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BEFORE THE DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION WASHINGTON, D.C.

Motion of UNITED PARCEL SERVICE CO. for confidential treatment of documents underRule 39 of the Rules of Practice of the Department of Transportation 14 C.F.R. 302.39

MOTION OF UNITED PARCEL SERVICE CO.Docket OST-95-125

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·

May 2, 2013

Utm/B-7qrtly) 1BEFORE THE DEPARTMENT OF TRANSPORTATION RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION WASHINGTON, D.C.

Motion of UNITED PARCEL SERVICE CO. for confidential treatment of documents underRule 39 of the Rules of Practice of the Department of Transportation 14 C.F.R. 302.39

MOTION OF UNITED PARCEL SERVICE CO.Docket 48732

FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 39

United Parcel Service Co. {11UPS") hereby submits this motion to withhold from public disclosure, certain information contained inUPS 1s Schedule B-7, Airframe andAircraft EngineAcquisitions and Retirements Report/ for the period endingMarch 31 1 20l3, submittedherewithunder seal 1 pursuant toRule 39 of the Rules of Practice of the Department of Transportation (11DOT"). UPS believes that the informationcontained 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 frompublic disclosure for a periodof ten (10) years. In support of this motion, UPS states as follows:

Utm/B-7qlily) 2

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# I 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 copyingbymembers of the public, including foreign and domestic competitors of UPS. 2. A small portionof the information required tobe 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, are highly sensitive and confidential. Public disclosure of these datawouldhave 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 "FOIA"), andprecedents thereunder. 3. The reasons why these cost andprice data are commercially sensitive t? a degree which require theybe withheld frompublic disclosure are as follows: Disclosure of the data diminishes competitionamong 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 Commissionhas determined that these data should be withheld frompublic disclosure.

(jtm/B-7qrtly) 34. Accordingly, the data shouldbe withheld frompublic 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**o~** the FOIA, information in agency records may be withheld if it is specificallyexempted from disclosure by a statute, provided that the statute "(A) requires that the matters be withheld from thepublic in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding, orrefers toparticular types of matters tobe withheld." Section 1104 of the Federal AviationAct (49 U.S.C. 1504}, is exactly the type of statue to which Exemption 3 refers, because Section 1104 requires that information be withheldby theDOT if its release would "adversely effect the competitive positionof any carrier in foreign air transportation. 11 As set forth a:pove, the data would have exactly this adverse effect. 6. Under Exemption4 of the FOIA (5 U.S.C. 552(b)(4)), information in agency records maybe withheld that is "commercial
or financial informationobtainedfrom a person andprivileged or confidential." As set forth above 1 · these data are of precisely this nature. See National Parks and ConservationAssociationv. Morton 498 F.2d 765, 769 {D.C. Cir. 1974).

Gtm/B-7qrtly) 4WHEREFORE, United Parcel Service Co. respectfullymoves that the Department of Transportationwithhold 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 maybe deemedjust andnecessary.

May 2, 2013

(jtm/B-7qrtly) 

### 5 ttorney United Parcel Service Co. 1400 N. Hurstbourne Pkwy. Louisville, KY 40223 (502} 329-6524