Federal Register, Volume 81 Issue 227 (Friday, November 25, 2016)
[Federal Register Volume 81, Number 227 (Friday, November 25, 2016)]
[Notices]
[Pages 85255-85257]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28379]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
[FWS-HQ-LE-2016-N182; FF09L00200-FX-LE18110900000]
Freedom of Information Act; Notice of Lawsuit
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Notice; request for comments.
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SUMMARY: The U.S. Fish and Wildlife Service seeks information about
potential objections to the public release of possibly confidential
information regarding import and export activities tracked via the
Service's Law Enforcement Management Information System. We issue this
notice and solicit this information in response to a lawsuit under the
Freedom of Information Act.
DATES: You must submit comments on or before December 16, 2016.
[[Page 85256]]
ADDRESSES: You may submit comments by one of the following methods:
Email: lawenforcement@fws.gov.
Fax: (703) 358-2271.
U.S. mail or hand-delivery: U.S. Fish and Wildlife
Service, Office of Law Enforcement (FOIA), 5275 Leesburg Pike (MS:
OLE), Falls Church, VA 22041.
FOR FURTHER INFORMATION CONTACT: Michael Jenkins, Management Analyst
Specialist, USFWS, Office of Law Enforcement, 5275 Leesburg Pike, Falls
Church, VA 22041; telephone (703) 358-1949.
SUPPLEMENTARY INFORMATION: This notice is issued under part 2 of title
43 of the Code of Federal Regulations (CFR), which sets forth
regulations for administration of the Freedom of Information Act (FOIA)
by the U.S. Department of the Interior (``the Department'').
We, the U.S. Fish and Wildlife Service (``the Service'' or USFWS),
hereby announce that information related to records for the import and
export of all wildlife specimens to and from the United States may be
disclosed under FOIA (43 CFR 2.27(b)).
Submitters of this type of information can contact the Service to
review records subject to possible release. If you are a submitter of
this information, the Service will presume that you do not object to
the disclosure of your information if a response to this notice is not
received by the date specified above in DATES.
I. Background
The Department is soliciting views from submitters with respect to
whether certain records constitute ``trade secrets and commercial or
financial information obtained from a person [that are] privileged or
confidential'' information under the FOIA, 5 U.S.C. 552(b)(4). The
records at issue concern information in the Service's Law Enforcement
Management Information System (LEMIS) relating to the import and export
of all wildlife specimens to and from the United States:
a. From January 1, 2005, to the present;
b. on USFWS Form 3-177 including: Date of import/export, port of
clearance, purpose code, customs document number, name of carrier, air
waybill or bill of lading number, transportation code, number of
cartons of wildlife, names of U.S. importer/exporter and foreign
importer/exporter with country code, scientific and common name of
species, foreign CITES permit and U.S. permit numbers, description and
source codes, country of origin code, quantity/unit, and monetary
value.
This notice relates to a FOIA request by The Center for Biological
Diversity (CBD) of February 24, 2016. In response to this FOIA request,
the Service withheld the customs document number, name of carrier, air
waybill or bill of lading number, foreign CITES permit and U.S. permit
numbers, quantity and declared value of wildlife, and foreign importer/
exporter columns in their entirety under FOIA Exemption 4. The Service
withheld additional information under Exemptions 6 and 7(C). The
Service's response to this FOIA request is now the subject of a
lawsuit, Center for Biological Diversity v. U.S. Fish and Wildlife
Service, No. 16-00527 (D. Ariz., filed August 8, 2016). A copy of CBD's
FOIA request, as well as the complaint filed in the United States
District Court for the District of Arizona, has been posted on: https://www.fws.gov/le/businesses.html#FOIAMatters. Upon request, the Service
will provide submitters the relevant submitter information that the
Service found to be responsive to CBD's requests.
II. Issues for Comment
The Department has been asked to release certain information in
LEMIS since 2005 relating to the import and export of all wildlife
specimens to and from the United States. This notice provides you with
the opportunity to object to the public release of these records if
they are exempt from disclosure under FOIA, 5 U.S.C. 552(b). Please
reference Center for Biological Diversity v. U.S. FWS, No. 16-00527, in
any communications regarding this matter.
If you wish to object to the disclosure of these records, the
Department's FOIA regulations (``regulations'') require you to submit a
``detailed written statement'' setting forth the justification for
withholding any portion of the information under any exemption of the
FOIA. See 43 CFR 2.30.
Under FOIA's Exemption 4, 5 U.S.C. 552(b)(4), ``trade secrets and
commercial or financial information obtained from a person and
privileged or confidential'' are exempt from disclosure under the FOIA.
When the Department has reason to believe that information that is
responsive to a FOIA request may be exempt from disclosure under FOIA's
Exemption 4, the regulations require the Department to provide notice
to the submitter(s) of the responsive material and advise the
submitter(s) of the procedures for objecting to the release of the
requested material. This publication serves as notice.
Further, if you object to the public disclosure of the records (or
any portions of records) at issue in Center for Biological Diversity v.
U.S. FWS, No. 16-00527 (D. Ariz., filed Aug. 8, 2016), on the basis
that the information submitted is protected by FOIA Exemption 4, then
the regulations require the ``detailed written statement'' referenced
above to include a ``specific and detailed discussion'' of the
following:
(i) Whether the Government required the information to be submitted
and, if so, how substantial competitive or other business harm would
likely result from release; or
(ii) Whether you provided the information voluntarily and, if so,
how the information in question fits into a category of information
that you customarily do not release to the public.
(iii) Certification that the information is confidential, that you
have not disclosed the information to the public, and that the
information is not routinely available to the public from other
sources.
In order for information to qualify for protection under Exemption
4 as a ``trade secret,'' the information must be ``a secret,
commercially valuable plan, formula, process, or device that is used
for the making, preparing, compounding, or processing of trade
commodities and that can be said to be the end product of either
innovation or substantial effort.'' See Public Citizen Health Research
Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983). This definition
requires there be a direct relationship between the information at
issue and the productive process. Id. Should you wish to object to the
disclosure of any of the information in the documents on the basis that
such information is a trade secret, the specific and detailed
discussion must explain how each category of information the objections
are related to qualify for protection under Exemption 4 as a ``trade
secret.'' The explanation must also identify a direct relationship
between the information and the productive process.
In order for information to qualify for protection under the aspect
of Exemption 4 that protects privileged or confidential commercial or
financial information, the first requirement is that the information
must be either ``commercial or financial.'' In determining whether
documents are ``commercial or financial,'' the D.C. Circuit has firmly
held that these terms should be given their ``ordinary meanings'' and
that records are commercial so long as you have ``commercial interest''
in them. See Public Citizen, 704 F.2d at 1290 (citing Washington Post
Co. v. HHS, 690 F.2d
[[Page 85257]]
252, 266 (D.C. Cir. 1982), and Board of Trade v. Commodity Futures
Trading Comm'n, 627 F.2d 392, 403 (D.C. Cir. 1980)); see also Nat'l
Ass'n of Home Builders v. Norton, 309 F.3d 26, 38 (D.C. Cir. 2002)
(stating ``information is `commercial' under [Exemption 4] if, `in and
of itself,' it serves a `commercial function' or is of a `commercial
nature.' '').
The specific and detailed discussion that you provide must explain
how the information relates to your commercial interest and the
commercial function the information serves or the commercial nature of
the information.
The test to determine if information is ``privileged'' or
``confidential'' under Exemption 4 depends on whether the submitter was
required to provide the information to the Government or whether the
submitter voluntarily disclosed the information to the Government.
Bartholdi Cable. Co. v. FCC, 114 F.3d 274, 281 (D.C. Cir. 1997). Where
you voluntarily provide information to the Government, the information
will be considered confidential for the purposes of Exemption 4 ``if it
is of a kind that would customarily not be released to the public by
the person from whom it was obtained.'' Id. (citing Critical Mass
Energy Project v. Nuclear Regulatory Commission, 975 F.2d 871, 879
(D.C. Cir. 1992) (en banc)). Alternatively, where the Government
requires you to provide information (as is the case for the information
at hand), then commercial or financial information generally is
``confidential'' under Exemption 4 ``if disclosure . . . is likely to
have either of the following effects: (1) Impair the Government's
ability to obtain necessary information in the future; or (2) cause
substantial harm to the competitive position of the person from whom it
was obtained.'' National Parks and Conservation Assoc. v. Morton, 498
F.2d 765, 770 (D.C. Cir. 1974). A showing of substantial competitive
harm is necessary only where the information in question is required to
be submitted to the Government.
You must explain whether you voluntarily provided the information
in question or whether the Government required the information to be
submitted. Should you assert that you voluntarily submitted the
information, you must also explain how the information in question fits
into a category of information that you customarily do not release to
the public. If you assert that the Government required you to submit
the information in question (as is the case for the information at
hand), then you must explain how substantial competitive or other
business harm would likely result from release.
To demonstrate that disclosure is likely to cause substantial
competitive harm, there must be evidence that: (1) You face actual
competition; and (2) substantial competitive injury would likely result
from disclosure. See Lion Raisins v. USDA, 354 F.3d 1072, 1079 (9th
Cir. 2004); Inner City Press/Community on the Move v. Federal Reserve
System, 380 F. Supp. 2d 211, 220 (S.D.N.Y. 2005); GC Micro Corp. v.
Def. Logistics Agency, 33 F.3d 1109 (9th Cir. 1994); National Parks &
Conservation Association v. Kleppe, 547 F.2d 673, 679 (D.C. Cir. 1976)
(``National Parks II'').
In order for the Department to fully evaluate whether you are
likely to suffer substantial competitive injury from disclosure of the
withheld information, any objections on this basis must include a
detailed explanation of who your competitors are and the nature of the
competition. You must also explain with specificity how disclosure of
each category of information that you object to disclosing on this
basis would provide your competitors with valuable insights into your
operation, give competitors pricing advantages over you, or unfairly
give advantage to competitors in future business negotiations, or any
other information that sufficiently explains the substantial
competitive injury that would likely result from disclosure. National
Parks II, 547 F.2d at 684; Center for Public Integrity v. Dep't of
Energy, 191 F. Supp. 2d 187, 194 (D.D.C. 2002); Judicial Watch, Inc. v.
Export-Import Bank, 108 F. Supp. 2d 19, 29 (D.D.C. 2000). Additionally,
as noted above, you must also certify that any information you object
to disclosing is confidential, you have not disclosed the information
to the public, and the information is not routinely available to the
public from other sources. See 43 CFR 2.30-2.31.
As a final matter, please be aware that the FOIA requires that
``any reasonably segregable portion of a record'' must be released
after appropriate application of the FOIA's nine exemptions. See 5
U.S.C. 552(b) (discussion after exemptions). In addition, please note
that, where a record contains both exempt and nonexempt material, the
bureau will generally separate and release the nonexempt information
when responding to a FOIA request. 43 CFR 2.25. You should be mindful
of this segregability requirement in formulating any objections you may
have to the disclosure of the information sought by CBD.
III. Submission of Objections
Should you wish to object to disclosure of any of the requested
records (or portions thereof), the Department must receive from you all
of the information requested above by no later than the date specified
above in DATES.
If you do not submit any objections to the disclosure of the
information (or portions thereof) to CBD on or before the date
specified above in DATES, the Department will presume that you do not
object to such disclosure and may release the information without
redaction. Please note that the Department, not you, is responsible for
deciding whether the information should be released or withheld. If we
decide to release records over your objections, we will inform you at
least 10 business days in advance of the intended release.
Please note that any comments you submit to the Department
objecting to the disclosure of the documents may be subject to
disclosure under the FOIA if the Department receives a FOIA request for
them. In the event your comments contain commercial or financial
information and a requester asks for the comments under the FOIA, the
Department will notify you and give you an opportunity to comment on
the disclosure of such information.
Dated: November 14, 2016.
Stephen Guertin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-28379 Filed 11-23-16; 8:45 am]
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