The trade secrets element addresses a tension that exists in many process industries: the need to protect proprietary business information while ensuring that everyone involved in process safety has access to the information they need to do their jobs safely. Under 29 CFR 1910.119(p), employers must make all information necessary for PSM compliance available to the people who need it, regardless of trade secret status. However, employers may require confidentiality agreements to protect their legitimate business interests. Ecesis PSM software supports this element through role-based access controls that provide the right information to the right people while protecting sensitive data.
What OSHA Requires
Under 29 CFR 1910.119(p), employers must, regardless of trade secret status:
- Make all information necessary to comply with PSM requirements available to persons who are responsible for compiling process safety information, assisting in the development of PHAs, developing operating procedures, involved in incident investigations, involved in emergency planning and response, and involved in compliance audits
- Provide trade secret information to employees and their designated representatives in accordance with 29 CFR 1910.1200 (Hazard Communication Standard)
Employers may require persons receiving trade secret information to enter into confidentiality agreements to prevent disclosure, provided the agreement does not restrict the use of the information for PSM purposes.
Step-by-Step Implementation
Identify Trade Secret Information in Your PSM Program
Review your process safety information to identify any data that your organization considers a trade secret:
- Proprietary chemical formulations or compositions
- Proprietary process chemistry or reaction conditions
- Proprietary catalyst compositions
- Unique process configurations that provide competitive advantage
Most standard PSM information (equipment specifications, P&IDs, operating limits, chemical hazard data) is not typically trade secret material. Be careful not to over-classify information, as this can create barriers to legitimate PSM activities.
Develop Confidentiality Agreements
If you have legitimate trade secret information that PSM-involved personnel need to access, develop confidentiality agreements that:
- Identify the specific categories of information considered trade secrets
- Require the recipient to protect the information from unauthorized disclosure
- Do not restrict the use of the information for PSM compliance purposes (PHAs, procedure development, incident investigation, emergency planning)
- Define what happens when the person's involvement in PSM activities ends
Have the agreements reviewed by legal counsel to ensure they comply with both PSM requirements and state trade secret laws.
Implement Access Controls
Establish practical mechanisms for providing access to trade secret information while maintaining appropriate controls:
- Role-based access in your document management system that limits trade secret information to personnel with a documented need
- Signed confidentiality agreements on file before access is granted
- A log or audit trail of who has accessed trade secret information
- Clear instructions that trade secret classification never justifies withholding safety-critical information from PSM-involved personnel
Train Personnel on Trade Secret Obligations
Ensure that both information holders and information users understand their obligations:
- Management and legal teams understand that trade secret claims cannot override PSM information access requirements
- PSM-involved personnel understand their confidentiality obligations when handling trade secret information
- PHA team leaders, incident investigators, and procedure writers know how to request access to trade secret information when needed for their PSM responsibilities
Common Pitfalls to Avoid
How Software Supports This Element
Ecesis PSM software supports trade secret management through information access controls:
- Role-based access: Configure document permissions so trade secret information is accessible only to personnel with a documented need and signed confidentiality agreements
- Document management: Centralized document storage with access logging provides an audit trail of who has accessed sensitive information
- Chemical management: SDS management ensures chemical hazard information is available to all employees as required by both PSM and HazCom
- Training records: Document confidentiality training and track signed agreements alongside PSM training records
Frequently Asked Questions
Can we refuse to share process safety information with employees?
No. OSHA requires that all information necessary for PSM compliance be made available to involved personnel regardless of trade secret status. You may require confidentiality agreements but cannot withhold the information.
What qualifies as a trade secret under PSM?
PSM follows the trade secret definition in the Hazard Communication Standard (29 CFR 1910.1200), which generally covers information that derives economic value from not being generally known and is subject to reasonable efforts to maintain secrecy. Not all confidential business information qualifies as a trade secret.
Can contractors be required to sign confidentiality agreements?
Yes. When contractors need access to trade secret information for PSM activities such as PHA participation or maintenance work, they can be required to sign confidentiality agreements as a condition of access.
What if an employee refuses to sign a confidentiality agreement?
An employer can require a confidentiality agreement as a condition of access to trade secret information. However, the employer cannot use this as a basis for refusing to provide safety information needed for PSM compliance. If there is a dispute, OSHA enforcement guidance generally favors employee access to safety information.
Does the trade secrets provision apply to compliance auditors?
Yes. Compliance auditors are specifically listed as persons who must have access to PSM information regardless of trade secret status. Auditors can be required to sign confidentiality agreements.
Ecesis PSM Compliance Software
PSM Software
Centralized platform to manage all 14 PSM compliance elements
Management of Change
Submit, route, and approve change requests through defined workflows
Incident Investigation
Report, investigate, and track corrective actions to completion
Training Management
Deliver and track PSM training with comprehension verification
Mechanical Integrity
Schedule inspections, track deficiencies, and manage maintenance
PSM Compliance Calendar
Track deadlines across all 14 elements automatically
