BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. ) Application of ) ) NORWEGIAN AIRINTERNATIONAL ) Docket OST-2013-0204 August 18, 2014 LIMITED ) ) For an exemption and foreign air carrier permit )



# _________________________________ )
COMMENTS OF ATLAS AIR, INC.
Communications with respect to this document should be served on: Adam R. Kokas Executive Vice President, General

Counsel & ChiefHuman Resources Officer ATLAS AIR, INC. 2000 Westchester Avenue Purchase, NY 10577-2543 (914) 701-8576- Telephone (914) 701-8333- Fax adam.kokas@atlasair.com August 18, 2014 Russell E. Pommer Associate General Counsel &

Sr. Director, Regulatory Affairs ATLAS AIR, INC. 801 1 

## i 11 Street, NW, Suite 410 Washington, D.C. 20006 (202) 822-9121 -Telephone (202) 822-9152- Fax rpommer@atlasair.comBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. ) Application of ) ) NORWEGIAN AIRINTERNATIONAL ) LIMITED ) ) For an exemption and foreign air carrierpermit )



# ________________________________ ) Docket OST-2013-0204 August 18, 2014

COMMENTS OF ATLAS AIR, INC. ByNotice dated August 4, 2014 ("Notice"), the Departmenthas requested comments on correct legal interpretation ofseveral provisions inthe U.S.-EU air transport agreement (the "Agreement"), which are central to the disposition ofthe pending application ofNorwegian Air International Limited ("NAI") or, before making a decision, to conduct a thorough evaluation ofconsistency ofthe NAI application with standards established inthe U.S.-EU air transport agreement. Atlas Air, Inc. ("Atlas") believes that the legal interpretation advanced by the European Commission's Directorate General for Mobility and Transport ("DG MOVE") is correct in its entirety. Proper application ofthose provisions requires prompt approval ofthe NAI application. As Atlas stated in its February 21, 2014 Consolidated Reply ("Atlas Reply"), Article 6 

### bis ofthe Agreement requires the United States to recognize the Article 4 fitness and citizenship determinations ofEU licensing authorities, "as ifsuch a determinationATLAS AIR, INC. Comments
had been made by its own aeronautical authorities and not enquire further into such matters" (emphasis added), unless the Department has and can articulate "a specific
reason for concern" that an Article 4 conditionhas not been met. Insofar as NAI is concerned, those conditions are:
(b) for a Community airline, substantial ownership and effective control
... are vested inthe a Member State or States, nationals ofsuch a state or states, or both, and the airline is licensed in a Community airline and has its principal place ofbusiness inthe territory ofthe European Community; (c) the airline is qualifiedto meetthe conditions prescribed under the laws and regulations normally applied to the operation ofinternational air transportationbythe Party considering the application or applications; and (d) the provisions set forth in Article 8 (Safety) and Article 9 (Security) are being maintained and administered. Atlas is hard-pressed to imagine what "specific reason for concern" the Department might be able to articulate withrespect to NAI in any ofthose areas. Furthermore, should there be one, Article 6 bis would require prompt written notification containing "substantive reasons," intended to serve as a precursor followed perhaps by consultations and, ultimately, Joint Committee consideration. There is no provision inthe Agreementthat would authorize the Department to act unilaterally to deny an EU airline's application on Article 4 grounds.



### -2-ATLAS AIR, INC. Comments Similarly, as stated inthe Atlas Reply, we agree with the legal conclusionthat the Department lacks authority under Article 4 ofthe Agreementto take action against an EU-licensed airline to effectuate "the importance ofthe social dimension" under Article 17 bis (quoting Notice at 2). Article 17 bis is hortatory in nature and not even mentioned in Article 4. Ifthe U.S. government believes that a Member State has licensed anEU airline in violation ofArticle 17 bis, its sole recourse is to submitthe issue to the Joint Committee for considerationpursuantto Article 18. Should the Joint Committee be unable to resolve the issue, arbitration then would be possible under Article 19. Atlas continues to believe that the NAI application merits prompt approval. The proposed air services further the purpose ofthe Agreement, which, according to the U.S. Department ofState, was to "establish an Open-Skies Plus framework" intended to "authorize every U.S. and every EU airline to fly between every city in the European Union and every city in the United States." State Department Fact Sheet, April 30, 2007. NAI's opponents have twisted the wording ofthe Agreement to argue that the Department should constrain labor practices that the civil aviation authority ofthe applicant's ownhomeland has not found objectionable. The argument disregards the Agreement's fundamental principles. To the extentthat NAI's opponents are dissatisfied withthe market-driven nature ofthe Agreement, they are free to advocate its renegotiation. While the Agreement remains in effect, however, the Departmenthas a legal obligation to uphold its terms.



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### August 18, 2014 ATLAS AIR, INC. Comments Respectfully**submi ,~** 

# ~~**p**.. 

# l/ z.**~~** Russell E. Pommer Associate General Counsel & 

### Sr. Director,

Regulatory Affairs ATLAS AIR, INC. 801 1 

## th Street, NW, Suite 410 Washington, D.C. 20006



### -4-ATLAS AIR, INC. Comments
CERTIFICATE OF SERVICE
I hereby certify that I have, this 

### 18th day ofAugust 

### 2014, caused a copy ofthe foregoing application to be served by e-mail on all persons listed below:

Name Josh Romanow Bob Wirick Sascha Vander Bellen Dan Weiss Rob Land Nancy Sparks Anita Mosner Chris Lytle Kent George Keith W. Meurlin Phiip Brown David Berg Russell Bailey Edward Wytkind Edward James Mark Richardson Philip von Schoppenthau John Hanlon Vegard Einan John Allen Steve Cristina Representing E-Mail Norwegian romanow@!2illsburylaw.com American robert.wirick@aa.com Delta sascha.va nderbellen@delta.com United dan.weiss@united.com JetBiue robert.land@jetblue

.com FedEx nss12arks@fedex.com UPS anita.mosner@hklaw.com Port of Oakland clytle@12ortoakland.com Broward County Aviation kgeorge@broward.org Washington ATF keith@washigtonair12orts.com Orlando Aviation Authority Qbrown@goaa.org A4A dberg@airlines.org ALPA Russell.bailey@aiQa.org TID, AFL-CIO edw@ttd.org Allied Pilots Ass'n ejames@jamhoff.com SWAPA mrichardson@swaQa.org ECA QVs@eurocockQit.be ELFAA john.hanIon@ELFAA.com Parat Vegard.einan@Qarat.com FAA john.allen@faa.gov DOS cristinasa @state.gov



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# //t **c&~ tf**  **. ~**  Russell E. Pommer

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