Section 296-62-05301. Definitions.

Understand a trade secret.

The following is a reprint of the Restatement of Torts section 757, comment b (1939):

Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one's business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. It differs from other secret information in a business (see § 759 of the Restatement of Torts which is not included in this Appendix) in that it is not simply information as to single or ephemeral events in the conduct of the business, as, for example, the amount or other terms of a secret bid for a contract or the salary of certain employees, or the security investments made or contemplated, or the date fixed for the announcement of a new policy or for bringing out a new model or the like. A trade secret is a process or device for continuous use in the operations of the business. Generally, it relates to the production of goods, as, for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management.

Director means the director of the department of labor and industries or his/her designee.

Chemical means any element, chemical compound or mixture of elements and/or compounds.

Chemical manufacturer means an employer with a workplace where chemical(s) are produced for use or distribution.

Chemical name means the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry (IUPAC) or the Chemical Abstracts Service (CAS) rules of nomenclature, or a name which will clearly identify the chemical for the purpose of conducting a hazard evaluation.

Combustible liquid means any liquid having a flashpoint at or above 100°F (37.8°C), but below 200°F (93.3°C), except any mixture having components with flashpoints of 200°F (93.3°C), or higher, the total volume of which make up ninety-nine percent or more of the total volume of the mixture.

Commercial account means an arrangement whereby a retail distributor sells hazardous chemical(s) to an employer, generally in large quantities over time and/or at costs that are below the regular retail price.

Common name means any designation or identification such as code name, code number, trade name, brand name or generic name used to identify a chemical other than by its chemical name.

Compressed gas means:

• A gas or mixture of gases having, in a container, an absolute pressure exceeding 40 psi at 70°F (21.1°C); or

• A gas or mixture of gases having, in a container, an absolute pressure exceeding 104 psi at 130°F (54.4°C) regardless of the pressure at 70°F (21.1°C); or

• A liquid having a vapor pressure exceeding 40 psi at 100°F (37.8°C) as determined by ASTM D-323-72.

Container means any bag, barrel, bottle, box, can, cylinder, drum, reaction vessel, storage tank, or the like that contains a hazardous chemical. For purposes of this part, pipes or piping systems are not considered to be containers.

Designated representative means any individual or organization to whom an employee gives written authorization to exercise such employee's rights under this section. A recognized or certified collective bargaining agent shall be treated automatically as a designated representative without regard to written employee authorization.

Definitions applicable to this rule:

Distributor means a business, other than a chemical manufacturer or importer, which supplies hazardous chemicals to other distributors or to employers.

Employee means an employee of an employer who is employed in the business of his or her employer whether by way of manual labor or otherwise and every person in this state who is engaged in the employment of or who is working under an independent contract the essence of which is personal labor for an employer under this standard whether by way of manual labor or otherwise. However, for the purposes of this part, employee shall not mean immediate family members of the officers of any corporation, partnership, sole proprietorship, or other business entity or officers of any closely held corporation engaged in agricultural production of crops or livestock. This part applies to employees who may be exposed to hazardous chemicals under normal operating conditions or in foreseeable emergencies.

Employer means any person, firm, corporation, partnership, business trust, legal representative, or other business entity that engages in any business, industry, profession, or activity in this state and employs one or more employees or who contract with one or more persons, the essence of which is the personal labor of such person or persons and includes the state, counties, cities, and all municipal corporations, public corporations, political subdivisions of the state, and charitable organizations. This part applies to employers engaged in a business where chemicals are either used, distributed, or are produced for use or distribution, including a contractor or subcontractor.

Explosive means a chemical that causes a sudden, almost instantaneous release of pressure, gas, and heat when subjected to sudden shock, pressure, or high temperature.

Exposure or exposed means that an employee is/was subjected to a hazardous chemical in the course of employment through any route of entry (inhalation, ingestion, skin contact or absorption, etc.), and includes potential (e.g., accidental or possible) exposure.

Flammable means a chemical that falls into one of the following categories:

• Aerosol flammable means an aerosol that, when tested by the method described in 16 C.F.R. 1500.45 yields a flame projection exceeding eighteen inches at full valve opening, or a flashback (a flame extending back to the valve) at any degree of valve opening;

• Gas, flammable means:

• A gas that, at ambient temperature and pressure, forms a flammable mixture with air at a concentration of thirteen percent by volume or less; or

• A gas that, at ambient temperature and pressure, forms a range of flammable mixtures with air wider than twelve percent by volume, regardless of the lower limit;

• Liquid, flammable means any liquid having a flashpoint below 100°F (37.8°C), except any mixture having components with flashpoints of 100°F (37.8°C) or higher, the total of which make up ninety-nine percent or more of the total volume of the mixture.

• Solid, flammable means a solid, other than a blasting agent or explosive as defined in WAC 296-52-417 or 29 C.F.R. 1910.109(a), that is liable to cause fire through friction, absorption of moisture, spontaneous chemical change, or retained heat from manufacturing or processing, or which can be ignited readily and when ignited burns so vigorously and persistently as to create a serious hazard. A chemical shall be considered to be a flammable solid if, when tested by the method described in 16 C.F.R. 1500.44, it ignites and burns with a self-sustained flame at a rate greater than one-tenth of an inch per second along its major axis.

Flashpoint means the minimum temperature at which a liquid gives off a vapor in sufficient concentration to ignite when tested as follows:

• Tagliabue closed tester: (See American National Standard Method of Test for Flash Point by Tag Closed Tester, Z11.24-1979 (ASTM D 56-79)) for liquids with a viscosity of less than 45 Saybolt Universal Seconds (SUS) at 100°F (37.8°C), that do not contain suspended solids and do not have a tendency to form a surface film under test; or

• Pensky-Martens closed tester: (See American National Standard Method of Test for Flash Point by Pensky-Martens Closed Tester, Z11.7-1979 (ASTM D 93-79)) for liquids with a viscosity equal to or greater than 45 SUS at 100°F (37.8°C), or that contain suspended solids, or that have a tendency to form a surface film under test; or

• Setaflash closed tester: (See American National Standard Method of Test for Flash Point by Setaflash Closed Tester (ASTM D 3278-78)).

Note:	Organic peroxides, which undergo autoaccelerating thermal decomposition, are excluded from any of the flashpoint determination methods specified above.

Foreseeable emergency means any potential occurrence such as, but not limited to, equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release of a hazardous chemical into the workplace.

Hazardous chemical means any chemical which is a physical hazard or a health hazard.

Hazard warning means any words, pictures, symbols, or combination thereof appearing on a label or other appropriate form of warning which convey the specific physical and health hazard(s), including target organ effects, of the chemical(s) in the container(s). (See definition for "physical hazard" and "health hazard" to determine the hazards which must be covered.)

Health hazard means a chemical for which there is statistically significant evidence based on at least one study conducted in accordance with established scientific principles that acute or chronic health effects may occur in exposed employees. The term "health hazard" includes chemicals which are carcinogens, toxic or highly toxic agents, reproductive toxins, irritants, corrosives, sensitizers, hepatotoxins, nephrotoxins, neurotoxins, agents which act on the hematopoietic system, and agents which damage the lungs, skin, eyes, or mucous membranes. Appendix A provides further definitions and explanations of the scope of health hazards covered by this part, and Appendix B describes the criteria to be used to determine whether or not a chemical is to be considered hazardous for purposes of this standard.

Identity means any chemical or common name which is indicated on the material safety data sheet (MSDS) for the chemical. The identity used shall permit cross-references to be made among the required list of hazardous chemicals, the label and the MSDS.

Importer means the first business within the Customs Territory of the United States which receives hazardous chemicals produced in other countries, for the purpose of supplying them to distributors or employers within the United States. This definition is the same as Webster's, therefore we did not include it in the definitions.

Material safety data sheet (MSDS) means written or printed material concerning a hazardous chemical which is prepared in accordance with WAC 296-62-05408.

Mixture means any combination of two or more chemicals if the combination is not, in whole or in part, the result of a chemical reaction.

Organic peroxide means an organic compound that contains the bivalent-0-0-structure and which may be considered to be a structural derivative of hydrogen peroxide where one or both of the hydrogen atoms has been replaced by an organic radical.

Oxidizer means a chemical other than a blasting agent or explosive as defined in WAC 296-52-417 or C.F.R. 1910.109(a), that initiates or promotes combustion in other materials, thereby causing fire either of itself or through the release of oxygen or other gases.

Permissible exposure limits (PELs) refer to airborne concentrations of substances without regard to the use of respiratory protection and represent conditions under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect. The permissible exposure limits (PELs) shall include the following four categories:

• Permissible exposure limits - Time-weighted average (PEL-TWA) is the time weighted average airborne exposure to any 8-hour work shift of a 40-hour work week which shall not be exceeded.

• Permissible exposure limits - Short-term exposure limit (PEL-STEL) is the employee's 15-minute time weighted average exposure which shall not be exceeded at any time during a work day unless another time limit is specified in a parenthetical notation below the limit. If another time period is specified, the time weighted average exposure over that time period shall not be exceeded at any time during the working day.

• Permissible exposure limits - Ceiling (PEL-C) is the employee's exposure which shall not be exceeded during any part of the work day. If instantaneous monitoring is not feasible, then the ceiling shall be assessed as a 15-minute time weighted average exposure which shall not be exceeded at any time over a working day.

• "Skin" notation is the potential contribution to the overall employee exposure by the cutaneous route including mucous membranes and eye, either by airborne, or more particularly, by direct contact with the substance. These substances are identified as having a "skin" notation in the OSHA and WISHA PEL tables (29 C.F.R. Part 1910 Subpart Z and WAC 296-62-075, respectively).

Physical hazard means a chemical for which there is scientifically valid evidence that it is a combustible liquid, a compressed gas, explosive, flammable, an organic peroxide, an oxidizer, pyrophoric, unstable (reactive) or water-reactive.

Produce means to manufacture, process, formulate, blend, extract, generate, emit, or repackage.

Purchaser means an employer with a workplace who purchases a hazardous chemical for use within that workplace.

Pyrophoric means a chemical that will ignite spontaneously in air at a temperature of 130°F (54.4°C) or below.

Responsible party means someone who can provide additional information on the hazardous chemical and appropriate emergency procedures, if necessary.

Specific chemical identity means the chemical name, Chemical Abstracts Service (CAS) registry number, or any other information that reveals the precise chemical designation of the substance.

Threshold limit values (TLVs) refer to airborne concentrations of substances without regard to the use of respiratory protection and represent conditions under which it is believed that nearly all workers may be repeatedly exposed day after day without adverse effect. The TLV includes the TLV-Time weighted average (TLV-TWA), TLV-Short term exposure limit (TLV-STEL), TLV-Ceiling (TLV-Ceiling) and "skin" notation as stated in the most recent edition of the 'Threshold Limit Values for Chemical Substances and Physical Agents and Biological Exposure Indices' from the American Conference of Governmental Industrial Hygienists (ACGIH).

Trade secret means any confidential formula, pattern, process, device, information or compilation of information that is used in an employer's business, and that gives the employer an opportunity to obtain an advantage over competitors who do not know or use it. WAC 296-62-05427, Appendix D, provides a legal definition of trade secret and WAC 296-62-05417 sets out the criteria to be used in evaluating trade secrets.

Unstable (reactive) means a chemical which in the pure state, or as produced or transported, will vigorously polymerize, decompose, condense, or will become self-reactive under conditions of shocks, pressure or temperature.

Use means to package, handle, react, emit, extract, generate as a by-product, or transfer.

Water-reactive means a chemical that reacts with water to release a gas that is either flammable or presents a health hazard.

Workplace means an establishment, job site, or project, at one geographical location containing one or more work areas.

[Statutory Authority: RCW 49.17.010, [49.17].040, and [49.17].050. WSR 01-11-038, § 296-62-05301, filed 5/9/01, effective 9/1/01.]

RCW 49.17.010, [49.17].040, and [49.17].050. WSR 01-11-038, § 296-62-05301, filed 5/9/01, effective 9/1/01.

Rules

296-52-417,296-62-05408,296-52-417,296-62-075,296-62-05427,296-62-05417,