Order 2012
-3
-20 Served: March 30, 2012 **UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION**  **OFFICE OF THE SECRETARY WASHINGTON, D.C.** 
Issued b y the Department of Transportation on the 30 th day

of March , 20 1 2 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**  **- 20**  **1 2**  **- 0022** 

**ORDER Background**  On March 12, 2012, the Department issued Order 2012
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- 7, tentatively finding that VIH Cougar Helicopters, Inc. (“V IHC ougar”), an operating air taxi, is not a U.S. citizen as defined in 49 U.S.C. § 40102(a)(15) and consequentl y, propos ing to cancel its air taxi authority pursuant to 49 U.S.C. § 40109(f) and 14 CFR Part 298. Inthat order, the Department stated that , prior to pub lic 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 i s 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 file d appropriate affidavits with the Department in advance until such time as we received and ruled on a motion to withhold information provided by V IH Cougar f rom 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 2 8 , 2012, VIH Cougar filed additional mo tions in Docket DOT
- OST
- 2012
- 0022. T o the extent not disposed of here, wewill rule on these mo tions, as well as VIH Cougar’s March 20, 2012, request to withhold information from public disclosure , by subsequent actions. U N I T E D S T A TE S O F A M E R I C A D E P A R T M E N T O F T R

A N S P O R T A T I O N2

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
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- 7 are insufficient to safeguard its interest
. VIHC ougar request s that the Dep artment employ procedures similar to those required by “bid protest protective orders issued by the U.S. Government Accountability

O ffice (“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 mo del 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 repl y 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 request s be withheld from interim disclosure as provided for in Order 2012
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- 7. PHIstates that VIH Cougar’s objection is neither necessary nor justified with regards to the affiant and other attorneys and paralegals representing PHIs ince 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 c ompetitive 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 C ougar filed objections to the additional affidavits and a repl y 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 c ounsel to PHIto safeguard the confidential information it provided are insufficient and reiterates its request that the Department deny interim access to the conf idential information it provided until the Department has ruled on its March 2 0 motion
. **D ecision**  While we consider the merits of VIH Cougar ’ s concerns with Order 2012
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- 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 conte sted 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 infor mation until further order of the Department ; and 2
. We will serve a cop y 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 W ide Web at: http://www.regulations.govAttachment 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 AVIAT ION SAFETY INSPECTOR FEDERAL AVIATION ADMINISTRATION JONATHAN BLANK JOHN LONGSTRETH TIM HOBBS K & L GATES LLP 1601 K STREET NW WASHINGTON DC 2006