Motion of BEFORE THE DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRAlri(1iN"· L! 

## 2: Il WASHINGTON, D.C.



## . j_t}!l- 

# tJ

# 5

# s-1 COLGAN AIR, INC. ) ) ) ) ) ) ) ) ) Docket OST

- torconfidential treatment ofdocuments under Rule 39 ofthe Rules ofPractice ofthe Department ofTransportation 14 C.F.R. 302.39

MOTION OF COLGAN AIR, INC. FOR CONFIDENTIALTREATMENT PURUSANTTO RULE 39

May 2, 2012 All communications with respect to this document are to be forwarded to:
Mr. Anthony McDuffie Vice President and Controller Colgan Air, Inc. One Commerce Square 40 S. Main Street Memphis, TN 38103 (901) 348-4376

Page 1of4 MOTION OF COLGAN AIR, lNC. FORCONFIDENTIALTREATMENT PURSUANT TORULE 39BEFORE THE DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION WASHINGTON1 D.C.
Motion of COLGAN AIR, INC. tbr confidential treatment ofdocuments under Rule 39 ofthe Rules ofPractice ofthe DepartmentofTransportation 14 C.F.R. 302.39 ) ) ) ) ) ) ) ) ) Docket OST

MOTION OF COLGANAIR, INC. FOR CONFIDENTIALTREATMENT PURUSANTTO RULE 39 Colgan Air, Inc. ("Colgan") hereby submits this motion to withhold from public disclosure certain intbrmation contained in Colgan's Form 41, Schedule B-43 and BTS Form EF, tbr the quarter ending December 31, 2011, submitted herewith under seal, pursuant to Rule 39 of ) the Rules of Practice of the Department ofTransportation ("DOT"). Colgan seeks to be treated
as confidential information relating to transactions ormodifications oftransactions it has entered into with Bombardier, Inc., and all previously submitted requests. Colgan believes that information contained in its Schedule B-43 and BTS Form EF report is confidential and commercially-sensitive data, the premature public disclosure ofwhich would cause substantial injury to Colgan. Colgan requests that the data at issue be withheld from public disclosure for a period often (l0) years. in support ofthis motion, Colgan states as foiiows: 1. The data tiled today is pursuant to Part 241 ofthe DOT's economic regulations. The great majority ofColgan's Part 241 filings are submitted as public documents, available for
Page 2of4 MOTION OF COLGAN AIR, lNC. FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE1,. inspection and copying by members ofthe public, including foreign and domestic competitors of Colgan and competitors ofColgan's aircraft and engine suppliers.

·2. A small portion ofthe information required to be filed pursuant to Part 241 is ofa commercially-sensitive and confidential nature. In this case, certain price and cost data contained in Colgan's Schedule B-43 and BTS Form EF is highly sensitive and confidentiaL Public disclosure ofthese data would have an adverse financial impact on Colgan. Withholding the data from public disclosure is consistent with the Freedom of Information Act (5 U.S.C. 552) (the "FOIA"), and precedents thereunder. 3. The reasons why these cost and price data are commercially sensitive to a degree that requires theybewithheld from public disclosure are as follows: (a) Disclosure of the data diminishes competition among the major aircraft manufacturers; and (b) Disclosure of the data impairs competition in the international arena, because United States airlines are required to reveal major elements oftheir cost structures when their foreign competitors are not. 4. Accordingly the data should be withheld from public disclosure by the DOT, pursuant to Exemptions 3 and 4 ofthe FOIA (5 U.S.C. 552(b) (3) and (4)). 5. Under Exemption 3 ofthe FOIA, information in agency records may be withheld ifit is specifically exempted from disclosure by a statute, provided that the statute "(A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or(B) establishes particular criteria for withholding, orrefers to particular types ofmatters to be withheld." Section I104 ofthe Federal Aviation Act {49 U.S.C. 1504), is exactly the type of statute to which Exemption 3 refers, because Section 11

### 04 requires that information be Page 3 of4 MOTION OF COLGAN AIR, INC. FOR CONFIDENTIAL TREATMENT PURSUANT TORULE39

# ..**~- -~-~----~~~-~-** 

withheld bythe DOT ifits release would "adversely effect the competitive position ofany carrier in foreign air transportation." As set f(Jrth above, the data would have exactlythis adverse effect. 6. Under Exemption 4 ofthe FOIA (5 U.S.C. 552(b) (4)), information in agency records maybe withheld that is "commercial or financial information obtained from a person and privileged or confidentiaL" As set tbrth above, these data are of precisely this nature. See National Parks and Conservation Association v. Morton 498 F. 2d 765, 769 (D.C. Cir. 1974). WHEREFORE, Colgan respectfully moves that the Department of Transportation withhold the attached, sealed data from public disclosure for a period often (10) years pursuant to Rule 39 ofthe Department ofTransportation1s Rules ofPractice, and !:,rrant such other further reliefas may bedeemedjust and necessary.

May 2, 2012 Respectfully submitted,
/s/ Anthony McDuffie AnthonyMcDuffie Vice President and Controller Colgan Air, Inc. One Commerce Square 40 S. Main Street Memphis, TN 38103 (901) 348-4376

Page 4 of4 MOTION OF COLGAN AIR, INC. FOR CONFIDENTIAL TREATMENT PURSUANT TORULE 39