BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of

NORWEGIAN AIR INTERNATIONAL LIMITED

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)

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Docket DOT-OST-2013-0204 

JOINT REPLY OF DELTA AIR LINES, INC., UNITED AIRLINES, INC., and

AMERICAN AIRLINES, INC.

Communications with respect to this document should be addressed to:

August 25, 2014
Howard Kass

Vice President -- Regulatory Affairs

American Airlines, Inc. 

1401 H Street, NW

Washington, DC 20005

202-326-5153

Howard.Kass@aa.com

Robert A. Wirick

Managing Director, Regulatory and International 

Affairs 

American Airlines, Inc.

P.O. Box 619616, MD 5635

DFW Airport, Texas 75161

(817) 963-0394

robert.wirick@aa.com

Daniel A. Weiss

Managing Director–International

Affairs and Regulatory

UNITED AIRLINES, INC.

233 South Wacker Drive

10th Floor – HDQIZ

Chicago, IL 60606

(872) 825-6828

dan.weiss@united.com

Alexander Van der Bellen

Managing Director – Regulatory and International 

Affairs & Associate General Counsel

Christopher Walker, Regional Director –

Regulatory and International Affairs

DELTA AIR LINES, INC. 

1212 New York Avenue, N.W. 

Washington, D.C. 20005

(202) 842-4184

sascha.vanderbellen@delta.com
BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

Application of

NORWEGIAN AIR INTERNATIONAL LIMITED

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)

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Docket DOT-OST-2013-0204 

JOINT ANSWER OF DELTA AIR LINES, INC., UNITED AIRLINES, INC., and

AMERICAN AIRLINES, INC. 

American, Delta and United ("the Joint Carriers") believe that the arguments advanced 

by NAI in its Reply and in the accompanying joint declaration of John Byerly and Daniel Calleja

do nothing to counter the clear and express objective of Article 17 bis: to maintain high labor 

and social standards in the transatlantic market, and to prohibit the establishment of flags of 

convenience that seek to evade labor protections and create an unfair competitive advantage. 

First, the Department should accord no weight to John Byerly’s declaration because he is a 

registered lobbyist acting on behalf of NAI. Second, the declaration of Daniel Calleja is entitled 

to little weight because it represents the views of only one of 34 European parties to the 

Agreement. Finally, a comparison of Article 17 bis with other provisions of the Agreement 

clearly demonstrates that the Parties intended it have legal effect, a point reinforced by the 

Labor parties in their Reply comments.
John Byerly had a distinguished career as a State Department civil servant in the 

aviation sphere. However, he is now employed as a paid outside lobbyist/advocate for 

Norwegian Air Shuttle (NAS) (see registration at Attachment 1). As such, the opinion offered by 

Mr. Byerly regarding the “intent” of the U.S.-EU agreement ex post facto in this case should be

weighed in the context of his current relationship with NAI. Indeed, the social dimension and 

labor provisions of Art 17 bis were carefully crafted and critical to achieving unanimous U.S. 

delegation support for the agreement (see Reply Comments of the Labor Parties). As such, the 

Department should disregard a claim that this provision has no legal effect.

The U.S. Delegation led by Mr. Byerly at the time was most certainly concerned about

the potential emergence of flags of convenience. During the course of negotiations, USG

sought to ensure that a European airline must have its “primary place of business” in the EU 

member state where it is organized: “In response to a question from the U.S. delegation, the EU 

delegation affirmed that, under European Community legislation, a Community airline must 

receive both its AOC and its operating license from the country in which it has its principal place 

of business.” (March 2, 2007 MOC, Para 7, emphasis added). In our view the Department 

should carefully scrutinize and compel NAI to produce evidence of how their proposed business 

model could satisfy this standard when it has -and would have- no aircraft, no crews, and no 

transatlantic operations from Ireland, and when its so-called “headquarters” is a building in 

Dublin’s docklands where at least 125 other “Irish” companies are also headquartered. The 

address is not coincidentally the office of Matheson, an Irish law firm specializing in establishing 

and registering foreign companies in Ireland. (“Dublin Moves to Block Controversial Tax 

Gambit,” Wall Street Journal, October 15, 2013). It is clear that Norway, not Ireland, is NAI’s 

principle place of business, which in any event DOT should establish through an appropriate 

investigation. As former ICAO Ambassador Duane Woerth noted in his August 22 Aviation 

Daily op ed piece, this is not just a regulatory subterfuge; it could have serious safety 

implications. While describing the Irish Aviation Authority as “among the world’s finest stewards 

of aviation safety,” the Ambassador expressed his concern about the ability of any regulator “to 

provide safety oversight of long-haul, transoceanic operations that are conducted without ever 

transiting ‘home’ soil.” (Aviation Daily, Aug 22, Page 5). Like the Ambassador, the Joint Carriers 

hold in high regard the oversight and safety culture of the Irish authorities but do believe that the 

Department needs to fully consider the Ambassador’s concerns in this and any other 

proceeding where a carrier proposes to operate all of its operations to the U.S. from a country 

outside its home base.
Norwegian Joint Reply

Page 3

As for Mr. Calleja’s opinion, he represented only the European Commission – just one of 

the 34 European parties to the agreement, so his recollection of the reasoning behind Article 17 

bis is by no means fully dispositive of EU intent. Secretary Foxx asked for a meeting in 

Brussels to better understand the EU position on the impact of Article 17 bis on the NAI 

application. The Commission made clear that there is no EU position – the Commission could 

speak only for its own officials, and was still “discussing the issues” with its member states, 

some of which – including large and powerful members – may in fact disagree with Commission 

officials. As a result, the Department should elicit the views of the other 33 parties to the 

Agreement on the application of Article 17 bis as part of a broader inquiry into NAI’s application.

In the affidavit, NAI contends that Article 17 bis does not establish a legally binding rule 

that can be applied unilaterally. As such, it is instructive to again review the text of the article

here:

Social Dimension

1. The Parties recognize the importance of the social dimension of the Agreement 

and the benefits that arise when open markets are accompanied by high labor 

standards. The opportunities created by the Agreement are not intended to 

undermine labour standards or the labour-related rights and principles contained 

in the Parties’ respective laws. 

2. The principles in paragraph 1 shall guide the Parties as they implement the 

Agreement, including regular consideration by the Joint Committee, pursuant to 

Article 18, of the social effects of the Agreement and the development of 

appropriate responses to concerns found to be legitimate.

The second paragraph uses the word “shall” and makes specific reference to implementation of 

the agreement. This not only allows, but requires the parties to consider Article 17 bis when 

they implement the agreement. The fact that the second paragraph uses the clause “including 

regular consideration by the Joint Committee” indicates that there will be situations in which the 

parties will be guided by the principles in paragraph one outside of the Joint Committee process. 

If the intention were always to require joint action within the Joint Committee, then the provision 

would have stipulated that requirement.

NAI also misconstrues the significance of the use of the word “parties” rather than 

“party,” claiming this must mean that both parties must act in concert through the Joint 

Committee. However, NAI fails to point out that Agreement uses the both the term “party” and 

“parties” in many places where unilateral action is clearly contemplated. For example:
Norwegian Joint Reply

Page 4

Article 6 - The Parties shall implement the provisions of Annex 4 in their decisions under 

their respective laws and regulations concerning ownership, investment and control

Article 7 - The responsible authorities of the Parties shall recognize as valid, for the 

purposes of operating the air transportation provided for in this Agreement, certificates of 

airworthiness, certificates of competency, and licenses issued or validated by each other 

and still in force, provided that the requirements for such certificates or licenses at least 

equal the minimum standards that may be established pursuant to the Convention.

Indeed DOT regularly makes unilateral decisions regarding ownership and control, or regarding 

recognition of operating authority. 

As previously noted, NAI has filed for both Permit and Exemption relief. The Department 

should deny NAI an exemption from the permit requirement, which is a discretionary and special 

process available to expedite consideration under appropriate circumstances when the 

application is clearly in the public interest. 49 U.S.C. § 40109. The denial would be without 

prejudice to later consideration of NAI’s permit application after sufficient facts are established 

to complete the record and made available with time allotted for careful consideration from all 

Parties of this novel permit application. The need for exemption relief is further mitigated given 

that Norwegian is already operating to the United States via Norwegian Air Shuttle entity using 

787s operated by its subsidiary Norwegian Long haul and leased B-777s. 

We reiterate that the core objectives of Article 17 bis would be critically undermined if the 

Department approved the NAI application in its current form. Doing so would allow NAI to enter 

the U.S.-EU market by establishing a de facto flag of convenience specifically designed to 

circumvent otherwise applicable labor protection laws. It would also allow NAI to import lowercost labor from outside the U.S and EU, which would be deployed to compete unfairly in the 

transatlantic marketplace with U.S. and EU carriers that are required to follow stringent labor 

standards. For the foregoing reasons and for reasons set out in the Joint Carriers’ earlier filings, 

the Department should deny the NAI application.

Respectfully submitted,

/s/ Alexander Van der Bellen

Managing Director, Regulatory and 
Norwegian Joint Reply

Page 5

International Affairs

 & Associate General Counsel

Delta Air Lines, Inc.

/s/ Howard Kass

Vice President -- Regulatory Affairs

American Airlines, Inc. 

/s/ Robert A. Wirick

Managing Director, Regulatory and International Affairs 

American Airlines, Inc.

/s/ Dan Weiss

Managing Director – International Affairs and Regulatory

United Airlines, Inc. 
CERTIFICATE OF SERVICE

A copy of the foregoing Answer has been served this 25th day of August, 2014, upon the 

following persons via email:

romanow@pillsburylaw.com

peter.nelson@pillsburylaw.com

Russell.Bailey@alpa.org

steve.morrissey@united.com

dan.weiss@united.com

sascha.vanderbellen@delta.com

howard.kass@usairways.com

robert.wirick@aa.com

francis.heil@aa.com

rpommer@atlasair.com

mlbenge@zsrlaw.com

jesse.elliot@faa.gov

douglas.schwab@faa.gov

nicholas.tsokris@faa.gov

john.allen@faa.gov

anita.mosner@hklaw.com

jennifer.nowak@hklaw.com

nssparks@fedex.com

dberg@airlines.org

jcasey@airlines.org

paul.gretch@dot.gov

brian.hedberg@dot.gov

esta.rosenberg@dot.gov

brett.kruger@dot.gov

urskr@state.gov

CristinaSA@state.gov

eugene_alford@ita.doc.gov

info@airlineinfo.com