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Customs & International Trade Newsletter v. U.S. Customs and Border Protection

December 9, 2008


The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge


Although this case was filed by a different plaintiff, this case presents the same question addressed in Gilda Industries, Inc. v. U.S. Customs & Border Protection Bureau, 457 F. Supp. 2d 6 (D.D.C. 2006). That is, under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, can the U.S. Customs & Border Protection Bureau ("CBP") refuse to release the names and addresses of certain importers when that information, combined with other publicly available data, might be used to cause the importers substantial commercial harm? This Court concluded in Gilda that CBP properly declined to release such information in reliance on Exemption 4, id. § 552(b)(4), the confidential commercial information exception. Because the Court reaches the same conclusion here, summary judgment will be granted in favor of CBP.


Plaintiff, the United States Customs & International Trade Newsletter (the "Newsletter"), is a periodic publication of the Peter S. Herrick, P.A. law firm.*fn1 Compl. ¶ 3. Mr. Herrick, on behalf of the Newsletter, submitted a letter to CBP dated January 7, 2008 and by fax on March 11, 2008, which requested:

the names and addresses of the companies who are the subject of the Beef Hormone Implementation Directive ["Directive"], copy enclosed, who imported the referred to designated products from the European Community during the period July 1 to December 31, 2007.

Def.'s Mot. to Dismiss or for Summ. J., Ex. 1 ("Suzuki Decl.")*fn2 ¶ 4, Ex. A. CBP did not respond, and the Newsletter filed this suit on March 20, 2008. Then, on April 15, CBP denied the FOIA request because the requested information is "confidential commercial information as described in 5 U.S.C. § 552(b)(4)." Suzuki Decl. ¶ 10.

Companies who are the subject of the Beef Hormone Implementation Directive are importers subject to 100% duty pursuant to their classification under the Harmonized Tariff Schedule of the United States ("HTSUS") subheadings 9903.02.21 through 9903.02.47. Id. ¶¶ 11 & 16. The 100% duty has its origins in a trade dispute between the European Community and the United States. The dispute arose after the European Community decided to ban imports of U.S. beef products that have been treated with hormones. In accordance with a World Trade Organization Appellate Body Decision in the dispute, HTSUS subheading 9903.02 was enacted to impose duties on a list of twenty-seven specific European products in retaliation for the ban on American beef. Id. ¶ 16.

The names and addresses of the companies that are the subject of the Beef Hormone Implementation Directive is information submitted on entry documents that importers are required to file with CBP. Id. ¶ 13. When the goods arrive in a U.S. port, CBP requires the importer to complete an Entry and an Entry Summary. Id. ¶ 14. By completing these documents, the importer is required to provide specific and detailed information about the shipment, including the HTSUS number which represents a very specific description of the imported goods. Id. The importer is required to complete the Entry and Entry Summary under penalty of law, knowing that CBP is restricted from disclosing the information to the public. Id.

In response to the Newsletter's FOIA request, CBP queried the Automated Commercial System ("ACS"), a compilation of CBP databases containing all of the commercial entry information submitted to CBP at more than 300 ports worldwide. Id. ¶ 11. CBP searched the ACS by using the HTSUS subheadings 9903.02.21 through 9903.02.47 and the date range July 1 through December 31, 2007. Id. This search revealed identifying information for 244 importers. Id. CBP refused to release the information pursuant to the confidential commercial information exemption, Exemption 4. See 5 U.S.C. § 552(b)(4). CBP and the Newsletter have filed cross motions for summary judgment.*fn3


Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Moreover, summary judgment is properly granted against a party who "after adequate time for discovery and upon motion . . . fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson, 477 U.S. at 255. A nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id. at 252. In addition, the nonmoving party may not rely solely on allegations or conclusory statements. Greene v. Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a reasonable jury to find in its favor. Id. at 675. If the evidence "is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted).

FOIA cases are typically and appropriately decided on motions for summary judgment. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1993); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980).In a FOIA case, the Court may award summary judgment solely on the basis of information provided by the department or agency in declarations when the declarations describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstratethat the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). An agency must demonstrate that "each document that falls within the class requested either ...

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