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BEFORE THE

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

_________________________________________________________________

)

Application of )

)

NORWEGIAN AIR INTERNATIONAL LIMITED )

) Docket DOT-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 )

)

_________________________________________________________________

ANSWER OF THE

SOUTHWEST AIRLINES PILOTS’ ASSOCIATION

Communications with respect to this document should be addressed to:

Paul Jackson

Government Affairs

Southwest Airlines Pilots’ Association

1450 Empire Central

Dallas, TX 75247 (800) 969-7972

pjackson@swapa.org
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I. INTRODUCTION

The Southwest Airlines Pilots Association (“SWAPA”) is the exclusive bargaining 

representative for more than 6,700 Southwest Airlines pilots. 

Having reviewed the written summary of a non-public conversation conducted to 

address to the significant opposition to the foreign air carrier filing by Norwegian Air

International, SWAPA strongly opposes the application of Norwegian Air Shuttle for an 

exemption under Article 17 of the U.S.-EU Air Transport Agreement, Title 49 U.S.C. §§ 

40101(a)(5) and Title 49 U.S.C. 40101 §§ (a)(15).

II. ANALYSIS OF THE SUMMARY OF ORAL COMMENTS BY EUROPEAN DELEGATION

A. SWAPA objects to the highly unusual format of having only a “written 

summary” of a private conversation regarding a docketed issue to which to 

reply.

As SWAPA was not present for this non-public conversation, it is difficult for our 

organization to address issues that were not formally filed in written format, as is 

customary.

1. The very first paragraph of the US DOT document establishing the procedural 

schedule states, “On the basis of information provided by Norwegian Air 

Shuttle, the European delegation gave the Joint Committee some detailed 

(sic) factual information about the company’s plans.”

2. While we appreciate the inclusion of what was described as “some” detailed 

information, it appears that the material generated by this document was 

first generated through a conversation between the EU delegation and 

Norwegian Air International. The delegation then relayed the information to 
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the US DOT in a non-public conversation, at which point the DOT then

summarized the original statements, presumably presented originally in a 

summarized format, for our examination and response.

3. We were unable to find the “detailed” information promised, the “Summary 

of Information” which provided only three paragraphs addressing presumed 

responses to the significant opposition brought forward to this application, 

with such vague statements as “makes more sense...intends to...for the startup period...would prefer...” none of which allows a cogent reply. We given a 

description of what Norwegian Air International current practices are, but 

then are told that future practices will differ, or are intended to differ from 

their current practices.

B. ARTICLE 17 OF THE U.S.-E.U. AGREEMENT WAS DRAFTED SPECIFICALLY TO 

PREVENT THIS TYPE OF FLAG-OF-CONVENIENCE STRATEGY

The “Social Dimension” article was added in 2010, three years after the Air 

Transport Agreement was originally penned in 2007, to address the danger of venue 

shopping to select the most lenient host state(s) for selected regulatory compliance. 

Although other docket responses have addressed this fact, it bears repeating in our 

response: a Norwegian-based carrier operating under an Irish operating certificate, 

crewed by employees hired by a staffing agency based in Singapore, to be based in Thailand

doesn’t pass even a cursory examination of whether it meets the intent of international 

treaties and regulatory agreements. 

SWAPA also argues that there is a lack of sufficient information in the Norwegian Air 

International verbal discussion summary to allow a determination of whether the “fair 

wages and working conditions” requirement will be met under 49 U.S.C. §§ 40101(a)(5). 
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C. THE PUBLIC INTEREST IS NOT SERVED BY GRANTING NORWEGIAN AIR 

INTERNATIONAL A FOREIGN CARRIER PERMIT

In the absence of a global regulatory framework for the granting of airline operating 

certificates with standardized requirements, the use of treaties and inter-country 

agreements to recognize the validity of sovereign designations must be treated with great 

care. A thorough examination of compliance with the intent of treaty language must be 

conducted. It has certainly not been argued that the United States giving up oversight of 

the maritime industry that carries US cargo and passengers to regulatory authorities in

countries such as Liberia with less-stringent regulatory requirements was the intent of the 

Jones Act. Section 17 of the U.S.-E.U agreement makes it clear that the Agreement is 

specifically designed to avoid this well-recognized pitfall. 

Because the maritime industry is mostly cargo with only a small contingent of 

passengers, only sporadic issues arise in the public eye that result from the US abdication 

of regulatory oversight which took place more than 90 years ago, having the perverse effect 

of allowing regulatory flags-of-convenience for shipping when the intent was to instead 

strengthen the U.S. maritime industry.

On the other hand, aviation is more thoroughly regulated than shipping, presumably

because it involves the reverse, a transportation industry comprised mostly of the 

transport of passengers alongside only a small contingent of cargo. 

Allowing former maritime attorney Bjorn Kjos, founder and CEO of Norwegian Air 

Shuttle, to utilize a strategy reminiscent of what caused the 1920 Jones Act, that resulted in 

the mass exodus of US Shipping interests to Liberia, Panama, Cyprus and the Marshall 
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Islands is a poor approach if the U.S. wishes to retain even a semblance of regulatory 

oversight for its citizens flying from US soil internationally. 

SWAPA is specifically concerned that approving the Norwegian Air International 

application would not meet the “strengthening the competitive position of air carriers to at 

least ensure equality with foreign air carriers, including the attainment of the opportunity for 

air carriers to maintain and increase their profitability in foreign air transportation” 

stipulation 49U.S.C.§§ 40101(a)(15).

III. CONCLUSION

The use of a strategy clearly born from a flag-of-convenience regulatory schema 

formulated by a former maritime attorney cum airline CEO should be rejected with 

prejudice by the Department of Transportation, unless the Department’s ultimate goal is to 

acquiesce airline regulatory authority to whatever sovereign nation that has chosen a more 

relaxed approach to oversight while holding at the same time a treaty requiring U.S. 

recognition.

The fact that Norwegian Air has been fined by various EU countries such as France 

and Spain, is a clear indication that the flag-of-convenience strategy has overstepped legal 

boundaries even within the EU.

The application should be rejected because it does not meet U.S. law, specifically 

Title 49. It also does not meet the Open Skies treaty requirements under Article 17. Lastly, if 

the DOT chooses to ignore Title 49 and Article 17, it runs the very real risk of maintaining 
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even cursory authority over international flying from within our shores. We do not wish 

the DOT to inadvertently allow a flag-of-convenience strategy, which will reverberate for 

decades.