Order 2012-3-20

Served: March 30, 2012

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 30th day of March, 2012

In the matter of the cancellation of the Air Taxi authority

issued to

 VIH COUGAR HELICOPTERS, INC.

pursuant to the provisions of 14 CFR 298.24

 Docket DOT-OST-2012-0022

ORDER

Background

On March 12, 2012, the Department issued Order 2012-3-7, tentatively finding that VIH Cougar 

Helicopters, Inc. (“VIH Cougar”), an operating air taxi, is not a U.S. citizen as defined in 

49 U.S.C. § 40102(a)(15) and consequently, proposing to cancel its air taxi authority pursuant to 

49 U.S.C. § 40109(f) and 14 CFR Part 298. In that order, the Department stated that, prior to public 

disclosure of the information VIH Cougar provided to the Department during the course of our

review, we would permit it an opportunity to request confidential treatment. In addition, as is our 

normal practice in such cases,1 the order provided that interim access to all materials filed in this 

case, including documents provided by VIH Cougar, would be granted to counsel and outside 

experts for interested parties after they filed appropriate affidavits with the Department in advance 

until such time as we received and ruled on a motion to withhold information provided by VIH 

Cougar from public disclosure.

Subsequent Procedural Motions 

On March 20, 2012, VIH Cougar filed a motion pursuant to Rule 12 of our rules (14 CFR 302.12) 

objecting to the public release of certain “confidential commercial and private personal 

information” that it provided to the Department and to the release of such information to counsel 

and outside experts for any interested party to these proceedings pursuant to the terms and 

conditions proposed in our Show Cause Order.

2 

VIH states that the documents at issue contain confidential information that is exempt from public 

disclosure under Exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4) and 

 

1 See Notice dated December 24, 2009, in Docket DOT-OST-2009-0350, and Notice dated February 17, 2010, in 

Docket DOT-OST-2010-0034.

2 On March 20, March 23, and March 28, 2012, VIH Cougar filed additional motions in Docket DOT-OST-2012-

0022. To the extent not disposed of here, we will rule on these motions, as well as VIH Cougar’s March 20, 2012, 

request to withhold information from public disclosure, by subsequent actions.

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION
2

therefore, is also prohibited from public release under the Trade Secrets Act, 18 U.S.C. § 1905. In 

addition, VIH Cougar contends that the terms and conditions proposed in Order 2012-3-7 are 

insufficient to safeguard its interest. VIH Cougar requests that the Department employ procedures 

similar to those required by “bid protest protective orders issued by the U.S. Government

Accountability Office (“GAO”) for protecting business-sensitive information,” that we stay interim

access to the documents at issue until these additional measures are taken to protect the confidential 

information it provided, and that we require affiants who have already accessed the confidential 

record to resubmit an application for access pursuant to a protective order similar to GAO’s model 

protective order. VIH Cougar further requests that it be afforded an opportunity to review and if it 

deems necessary, object to the applications.

On March 23, 2012, VIH Cougar filed an objection to the affidavit of Mr. Jonathan Blank, outside 

counsel to Petroleum Helicopters, Inc. (“PHI”), and at the same time reiterated its prior request that 

the Department deny interim access to any confidential information provided by VIH Cougar until 

the Department rules on its motion objecting to the release of confidential information to counsel 

and outside experts of interested parties and requesting that the release of confidential information 

should be subject to a process such as that used by GAO in bid protest proceedings.

On March 27, 2012, PHI filed a notice of appearance and a reply to VIH Cougar’s objection. At 

this same time, outside counsel and counsel’s staff representing PHI filed three additional affidavits 

requesting access to the confidential information provided by VIH Cougar.

3 In its reply, PHI 

requested that the Department grant it immediate access to the material that VIH Cougar requests be 

withheld from interim disclosure as provided for in Order 2012-3-7. PHI states that VIH Cougar’s 

objection is neither necessary nor justified with regards to the affiant and other attorneys and 

paralegals representing PHI since it took additional steps to be responsive to VIH Cougar’s 

objections to public release of confidential information, such as (1) stating in its affidavit that the 

affiant did not take part in any competitive decision making by its client, a competitor of VIH 

Cougar, and (2) that the parties to the affidavit would agreed to be bound by any other and further 

protective order that the Department may impose. 

On March 28, 2012, VIH Cougar filed objections to the additional affidavits and a reply in support 

of its objection to the affidavit of Mr. Jonathon Blank and other PHI counsel. VIH Cougar contends 

that the additional steps taken by counsel to PHI to safeguard the confidential information it 

provided are insufficient and reiterates its request that the Department deny interim access to the 

confidential information it provided until the Department has ruled on its March 20 motion.

Decision

While we consider the merits of VIH Cougar’s concerns with Order 2012-3-7’s procedures for 

permitting access to information that VIH Cougar has requested to be withheld from public 

disclosure, we will stay interim access to that information. We plan to resolve this contested 

issue expeditiously.

 

3 The three additional affidavits were provided by Messrs. Winthrop M. Chew , John Longstreth, 

and J. Timothy Hobbs.
3

ACCORDINGLY,

1. We stay the interim access to all documents that VIH Cougar Helicopters, Inc., has requested be 

withheld from public disclosure in its March 20, 2012, motion objecting to the public disclosure of 

information until further order of the Department; and

2. We will serve a copy of this order on the persons listed in Attachment A.

By:

SUSAN L. KURLAND

Assistant Secretary

for Aviation and International Affairs

An electronic version of this document is available on the World Wide Web at:

http://www.regulations.gov
Attachment A

SERVICE LIST FOR

VIH COUGAR HELICOPTERS, INC.

DAVID M NADLER

DAVID Y YANG

COUNSEL TO VIH COUGAR 

 HELICOPTERS INC

DICKSTEIN SHAPIRO LLP

1825 EYE STREET NW

WASHINGTON DC 20006-5403

PETER LYNCH AGC-300

ASST CHIEF COUNSEL FOR ENFORCEMENT

FEDERAL AVIATION ADMINISTRATION

800 INDEPENDENCE AVE SW

WASHINGTON DC 20591

WILLIAM J WEBER

CERTIFICATION SECTION MANAGER

FAA AFS-900

45005 AVIATION DRIVE SUITE 131

DULLES VA 20166

WILLIAM STEEPER

PRESIDENT

VIH COUGAR HELICOPTERS INC

PO BOX 872

BELLINGHAM WASHINGTON 98227

ROY HARDIE 

AVIATION SAFETY INSPECTOR 

FEDERAL AVIATION ADMINISTRATION

JONATHAN BLANK

JOHN LONGSTRETH

TIM HOBBS

K & L GATES LLP

1601 K STREET NW

WASHINGTON DC 2006