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Federal Register / Vol. 86, No. 13 / Friday, January 22, 2021 / Notices assigned to the individual.3 Confidential commercial information is commercial information that is customarily kept private, or at least closely held, by the person or business providing it.4 Other types of information, such as national security information and copyrighted materials, are beyond the Recommendations scope. The Recommendation is also limited to addressing procedures for protecting materials that agencies decide warrant protection. It is not intended to define the universe of protected materials. In particular, the Recommendation does not address any issue that may arise if agencies choose to rely on protected material in explaining their rulemakings, whether in notices of proposed rulemaking, regulatory impact analyses, or otherwise.
Agencies accept public comments for their public rulemaking dockets primarily through Regulations.gov, their own websites, and email. Regulations.gov and many agency websites that accept comments expressly notify the public that agencies may publish the information submitted in public comments.5 When people submit comments to agencies, however, agencies typically do not immediately publish the comments.
Instead, agencies generally take time to screen comments before publishing them.
Most agencies perform at least some kind of screening during this period.
For all agencies, whether to withhold or disclose protected material is governed by various laws: Some mandate disclosure, some mandate withholding, and some leave agencies with substantial discretion in deciding whether to disclose. Although a full description of those laws is beyond the scope of this Recommendation, a brief overview of at least some of this body of law helps to identify the issues agencies face.
The Administrative Procedure Act requires agencies to give interested persons an opportunity to participate in rulemaking through submission of written data, views, or arguments. 6 The United States Court of Appeals for the D.C. Circuit has interpreted this provision to ordinarily require that agencies make publicly available the critical informationincluding studies, data, and methodologiesunderlying proposed rules.7
The Privacy Act and the Trade Secrets Act place limits on the disclosure norm discussed above. Generally, the Privacy Act prevents agencies from disclosing any information about a person, such as medical records, educational background, and 3 See
Privacy Act of 1974 3, 5 U.S.C. 552aa4.
Food Mktg. Inst. v. Argus Leader Media, 139
S. Ct. 2356, 2363 2019; see also Exec. Order No.
12,600, Predisclosure Notification Procedures for Confidential Commercial Information, 52 FR 23781
June 23, 1987.
5 See Christopher Yoo, Protected Materials in Public Rulemaking Dockets 24 Nov. 24, 2020
report to the Admin. Conf. of the U.S., https
www.acus.gov/report/final-report-protectedmaterials-public-rulemaking-dockets.
6 5 U.S.C. 553c.
7 Portland Cement Assn v. Ruckelshaus, 486 F.2d 375, 393 D.C. Cir. 1973. In addition to these public transparency requirements, there are a number of federal record-retention requirements of which agencies should be aware. See, e.g., 44 U.S.C. 3301.

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employment history, contained in agencies systems of records, without that persons written consent.8 The Trade Secrets Act generally prevents agencies from disclosing trade secrets and other kinds of confidential commercial information, such as corporate losses and profits.9
Both the Privacy Act and the Trade Secrets Act have exceptions. For the Privacy Act, the main exception relevant to this Recommendation is for information required to be released under the Freedom of Information Act FOIA.10 The Trade Secrets Act only has one exception, which covers any materials authorized to be disclosed by statute including FOIA or regulation.11
Whether a particular piece of personal or confidential commercial information meets one of these exceptions often involves a complex determination that depends upon the exact type of information at issue and its contemplated use, and agencies must determine the applicability of the exceptions on a case-by-case basis. For example, whether FOIA authorizes disclosure of confidential commercial information may turn in part on whether agencies in receipt of the information assured submitters that the information would be withheld from the public.12 If agencies offer assurances that they will not disclose confidential commercial information, agencies and submitters may rely on those assurances as a defense against compelled disclosure under FOIA. In many cases, agencies assure companies that they will not disclose such information in order to encourage companies to submit it.
Particular cases are governed by specific requirements of law, not broad categorical labels. But agencies often consider certain categories of personal information and confidential commercial information to be protected material e.g., trade secrets, social security numbers, bank account numbers, passport numbers, addresses, email addresses, medical information, and information concerning a persons finances.
There are many ways protected material may arrive at the agency in a rulemaking. A
person might submit his or her own information, intentionally or unintentionally, and then ask the agency not to disclose it. A
third party might submit another persons information, with or without that persons knowledge. A company might submit a document containing its own confidential commercial information, intentionally or unintentionally, with or without the agencys prior assurance of protection. Or a company might submit another companys or persons information. Depending on the information in question and the manner in which it was submitted, there may be issues of waiver of statutory protection. Such questions, like all questions regarding the substance of the laws governing protected material, are beyond this Recommendations scope, but they illustrate the various considerations that agencies and 85

U.S.C. 552ab.
U.S.C. 1905.
10 5 U.S.C. 552ab2.
11 See CNA Fin. Corp. v. Donovan, 830 F.2d 1132, 113743 D.C. Cir. 1987.
12 See Food Mktg. Inst., 139 S. Ct. at 2361.
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the public often face in the submission and handling of such material.
This Recommendation proposes steps agencies can take to withhold protected materials from their public rulemaking dockets while still providing the public with the information upon which agencies relied in formulating proposed rules.13
Recommendation Recommendations for All Agencies 1. To reduce the risk that agencies will inadvertently disclose protected material, agencies should describe what kinds of personal and confidential commercial information qualify as protected material and should clearly notify the public about their treatment of protected material. An agencys notifications should:
a. Inform members of the public that comments are generally subject to public disclosure, except when disclosure is limited by law;
b. Inform members of the public whether the agency offers assurances of protection from disclosure for their confidential commercial information and, if so, how to identify such information for the agency;
c. Provide guidance to the public concerning the submission of protected material that pertains to third parties, including instructions that the disclosure of some protected material may be prohibited by law;
d. Advise members of the public to review their comments for the material identified above in c and, if they find such material, to remove any such material that is not essential to the comment;
e. Inform members of the public that they may request, during the period between when a comment is received and when it is made public, that protected material they inadvertently submitted be withheld from the public rulemaking docket;
f. Inform members of the public that they may request, after the agency has published any comment, that protected material pertaining to themselves or to their dependents within the comment be removed from the public rulemaking docket; and g. Inform members of the public that the agency reserves the right to redact or aggregate any part of a comment if the agency determines that it constitutes protected material, or may withhold a comment in its entirety if it determines that redaction or aggregation would insufficiently prevent the disclosure of this material.
2. Agencies should include the notifications described in Paragraph 1, or a link to those notifications, in at least the following places:
a. Within the rulemaking documents on which agencies request comments, such as a 13 Permitting the submission of anonymous and pseudonymous comments is one way that some agencies attempt to reduce the privacy risks commenters face when submitting protected material. Issues regarding the submission of anonymous and pseudonymous comments are being considered in an ongoing project of the Administrative Conference titled Mass, ComputerGenerated, and Fraudulent Comments and are beyond the scope of this Recommendation.

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