### Motion of COMAIR, INC. BEFORE THE DEPARTMENT OF TRANSPORTAllON OFFICE OF THE SECRETARY WASHINGTON, D.C.

Docket OST-2003-14840
For Confidential Treatment Under Section 302.12

MOTION OF COMAIR, INC. TO WITHHOLD INFORMATION FROM PUBLIC DISCLOSURE
Communicationswith respect to this document should be sent to:

November 09, 2012 Alexander Van der Sellen Managing Director GovernmentAffairs & Associate General Counsel DELTAAIR LINES, INC. 1212 NewYorkAvenue, N.W. Suite 200 Washington, DC 20005 (202) 842-4184 

### sascha. vanderbellen@delta.com Special Counsel for COMAIR, INC. 

## l c:,

......Motion of COMAIR, INC. ForConfidential Treatment UnderSection 302.12 BEFORE THE DEPARTMENT OF TRANSPORTAllON OFFICE OFTHE SECRETARY

.WASHINGTON, D.C.


### ) ) 

### ) ) ) ) 

### ) Docket OST-2003-14840



# _______________________________)

MOTION OF COMAIR, INC. TO WITHHOLD INFORMATION FROM PUBLIC DISCLOSURE

Pursuantto 14 CFR 302.12, Comair, Inc. ("Comair") herebyfiles this Motion to Withhold From Public Disclosure certain commercially and competitively sensitive information contained in Comair's Form 41 Schedule B-7, Airframe and Aircraft Engine Acquisitions and Retirements forthe third quarter. Comair is required to provide the confidential information contained in Schedule B-7 pursuantto Part241 ofthe Department's Economic Regulations, 14 CFR 241. The information forwhich Comair is requesting confidential treatmentfalls within Exemption 3 ofthe Freedom of Information Act 5 U.S.C. 

### § 552(b)(3), which exempts from disclosure information required by statute to bewithheld
.. Exemption 3 provides that: (b) This section does not apply to matters that are ... 

### "* * * (3) specifically exempted from disclosure by statute (other than section 552(b) ofthis title), provided that such statute (A) requires that the mattersto be withheld from the public in such a manner as to leaveno discretion on the issue, or (B) establishes particular criteria forwithholding or refers to particulartypes of · mattersto be withheld; Section 40115 ofTitle 49 ofthe United States Code, formerly Section 1104 ofthe Federal Aviation Act, provides that the Secretary ofTransportation, upon motion, shall order information withheld from public disclosurewhen disclosure ofthe information would "have an adverse effect on the competitive position ofan air carrier in foreign air transportation." The Department has previously found thatthe aircraft data reported on Form 41 Schedule B-7 forwhich Comair herein seeks confidential treatmentwould produce the harm specified in Section 40115. 1 The Department, in granting confidentiality to United, stated: United competes with foreign air carriers that do not report information aboutthe cost oftheir individual airframes and aircraft engines. This lack ofavailable aircraft cost information from foreign air carriers creates an environmentwhereforeign carriers are able to access U.S. carrier aircraft cost information from the Department's public records, but U.S. carriers are unable to access comparable datafortheir foreign competitors. This lack of reciprocal access erodes the competitiveness of United vis a vis its foreign competitors. Therefore, the release ofaircraft inventory cost data reported on United's Form 41 Schedule B-7
... , and Schedule B-43
... ,would producethe harm specified in Section 1104. Consequentlythis information will be withheld from disclosure under Exemption 3 of FOIA and Section 1104 oftheAct. Like United, Comair competes with foreign carriers that do not report information aboutthe cost oftheir airframes and aircraft engines yet are free to obtain U.S. carrier information from the Department. It would be damaging to Comairto require it to divulgeto its non-reporting foreign flag competitors the fruits of its competitive efforts with aircraft manufacturersto securethe best

See.§.&., Letter of Office of Airline Statistics granting Motion of United Airlines, Inc., dated December 29, 1993 (Docket 48726). The Department also granted confidential treatment to Schedules B-7 ofAmerican (by letterdated November 1, 1993, Docket 48800) and Delta (by letter dated March 29, 1993, Docket 48649).



### 2possible purchase price.2 The Department, when deciding United's confidentiality motion, granted United a ten-year confidential period beginning on the datethe information was required to be filed pursuantto 14 CFR 241.22(a). Comair requests similar protection with respect to its Schedule B-7, which is being uploaded to http://esubmit.rita.dot.gov, in accordance with the Department's Final Rule on Submitting Airline Datavia the Internet. WHEREFORE, Comair requests thatthe Department, pursuant to 14 CFR 302.12 and 5 U.S.C.§ 552(b)(3) and (4), withhold from public disclosure the financial information contained in Comair's Form 41 Schedule B-7 for a period of not less than ten years. Respectfully submitted,

Special Counsel for COMAIR, INC.

2 Comair also submits thatthe information soughtto be withheld falls within Exemption 4 from the Freedom of Information Act, 5 U.S.C.§ 552(b)(4), which provides protection from disclosure for "trade secrets and commercial orfinancial information obtained from a person and privileged or confidential
...." The requested information contained in Comair's Schedule B-7 satisfy all three elements required for protection under Exemption 4.



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