\\DC - 038245/000003 - 3453855 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 persons, 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 July 24, 2012\\DC - 038245/000003 - 3453855 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 persons, property and mail under 49 U.S.C. § 41102 ) ) ) ) ) ) ) ) ) ) Docket DOT-OST-2011-0216

July 24, 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 confidentialexhibits contained in its Supplement and Amendment filed on July 24, 2012 in the abovecaptioned proceeding. Confidential copies of the relevant exhibit pages are being submitted contemporaneously herewith in a sealed envelope marked “Confidential Treatment Requested Under § 302.12.” Specifically, Rhoades is requesting confidential treatment of the following information:
1. Exhibit RDS-7: Forecast Balance Sheet and Profit and Loss Statement. Rhoades requests confidential treatment of forecast revenues and net income from its forecast statement of revenues and expenses and the entirety of Schedule (A), which specifies first year revenue and operating result forecasts for its proposed large cargo aircraft services.Motion of Rhoades Aviation, Inc. d/b/a Transair Page 2

\\DC - 038245/000003 - 3453855 v1 2. Exhibit RDS-3, page 1. Rhoades requests confidential treatment of the FAA Certificate Numbers of Key Personnel, which the Department routinely protects from public disclosure. The revenue forecast information that is the subject of this Motion consists of projected revenues and net income, markets to be served, rates to be charged, and other operational details and anticipated results such as projected poundage per flight in connection with the Applicant’s proposed large aircraft cargo operations. The public release of this commercial, sensitive information pertaining to the Applicant’s future operating plans and financial projections would cause Rhoades substantial competitive harm. 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 theMotion of Rhoades Aviation, Inc. d/b/a Transair Page 3

\\DC - 038245/000003 - 3453855 v1 future, but would also cause substantial harm to the Applicant’s competitive position. Rhoades is a privately-held corporation that will be operating in an intensely competitive market. The type of detailed commercially sensitive information at issue here is not otherwise required to be publicly disclosed. Access by competitors or other third-parties to the information contained in these confidential exhibits would adversely impact the Applicant’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 markets in which Rhoades proposes to operate, where there are very few competitors. The Department has ruled in various fitness proceedings that similar types of financial and projected operational information for which Rhoades seeks confidential treatment are entitled to such treatment. The same considerations and findings apply with equal, if not greater, force to the confidential fitness data submitted by Rhoades, and the Department should grant the confidential treatment requested in this case. The Department routinely grants confidential treatment to information such as revenue forecasts (and related statistics), forecast operating results, and details of expense calculations, which could provide commercially sensitive information to competitors, provided that the applicant has supplied the public record with comparable expense forecasts. See, e.g., Letter from Vanessa R. Balgobin, Acting Chief, Air Carrier Fitness Division, to John R. Mietus, Jr., Counsel for Dynamic Airways, LLC, dated July 29, 2010 (Docket DOT-OST-2010-0058); Letter from William M. Bertram, Chief, Air Carrier Fitness Division, to James W. Tello, Counsel for Platinum Airlines, Inc., dated September 27, 2005 (Docket DOT-OST-2005-21286). Similarly, the Department has granted confidential treatment to the city-pairs/markets fitness determination applicants propose to serve based on competitive concerns. See, e.g., Letter fromMotion of Rhoades Aviation, Inc. d/b/a Transair Page 4

\\DC - 038245/000003 - 3453855 v1 William M. Bertram, Chief, Air Carrier Fitness Division, to Mark W. Atwood, Counsel for Skybus Airlines, LLC, dated July 8, 2005 (Docket DOT-OST-2005-20072) (finding that disclosure of specific city pairs “could negatively affect the applicant’s competitive posture by allowing its competitors to focus service and price incentives on the selected cities even before [the applicant] has the authority to commence such operations”). Accordingly, the Applicant has redacted from the public version of Exhibit RDS-7 the projected revenues and net income from its B-737 cargo services, as identified in its Forecast Statement of Revenue and Expense (while maintaining the quarterly expense forecast data associated with these operations), and has omitted Schedule (A) from Exhibit RDS-7, which specifies markets, proposed rates, projected traffic information, projected income/revenues, and details of expense calculations associated with the all-cargo services that are the subject of its certificate application. Including such data in the public record would harm the Applicant by making commercially sensitive information available to its competitors, which would be especially detrimental to Rhoades prior to holding authority to commence its proposed enhanced operations as a certificated air carrier. Rhoades is also seeking confidential treatment of FAA certificate numbers of its key personnel, listed in Exhibit RDS-3, page 1. The Department has granted confidential treatment to such information in the past and should do so in this case. See., e.g., Letter from William M. Bertram, Chief, Air Carrier Fitness Division, to Edward P. Faberman, Counsel for Compass Airlines, Inc., dated September 1, 2006 (Docket DOT-OST-2006- 24295).Motion of Rhoades Aviation, Inc. d/b/a Transair Page 5

\\DC - 038245/000003 - 3453855 v1 WHEREFORE, the Applicant hereby requests that the Department afford 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 - 038245/000003 - 3453855 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 24th day of July, 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