81 FR 75838 - Freedom of Information Act; Notice of Lawsuit

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service

Federal Register Volume 81, Issue 211 (November 1, 2016)

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.

[Federal Register Volume 81, Number 211 (Tuesday, November 1, 2016)]
[Notices]
[Pages 75838-75840]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-26412]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

[FWS-HQ-LE-2016-N156; 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 November 22, 2016.

ADDRESSES: You may submit comments by one of the following methods:
     Email: [email protected].
     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''), 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. For the years 2002 through 2010, 2013, and 2014;
    b. of any taxonomic class, whether live, dead, parts, or products; 
and
    c. with the following variables to be included in the records: 
Control Number, Species Code, Class, Genus, Species, Subspecies, 
Generic Name, Specific Name, Wildlife Description, Quantity, Unit, 
Value, Country of Origin, Country Import/Export, Purpose, Source, Act, 
Disposition Code, Disposition Date, Shipment Date, Import/Export, Port 
Code, U.S. Importer/Exporter, and Foreign Importer/Exporter.
    This notice relates to FOIA requests by Humane Society 
International (HSI) of June 2, 2014; August 21, 2014; June 3, 2015; and 
November 3, 2015. In response to these FOIA requests, the Service 
withheld the ``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 these FOIA requests is now the subject of a 
lawsuit, Humane Society Int'l v. U.S. FWS, No. 16-720 (D.D.C., filed 
Apr. 18, 2016). A copy of HSI's three FOIA requests, as well as the 
complaint filed in the United States District Court for the District of 
Columbia, has been posted on: https://www.fws.gov/le/businesses.html#FOIAMatters. Upon request, the Service will provide

[[Page 75839]]

submitters the relevant submitter information that the Service found to 
be responsive to HSI's requests.

II. Issues for Comment

    The Department has been asked to release certain information in 
LEMIS for the years 2002 through 2010, 2013, and 2014 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 Humane Society Int'l v. 
U.S. FWS, No. 16-720, 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 Humane Society v. U.S. FWS, No. 
16-720 (D.D.C., filed Apr. 18, 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 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 Lions 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); People for the 
Ethical Treatment of Animals v. USDA, 2005 U.S. Dist. LEXIS 10586, at 
15 (D.D.C. May 24, 2005); 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

[[Page 75840]]

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 HSI.

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 HSI 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: October 27, 2016.
Stephen Guestin,
Acting Director, U.S. Fish and Wildlife Service.
[FR Doc. 2016-26412 Filed 10-31-16; 8:45 am]
 BILLING CODE 4333-15-P