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, I BEFORE THE

DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION

WASHINGTON, D,C, .-,"

•••• 01

) Motion of ) ) UNITED PARCEL SERVICE CO. ) ) for confidential treatment of documents ) under Rule 39 of theRules of Practice ) of the Department of Transportation ) 14 C.F.R. 302.39 ) ) )



## -------------------- Docket OST-95-125

MOTION OF UNITED PARCEL SERVICE CO. FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 39



### '. All communications with respect to this document are tobe forwarded to:
Mr. James T, Miller, Esq. UNITED PARCEL SERVICE CO, 1400 N. Hurstbourne Parkway Louisville, KY 40223 502) 329-6524

October 25, 2013

(j1m/B.7'1,lIy)BEFORE THE DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION

WASHINGTON, D.C.

) Motion of l l UNITED PARCEL SERVICE CO. ) ) for confidential treatment of documents ) under Rule 39 of theRules of Practice ) of the Department of Transportation ) 14 C.F.R. 302.39 ) )

________________ 1 Docket 48732

MOTION OF UNITED PARCEL SERVICE CO. FOR CONFIDENTIAL TREATMENT PURSUANT TOROLE 39
United Parcel Service Co. ("UPS") hereby submits this motion towithhold frompublic disclosure, certain information contained. inUPS's Schedule B-7, Airframe andAircraft Engine Acquisitions and Retirements Report, for theperiod ending September 30, 2013, submitted herewith under seal, pursuant toRule 39 of theRules of Practice of theDepartment of Transportation ("DOT"). UPS believes that the information contained in its Schedule B-7 report is confidential and commercially-sensitive data, the premature public disclosure of which would cause substantial injury to UPS. UPS requests that thedata at issuebe withheld frompublic disclosure foraperiod of ten (10)years. In support of this motion, UPS states as follows:

(jtmlB.7qrtly) 21. The data filed today ispursuant to Part 241 of the

DOT's economic regulations. The great majority of UPS's Part 241 filings are submitted aspublic documents, available for inspection and copying bymembers of thepublic, including foreign and domestic competitors of UPS. 2. A small portion of the information required to be filed pursuant to Part 241 is of a commercially sensitive and confidential nature. In this case, certainprice and cost data contained inUPS's Schedule B-7, arehighly sensitive and

, confidential. Public disclosure of these data would have an adverse financial impact onUPS. Withholding thedata from public disclosure is consistent with the Freedom of Information Act (5U.S.C. 552) (theUFOIAU), andprecedents thereunder. 3. The reasons why these cost andprice data are commercially sensitive toa degree which require theybe withheld frompublic disclosure are as follows:

Disclosure of the data diminishes competition among the major aircraft manufacturers; Disclosure of the data impairs competition in the international arena, because United States airlines
are required to reveal major elements of their cost structures when their foreign competitors are not; and The Securities and Exchange Commission has determined that these data shouldbe withheld frompublic disclosure.

(jMIB.7qrtly) 34. Accordingly, thedata should be withheld frompublic

disclosure by theDOT, pursuant toExemptions 3 and 4 of the FOIA (5U.S.C. 552(b) (3)and (4)). 5. Under Exemption 3 of the FOIA, information inagency records may be withheld if it is specifically exempted from disclosure by a statute, provided that the statute "(A) requires that thematters be withheld from thepublic in such amanner as to leave no discretion on the issue, or (B)establishes particular criteria forwithholding, or refers toparticular types of matters tobe withheld." Section 1104 of the Federal Aviation Act (49U.S.C. 1504), is exactly the type of statue to which Exemption 3 refers, because Section i104 requires that information be withheld by theDOT if its release would "adversely effect the competitive position of any carrier in foreign air transportation." As set forth above, the data would have exactly this adverse effect. 6. Under Exemption 4 of the FOIA (5U.S.C. 552(b) (4», information inagency records maybe withheld that is "commercial
or financial information obtained fromaperson andprivileged or confidential." As set forth 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).

(jlmfB.7qrtly) 4WHEREFORE, United Parcel Service Co. respectfully moves that

the Department of Transportation withhold the attached, sealed data from public disclosure for aperiod of ten (10) years pursuant to Rule 39 of the Department of Transportation's Rules of Practice, and to grant such other and further relief as may be deemed just and necessary.

Scott C. Casey Attorney United Parce Service Co. 1400 N. Hurstbourne Pkwy. Louisville, KY 40223 (502) 329-6525
October 25, .2013

GIIl1IB.7qrtly) 5