\\DC - 038245/000001 - 3486189 v1 BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of RHOADES AVIATION, INC. d/b/a TRANSAIR for a certificate of public convenience and necessity to engage in interstate charter air transportation of property and mail under 49 U.S.C. § 41102 ) ) ) ) ) ) ) ) ) ) Docket DOT-OST-2011-0216

MOTION OF RHOADES AVIATION, INC. D/B/A TRANSAIR FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 12

Communications with respect to this document should be addressed to:
Teimour Riahi Chief Executive Officer RHOADES AVIATION, INC. d/b/a TRANSAIR 100 Iolana Place Honolulu, HI 96819 +1 808 833 5557 (telephone) +1 808 833 5288 (facsimile) teimour@transairhawaii.com Robert E. Cohn Patrick R. Rizzi HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 +1 202 637 4999 (direct dial) +1 202 637 5910 (facsimile) robert.cohn@hoganlovells.com
Counsel for RHOADES AVIATION, INC. d/b/a TRANSAIR August 31, 2012\\DC - 038245/000001 - 3486189 v1 BEFORE THE DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of RHOADES AVIATION, INC. d/b/a TRANSAIR for a certificate of public convenience and necessity to engage in interstate charter air transportation of property and mail under 49 U.S.C. § 41102 ) ) ) ) ) ) ) ) ) ) Docket DOT-OST-2011-0216

August 31, 2012

MOTION OF RHOADES AVIATION, INC. D/B/A TRANSAIR FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 12 Rhoades Aviation, Inc. d/b/a Transair (“Rhoades” or the “Applicant”) hereby files this Motion pursuant to 14 C.F.R. § 302.12 to withhold from public disclosure confidential information contained in its responses to the Department’s August 23, 2012 information request (“Information Response”), filed on August 31, 2012 in the above-captioned proceeding. A confidential version of the Information Response is being submitted contemporaneously herewith in a sealed envelope marked “Confidential Treatment Requested Under § 302.12.” Specifically, Rhoades is requesting confidential treatment of the description of two confidential and proprietary inter-company transactions that relate to the amount payable to Trans Executive Airlines of Hawaii, Inc. (“Trans Executive”) on Exhibit RDS-7, Page 1 (in response to the Department’s “Financial Position” Information Request #6). These transactions predated the merger of TM Financial Corporation (“TM”) into Rhoades and the details of the transactions are not relevant to Rhoades’ proposed certificated operations or overall financial fitness. The details (much less existence) of these private, confidential affiliated company transactions would not otherwise have been known to the public but for the fact that TM subsequently merged into Rhoades, with Rhoades beingMotion of Rhoades Aviation, Inc. d/b/a Transair Page 2

\\DC - 038245/000001 - 3486189 v1 the surviving company. Consequently, the total dollar amount of the note payable to Trans Executive was reflected on Rhoades’ balance sheet. The details of the underlying transactions, however, should be protected from public disclosure because they are confidential, and public disclosure could cause substantial competitive harm to Rhoades by divulging internal affiliated company transactions that would not otherwise be publicly available. Under Rule 12, the Department evaluates requests for confidential treatment in accordance with the standards of disclosure set forth in the Freedom of Information Act (FOIA) (5 U.S.C. § 552). Under FOIA Exemption 4, business information may be withheld from disclosure if it is “(1) commercial or financial, (2) obtained from a person outside the government, and (3) privileged or confidential.” Gulf & Western Industries, Inc. v. U.S. , 615 F.2d 527, 529 (D.C. Cir. 1979). The confidential information submitted by Rhoades clearly meets the first two requirements. The only question, therefore, is whether the information is privileged or confidential, which, as defined by the relevant case law, means “whether disclosure of the information is likely to have either of the following effects: (1) to impair the government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” National Parks and Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974).
Rhoades submits that disclosure of the information for which it seeks confidential treatment would not only impair the Department’s ability to obtain such information in the future, but would also cause substantial harm to the Applicant’s competitive position. Both prior to and since the merger with TM, Rhoades has remained a privately-held corporation (as was TM prior to the merger and as is Trans Executive). The details, much less the existence, of the commercially sensitive inter-company transactions at issue here are notMotion of Rhoades Aviation, Inc. d/b/a Transair Page 3

\\DC - 038245/000001 - 3486189 v1 required to be publicly disclosed, nor are they directly relevant to the Department’s analysis of the Applicant’s fitness. Moreover, Rhoades’ confidential description of these transactions necessarily reveals the purchase prices of certain assets associated with the operations of Rhoades and Trans Executive and the purchase price of Rhoades, which would not normally be divulged. Although forecast balance sheets may normally be placed in the public record in air carrier fitness proceedings, the level of detail contained in the confidential description of these two transactions is not normally required by the Department on such exhibits. Access by competitors or other third-parties to the information contained in Rhoades’ confidential transaction narrative would adversely impact the Applicant’s (and Trans Executive’s) proposed operations and competitive position within the State of Hawaii. The need to protect this competitive information from disclosure is especially compelling given the discrete, concentrated intra-Hawaii all-cargo markets in which Rhoades proposes to operate, where there are very few competitors. WHEREFORE, Rhoades Aviation, Inc. hereby requests that the Department grant confidential treatment pursuant to Rule 12 of its Rules of Practice to the sensitive information described herein. Respectfully submitted,

__________________________________ Robert E. Cohn HOGAN LOVELLS US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004
Counsel for RHOADES AVIATION, INC. d/b/a TRANSAIR\\DC - 038245/000001 - 3486189 v1 CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Motion of Rhoades Aviation, Inc. d/b/a Transair for Confidential Treatment Under Rule 12 has been served this 31st day of August, 2012, upon the following person:

Mary Ballard Principal Operations Inspector Indianapolis Flight Standards District Office, FSDO-11 1201 Columbia Road, Suite 101 Plainfield, IN 46168

Jonathan Echmalian