Question # 880

880. A company with both domestic and foreign operations wishes to claim on a Form R that the identity of a toxic chemical that it processes is a trade secret. The company has entered into confidentiality agreements with all non-government entities that have knowledge of the identity and/or usage of the toxic chemical. These confidentiality agreements prevent the non-government entities from disclosing information about the chemical's identity or usage. The company, however, has not entered into a confidentiality agreement with one of the foreign governments where it operates because the government is required by its laws to keep information regarding foreign business interests confidential. If the company discloses the identity of the chemical to this foreign government, is it required to report this disclosure on a Trade Secret Substantiation Form?
Yes. Because the company has not entered into a tangible confidentiality agreement with the foreign government, it must report the disclosure on the Trade Secret Substantiation Form. In other words, it should check 'yes' when answering question 3.2 on the form. However, because the foreign government's laws guarantee confidentiality of the TRI chemical's identity and usage, regardless of the existence of a confidentiality agreement, the identity of the chemical is protected. The company should explain this when answering question 3.1 on the form.

Additional Details

Question # 880 Source EPCRA Section 313 Questions & Answers 2019 Consolidation Document (PDF)(413 pp, 2.4 MB, April 2019)
ID 19-880 Status Current
Category 7. Trade Secrets Subcategory
Keyword(s) Public Disclosure, Trade Secret
Prior Q&A [Archived] Question Number 722, 1998 EPCRA 313 Q&A