### BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. 

# OR1GlNAl

Joint Application of 

### ASTARAIR CARGO, INC. and 

### ASTARUSA, LLC for transfer ofcertificate authority under 49 USC §41105 ) ) ) ) ) ) ) ) ) ) 

### Docket OST-2010-02Z3 \' " ,"**~')**

en u)



### MOTION OFASTAR AIR CARGO, INC. and ASTAR USA, LLC FOR CONFIDENTIAL TREATMENT UNDER RULE 12

Communications with respect to this document should be sent to: Stephen P. Doyle President ASTAR Air Cargo, Inc. and ASTAR USA, LLC 1200 Brickell Avenue Miami, FL 33131

September 3,2010 Elliott M. Seiden Boies, Schiller & Flexner LLP 5301 Wisconsin Avenue, NW Washington, DC 20015 (202) 274-1166 eseiden@bsfllp.com


### Counsel forASTARAir Cargo, Inc. and

### ASTAR USA, LLC

### BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Joint Application of 

### ASTARAIR CARGO, INC. and 

### ASTARUSA, LLC for transfer ofcertificate authority under 49 USC §41105 ) ) ) ) ) ) ) ) ) ) 

### Docket OST-2010-

MOTION OFASTARAIR CARGO, INC. and ASTAR USA, LLC FOR CONFIDENTIAL TREATMENT UNDER RULE 12 Pursuant to Rule 12 ofthe Departments Rules ofPractice, 14 C.F.R. § 302.12, ASTAR Air Cargo, Inc., a Nevada corporation ("ASTAR") and ASTAR USA, LLC, a Delaware limited liability company ("AUSA" together "JointApplicants") respectfully

move the Department to withhold from public disclosure certain proprietary, commercially-sensitive, and confidential business and personal information. This information is being submitted in the form ofconfidential exhibits and confidential documents supporting ASTAR's application to transfer its certificates to AUSA in the above-captioned docket. In accordance with Rule 12, each page ofthe confidential exhibits and confidential documents has been marked "Confidential" and are being filed under seal in a sealed envelope marked "Confidential Treatment Requested Under Section 302.12".I. 

### THE MATERIAL SUBMITTED CONFIDENTIALLY IS PROTECTED FROM DISCLOSURE UNDER THE FREEDOM OF INFORMATION ACT. Rule 12 ofthe Department's Rules ofPractice instructs the Department to evaluate requests for confidential treatment by the standards ofdisclosure set forth in the Freedom ofInformation Act, 5 U.S.C. 

### § 552. Information maybe withheld from disclosure under 5 U.S.C. § 552(b)(4) ifit is (1) commercial or financial, (2) obtained from a person outside ofgovernment, and (3) privileged and confidential Gulf& Western Indus., Inc. v. United States, 615 F.2d 527,529 (D.C. Cir. 1979). The Joint Applicants' confidential submissions easily satisfy the first two prongs ofthe Gulf& Western test. The only question is whether they also satisfy the third prong ofthe test. In considering the third prong ofthe test, the Department must consider whether "disclosure ofthe information is likelyto have either ofthe following effects: (1) impair the Government's ability to obtain necessary information; or (2) cause substantiveharm to the competitive position ofthe person from whom the information was obtained." National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Finally, to beprivileged or confidential, the information must not be ofthe type that is usually released to the public. Gulf& Western at 530. The confidential exhibits and confidential documents meet these standards for protection. The information which is the subject ofthis Motion includes non-public, commercially sensitive information that falls broadly into three categories:

• Transaction Documents • Future Operating Plans • Financial Documents

2As discussed below, the documents in each category satisfY the Department's criteria for conferring confidential treatment. 

### A. Transaction Documents The Joint Applicants are submitting Confidential copies of

### (1) the Agreement and Plan ofMergerbetween ASTAR and AUSA; (2) the Certificate ofMerger to be filed with the Secretary ofState ofthe State ofDelaware evidencing the merger ofASTAR with and into AUSA; (3) the Asset Transfer and Legacy Cost Agreementbetween AUSA and ASTAR Air Cargo Holdings, LLC, a Delaware limited liability company ("Holdings"); (4) the Redemption and Unit Purchase Agreement among DHL Express (USA), Inc., an Ohio corporation ("DHL Express"), Holdings and the Selling Members (as defined therein); (5) the Contribution Agreement among the Members (as defined therein), New ASTAR Holdings, LLC, a Delaware limited liability company ("New Holdings"), and AUSA; (6) the Air Transportation Services Agreement between New Holdings and Holdings (the "ATS Agreement"); (7) the GuarantybyDPWN Holdings (USA), Inc., an Ohio corporation, in favor ofAUSA, and (8) the Teaming Agreement between DHL Express and AUSA, as amended. These documents contain sensitive information which ifdisclosed to the public, could cause the Joint Applicants substantial competitive hann. The documents disclose competitively sensitive financial and business information ofa type not usually disclosed to the public and would not be disclosed to the public bythe Joint Applicants but for the requirement to submit such agreements in response to the Department's Fitness Requirements set forth at 14 C.F.R. § 204.3. The Department ordinarily affords

3

### confidential treatment to documents ofthis nature. See, e.g., May 9 Letter Ruling, Docket No. OST-2003-14579; Orders 2003-2-9; 2000-1-25. B. 

### Financial Projections The Department has ruled that an applicant's first year financial projections should be accorded confidential treatment. In 

### Order 2003-2-9, the Department held that "thepremature release of[Midway's] future operatingplans and the detailed financial information reflecting these proposed operations could cause substantial harm to its competitive position through the release ofproprietary financial information." Thus, AUSA's financial projections shouldbe withheld from public release. 

## e. Financial Statements ASTAR is not a publicly held company and does not submit its financial statements to the Securities and Exchange Commission. To comply with 14 C.F.R. § 204.3(k), ASTAR is providing the Department with the most recent three years ofits audited financial statements. ASTAR holds these statements closely and does not routinely disclosed them to the public, and would not disclose them now but for the requirement to submit them to the Department in support ofAUSA's submission of fitness data. ASTAR's (and AUSA's) decision to organize and operate as a private company
comes with certain advantages and disadvantages. 

### It is a competitive disadvantage not to be able to access the public capital markets, but instead rely exclusively on the capital it

can arrange from its owners and other sources ofprivately arranged financing. On the otherhand, ASTAR obtains a competitive advantage in not having to disclose to its competitors in public filings at the SEC the amount and detail ofits finances it would

4have to disclose ifit chose to access public financing. Thus, it would subject ASTAR to

a significant competitive disadvantage ifit were required to disclose this information in the public record. In addition, in the Joint Transfer Application, ASTAR and AUSA advised the Department that after the merger ofAST AR with and into AUSA, AUSA will be stepping into the shoes ofASTAR to provide Holdings, as a subsidiary ofDHL Express

or its affiliates, with airtransport services pursuant to an ACMI agreement in the form of the ATS Agreement. The Joint Applicants also advised the Department that the proposed operations would be identical to those currentlyprovided byAST AR. Thus, public release ofASTAR's commercially sensitive financial statements would inflict competitive harm on AUSA's future operations and its ability to compete for future business ofDHL Express or its affiliates by giving AUSA's competitors access to a detailed description ofASTAR's historical financial performance providing the same service as it will beproviding under the new arrangements. WHEREFORE, the Joint Applicants move the Department, pursuant to 14 C.F.R. § 302.12 to afford confidential treatment to the information described herein. Respectfully submitted,

# ~. 1"W?ott M. Seiden Boies, Schiller & Flexner LLP 5301 Wisconsin Avenue NW Washington, DC 20015 (202) 274-1166 eseiden@bsfllp.com 

### Counsel/orASTARAir Cargo, Inc. and 

### ASTAR USA, LLC
5

### JOINT APPLICATION OFASTARAIR CARGO, INC. AND ASTARUSA, LLC FOR TRANSFER OF CERTIFICATE AUTHORITY Motion for Confidential Treatment Index to Materials
INDEX OF CONFIDENTIAL EXHIBITS AND DOCUMENTS Confidential Exhibits Exhibit Description ofDocument F Financial Statements ofASTAR Air Cargo, Inc. K Forecast Balance Sheet and Income Statement ASTAR USA, LLC


### Confidential Documents Page Numbers Description ofConfidential Document ASTOOOI-0003 Agreement and Plan ofMergerbetween ASTAR and AUSA ASTOO04-0015 Certificate ofMerger ASTOO16-0051 Asset Transfer and Legacy Cost Agreement between AUSA and ASTAR Air Cargo Holdings, LLC, a Delaware limited liability company AST-0052-0079 Redemption and Unit Purchase Agreement among DHL Express (USA), Inc., ASTAR Air Cargo, LLC, ("company") and certain Members ofthe company; AST0080-0087 Contribution Agreement among the Members (as defined therein), New AST AR Holdings, LLC, a Delaware limited liability company ("New Holdings"), and AUSA; AST0088-0108 Air Transportation Services Agreement between New Holdings and Holdings (the "A TS Agreement"); AST0109-0114 Guarantyby DPWN Holdings (USA), Inc., an Ohio corporation, in favor ofAUSA ASTOl15-0134 Teaming Agreement between DHL Express and AUSA, as amended.Certificate ofService I hereby certify that I have, this 3rd day ofSeptember, 2010, I caused a copy ofthe foregoing motion to be served by electronic mail orregular mail, as indicated on all persons listed below:
car1.nelson@aa.com rbkeiner@crowell.com hkarnen@coair.com sascha.vanderbellen@delta.com jeffrey.manley@united.com bruce.rabinovitz@wilmerhale.com dshort@fedex.com nssparks@fedex.com gbleopard@fedex.com dvaughan@kelleydrye.com rsilverberg@sgbdc.com jhill@dowlohnes.com rpornrner@atlasair.com esauer@ssd.com pmurphy@lopmurphy.com mlbenge@zsrlaw.com cjsimpson@zsrlaw.com recohn@hhlaw.com prrizzi@hhlaw.com agoerlich@ggh-airlaw.com ggarofalo@ggh-airlaw.com howard.kass@usairways.com benjamin.slocum@usairways.com rnroller@rollerbauer.com tzoeller@naca.com cdonley@ssd.com efaberrnan@wileyrein.com bill@mietuslaw.com msinick@ssd.com lhalloway@crowell.com sarnetta.c.bamett@delta.com russell.bailey@alpa.org byerlyjr@state.gOY bryan.bazemore@faa.gov john.allen@faa.gov jim.ballough@faa.gov jrichardson@johnlrichardson.com jamestello@earthlink.net kevin.montgomery@polaraircargo.com mfrancesconi@ups.com anita.mosner@hklaw.com brent.connor@troutmansanders.com charles.hunnicutt@troutmansanders.com jonathan.moss@wilmerhale.com julie.oetttinger@united.com jyoung@yklaw.com slachter@lachter-c1ements.com kquinn@pillsburywinthrip.com bob.kneisley@wnco.com robert.land@jetblue.com mgoldman@sgbdc.com rsilverberg@sgbdc.com dhainbach@ggh-airlaw.com mcrnillin@woa.com eskraft@mahoff.com dpdean@jarnhoff.com dkirstein@yklaw.com donna.kooperstein@usdoj.gov dwight.moor@ustranscom.mil gmurphy@crowell.com david.heffeman@wilmerhale.com laura.jackson0{wcaa.us Idwasko@erols.com sbaer@panynj.gov brubinst@panmj·gov jabreu@miarni-airport.com sgardner@goaa.org

### Robert W. Kennedy Interim General Manager Department ofAviation Hartsfield

- Jackson Atlanta International Airport PO Box 20509 Atlanta, GA 30320 Timothy E. Zeis ChiefOperating Officer (COO) Kenton County Airport Board CincinnatilNorthern Kentucky International Airport PO Box 752000 Cincinnati, OH 45275 Jerry Spampanato General Manager

- JFK Port Authority of New York & 

### New Jersey Building 14

- JFK

- 2nd 

### Floor Jamaica, NY 11430
John S. Jacoby General Manager Newark Liberty International Airport The Port Authority ofNew York & 

### New Jersey Administration Building

- Bldg #1

- 2nd 

### Floor One Conrad Road Newark, NJ 07114
Thomas J. Kinton, Jr. ChiefExecutive Officer & 

### Executive Director Logan International Airport Suite 200 South One Harborside Drive East Boston, MA 02128-2909

A'nri

### Bozm~n