E6-8479. Disclosure of Government Information; Responsibility for Responding to Freedom of Information Act Requests

AGENCY:

Department of Commerce.

ACTION:

Interim final rule; request for comments.

SUMMARY:

The Department of Commerce publishes this interim final rule to amend its regulations that establishes the date that the Department uses in identifying those records that it may consider when responding to a Freedom of Information Act request. The Department takes this action pursuant to a court order that enjoins it from further use of its current regulations.

DATES:

This rule is effective on June 1, 2006. Comments must be submitted on July 3, 2006.

ADDRESSES:

The public may submit comments to: Brenda Dolan, Departmental Freedom of Information and Privacy Act Officer, U.S. Department of Commerce, Office of Management and Organization, Room 5327, Washington, DC 20230, 202-482-3258.

FOR FURTHER INFORMATION CONTACT:

Brenda Dolan, Departmental Freedom of Information and Privacy Act Officer, U.S. Department of Commerce, Office of Management and Organization, Room 5327, Washington, DC 20230, 202-482-3258.

SUPPLEMENTARY INFORMATION:

On April 24, 2006, the United States District Court, District of Oregon determined that the Department of Commerce violated the Freedom of Information Act for failing to make a timely determination on an information request, which subsequently resulted in an improper withholding under the Act. The court ordered the Department to refrain from using “the day that the proper component receives the request” as the cut-off date for determining those records that are responsive to a FOIA request. Pursuant to the court's order, the Department amends paragraph 4.5(a) of 15 CFR Part 4 to establish a new cut-off date for records that are to be considered in a FOIA request. Upon the effectiveness of this rule, the records that are considered responsive to a FOIA request will include those records that are within the Department's possession and control as of the date that the Department begins its search for them. This policy is consistent with that adopted by other agencies including the U.S. Department of Justice.

Classification

It has been determined that this notice is not significant for purposes of E.O. 12866.

The Department finds good cause to waive the rulemaking requirements of 5 U.S.C. 553 because it is impracticable and contrary to the public interest. In order to implement, in a timely manner, the Department's new regulation that establishes the date that the Department uses in identifying those records that it may consider when responding to a request for records, the Department finds that it is impracticable and contrary to the public interest to allow for prior notice and opportunity for public comment. If the Department delayed the effectiveness of this action, the Department would violate the April 24, 2006 order to refrain from further use of the regulations. Therefore, in order to ensure timely compliance with the Court's order, the Department makes this rule effective upon publication.

Because notice and opportunity for comment are not required pursuant to 5 U.S.C. 553 or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are inapplicable. Therefore, a regulatory flexibility analysis is not required and has not been prepared.

Dated: May 26, 2006.

Brenda Dolan,

Departmental Freedom of Information and Privacy Act Officer.

List of Subjects in 15 CFR Part 4

• Freedom of Information and Privacy

For the reasons set forth above, the Department amends 15 CFR part 4 as follows:

PART 4—DISCLOSURE OF GOVERNMENT INFORMATION

1. The authority citation for part 4 continues to read:

Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 553; 31 U.S.C. 3717; 44 U.S.C. 3101; Reorganization Plan No. 5 of 1950.

2. Revise paragraph (a) of section 4.5 to read as follows:

§ 4.5

Responsibility for responding to requests.

(a) In general. Except as stated in paragraph (b) of this section, the proper component of the Department to respond to a request for records is the component that first receives the request and has responsive records, or the component to which the Departmental Freedom of Information Officer assigns lead responsibility for responding to the request. Records responsive to a request shall include those records within the Department's possession and control as of the date the Department begins its search for them.

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