BEFORE THE 


DEPARTMENT OF TRANSPORTATION 


WASHINGTON, D.C. 


Joint Application of 

AMERICAN AIRLINES, INC. 

and 00T-OST-2010­

JAPAN AIRLINES INTERNATIONAL CO., LTD. 

under 49 U.S.C. §§ 41308 and 41309 for 

approval of and antitrust immunity for 

alliance agreements 

MOTION OF THE JOINT APPLICANTS FOR 

CONFIDENTIAL TREATMENT UNDER 14 CFR 302.12 

Communications with respect to this document should be sent to: 

For Japan Airlines: For American Airlines: 

TSUTOMU ANOO VIRASB VAHIOI 

Executive Officer - Senior Vice President ­

International Affairs Planning 

Japan Airlines American Airlines, Inc. 

International Co., Ltd. P.O. Box 619616, MO 5634 

4-11, Higashi-shinagawa OFW Airport, Texas 75161 

2-chome, Shinagawa-ku 

Tokyo 140-8637, Japan KENJI C. HASHIMOTO 

Vice President ­

TORU MIZUNO Strategic Alliances 

Vice President - American Airlines, Inc. 

International Affairs P.O. Box 619616, MO 5635 

Japan Airlines OFW Airport, Texas 75261 

International Co., Ltd. 

4-11, Higashi-shinagawa 

2-chome, Shinagawa-ku 

Tokyo 140-8637, Japan 
YUKI SAITO 

Director, Government Affairs 

Japan Airlines 

International Co., Ltd. 

1330 Connecticut Ave., N.W. 

Washington, D.C. 20036 

WILLIAM KARAS 

CAROL GOSAIN 

Steptoe & Johnson LLP 

1330 Connecticut Ave., N.W. 

Washington, D.C. 20036 

(202) 429-6223 

wkaras@steptoe.com 

cgosain@steptoe.com 

February 12, 2010 

WILLIAM K. RIS, JR. 

or Vice Pres 

Government Affairs 

Arne can Airlines, Inc. 

1101 17th Street, N.W. 

Washington, D.C. 20036 

ROBERT A. WIRICK 

Director, Regulatory 

Arne can Airlines, Inc. 

P.O. Box 619616, MD 5635 

DFW Airport, Texas 75261 

(817) 963-0394 

robert.wirick@aa.com 

W. BRUCE WARK 

Ass ate General Counsel 

JEFFREY A. OGAR 

Senior Attorney 

Arne can Airlines, Inc. 

P.O. Box 619616, MD 5675 

DFW , Texas 75261 

(817) 967-3458 

jeff.ogar@aa.com 

CARL B. NELSON, JR. 


Asso ate General Counsel 


American rlines, Inc. 


1101 1 Street, N.W. 


Washington, D.C. 20036 


(202) 49 5647 

carl.nelson@aa.com 
BEFORE THE 


DEPARTMENT OF TRANSPORTATION 


WASHINGTON, D.C. 


Joint Applicat of 

AMERICAN AIRLINES, INC. 

and DOT-OST-2010­

JAPAN AIRLINES INTERNATIONAL CO., LTD. 

under 49 U.S.C. §§ 41308 and 41309 for 

approval of and antitrust immunity for 

alliance s 

MOTION OF THE JOINT APPLICANTS FOR 


CONFIDENTIAL TREATMENT UNDER 14 CFR 302.12 


Arne can Ai ines, Inc. (and affiliates) Japan 

Airlines International Co., Ltd. affiliates), under 14 CFR 

302.12, hereby move that the Department withhold from public 

disclosure the confidential version of their joint application 

for approval and antitrust immunity alliance agreements, 

as well as all of ir submissions confidential mat aI, 

including documents, pleadings, and , for the durat of 

s proceeding. 1 such submissions will be accompa by 

cover letters incorporating this motion by reference. We 

request that access limited to counsel outside experts 

who file affidavits accordance with the Department's Rule 12 

procedures. 

In support of is motion, the jo applicants refully state as follows. 
2 ­

I. 	 THE CONFIDENTIAL INFORMATION IS PROTECTED FROM 

PUBLIC DISCLOSURE UNDER FOIA 

The confidential in ion submitted by the joint 

applicants is protected from public disclosure under various 

exemptions in the Freedom of In ion Act, including 5 USC 

552 (b) (3) and 5 USC 552 (b) (4) . 

Exemption (3) appl s where information is specifically exempted from disclosure by statute, provided that such 

statute "establishes part t for withholding or 

refers to particular types of matters to withheld." Here, 

the applicable statute that t ion (3) is 49 USC 

40115, which authorizes the Secret of Transportation to 

withhold information from public disclosure upon a finding that 

disclosure would "have an adverse ef on competitive 

position of an air carrier in foreign air tran ation." 

Exemption (4) exempts from dis osure "trade secrets 

and commercial or financial information a from a person 

and privileged or confidential." This has been construed to prevent disclosure of informat is not the 

usually released to the public, and if released would 

cause sUbstantial harm to the provider's it position. 

See, Critical Mass Energy Project v. NRC, 975 F.2d 871 

(D. C. r. 1992) (en banc); Gulf & Western Indust es, Inc. v. 

615 	 F.2d 527, 530 (D.C. Cir. 1980); National 

547 F.2d 673, 684 (D.C. 
- 3 -


Cir. 1976); 

Order 94-5 42, May 28, 1994; Joint ication of Unit and --------~---------------------------

Lufthansa, Order 93-12-32, December 18, 1993. 

The purpose of these exemptions "is to protect the 

confidentiality of information which tizens provide to their 

government, but which wou customarily not be releas to the 

public, and to facilitate citizens' ability to confide in ir 

government." 583 F.Supp. 507, 510 

(D. Kansas 1984). 

For information to quali for exemption (4), it must 

be (1) comme al or financial nature, (2) obtained from a 

person, and (3) pr leged or confidential. See Public Citizen 

704 F.2d 1280, 1290 (D.C. Cir. 

1983). All of the idential information being submitt by 

the joint applicants satisfies this three-part test. 

First, the confidential information at issue here is 

commercial or financ 1 in nature, in it relates to commercially sensit , proprietary, and privil financial and 

corporate information. This type of conf ial information 

would not otherwise made public. It is being submitted so 

that the Department can expeditiously evaluate the public 

interest benefits that will resu from granting approval of 

and antitrust i~~unity for the joint applicants' proposed 

alliance. 
- 4 ­

Second, the formation has been "obta from a 

person" wi the meaning exemption (4). 

Third, the information is "confidential." It is not 

available to the public, and disclosure is not required to 

further t public erest or to promote compet ion. 

National Parks & Conservation Ass'n v. Morton, 498 F.2d 765, 

770 (D.C. Cir. 1974), that formation is "confidential" 

r purposes of exemption (4) if it wou not customarily 

released to the public by the person from whom it was ined, 

and if disclosure is Ii ly to either of the following 

results: "(1) to impair the Government's ability to obta 

necessary information in the future; or (2) to cause substantial harm to compet ive position of person from whom 

the information was obtained." 

The jo applicants submit that public disclosure of 

the type of confident 1 information they are providing would 

cause substantial harm to their competitive position, and could 

impair Government's ability to in similar information 

on a voluntary basis from individuals in the future. 
- 5 ­

II. ACCESS TO THESE HIGHLY SENSITIVE DOCUMENTS SHOULD 

BE LIMITED TO COUNSEL AND OUTSIDE EXPERTS 

The j applicants are submitting highly sens ive 

internal corporate documents, stud s, surveys, analyses, 

reports, data. Access shou be limited to counsel and 

outside experts who file Rule 12 aff s stati that they 

will use the rmation y for purpose of parti ing 

in this proceeding, will not sclose t information to 

anyone other than counsel and outside rts who have filed 

valid affidavits. 

subject materials contain sensitive commercial 

information relat to the j applicants' international 

planning and strategic sion-making. The information 

contained in se documents has not been publicly released. 

If relea , competitors would gain valuable insights into the 

joint applicants' internal strategies and object s with 

respect to most compet ively sensitive matters. 

In order to minimize risk of harmful sclosure, 

access should strictly limited, as requested. The j 

icants will separate file f copies of their 

confidential pleadings and documents, sealed envelopes or 

cartons labeled: 

Confidential Treatment Requested Under 14 CFR 

302.12; Access Is Limited To CounselOr Outside 

Experts Who Have Filed Valid Affidavits 
6 ­

is request to limit disclosure to counsel and 

outside experts is consistent with Department precedent and 

policy. Thus, in Unit Order 93-12 32, s

-"--'---"----'­

Department granted the applicants' request to limit access to 

certain confidential information to counsel and outside experts 

who filed Rule 39 (now Rule 12) affidavits. The Department 

balanced the disclosure of the confidential information against 

the competitive rm to the applicants if access were expanded, 

and concluded that "the undue competitive harm to the appli 

cants outweighs the commenters' need for expanded access to the 

highly sensitive material in t s case" (p. 5). Department 

also noted that "interested rties to this proceeding can 

obtain adequate advice on the merits of the application through 

outs experts and persons authorized to review the mater Is" 

See a 1 so, e. g ., _J_o_i_n_t_-,,--~l_i_c_a_t_i_o_n_o_f_o_n_e_w_o_r_l_d__C_a_r_r_l_'_e_r_s-,­

Order 2008-11 7, November 12, 2008, pp. 3-6; Jo ication ---~~------

of American and Canadian International Order 96-1-6, January 

11, 1996, p. 3. 

Access to the jo applicants' confidential 

pleadings, documents and a should be limited in a comparable 

manner, in light of the undue competitive harm that would 

result from a broader disclosure of such highly sensit 

information. 
- 7 ­

CONCLUSION 


The Department s ld 
 this joint motion to 

withhold proprietary commerci sensitive confidential 

information from public sclosure, as American and JAL have 

requested herein. 

Re fully submitted, 

R. BRUCE WARK 

JEFFREY 	 A. OGAR 

can Airlines, Inc. 

CAROL GOSAIN 

Steptoe & Johnson LLP 

Counsel for Japan Airlines 

International Co., Ltd, 

February 12, 2010 
CERTIFICATE OF SERVICE 

I hereby certi have this day served the foregoing 

document by email on the persons: 

sascha.vanderbellen@delta.com 

scott.mcclain@delta.com 

sametta.c.barnett@delta.com 

kquinn@pillsburywinthrop.com 

bkeiner@crowell.com 

mrosia@crowell.com 

bruce.rabinovitz@wilmerhale.com 

jeffrey.manley@united.com 

bob.kneisley@wnco.com 

robert.land@jetblue.com 

msinick@ssd.com 

cdonley@ssd.com 

anbird@fedex.com 

dvaughan@kelleydrye.com 

kevin.montgomery@polaraircargo.com 

jrichardson@johnlrichardson.com 

lhalloway@crowell.com 

hill@dlalaw.com 

bill@mietuslaw.com 

mgoldman@sgbdc.com 

rs sgbdc.com 

dhainbach@ggh-airlaw.com 

mcmillin@woa.com 

jamhoff.com 

russell.bailey@alpa.org 

dkirstein@ .com 

j yklaw.com 

usdoj.gov 

.moore@ustranscom.mil 

faa.gov 

r@state.gov 

recohn@hhlaw.com 

zsrlaw.com 

lopmurphy.com 

efaberman@wileyrein.com lachter@ .net 

mroller@rollerbauer.com anita.mosner@hklaw.com 

howard.kass@usairways.com atlasair.com 

benjamin.slocum@usairways.com crowell.com 

.chen@hklaw.com 

12, 2010