~.-. -. ';' .•...•..

.\ . \..

.. ' ,'" ,. '

'~: ••. ~i~l./

I' >-. ,"'\

... ;

" ',: J 3

, I

, 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 the Rules 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 to be

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 the Rules 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 TO ROLE 39

United Parcel Service Co. ("UPS") hereby submits this motion

to withhold from public disclosure, certain information contained.

in UPS's Schedule B-7, Airframe and Aircraft Engine Acquisitions

and Retirements Report, for the period ending September 30, 2013,

submitted herewith under seal, pursuant to Rule 39 of the Rules

of Practice of the Department 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 the data at issue be withheld

from public disclosure for a period of ten (10) years. In

support of this motion, UPS states as follows:

(jtmlB.7qrtly) 2
1. The data filed today is pursuant to Part 241 of the

DOT's economic regulations. The great majority of UPS's Part 241

filings are submitted as public documents, available for

inspection and copying by members of the public, 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, certain price and cost data

contained in UPS's Schedule B-7, are highly sensitive and

,

confidential. Public disclosure of these data would have an

adverse financial impact on UPS. Withholding the data from

public disclosure is consistent with the Freedom of Information

Act (5 U.S.C. 552) (the UFOIAU), and precedents thereunder.

3. The reasons why these cost and price data are

commercially sensitive to a degree which require they be withheld

from public 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 should be withheld from public

disclosure.

(jMIB.7qrtly) 3
4. Accordingly, the data should be withheld from public

disclosure by the DOT, pursuant to Exemptions 3 and 4 of the FOIA

(5 U.S.C. 552(b) (3) and (4)).

5. Under Exemption 3 of the FOIA, information in agency

records may be withheld if it 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, or refers to particular

types of matters to be withheld." Section 1104 of the Federal

Aviation Act (49 U.S.C. 1504), is exactly the type of statue to

which Exemption 3 refers, because Section i104 requires that

information be withheld by the DOT 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 (5 U.S.C. 552(b) (4»,

information in agency records may be withheld that is "commercial

or financial information obtained from a person and privileged 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) 4
WHEREFORE, United Parcel Service Co. respectfully moves that

the Department of Transportation withhold the attached, sealed

data from public disclosure for a period 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