[Federal Register Volume 60, Number 248 (Wednesday, December 27, 1995)] [Notices] [Pages 66981-66982] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 95-31368] ----------------------------------------------------------------------- DEPARTMENT OF HEALTH AND HUMAN SERVICES [Docket No. 95N-253S] Procedures for Handling Confidential Information in Rulemaking AGENCY: Food and Drug Administration, HHS. ACTION: Notice. ----------------------------------------------------------------------- SUMMARY: The Food and Drug Administration (FDA) is publishing a statement regarding the procedures generally followed by the agency with respect to the use of confidential commercial information, trade secrets, and other confidential or sensitive information during rulemaking. In brief, FDA does not place into a public docket trade secret, confidential commercial information, or information whose disclosure would constitute a clearly unwarranted invasion of privacy or would reveal the identity of confidential sources. FDA tries to assure that clearly proprietary information is not unwittingly made available to the public, but also advises that information submitted to a public docket during a rulemaking proceeding does not carry a reasonable expectation of confidentiality. FOR FURTHER INFORMATION CONTACT: Philip L. Chao, Office of Policy (HF- 23), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-827-3380. SUPPLEMENTARY INFORMATION: FDA has received several inquiries regarding certain information that FDA used in developing the proposed rule and notice pertaining to nicotine-containing cigarettes and smokeless tobacco products. The proposed rule, entitled ``Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco Products to Protect Children and Adolescents,'' and an accompanying document entitled ``Nicotine in Cigarettes and Smokeless Tobacco Products is a Drug and These Products are Nicotine Delivery Devices Under the Federal Food, Drug, and Cosmetic Act,'' appeared in the Federal Register on August 11, 1995 (60 FR 41314 and 60 FR 41453 at 41454, respectively). In general, the cigarette and smokeless tobacco companies have questioned or sought to limit FDA's ability to use or to receive certain information, particularly documents that were prepared by industry officials but not submitted by the industry to FDA during rulemaking. In response, the agency has developed a statement describing the procedures generally followed by the agency with respect to confidential information in a rulemaking docket. In brief, FDA does not place trade secret, confidential commercial information, or information whose disclosure would constitute a clearly unwarranted invasion of privacy or would reveal the identity of confidential sources, into a public docket. FDA tries to assure that clearly proprietary information is not unwittingly made available to the public, but also advises that information submitted to a public docket during a rulemaking proceeding does not carry a reasonable expectation of confidentiality. Although the agency has developed this written statement to address concerns raised in the tobacco proceedings, the positions expressed in the statement reflect docket management procedures that the agency has long used in other rulemaking proceedings. Consequently, FDA is publishing the statement in the Federal Register. The statement is as follows: Statement of Procedures for Handling Confidential Information in Rulemaking FDA has received several inquiries regarding the agency's procedures for handling confidential information in the dockets compiled for the agency's proposed regulation restricting the sale and distribution of cigarettes and smokeless tobacco products to protect children and adolescents, and the accompanying legal analysis and factual findings, both of which were published in the Federal Register on August 11, 1995. This notice describes the procedures followed by FDA generally with respect to confidential information in a rulemaking docket. FDA compiled the docket for the proposed regulation restricting the sale and distribution of cigarettes and smokeless tobacco products to protect children and adolescents (the proposed rule) and the document entitled ``Nicotine in Cigarettes and Smokeless Tobacco Products is a Drug and These Products are Nicotine Delivery Devices Under the Federal Food, Drug, and Cosmetic Act'' (the document) in accordance with the requirements of the Administrative Procedure Act, 5 U.S.C. 551, et seq. (APA), and FDA's existing regulations at 21 CFR 10.40. This docket includes existing factual information and submitted information relied upon by the agency decisionmakers in support of the analysis and the proposed rule. The agency has also included in the docket factual material and submitted information considered by agency decisionmakers, except for the limited group of documents discussed below. [[Page 66982]] FDA did not place in the public docket trade secret and confidential commercial information, or information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. An index listing these documents was created by the agency and is available to the public. However, unless the information in these documents was inextricably intertwined with the other information contained in the document, FDA redacted the trade secret, confidential commercial, or privacy information and placed the remainder of the document in the public docket. In addition, FDA did not include in the public docket certain documents developed during the course of the agency's investigation of the tobacco industry because these documents could disclose the identity of sources that furnished information to the agency on a confidential basis. The agency's policy with respect to confidential sources in this investigation was discussed at the hearings before the House Subcommittee on Health and the Environment (see Regulation of Tobacco Products (Part 1) (March 25, 1994), pp. 35-37; Regulation of Tobacco Products (Part 3) (June 21, 1994), pp. 87-96). In the agency's view, there can be no reasonable expectation of confidentiality for information submitted to a public docket in a rulemaking proceeding. Therefore, an agency is under no legal obligation to scrutinize documents submitted to a public docket to determine whether they may contain proprietary information. However, because it is aware of the sensitivity and importance of such information, FDA has long followed certain procedures to try to ensure that clearly proprietary information is not unwittingly made available to the public. FDA scans documents submitted to a docket for obvious trade secrets (e.g., formulas) or personal privacy information. In addition, any document marked confidential is referred to the appropriate Center Freedom of Information Act officer for a determination as to whether it would be exempt from public disclosure under Exemption 4 of the Freedom of Information Act (trade secrets and commercial or financial information obtained from a person and privileged or confidential). Before documents containing such information are placed on the record, the Center consults with the submitter to determine whether the submitter intended to make the document publicly available by placing it on the record. The agency is following these procedures in the tobacco proceeding. Dated: December 21, 1995. William B. Schultz, Deputy Commissioner for Policy. [FR Doc. 95-31368 Filed 12-22-95; 11:18 am] BILLING CODE 4160-01-F