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BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of

COMLUX ARUBA N.V.

for an exemption pursuant to 49 U.S.C. § 40109

and a foreign air carrier permit pursuant to

49 U.S.C. § 41301 (Aruba-U.S. open-skies)

)

)

)

)

)

)

)

Docket DOT-OST-2013-0145

MOTION OF COMLUX ARUBA N.V.

FOR CONFIDENTIAL TREATMENT

Communications with respect to this document should be addressed to:

Sheryl R. Israel

HOGAN LOVELLS US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Telephone: +1 202 637 8898

Facsimile: +1 866 728 1992

E-mail: sheryl.israel@hoganlovells.com

Counsel for

COMLUX ARUBA N.V.

July 24, 2013
\\DC - 041091/000002 - 4849811 v1

BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of

COMLUX ARUBA N.V.

for an exemption pursuant to 49 U.S.C. § 40109

and a foreign air carrier permit pursuant to

49 U.S.C. § 41301 (Aruba-U.S. open-skies)

)

)

)

)

)

)

)

Docket DOT-OST-2013-0145

July 24, 2013

MOTION OF COMLUX ARUBA N.V.

FOR CONFIDENTIAL TREATMENT

Pursuant to 14 C.F.R. § 302.12, Comlux Aruba N.V. (“Comlux Aruba”) hereby

moves to withhold from public disclosure the contents of Exhibit CXB-3 of its Application

for an Exemption and a Foreign Air Carrier Permit. Exhibit CXB-3 consists of financial

information (a draft unaudited income statement & balance sheet) pertaining to

Comlux Aruba as of December 31, 2012. Such information is being submitted under

seal in an envelope labeled “Confidential Treatment Requested Under § 302.12.”

The financial information that is being submitted under seal is clearly protected

from public disclosure under Exemption 4 of the Freedom of Information Act (“FOIA”),

which involves “trade secrets and commercial or financial information obtained from a

person and privileged or confidential.” 5 U.S.C. § 552(b)(4). This exemption has been

construed to prevent public disclosure of information that is not of the type usually

released to the public, and that, if released, would cause substantial harm to the

competitive position of the person from whom the information was obtained.

See, e.g., Gulf & Western Industries, Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir.

1980); American Airlines, Inc. v. NMB, 588 F.2d 863, 871 (2nd Cir. 1978).
Motion of Comlux Aruba N.V. for Confidential Treatment

Page 2

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The financial information contained in Exhibit CXB-3 satisfies each element of

the Exemption 4 statutory test. First, the information is commercial and, on its face,

financial in nature. Second, the information has been obtained from Comlux Aruba, a

privately-held company based in Aruba, which meets the definition of a “person.” Third,

as explained below, the information is confidential.

According to National Parks & Conservation Ass’n v. Morton, 498 F.2d 765, 770

(D.C. Cir. 1974), information is “confidential” for purposes of FOIA Exemption 4 if it

would not customarily be released to the public by the person from whom it was

obtained, and if disclosure is likely to have either of the following results: “(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.” To the best of Comlux Aruba’s knowledge and belief, under Aruban law,

Comlux Aruba is not required to publicly disclose these unaudited financial statements,

and Comlux Aruba therefore would not customarily release this information. Disclosure

of this information would cause substantial competitive harm to Comlux Aruba in that its

competitors, customers and other third parties would gain access to sensitive financial

and business information about Comlux Aruba, thereby placing it at a competitive

disadvantage. Moreover, the Department’s disclosure of this type of confidential

financial information would undoubtedly impair the ability of the Department to obtain

such information in the future.

Finally, the Department has previously granted numerous motions for

confidential treatment filed by other foreign carriers seeking to withhold similar financial

information submitted in connection with permit or exemption applications from public

disclosure. See, e.g., Comlux Aviation AG, Order 2006-2-6, fn. 2; Comlux Malta Ltd.,
Motion of Comlux Aruba N.V. for Confidential Treatment

Page 3

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Order 2008-12-15, fn. 3. Comlux Aruba’s financially sensitive information should

similarly be granted confidential treatment.

WHEREFORE, Comlux Aruba N.V. moves that the Exhibit CXB-3 financial

information described herein be granted confidential treatment pursuant to

14 C.F.R. § 302.12.

Respectfully submitted,

_______________________________

Sheryl R. Israel

HOGAN LOVELLS US LLP

Columbia Square

555 Thirteenth Street, NW

Washington, DC 20004

Telephone: +1 202 637 8898

Facsimile: +1 866 728 1992

E-mail: sheryl.israel@hoganlovells.com

Counsel for

COMLUX ARUBA N.V.
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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Motion of Comlux Aruba N.V. for

Confidential Treatment has been served this 24th day of July, 2013, on the following

addressees:

Kris Urs

Deputy Assistant Secretary for Transportation Affairs

Bureau of Economic and Business Affairs

Department of State

2201 C Street, NW

Washington, D.C. 20520

urskr@state.gov

James Jelinski

Office Manager

Miami International Field Office

Federal Aviation Administration

2895 S.W. 145 Ave., Suite 221

Miramar, FL 33027

james.r.jelinski@faa.gov

Jocelyne Croes

Minister Plenipotentiary for Aruba

The Royal Netherlands Embassy

4200 Linnean Avenue NW

Washington, DC 20008

jocelyne.croes@minabuza.nl

Jonathan Echmalian