BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

________________________________________

)

Application of )

)

NORWEGIAN AIR INTERNATIONAL LIMITED )

) Docket No. OST-2013-0204

for an exemption under 49 U.S.C. § 40109 and )

a foreign air carrier permit pursuant to )

49 U.S.C. § 41301 (U.S.- EU Open Skies) )

_________________________________________ )

REPLY OF NORWEGIAN AIR INTERNATIONAL LIMITED

Communications with respect to this document should be addressed to:

Asgeir Nyseth Josh Romanow

Chief Executive Officer Peter Nelson

NORWEGIAN AIR PILLSBURY WINTHROP SHAW 

INTERNATIONAL LIMITED PITTMAN LLP

Ground Floor Imbus House 2300 N Street, N.W.

Dublin Airport, Co. Dublin, IRELAND Washington, D.C. 20037

Tel: + 353 18 141851 Tel: (202) 663-8000

E-mail: asgeir.nyseth@norwegian.com E-mail: romanow@pillsburylaw.com

E-mail: peter.nelson@pillsburylaw.com

August 25, 2014 Counsel for NORWEGIAN AIR 

INTERNATIONAL LIMITED
1

BEFORE THE

U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

________________________________________

)

Application of )

)

NORWEGIAN AIR INTERNATIONAL LIMITED )

) Docket No. OST-2013-0204

for an exemption under 49 U.S.C. § 40109 and )

a foreign air carrier permit pursuant to )

49 U.S.C. § 41301 (U.S.- EU Open Skies) )

_________________________________________ )

REPLY OF NORWEGIAN AIR INTERNATIONAL LIMITED

Norwegian Air International Limited (“Norwegian International”) hereby submits 

its reply to the answers filed in accordance with the Department’s Notice of August 4, 

2014 (the “Notice”). Along with the Irish Civil Aviation Authority, the U.S. Travel

Association, the American Society of Travel Agents, the European Low Fares Airline

Association, the Oakland, Orlando, and Fort Lauderdale airport authorities, Federal 

Express, Atlas Air, and many others 1 (the “Supporting Parties”) and on behalf of an

American public that has waited too long for competitive transatlantic service, 

 1 See Letter, dated July 30, 2014, from John J. Fearon, Director General of Civil Aviation, Irish Department 

of Transport, Tourism, and Sport to Secretary Foxx; Letter, dated August 18, 2014 from Roger Dow, 

President and CEO, U.S. Travel Association to Secretary Foxx; Comments of the American Society of 

Travel Agents (Aug. 18, 2014); Answer of the European Low Fares Airline Association (Aug. 18, 2014); 

Answer of Federal Express Corporation (Aug. 18, 2014) (hereinafter “FedEx Answer”); Comments of 

Atlas Air, Inc. (Aug. 18, 2014) (hereinafter “Atlas Answer”); Answer of the Port of Oakland (Aug. 18, 

2014);; Answer of the Washington Airports Task Force (Aug. 18, 2014); Answer of Broward County 

Aviation Department (Dec. 16, 2013); Letter from Greater Orlando Aviation Authority to Secretary of 

Transportation Anthony R. Foxx (Jan. 13, 2014); Motion for Permission to File and Comments of the 

Travel Technology Association in Support of Norwegian Air International Limited (January 22, 2014); 

Letter from Orlando Mayor Buddy Dyer to Secretary of Transportation Anthony R. Foxx (January 27, 

2014); Letter from Orange Country Mayor Teresa Jacobs to Secretary of Transportation Anthony R. Fox

(Feb. 5, 2014); Letter from Visit Orlando to Secretary of Transportation Anthony R. Foxx (Jan. 24, 2014); 

Comments of Travelers United (Aug. 18, 2014).
2

Norwegian International urges the Department to grant its application for an exemption 

and a foreign air carrier permit without further delay.

I. THE VIEWS OF THE EUROPEAN COMMISSION ARE CORRECT: 

ARTICLE 17 BIS DOES NOT PROVIDE A BASIS FOR THE 

DEPARTMENT UNILATERALLY TO DENY NORWEGIAN 

INTERNATIONAL'S APPLICATION

At the July 14 meeting, the Commission presented its views on the legal meaning 

and applicability of Article 17 bis. Specifically, “Article 17 bis does not provide a legal 

basis for unilaterally denying an application under Article 4 because (1) Article 4 makes 

no reference to Article 17 bis, and (2) Article 17 bis itself does not formulate a legal rule 

that can be applied unilaterally by one party.”2

 And, “any unilateral decision to deny an 

application using Article 17 bis runs against the letter and spirit of the Agreement.”3 

Opposing Parties have offered a capacious but indigestible smorgasbord of assertions 

disagreeing with the Commission’s well-reasoned conclusions but have not provided any 

supportable legal basis to deny Norwegian International’s application. As explained 

below, each of the Opposing Parties’ principal arguments fails.

1. Article 17 bis Does not Establish a Legally Binding Rule

Opposing Parties4 incorrectly argue that Article 17 bis empowers each Party with 

the unilateral authority to deny authorization to an airline of the other Party if it judges 

the applicant’s labor standards inconsistent with its own, unilaterally defined notion of 

 2 Department of Transportation, Notice at 2, Docket DOT-OST-2013-0204 (Aug. 4, 2014) (hereinafter 

“Notice”). 3 Id. at 3. 4 Joint Comments of Air Line Pilots Association, Transportation Trades Department, AFL-CIO and the 

European Cockpit Association, at 8 (Aug. 18, 2014) (hereinafter “ALPA Answer”); Comments of the Air 

Crew Working Group, at 3 (Aug. 18, 2014) (hereinafter “ACWG/ECA Answer”); Joint Submission of the 

European Transport Workers’ Federation and the Transportation Trades Department, AFL-CIO, at 3 (Aug. 

18, 2014) (hereinafter “ETF/TTD Answer”).
3

high labor standards.

5 Specifically, Opposing Parties assert that the words “shall guide” 

are directive, 6 and that the Commission’s interpretation would render Article 17 bis

null. 7 These assertions are simply wrong.

First, “guide” does not indicate a legal obligation, whether or not it is paired with 

“shall.” Citing the Merriam‐Webster Dictionary,8 ALPA asserts that the definition of 

guide is “to direct . . . to a particular end.” Tellingly, ALPA’s Answer omits with a 

quaint ellipsis several crucial words in the definition: “to direct, supervise, or influence 

usually to a particular end.” Neither “supervise” nor “influence” nor “usually” is 

mandatory, and “influence” is the more appropriate interpretation in this case. Moreover, 

the same dictionary’s examples distinguish “guide” from a “directive” as Opposing 

Parties interpret it.9

 Furthermore, “guidance” is routinely used to refer to non-mandatory

provisions in the context of international aviation, including in formal documents of the 

U.S.-EU Joint Committee (the “Joint Committee”) and in ICAO.

10 Further, “guide”

cannot be deemed mandatory in this context because Article 17 bis did not establish or 

 5 See FedEx Answer at 3 (“Despite the fact that certain interests wanted to use this Agreement as a 

springboard to a trans-Atlantic labor standard, that was not the result.”). The Opposing Parties have not 

provided their definition of “high labor standards,” but presumably would “know it when they see it.” Cf.

Justice Stewart’s concurring opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964), regarding the question of 

what constitutes obscenity. 6 ALPA Answer at 9.

7 See, e.g., Answer of Scandinavian Airlines System, at 3 (Aug. 18, 2014) (hereinafter “SAS Answer”).

8 Available at www.merriam‐webster/dictionary/guide. 9 The dictionary examples show that to the extent guide may mean “direct,” it has the connotation of 

“orient” or “lead” rather than “order” or “bind.” See id. (“Let your conscience guide you,” “programs to 

help guide teenagers away from drug use,” “In his work, he has always been guided by a desire to help 

other people.”). 10 See, for example, the Joint Committee Record of Meeting of June 22, 2011 at 

http://www.state.gov/e/eb/rls/othr/ata/e/eu/192088.htm (“supporting ICAO in the development of 

appropriate guidance material and recommendations for ICAO Contracting States” with respect to the 

screening of liquids, aerosols, and gels) and the ICAO “Guidance Document” on “New Lithium Battery 

Packing Instructions and Recommended Transitional Period” at

http://www.icao.int/safety/DangerousGoods/Documents/Guidance%20Material/2013-

2014LithiumBatteryTransition.pdf (stating explicitly that “it is recommended that aviation authorities 

provide for a transitional period”).
4

define either mandatory or prohibited labor standards, i.e., there is no clear directive.11 In 

short, the characterization of “shall guide” as providing “marching orders for the Parties”

is patently wrong, as are the parallel arguments of other Opposing Parties.12

Second, Article 17 bis has real meaning. As Opposing Parties should know, 

hortatory statements are commonly used in international agreements,

13 and here, Article 

17 bis links the “further expansion of opportunities” envisioned in Article 21 with the 

guidance to the Parties on the social dimension in Article 17 bis. As both articles make 

clear, the Joint Committee bears responsibility for defining how to achieve expanded 

opportunities in a manner consistent with social dimension concerns. 14 The 

Commission’s interpretation would in no way render the provision a nullity.

2. Article 17 bis Does not Empower a Party to Unilaterally Deny Operating 

Authority to an Airline of the Other Party.

Opposing Parties’ arguments that Article 17 bis provides for unilateral action are 

without any supportable basis.

First, the reference to “Parties” in paragraph 2 of 17 bis does not mean that “each 

of the parties” is empowered to act unilaterally.15 As NAI stated in its August 18 Answer, 

the Open Skies Agreement repeatedly uses the singular of “Party” in other contexts 

where “a Party” or “each Party” or “either Party”16 is intended and unilateral action is 

 11 See Consolidated Reply of Norwegian Air International Limited, at 8, 11 (Dec. 31, 2013) (hereinafter, 

the “Consolidated Reply”). 12 See ALPA Answer at 10; ACWG/ECA Answer at 3. 13 See, e.g., Comments of Norwegian Air International Limited, at 6 n. 11 (Aug. 18, 2014) (hereinafter 

“Norwegian International Answer”). 14 Id. at 11-12.

15 See, e.g., ALPA Answer at 8; see also ACWG/ECA Answer at 3.

16 Tellingly, Article 5 of the Open Skies Agreement (Revocation of Authorization) states that “Either Party 

may revoke, suspend, or limit the operating authorizations ... or otherwise suspend or limit the operations 

of an airline of the other Party” in certain specified circumstances (which, it must be noted, do not include 
5

contemplated. Moreover, the Agreement uses “each Party” in at least ten other articles,17

but notably not in paragraph 2 of Article 17 bis.

18 That context demonstrates that “each 

of the Parties” was not intended.

“Including” as used in 17 bis does not imply that unilateral denial of an 

application for authorization is permitted. 19 “Including” modifies “as they implement the 

Agreement” – with “they” being plural. The only specific implementation actions 

enumerated—“regular consideration by the Joint Committee” and “development of 

appropriate responses”—are joint, not unilateral, actions. 20 Thus any additional 

implementation would be pursued as the other actions would be – jointly. 21 Opposing 

Parties cannot therefore credibly interpret the second paragraph of Article 17 bis—which 

refers to “the Parties” and contains references solely to joint actions—as a legal basis for 

unilateral action by “a Party.” 22

Opposing Parties attempt to bolster the linguistic deficiencies of their 

interpretation with policy arguments. As a preliminary matter, policy arguments are not 

among the accepted sources of treaty interpretation under international law, and 

assertions related to the presumed intent of the Parties serve only as supplementary aids 

 any reference to Article 17 bis or the “social dimension”). This is a case in which the Agreement 

empowers unilateral action by an individual Party—to do so, it uses “Party” in the singular. 17 See Open Skies Agreement arts. 2-3, 6 bis, 9-12, 14-15, 19, 21 (as amended by 2010 Protocol). 18 Cf. Open Skies Agreement, art. 17 bis ¶ 1 (referring to “Parties’ respective laws,” which like “each 

party” refer to individual parties). Article 17 bis ¶ 2 contains no such “respective” reference. Note that 

“respective” in ¶ 1 means that “each participating nation would retain and enforce its own laws on its own 

carriers, rather than creating a new standard to which all parties would adhere.” See FedEx Answer at 3. 19 See, e.g., ALPA Answer at 9; ACWG/ECA Answer at 3. 20 See Norwegian International Answer at 8. 21 See also Atlas Answer at 3 (“If the U.S. government believes that a Member State has licensed an EU 

airline in violation of Article 17 bis, its sole recourse is to submit the issue to the Joint Committee for 

consideration pursuant to Article 18.”). 22 Opposing Parties’ logic might even open the door to a Party’s denying authorization to an airline of the 

other Party that it unilaterally judges deficient in “protecting the environment.” See Open Skies Agreement 

art. 15 (“The Parties recognize the importance of protecting the environment”).
6

of interpretation where the meaning of a provision is ambiguous.

That said, Opposing Parties present a circular argument that because the Joint 

Committee may not be “in a position to take timely action” before the Department must 

meet a statutory deadline, 23 the Article must therefore be interpreted to authorize 

unilateral action.

24 The absence of any reference in Article 4 to Article 17 bis, reinforced 

by the use of “the Parties” and the explicit reference to the Joint Committee in the text, 

signifies that unilateral decisions with respect to social dimension matters are 

inappropriate in an Article 4 licensing decision.25

Opposing Parties’ jingoistic argument that a requirement for joint consideration of 

Article 17 bis issues “allow[s] a foreign country veto power”26 is likewise without legal 

basis. Under international law, international agreements are binding on the U.S. It is the 

very nature of international agreements—and a necessary attribute of any State’s 

sovereignty—to have the capacity to undertake such binding obligations. The U.S. has 

done so here, and the United States is bound to comply with them under the principle of

pacta sunt servanda.

27 Further, 49 U.S.C. § 40105(b)(1)(A) mandates that the Secretary 

“shall act consistently with obligations of the United States Government under an 

 23 See ALPA Answer at 9. 24 The Opposing Parties make the assumption that “social dimension” requirements are at the core of an 

Article 4 licensing decision and then argue backwards to a requirement for unilateral action to satisfy the 

deadline concern.

25 The European Commission’s tentative contemplation that “perhaps two parties could decide together to 

deny an application using Article 17 bis based on paragraph 1 of Article 17 bis (i.e., that an application 

undermines labor-related rights and laws)” envisions only joint, not unilateral, action. See Notice at 3. 

This hypothetical situation is not at issue in this proceeding since both the Commission and Ireland have 

spoken.

26 See ALPA Answer at 11.

27 “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

Vienna Convention on the Law of Treaties art. 26, opened for signature May 23, 1969, 1155 U.N.T.S. 331

(hereinafter “VCLT”).
7

international agreement.”28 In this case, the United States has undertaken the obligation 

in Article 4 of the Open Skies Agreement to grant operating authorization to EU airlines 

when specified conditions, not including Article 17 bis, have been met. It was neither 

“irrational” nor “plainly impermissible”—as suggested by Opposing Parties—for the 

Parties to have entered into this reciprocal legal obligation.

29 It is not the grant of a 

“veto” to act consistently with this legal obligation.

3. The Social Dimension Concerns of Article 17 bis Are Not the Core Object and 

Purpose of the Open Skies Agreement.

Opposing Parties’ suggestion that the core objectives of Article 17 bis would be 

fatally undermined if the Department approves Norwegian International’s application30

misses the point. Under the Vienna Convention on the Law of Treaties, the object and 

purpose to be considered is that of the full Agreement and not just one article.31 The core 

object and purpose of the Open Skies agreement is to open aviation markets.32 Moreover, 

approval by the Department of operating authority for Norwegian International is 

consistent with Article 17 bis, which contemplates joint and cooperative action.

Opposing Parties’ attempts to downplay the realistic possibility of retaliation for a 

unilateral denial 33 ignore the negotiating delegations’ express recognition that “in the 

event a Party would take measures contrary to the Agreement, including Article 21, the 

other Party may avail itself of any appropriate and proportional measures in accordance 

 28 See, e.g., DOT, Notice of Action Taken, Docket DOT-OST-2007-0029 (Apr. 4, 2008) (hereinafter “Arik, 

Docket DOT-OST-2007-0029”) (granting exemption where “in view of [the Department’s] obligations to 

act consistently with international agreements (in this case, the U.S.-Nigeria Air Transport Agreement), and 

the public benefits that will be derived”).

29 See ALPA Answer at 10-11. 30 Joint Answer of Delta Air Lines, Inc., United Airlines, Inc., and American Airlines, Inc., at 2 (Aug 18, 

2014).

31 VCLT art. 31(1) (“A treaty shall be interpreted...in the light of its object and purpose”). 32 See Norwegian International Answer at 9. 33 See ETF/TTD Answer at 5.
8

with international law, including the Agreement.”34 The statement by the Commission 

that a unilateral denial using Article 17 bis runs against the letter and spirit of the 

Agreement is simple fact.35

4. Articles 4 does not refer to Article 17 bis – confirming that Article 17 bis may 

not be used unilaterally to deny a license application.

Opposing Parties’ wrongly contend that cross-referencing article would render the 

Agreement unworkable.

36 However, the article of the Agreement that matters is Article 4, 

and Article 4 explicitly references other Agreement articles 37 with respect to which 

compliance is relevant to an authorization decision. Article 17 bis is not referenced, and 

it beggars reason to contend that such a reference would have rendered Article 4 

unworkable. Indeed, the exalted status that the Opposing Parties attribute to Article 17 

bis would seem to cry out for a cross-reference in Article 4, had the Parties intended to 

allow unilateral denial on that basis. 38 They did not.39

Opposing Parties also attempt to have Article 17 bis three ways. First, their

suggestion40 that Article 17 bis is itself a U.S. law or regulation is unsupported. 41 As 

 34 Memorandum of Consultations signed by Daniel Calleja and John Byerly, ¶ 20, Mar. 25, 2010. 35 Notice at 3.

36 See SAS Answer at 3. 37 Open Skies Agreement arts. 8 & 9. 38 Expressio unius est exclusio alterius (“The expression of one thing is the exclusion of another”) also 

forecloses Opposing Parties’ arguments that “there is no language in Article 4 stating that Article 17 bis

does not apply.” See Response of KLM Royal Dutch Airlines at 3 (Aug. 18, 2014) (hereinafter “KLM 

Answer”); Response of Air France at 2 (Aug. 18, 2014) (hereinafter “Air France Answer”); see also ALPA 

Answer at 10.

39 See Norwegian International Answer at 7; FedEx Answer at 3 (“[P]arties did not add any other factor to 

Article 4 upon which a unilateral rejection could be based.”). 40 See SAS Answer at 4 (“Article 17 bis does “formulate a legal rule” that can be applied to an Article 4(c) 

application.”); ACWG/ECA Answer at 3-4 (“Art 17bis is such a “normally applied regulation” to which the 

U.S. is obliged to abide to and is entitled to refer to unilaterally.”); KLM Answer at 4 (“Those “laws and 

regulations” should include in our view the protection of the “high labor standards” secured by Article 

17bis”); Air France Answer at 3 (same). 41Compare, for example, the “standard exemption conditions” the Department issues with foreign air carrier 

exemption approvals, such as those identified in Arik, Docket DOT-OST-2007-0029, at 3. Arik concerned 
9

used in Article 4(c) “laws and regulations” clearly refer to national laws or regulations 

rather than a treaty clause. Not surprisingly, the Opposing Parties offer no legal 

argumentation for their contrary view. Second, just as incorrect is the twinned assertion 

that, with respect to exemptions, the principal “law normally applied” is 49 U.S.C. §

4010942 and that Article 17 bis “should be part of the public interest analysis” envisioned 

in that section.43 For the reasons provided above, the Commission’s correct legal view 

that Article 17 bis does not provide a legal basis for unilaterally denying an application 

under Article 4 precludes unilateral denial based “in part” on Article 17 bis. Dressing up 

Article 17 bis in the garb of “public interest analysis” does not change this conclusion. 

Third, as stated by the Commission, the argument that Article 17 bis offers an 

independent basis, separate from Article 4, for denying authorization is contrary to the 

terms and context of Articles 4 and 17 bis.

5. Opposing Parties’ Comments on the July 14 Meeting and the Role and 

Authority of the Director Do Nothing to Salvage Their Legal Analysis.

The Opposing Parties have also attempted to mischaracterize the July 14 meeting 

in a last-ditch effort to cast shadows in an area where there is total sunlight, including an 

implicit suggestion that Secretary Foxx’s initiative to request the meeting was misguided. 

Norwegian International respectfully disagrees.

 

the U.S.-Nigeria Air Transportation Agreement. Article 3(2)(b) of that Agreement contains the same 

language Opposing Parties misapply here: “conditions prescribed under the laws and regulations normally 

applied.” By their terms and by their content, the “standard exemption conditions” in Arik appear to be (1) 

“conditions prescribed,” (2) under U.S. “laws and regulations,” and (3) “normally applied.” In contrast, 

Article 17 bis itself is none of these. 42 ALPA Answer at 4.

43 Id. at 7.
10

On very short notice and at the request of the Secretary, the U.S. Government

made “a request ... to the European Commission’s Directorate General for Mobility and 

Transport (“DG MOVE”) to ask for its views on the legal meaning and applicability of 

Article 17 bis.”44 Present at the meeting were senior representatives of DG MOVE as 

well as an official of the Commission Legal Service. The Department reported in the 

Notice that the Director “noted that the views expressed during the meetings were the 

views of EC officials.” In other words, the meeting produced exactly what the U.S. 

Government requested.

Opposing Parties did not like what the Director said and decided to “blame the 

messenger” by questioning his authority, attacking the Commission views that were 

expressed, and asserting—without evidence—that some EU Member States may have 

different views.45 The Department should attach no weight to these fulminations.

II. THE GRANT OF AN EXEMPTION AND A FOREIGN AIR CARRIER 

PERMIT TO NORWEGIAN INTERNATIONAL IS IN THE PUBLIC 

INTEREST

Pursuant to 49 U.S.C. § 40105(b)(1)(A), the Department is required to “act 

consistently with the obligations of the United States Government under an international 

agreement.” 46 As Norwegian International has stated in previous filings, the public 

interest in promoting service authorized by a bilateral air transport agreement weighs 

 44 Notice at 1. 45 See, e.g., ALPA Answer at 3. 46 49 U.S.C. § 40105(b)(1)(A).
11

decisively in favor of the grant of an exemption and foreign air carrier permit in this 

proceeding.47 In the permit context, Congress demonstrated its regard for authorizing 

service “under an agreement with the United States Government” by dispensing with the 

requirement for a public interest finding. That is, once the Department has determined 

that an applicant is “fit, willing, and able” to provide foreign air transportation, 49 U.S.C. 

§ 41302 authorizes the Department to grant a permit either if the applicant has “been 

designated to provide the foreign air transportation under an agreement with the U.S. 

Government” or if “the foreign air transportation to be provided under the permit will be 

in the public interest.”48

Analogous logic applies to the public interest determination required for approval 

of Norwegian International’s exemption application under 49 U.S.C. § 40109. Congress 

has stated that if an applicant seeks to provide service authorized by a bilateral 

agreement, there is a “virtually unrebuttable presumption that grant of the application is 

in the public interest.”49 In addition, one of the factors the Department must consider in 

evaluating the public interest in the context of international air transportation is 

“opportunities for carriers of foreign countries to increase their access to . . . the United 

States if exchanged for benefits of similar magnitude for [U.S.] air carriers or the 

 47 Norwegian International notes that in previous cases, the Department has allowed obligations under 

international agreements to outweigh provisions of U.S. law (see Arik, Docket DOT-OST-2007-0029, at 1

(approving exemption requested by Arik Air Limited despite expected fuel consumption in excess of 10 

million gallons “in view of [the United States’] obligations under 49 U.S.C. 40105 to act consistently with 

international agreements . . . and the public benefits that will be derived from Arik’s services”). 48 49 U.S.C. § 41302.

49 H.R. REP. NO. 95-1211, at 15 (1978); see also Attachment to Joint Applications of Delta/Air France 

(#98-303) and Continental/Air France (#98-330) for Statements of Authorization under 14 CFR 212 (Aug. 

6, 1998) (“It is our policy in determining the public interest to consider a number of factors, most 

importantly, the extent to which the authority sought is covered by and consistent with bilateral 

agreements.”); S. REP. NO. 96-329, at 4 (1979), reprinted in 1980 U.S.C.C.A.N. 54, 57 (“[T]he negotiation 

of a bilateral agreement itself represents a determination by the Government of the United States that the 

grant of route authority provided for under the bilateral is in the ‘public interest.’”).
12

traveling public.”50 Approval of Norwegian International’s application will enable the 

Department to protect the important opportunities made available to U.S. carriers by the 

European parties to the Open Skies Agreement,51 and afford an airline of Ireland, one of 

America’s closest partners in Europe, the access to route authority it was promised.

Viewed as a whole, the other factors identified in 49 U.S.C. § 40101(e) leave no 

doubt that Norwegian International’s proposed service would serve the public interest. 

As described in its prior filings, Norwegian International will offer the American public 

competitive fares ((e)(2)), award-winning service that is responsive to market preferences 

and demand ((e)(4), (5)), increased service to previously-underserved markets ((e)(7)), 

and support for the U.S. aviation industry through its multibillion-dollar commitment to 

Boeing, hiring of hundreds of U.S.-based cabin crew, and support for hundreds of jobs at 

the U.S. airports it serves ((e)(10)). In addition, even though Norwegian International is a

new entrant carrier, the exaggerated reactions of the Opposing Parties to its application 

are evidence enough that Norwegian International will also advance the Department’s 

goal of promoting competition among airlines52 – including reducing the extraordinary 

concentration of transatlantic traffic currently dominated by the three immunized 

alliances.

Going beyond the scope of the Department’s Notice, Opposing Parties have once 

again used their Answers to rehash tired innuendo about the safety and working 

conditions of Norwegian International. First, with respect to safety, Norwegian 

International is subject to Irish oversight and, as the Irish Minister for Transport, Tourism 

 50 49 U.S.C. § 40101(e)(8).

51 See Consolidated Reply, at 9-12. 52 See 49 U.S.C. § 40101(f).
13

and Sport conveyed to Secretary Foxx, Ireland’s “safety . . . regimes are based on EU law 

and also in accord with all applicable ICAO requirements. Our safety oversight regime 

has been recognized as among the best in the world by ICAO under the Universal Safety 

Oversight Audit Program.”53 Norwegian International fully complies with all applicable 

safety standards, and its crews are trained according to EU standards – in addition to its 

own rigorous, supplemental training programs. No basis exists for the wildly inaccurate 

assertion that Norwegian International is somehow “unsafe.”

Second, as made clear in the Department’s January 30, 2014 Notice, to secure 

qualified crew members in a way that makes economic sense for routes that have only a few 

weekly frequencies to and from certain European cities, Norwegian International intends to 

hire and domicile crews at operating bases outside of Europe (for example, in the United 

States for U.S.-Europe flights). 54 On August 22 Norwegian announced a new long-haul pilot 

base at London Gatwick,55 which will complement its existing crew bases in New York and 

Fort Lauderdale. In each case, the local labor laws of the country in which an individual 

employee is hired and domiciled will apply. The European Delegation to the Joint 

Committee has noted that Norwegian “employees are organized in labor unions and that 

[Norwegian International’s affiliate, Norwegian Air Shuttle] had no tradition of discouraging 

unionization,”56 and has also provided the Joint Committee with information about the 

salaries paid to Norwegian crew, which are are competitive for the marketplace.57 The 

 53 Letter dated February 13, 2014, from Leo Varadkar, Irish Minister for Transport, Tourism & Sport to 

Secretary Anthony Foxx.

54 Department of Transportation, Notice at 2, Docket DOT-OST-2013-0204 (Jan. 30, 2014) (hereinafter 

“January Notice”). 55 Press Release, Norwegian Opens New Base for Long-Haul Operations at London Gatwick (Aug. 22, 

2014), available at http://media.norwegian.com/en/#/pressreleases/norwegian-opens-new-base-for-longhaul-operations-at-london-gatwick-1043088. 56 January Notice, at 2. 57 Id.
14

information provided to the Joint Committee puts to rest any questions about Norwegian 

International’s employment conditions.

III. OPEN THE SKIES OR TURN BACK THE CLOCK: THE 

DEPARTMENT’S STARK CHOICE 

In 1994, the Department issued its pivotal Statement of United States 

International Air Transportation Policy — a policy that has guided the Department in its 

aviation relations with other countries for over two decades. In it, the Department 

concluded:

We are living through a period in which international aviation rules must 

change. Privatization, competition, and globalization are trends fueled by 

economic and political forces that will ultimately prevail. Governments 

and airlines that embrace these trends will far outpace those that do not. 

The U.S. government will be among those that embrace the future.58

Fast forward twenty years, and a small European airline with aspirations to enter 

the U.S. market and provide tremendous benefits to the American traveling public has led 

legacy carriers and their unions to challenge the Department’s core goals in this Policy 

Statement. Over six months after Norwegian International completed its application and 

with a regulatory docket filled with hundreds of pages of pleadings, the Department must 

now make a decision. It is a stark choice.

On the one hand, the Department can bow to the overt political pressure from 

special interests, who seek to block a new competitor on transatlantic air routes. There 

can be no mistake about the anti-Open Skies agenda of Norwegian International's 

opponents.

59 If the Department wishes to return to the “good ol’ days” of Bermuda 2 

 58 Statement of United States International Air Transportation Policy, Office of the Secretary, Department 

of Transportation, 60 Fed. Reg. 21,841 (May 3, 1995). 59 One leading U.S. union official captured this agenda exquisitely when he recently called for a “grey” 

“path forward for global aviation,” arguing that “protectionism” should now be given equal billing with the
15

capacity and designation limits, pricing wars with Germany, incumbent “haves” and nonincumbent “have-nots” in Japan, and a focus on bolstering the stature of today’s 

successors to PanAm, the protectionist positions advanced by the Opposing Parties offer 

the path backward. If it follows this path, the Department will invite an unnecessary, 

potentially grave dispute with the European Union and Ireland. Moreover, the 

Department will have further entrenched the power of the three immunized alliances and 

their unions on both sides of the Atlantic by denying a new entrant the chance to 

compete.

On the other hand, the Department can make the right decision by granting 

authority to Norwegian International, an airline that offers America's consumers a choice 

and America’s communities and airports new opportunities to expand tourism, build 

international connections, and foster economic development. Since 1992, the United 

States has pursued an Open Skies policy that puts consumers—the American public—

first. Open Skies has succeeded beyond all expectations, and it has done so because 

America took a principled decision to focus on fostering competition and new 

opportunities, not on protecting the existing market shares of flag carriers. To stay the 

successful course of Open Skies and promote a pro-growth, pro-competition, proconsumer policy, the Department should grant Norwegian International’s application

without further delay.

 

principles of liberalization that have defined America's Open Skies policy for over twenty years. Captain 

Lee Moak, In the Grey, AIR LINE PILOT (Aug. 2014).
16

Respectfully submitted,

Josh Romanow Peter Nelson

PILLSBURY WINTHROP SHAW PITTMAN LLP

2300 N Street, N.W.

Washington, D.C. 20037

Tel: (202) 663-8000

Fax: (202) 663-8007

romanow@pillsburylaw.com

peter.nelson@pillsburylaw.com

August 25, 2014 Counsel for NORWEGIAN AIR 

INTERNATIONAL LIMITED
CERTIFICATE OF SERVICE

The undersigned certifies that on August 25, 2014, a true and correct copy of the 

foregoing Reply of Norwegian Air International Limited was served by electronic mail 

on the individuals identified below:

Dan Weiss

United Airlines

dan.weiss@united.com 

Sascha Van der Bellen

Delta Airlines

sascha.vanderbellen@delta.com

Malcolm L. Benge

Counsel for North 

American/World Airways

mlbenge@zsrlaw.com

Russell E. Pommer

Atlas Air Inc.

rpommer@atlasair.com

Russell Bailey

Jonathan A. Cohen

Air Line Pilots Association, Int’l

russell.bailey@alpa.org

jonathan.cohen@alpa.org

Edward Wytkind

Transportation Trades 

Department, AFL-CIO

edw@ttd.org

J. Christopher Lytle

Port of Oakland

clytle@portoakland.com

Kent George

Broward County Aviation 

Department

kgeorge@broward.org

Mark Richardson

Southwest Airlines Pilots’ 

Association

mrichardson@swapa.org

Robert Wirick

Francis Heil

Howard Kass

American Airlines, Inc.

U.S. Airways, Inc.

robert.wirick@aa.com

francis.heil@aa.com

howard.kass@aa.com

Airline Info

info@airlineinfo.com

Nick Tsokris

Jesse Elliot

John Chen

FAA New York IFU

jesse.elliot@faa.gov

nicholas.tsokris@faa.gov

john.chen@faa.gov

John M. Allen

Director, Flight Standards

Federal Aviation Administration

john.allen@faa.gov

Anita Mosner

Jennifer Nowak

Counsel for UPS

Holland & Knight

anita.mosner@hklaw.com

jennifer.nowak@hklaw.com

Nancy S. Sparks

Bailey Leopard

Federal Express Corporation

nssparks@fedex.com

gbleopard@fedex.com

David Berg

James L. Casey

Keith A. Glatz

Airlines for America

dberg@airlines.org

jcasey@airlines.org

kglatz@airlines.org

Celine Canu

European Cockpit Association

cc@eurocockpit.be

Edgar N. James

Allied Pilots Association

ejames@jamhoff.com

Thomas S. Engle

Department of State

EngleTS@state.gov

Steve Shur

Travel Technology Association

sshur@traveltech.org

Eugene Alford

Department of Commerce

eugene.alford@trade.gov

Matthew Baldwin

Director of Air Transport

European Commission

Matthew.Baldwin@ec.europa.eu

Emmanuelle Maire

DG MOVE

European Commission

Emmanuelle.Maire

@ec.europa.eu

David Batchelor

SESAR Joint Undertaking

Delegation of the European 

Union to the USA

David.Batchelor@sesarju.eu

Ottar Ostnes

Director General, Norwegian 

Ministry of Transport and 

Communications

Ottar.Ostnes@sd.dep.no 

John Hanlon

European Low Fares Airline 

Association

John.Hanlon@ELFAA.com 

Paul Gretch

Robert Finamore

U.S. Department of 

Transportation

paul.gretch@dot.gov 

Robert.Finamore@dot.gov

Charles Leocha

Travelers United

Charles.Leocha@travelersunited.org

Keith Meurlin

Washington Airports Task Force

keith@washingtonairports.com 

Paul Ruden

American Society of Travel Agents

pruden@asta.org 

Roger Dow

U.S. Travel Association

rdow@ustravel.org

/s/ Peter Nelson

Peter Nelson