BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. ) Application of ) ) ISLANDERENTERPRISES SAMOALTD. ) Docket: DOT-OST-2012- 

### o t'fS d/b/a SAMOA AIR ) ) for an exemptionpursuantto 49 U.S.C. §40109 ) and a foreign air carrierpermitpursuantto ) 49 U.S.C. §41302 )

MOTION OFISLANDERENTERPRISES SAMOA LTD. D/B/A SAMOAAIR FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 12 Communications withrespectto this documentmaybe servedupon: Christopher S. Langton ChiefExecutive Officer and Managing Director ISLANDERENTERPRISES SAMOA LTD. D/B/A SAMOAAIR APB Complex, Matafagatele Road ApiaPark, Box2894, Samoa

Dated: November20,2012 RobertP. Silverberg, Esq. L. JeffreyJohnson, Esq. SILVERBERG, GOLDMAN & BIKOFF, L.L.P. 1101 30th Street, N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3300 Fax: (202) 944-3306 E-mail: rsilverberg@sgbdc.com jjohnson@sgbdc.com Attorneys for ISLANDERENTERPRISES SAMOALTD. d/b/a SAMOA AIRBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. Application of ISLANDERENTERPRISES SAMOALTD. d/b/a SAMOAAIR for an exemptionpursuantto 49 U.S.C. §40109 and a foreign air carrierpermitpursuantto 49

## u.s.c. §41302 ) ) ) ) ) ) ) ) ) Docket: DOT-OST-2012-

MOTION OFISLANDERENTERPRISES SAMOALTD. D/B/A SAMOAAIR FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 12 Islander Enterprises Samoa Ltd. d/b/a Samoa Air ("Samoa Air") hereby moves, pursuantto Rule 12 oftheDepartment ofTransportation's Rules ofPractice (14 C.F.R. § 302.12) ("Rule 12"), for confidential treatment ofthe documents submitted as Exhibit 4, Exhibit 6 and Exhibit 7 to the Application ofSamoa Air for an Exemption and a Foreign Air Carrier Permit (the "Application") being filed with the Department contemporaneously with this Motion. Specifically, Samoa Air makes reference in the Application to certain commercial or financial information contained in Exhibit 4, Exhibit 6 and Exhibit 7 to the Application and notes that the exhibits are being submitted under sealpursuantto aRule 12 Motion for Confidential Treatment. The exhibits for which confidential treatment is requested set forth detailed commercial and financial information, including (i) information regarding the ownership of Samoa Air, a privately held company (Exhibit 4), (ii) the carrier's capitalization (Exhibit 6) and (iii) a traffic forecast and projected financial results for its first year of operations to American Samoa (Exhibit 7). Disclosure of this highly sensitiveMotion oflslanderEnterprises SamoaLtd. d/b/a SamoaAir November 20, 2012 Page2 commercial and financial information would cause substantial competitive harm to Samoa Air. Therefore, Samoa Air requests that these documents be accorded confidentialtreatment. Pursuant to Rule 12, participants in any proceeding before the Department may request that information submitted to the Departmentnotbe disclosed to the public ifthat information falls within one of the exemptions from disclosure in the Freedom of Information Act, 5 U.S.C. § 552(b)(1)-(9) ("FOIA"). Samoa Air submits that the information for which it seeks confidential treatment falls within § 552(b)(4) ofFOIA ("Exemption4"). Exemption 4 protects from disclosure "trade secrets and commercial or financial information obtained from a person and privileged or confidential." Exemption 4 has beenheld to include "informationthat is not the type usuallyreleased to the public and is ofthe type that, ifreleased to thepublic, would cause substantial harm to the competitive position of the person from whom the information was obtained." Gulf & Western Industries, Inc. v. United States, 615 F.2d 527, 530 (D.C. Cir. 1980); see also American Airlines, Inc. v. NMB, 588 F.2d 863, 871 (2nd Cir. 1978); National Parks & Conservation Ass'n. v. Kleppe, 547 F.2d 673, 684 (D.C. Cir. 1976); Joint Application ofDelta and Virgin Atlantic, Order 94-5-42 (May 28, 1994); Joint Application of United and Lufthansa, Order 93-12-32 (December 18, 1993); Joint Application of Northwest and KLM, Order 93-1-11 (January 8, 1993). Exemption 4 is designed "to protect the confidentiality of information which citizens provide to their government, but which would customarily not be released to the public, and to facilitate citizens' ability to confide intheir government." Burke Energy Corp. v. Dept. ofEnergy, 583 F. Supp. 507,Motion ofIslanderEnterprises SamoaLtd. d/b/a SamoaAir November 20,2012 Page 3 510 (D.Kan. 1984); Sterling Drug, Inc. v. Federal Trade Commission, 450 F.2d 698, 709 (D.C. Cir. 1971). In order to fall within Exemption 4, the information at issue must be: (1) commercial or financial in nature; (2) obtained from a person outside the government; and (3) privileged or confidential. See Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983); Gulf & Western, 615 F.2d at 529. The information for which confidential treatment is sought in this Motion clearly meets this three-part test. With respect to the first prong ofthe test, the documents for which Samoa Air seeks confidential treatment are clearly commercial or financial in nature (i.e., information on the ownership of Samoa Air, a privately held company, the carrier's capitalization, and a traffic forecast and projected financial results for its first year of operations to American Samoa). Withrespect to the secondprong ofthe confidentialitytest, it is axiomatic that the information at issue has been "obtained from a person outside the government" having been submitted to the DepartmentbySamoaAir. Finally, with respect to the third element ofthe test (the "confidential" nature of the information), the D.C. Circuit has held that a commercial or financial matter is "confidential" for purposes ofExemption 4 ifit would not customarilybereleased to the public by the person from whom it was obtained and ifdisclosure ofthe information is likely to have either ofthe following effects: (1) to impair the Government's ability to obtain necessary information in the future; or (2) to cause substantial harm to theMotion ofIslanderEnterprises SamoaLtd. d/b/a SamoaAir November 20, 2012 Page4 competitive position ofthe person from whom the information was obtained. National Parks & ConservationAss'n. v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Samoa Air submits that Exhibit 4, Exhibit 6 and Exhibit 7 clearly meet the definition of "confidential." The information contained in these exhibits is highly proprietary and confidential, and would not normally be made available to the public. Samoa Air is a privately held company organized and existing under the laws of the Independent State of Samoa. As such, Samoa Air would not normally release to the public the detailed ownership and financial information contained in these exhibits. In addition, disclosure ofthis information would cause substantial harm to the competitive position of Samoa Air. Knowledge of such detailed information would permit a competitor to make strategicjudgments

- to the detriment ofSamoa Air

- based on data that it would not otherwise have access to. Moreover, disclosure of this information might impair the Government's ability to obtain similar commercial or financial information from future applicants for exemption and permit authority thus hindering the Government's ability to evaluate their fitness. Finally, the Department has granted confidential treatment to similarinformation submittedbyforeign air carriers applying to the Department for economic authority to operate to the United States. See Order 2008- 9-22, issued September 18, 2008, Docket DOT-OST-2008-0117, footnote 4 (granting confidential treatment to financial and ownership information); and Notice of Action Taken, issued October 7, 2004, Docket DOT-OST-2004-18979, footnote 1 (granting confidential treatmentto atraffic forecast and projected financial results).Motion oflslanderEnterprises SamoaLtd. d/b/a SamoaAir November 20, 2012 Page 5 WHEREFORE, Samoa Air respectfully requests that Exhibit 4, Exhibit 6 and Exhibit 7 to its Application for an Exemption and a Foreign Air Carrier Permit be accorded confidential treatmentpursuantto Rule 12.

Dated: November 20,2012 Respectfully submitted, SILVERBERG, GOLDMAN & BIKOFF, L.L.P. Attorneys for ISLANDERENTERPRISES SAMOA LTD. d/b/a SAMOAAIR 

# By.'?obi:t:.

# elf~ L. JeffreyJohnsonCertificate ofService I hereby certify that I have on this 20th day ofNovember 2012 served a copy of the foregoing Motion of Islander Enterprises Samoa Ltd. d/b/a Samoa Air for Confidential Treatment Pursuant to Rule 12 by e-mail or First Class Mail upon the following persons: Inter Island Airways, Inc. Pago Pago International Airport 4929 Airport Road, Hanger 2 P.O. Box 4929 Pago Pago, American Samoa 96799 United States KrishnaR. Urs Deputy Assistant Secretary for TransportationAffairs Bureau ofEconomic and Business Affairs U.S. Department ofState Room 3425 Washington, D.C. 20520-5820 urskr@state.gov Hardie H. DeGuzman, Manager Los Angeles International Field Office Federal AviationAdministration P.O. Box 92007 Los Angeles, CA 90009 Hardie.H.DeGuzman@faa.gov Matagi R.M. McMoore Department ofPortAdministration P.O. Box 1539 Pago Pago, American Samoa 96799 United States