\\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 being
Motion 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 not
Motion 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