘tive Determination

elf.

ô1

partor

s

peatiee. in Section

~

tit

the claim

p.

e written notice

a tide and the

..la’r

tor trade secret

t5

m ii, return receipt

e

tug information:

C.

V

a

a

on.

‘~.

1)

A

statement

of

t

e

o

rot

granting

the

claim;

and

2)

A

notificatior

n

t

ar

b

i. y

)f

tenet

of

the

agency’s

detera

nat

p

an

o

tne

prescribed

ir

Sect

r

20

8’

a-id

3)

A notification tha

e

1.

e, or the part or portion

thereof, will

tot b~

at

e~

o diclosure until such

time

as

tie

a

e

1~

otification

of

a final

no—a

e

)e

y

e

awingbody

whict revc.roto

19

C

c)

The agency shall con~

t.~

z

ct an article, or the

part

or

ports

.~

U

e~ret protection

has

been

granted

pur

a

‘

r

ur’il

such

time

as

it

receives

official

ot

C

C

nal

non—appealable

order by an appropna

r

ci

reverses the

agency determinatior

Section 120.208

Review oc

Je

c

a)

Except

as

provided

i

b

adversely affected by

to

this Part, may pett

,

days

after entry of

-

b)

An owner or requester v o

Board determination pt

cial review by filing a

e

Section 41 of the Eivi or

ut

e

r

requester

who

is

~-c’r

‘

c

e,.n.nation pursuant

h

or review within 35

ac

e nination.

o

e oMy attected by a final

I rt

ay obtain judi-

o

1

rev.ew pursuant to

ovtor

Act.

51

---

____

ILLINOIS

REGISTER

ILLINOIS

POLLUTION

CONTROL

BOARD

TEXT

OF PROPOSED RULES

c)

For the purpose of this section,

failure of an agency to

act

as

expeditiously

as possible in conformance with the

procedures in this Part, may be deemed to be

a reviewable

final agency determination.

Section 120.209

Status of

Article

Claimed or Determined to

Represent a Trade Secret

a)

A claim or determination by one agency that an article

represents

a

trade

secret

made pursuant to this Part shall

apply

to

that

same

article

when

in

the

possession

of

either

of

the

other two agencies.

b)

Notwithstanding

subsection

(a),

any

person

may

make

a

written

request

that

an

agency having

possession

of

the

article review a

determination

made

pursuant to this

Part.

c)

The agency shall review

a determination made pursuant

to

this Part if and only if the person making the request for

review presents prima facie evidence of a change in factual

circumstances which would require the reversal of the

agency’s Section 205(b)

determination.

The review of a

prior determination shall utilize the same procedures

utilized in making the prior determination,

i.e.,

Sections

120.204 through 120.208,

Section 120.210

Intergovernmental Disclosure

Notwithstanding this Subpart, any article which has been

claimed or determined to

represent

a

trade secret pursuant

to

this

Part

may

be

disclosed

to officers, employees or

authorized

representatives

of the State or the United States

who are designated or authorized

to

have access to the article

pursuant to Section

120.305.

SUBPART C:

PROCEDURES FOR PROTECTING ARTICLES

WHICH REPRESENT TRADE SECRETS

Section

120.301

Applicability

Any article which is claimed

or

determined to

represent

a trade

secret pursuant to Subpart B shall

be

protected from unauthorized

disclosure

pursuant

to

this

Subpart.

1

~1R~

---

ILLINOIS REGISTER

TEXT

OF PROPOSED RULES

Section 120.302

Marking of

Article

a)

The owner of an article

which is claimed to

represent

a

trade secret shall mark

the~article with the

words “TRADE

SECRET” in red ink on

the face or front of the article.

If only a part or portion of

an

article

is claimed to

represent a trade

secret,

the

owner

of

the

article shall

also

mark

the

part

or

portion

in

the

above manner.

b)

Upon determining that an

article represents a

trade secret

pursuant to Section

120,205, the agency shall

mark the

article

with

the

word

“DETERMINED”

in

red

ink on the face

or front of the article.

If

only

a

part

or

portion of the

article is determined to represent a trade secret,

that

part

or

portion shall also

be

marked

in

the

above manner.

c)

Prior to transmitting

any

article

which

is

claimed or

determined

to

represent

a

trade

secret

to

another

agency,

the

agency

shall

insure

that the article

is

properly

marked

pursuant

to

subsections

(a)

and/or

(b).

Section

120,303

Segregation

of

Article

Any article

or

any

part

or

portion

thereof

which

is

claimed

or

determined

to

be

a

trade

secret

shall

be

kept

segregated

from

articles

which

are open to

public

inspection,

and

shall

be kept

secure

from

unauthorized

access,

Section

120.304

Public

Access

to

Information

Related

to

Article

a)

A

copy

of

the

claim

letter

submitted

pursuant

to

Section

l20,201(a)(l)

shall

be open

to

public

inspection.

b)

Upon a final determination

pursuant

to

Subpart

B

that an

article represents a trade

secret,

the agency shall

mark

in red ink the claim

letter with the word “DETERMINED.”

c)

Upon a final determination

that only a part or portion

of

an article represents a

trade secret, the agency

shall mark

the claim letter pursuant

to

subsection

(b).

A

copy

of the

article, with the part or

portion

which

is determined to

represent a trade

secret, or

which would lead to

disclosure

of the trade secret,

deleted shall

be open to public

inspection.

---

______

ILLINOIS REGISTER

________

ILLINOIS

POLLUTION CONTROL BOARD

TEXT OF

PROPOSED RULES

Section 120,305

Access to

Claimed or Determined

Article

a)

The

agency

shall

designate

the

agency

employees

and/or

officers who are authorized to review articles which are

claimed to

represent

trade

secrets

for

the

purpose

of

making

requests and determinations

pursuant

to

Sections 120.203

and 120.205.

h)

Access

to an article which

is

claimed

or

determined to

represent a trade secret

shall

be

limited

to:

1)

Employees or officers

designated

pursuant

to

subsection

(a);

or

2)

Other employees,

officers, or agency

representatives

specifically authorized by

the designated

employee or

officer to have access to

the article

for the purpose

of carrying out

the Act or

regulations promulgated

thereunder or when relevant

to

a

proceeding under the

Act;

or

3)

Employees,

officers,

or authorized representatives

of

the United States

who

are

specifically

authorized

by

the designated agency

employee

or

officer

to

have

access to the article

for

the

purpose

of carrying out

federal

environmental

statutes or regulations.

c)

The agency shall maintain a

log

of

all

persons who review

an article which

is

claimed

or

determined

to

represent

a

trade secret.

Section 120.306

Unauthorized

Disclosure

or Use of Article

a)

The agency shall

insure that

all persons who are

authorized

to have access to an article which

is

claimed or determined

to represent a trade secret are given notice of the restric-

tions on disclosure and use of the article contained

in this

Subpart,

and of the sanctions and liabilities prescribed

in

subsections

(d) and

(e) for unauthorized disclosure or use

of the article,

b)

No agency officer, employee,

or

authorized

representative

may disclose,

or use for his

or

her

private

gain or advan-

tage, any article which is

claimed

or

determined

to

repre-

sent

a

trade secret except as

authorized

by

this

Subpart.

51

155

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ILLINOIS REGISTER

ILLINOIS

POLLUTION CONTROL BOARD

TEXT OF PROPOSED RULES

a)

Each

agency officer,

employee,

or authorized representative

shall take appropriate measures to properly safeguard an

article which is claimed or determined

to

represent a trade

secret and to protect against its

improper

disclosure.

d)

Violations of subsections (b)

or

(c)

of this section shall

constitute grounds for dismissal, suspension, fine, or

other

adverse personnel action.

Violation of subsection

(b) may

also result in civil liability or criminal prosecution

pur-

suant to state and/or federal statutes.

e)

Each authorized representative of the agency

who

is furnished

with access to an article which is claimed or determined to

represent a trade secret pursuant to this

Part

shall use or

disclose

that

information only as authorized by the contract

under which such person is authorized to represent the

agency.

Any

contract

between

the agency and the authorized

representative shall state that

the

trade secret protection

requirements

of

the

contract

are

expressly

for

the

benefit

of

the

owner

of

an article which is claimed or determined to

be a trade secret pursuant to this Part and that a breach

thereof will permit the owner to sue the authorized repre-

sentatives directly.

In addition, any violation of sub-

sections

(b),

(c) or (e) shall constitute grounds for

Section 120.307

Prohibition on Copying Article

No agency officer, employee, or authorized representative shall

copy an article which is claimed or determined to represent a

Section 120.308

Destruction of Articles No !1onger Required

For Record

When it is determined that an article which is claimed or deter-

mined to represent a trade secret is

no’

longer required to pe

maintained as an agency record, the agency shall destroy the

article by shredding or burning.

t4 400

---

____

____

ILLINOIS REGISTER

ILLINOIS

POLLUTION

CONTROL

BOARD

TEXT OF PROPOSED

RULES

SUBPART D:

INTERNAL

AGENCY

PROCEDURES

Section

120.401

Each agency may adopt additional procedures which are not incon-

sistent with this Part for the protection of articles which are

claimed

or determined to represent a trade secret.

S1~157