2006 Code of Virginia § 3.1-249.68 - Protection of trade secrets and other information

3.1-249.68. Protection of trade secrets and other information.

A. In submitting data required by this chapter, the applicant may (i) clearlymark any portions thereof which in his opinion are trade secrets orcommercial or financial information and (ii) submit such marked materialsseparately from other material required to be submitted under this chapter.

B. Notwithstanding any other provision of this chapter, and subject to thelimitations in subsections D and E of this section, the Commissioner shallnot make public information which in his judgment contains or relates totrade secrets or commercial or financial information obtained from a personand privileged or confidential, except that, when necessary to carry out theprovisions of this chapter, information relating to formulas of productsacquired by authorization of this chapter may be revealed to any federal,state or local agency consulted and may be revealed at a public hearing or infindings of fact issued by the Commissioner or Board.

C. If the Commissioner proposes to release for inspection information whichthe applicant or registrant believes to be protected from disclosure undersubsection B of this section, he shall notify the applicant or registrant, inwriting, by certified mail. The Commissioner shall not thereafter makeavailable for inspection such data until thirty days after receipt of thenotice by the applicant or registrant. During this period, the applicant orregistrant may institute an action in an appropriate circuit court for adeclaratory judgment as to whether such information is subject to protectionunder subsection B.

D. 1. All information concerning the objectives, methodology, results, orsignificance of any test or experiment performed on or with a registered orpreviously registered pesticide or its separate ingredients, impurities, ordegradation products, and any information concerning the effects of suchpesticide on any organism or the behavior of such pesticide in theenvironment, including, but not limited to, data on safety to fish andwildlife, humans and other mammals, plants, animals, and soil, and studies onpersistence, translocation and fate in the environment, and metabolism, shallbe available for disclosure to the public. The use of such data for anyregistration purpose shall be governed by Article 2 ( 3.1-249.35 et seq.) ofthis chapter. This subsection does not authorize the disclosure of anyinformation that:

a. Discloses manufacturing or quality control process,

b. Discloses the details of any methods for testing, detecting, or measuringthe quantity of any deliberately added inert ingredient of a pesticide, or

c. Discloses the identity or percentage quantity of any deliberately addedinert ingredient of a pesticide, unless the Commissioner has first determinedthat disclosure is necessary to protect against an unreasonable risk ofinjury to health or the environment.

2. Information concerning production, distribution, sale, or inventories of apesticide that is otherwise entitled to confidential treatment undersubsection B of this section may be publicly disclosed in connection with apublic proceeding to determine whether a pesticide, or any ingredient of apesticide, causes unreasonable adverse effects on health or the environment,if the Commissioner determines that such disclosure is necessary in thepublic interest.

3. If the Commissioner proposes to disclose information described insubdivisions D 1 a, b, or c or subdivision D 2 of this section, theCommissioner shall notify by certified mail the submitter of such informationof the intent to release such information. The Commissioner shall notrelease such information, without the submitter's consent, until thirty daysafter the submitter has been furnished such notice. Where the Commissionerfinds that disclosure of information described in subdivisions D 1 a, b, or cis necessary to avoid or lessen an imminent and substantial risk or injury tothe public health, the Commissioner may set such shorter period of notice andsuch method of notice as the Commissioner finds appropriate. During suchperiod the data submitter may institute an action in an appropriate circuitcourt to enjoin or limit the proposed disclosure. The court shall giveexpedited consideration to any such action. The court may enjoin disclosure,or limit the disclosure or the parties to whom disclosure shall be made, tothe extent that:

a. In the case of information described in subdivision D 1 a, b, or c, theproposed disclosure is not required to protect against an unreasonable riskof injury to health or the environment; or

b. In the case of information described in subdivision D 2 of this section,the public interest in availability of the information in the publicproceeding does not outweigh the interests in preserving the confidentialityof the information.

E. Information otherwise protected from disclosure to the public undersubsection B of this section may be disclosed to contractors with theCommonwealth and employees of such contractors if, in the opinion of theCommissioner, such disclosure is necessary for the satisfactory performanceby the contractor of a contract with the Commonwealth for the performance ofwork in connection with this chapter and under such conditions as theCommissioner may specify. The Commissioner shall require as a condition tothe disclosure of information under this section that the person receiving ittake such security precautions respecting the information as the Board shallby regulation prescribe.

F. The Commissioner shall not knowingly disclose information submitted by anapplicant or registrant under this chapter to any employee or agent of anybusiness or other entity engaged in the production, sale, or distribution ofpesticides in countries other than the United States or in addition to theUnited States or to any other person who intends to deliver such data to suchforeign or multinational business or entity unless the applicant orregistrant has consented to such disclosure. The Commissioner shall requirean affirmation from any person who intends to inspect data that such persondoes not seek access to the data for purposes of delivering it or offering itfor sale to any such business or entity or its agents or employees and willnot purposefully deliver or negligently cause the data to be delivered tosuch business or entity or its agents or employees. Notwithstanding anyother provision of this section the Commissioner may disclose information toany person in connection with a public proceeding under law or regulation,subject to restrictions on the availability of information containedelsewhere in this chapter, which information is relevant to the determinationby the Commissioner with respect to whether a pesticide, or any ingredient ofa pesticide, causes unreasonable adverse effects on health or the environment.

The Commissioner shall maintain records of the names of persons to whom dataare disclosed under this section and the persons or organizations theyrepresent and shall inform the applicant or registrant of the names andaffiliation of such persons.

G. Any person, who, with intent to defraud, uses or reveals informationrelative to formulas of products acquired pursuant to this chapter shall beguilty of a Class 6 felony.

(Code 1950, 3-208.36; 1966, c. 702; 1975, c. 102, 3.1-238; 1989, c. 575.)