Order 2012-8-1

Served: August 9, 2012

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 9

th day of August, 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

On May 7, 2012, VIH Cougar Helicopters, Inc. (“VIH Cougar”), filed a letter in Docket DOTOST-2012-0022 indicating that it had closed on the sale of its VFR operations. On that same day, 

VIH Cougar filed a motion under Rule 12 of our Rules of Practice (14 CFR §302.12) seeking to 

withhold from public disclosure the identity of the purchasers of its VFR operations, which were 

redacted in the letter it provided.

On July 6, 2012, VIH Cougar Helicopters, Inc. (“VIH Cougar”) filed a motion in Docket DOTOST-2012-0022 requesting that the Department dismiss the proceeding initiated by the 

Department’s Order to Show Cause of March 12, 2012 (Order 2012-3-7), claiming that its 

restructuring obviated the Department’s ownership and operational concerns expressed in that 

Order. In a separate Motion to Withhold From Public Disclosure filed on the same date, VIH 

Cougar further moved under Rule 12 to treat as confidential the identity of the party acquiring 

Mr. William Steeper’s interest in VIH Cougar. VIH Cougar filed a redacted Motion to Dismiss in 

the docket, and served it upon the interested parties. On July 9, 2012, Petroleum Helicopters, Inc. 

answered VIH Cougar’s Motion to Withhold, urging the Department to publicly reveal the 

identity of the acquiring party.

Under Rule 12, information may be accorded confidential treatment if it falls within one or more 

of the exemptions under the Freedom of Information Act, 5 U.S.C. § 552(b)(1)-(9). VIH Cougar 

claims that the identity of the acquiring parties is information that falls under 5 U.S.C. § (b)(4) 

(“Exemption 4”). Under Exemption 4, information may be withheld if it is (1) commercial or 

financial, (2) obtained from a person outside the government, and (3) privileged or confidential. 

Information that the government requires a party to disclose to the government is confidential if 

disclosure would “cause substantial harm to the competitive position of the person from whom 

the information was obtained.”1 Voluntarily submitted information is confidential “if it is of a 

 

1 Critical Mass Energy Project v. NRC, 975 F.2d 871, 878 (D.C. Cir. 1992).

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION
2

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

obtained.”2

Prior to the commencement of this docketed proceeding, the Department requested that VIH 

Cougar provide information concerning the citizenship and identity of its owners, consistent with 

its statutory obligation under chapter 411 of Title 49 and its regulatory obligation under 14 C.F.R. 

Part 298. Furthermore, in the Order to Show Cause, the Department expressed its intention to 

revoke VIH Cougar’s air-taxi exemption because it was under the actual control of a Canadian 

citizen, Mr. Kenneth Norie, in part because of the substantial employment and business 

relationships between Mr. Norie and Mr. Steeper. If VIH Cougar were under the actual control of 

a Canadian citizen, it would fail to satisfy the U.S. citizenship prerequisite for its air taxi 

exemption. Because VIH Cougar now reports that Mr. Steeper has sold his equity interest in VIH 

Cougar, we must examine the employment and business relationships, if any, between Mr. Norie 

and VIH Cougar’s new owners to determine if they are U.S. citizens and if, under any 

circumstance, VIH Cougar’s foreign investor retains the ability to substantially influence or 

control VIH Cougar. Therefore, the disclosure of the identity of the purchasers of VIH Cougar’s 

VFR operations and Mr Steeper’s equity interest in VIH Cougar’s is necessary in order for VIH 

Cougar to demonstrate its compliance with the citizenship requirements and retain its air-taxi 

exemption.

In its Motions to Withhold, VIH Cougar makes a bare assertion that release of the purchasers’

identity “is likely to result in substantial competitive harm . . . given the highly competitive 

industry within which VIH Cougar operates.” VIH Cougar has provided no support for this 

claim, which strains credulity. In the context of Exemption 4, competitive harm is “limited to 

harm flowing from the affirmative use of proprietary information by competitors,” and does not 

mean “simply any injury to competitive position,” such as injury caused by customer 

“disgruntlement” or negative publicity.

3 VIH Cougar’s general concern that it might experience a 

competitive harm from the release of the information is not a sufficient basis to withhold the 

information under Exemption 4. 

VIH Cougar’s claim flies in the face of the public nature of U.S. air carrier and aircraft ownership. 

At the very heart of the United States aviation system is the requirement that in order to be 

licensed, a U.S. carrier must be owned and controlled by U.S. citizens. That system does not 

operate on the basis of “secret” claims of U.S. citizenship in which the owners seek to shield their 

very identity from the general public. To the contrary, such information is public. VIH Cougar is 

subject to the same requirements as other air carriers holding similar operating authority. This is 

evidenced by the fact that the Department has never, particularly in cases where a company’s 

citizenship is called into question, withheld the identity of the majority U.S. owner. Therefore, 

we deny VIH Cougar’s May 7 and July 6 Motions.

Under Rule 12, a Department ruling on motions for confidential treatment will not take effect if, 

within five (5) business days after issuance, the person requesting confidential treatment files a 

petition for reconsideration of that decision, or files a statement that he or she in good faith 

 

2 Id. at 879.

3 Pub. Citizen Health Research Group v. FDA, 704 F.2d 1280, 1291 n.30 (D.C. Cir 1983) (citation omitted).
3

intends to seek judicial review of the decision. If VIH Cougar elects to petition the Department as 

to this confidentiality determination, we expect that it will provide a statement explaining how 

and why the information falls within one or more of the exceptions under the Freedom of 

Information Act and is not otherwise required to be filed publicly. Responses shall be due within 

five calendar days of the filing of such a petition. 

If VIH Cougar elects not to file a petition or seek judicial review, we direct it to submit the 

information for which confidential treatment was denied in the public docket in this proceeding 

within (5) business days of the service date of this order. 

ACCORDINGLY,

1. We deny VIH Cougar’s Motions to Withhold of May 7 and July 6, 2012.

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

ANDREW A SMITH

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

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