836-200-0540 Information Claimed to be Trade Secret (1) To request exemption from the disclosures required under OAR 836-200-0545, reporting manufacturers must clearly identify any information provided to the department that they assert to be conditionally exempt from disclosure under ORS 192.345 as a trade secret, in the following fashion: (a) Each line and informational element in every filed document that is claimed to be a trade secret must be clearly marked by the manufacturer; (b) Each filing that contains information claimed as trade secret by the manufacturer must include, in accordance with standards set forth on the department’s website, for each individual piece of information claimed as trade secret: (A) The name of the data element; (B) A detailed written explanation, including factual information, demonstrating the information is exempt from disclosure in accordance with the following requirements: (i) The information is not patented; (ii) The information is known only to certain individuals within the manufacturer’s organization and used in any business the organization conducts; (iii) The information has actual or potential commercial value; (iv) The information gives the manufacturer an opportunity to obtain a business advantage over competitors who do not know or use it; and (v) To the extent required by law, the public interest does not require disclosure of the information. (c) If the manufacturer asserts that disclosure of any information provided in a report is affirmatively prohibited by state or federal law, the manufacturer must clearly indicate the relevant information and explain the basis of this assertion, including citations of the applicable state and federal laws and the facts that support the assertion. (2) The burden of proof to establish that information in a filing is conditionally exempt from disclosure as a trade secret is on the manufacturer submitting the filing. The department shall review the manufacturer’s explanations and supporting information, as well as other information available to the department, and determine exemptions from the disclosures required under OAR 836-200-0545 on a case-by-case basis. (3) If the department determines that any information claimed as trade secret by a reporting manufacturer must be disclosed, the department shall notify the manufacturer and provide a written explanation of the department’s determination. Within 15 days after receiving this notification, a manufacturer may submit a letter to the director to appeal the department’s determination and request reconsideration. The letter must explain the grounds for the request. (4) The director or the director’s designee will review appeals provided under section (3) of this rule and issue a determination within 15 days, or within a time period necessary to obtain legal review, of receiving an appeal letter. If the director’s determination would result in the release of information claimed as trade secret by the manufacturer, the department shall notify the manufacturer of the director’s decision at least 21 days in advance of disclosing the information as provided under OAR 836-200-0545. (5) If the department exempts information provided by a manufacturer under OAR 836-200-0515 to 836-200-0535 from disclosure under OAR 836-200-0545, the department shall post an explanation of the basis of the exemption to its website along with a general description of the nature of the information exempted. (6) A person may petition the Attorney General, as provided in ORS 192.411, to review a decision by the department to exempt information from disclosure under this rule. Statutory/Other Authority: ORS 646A.689 Statutes/Other Implemented: ORS 646A.689 History: ID 2-2025, amend filed 03/26/2025, effective 04/01/2025 ID 2-2019, adopt filed 02/26/2019, effective 03/01/2019