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) )

_________________________________________ )

CONSOLIDATED REPLY OF NORWEGIAN AIR INTERNATIONAL LIMITED 

Communications with respect to this document should be addressed to:

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

December 31, 2013 Counsel for NORWEGIAN AIR 

INTERNATIONAL LIMITED
2

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) )

_________________________________________ )

CONSOLIDATED REPLY OF NORWEGIAN AIR INTERNATIONAL LIMITED

On December 2, 2013, Norwegian Air International Limited (“Norwegian 

International”) filed an application in the above-referenced docket for authority to 

provide foreign scheduled and charter air transportation to the full extent permitted under 

the U.S.-EU-Iceland-Norway open skies Air Transport Agreement of 2011 (the “Open 

Skies Agreement”).1

 Letters in strong support of Norwegian International’s application 

were submitted by the Broward County Aviation Department on December 16, 2013 and 

the Port of Oakland on December 20, 2013. Answers objecting to Norwegian 

International’s application were filed by several other parties (referred to herein as the 

“Answering Parties”).2

 1 Air Transport Agreement between the U.S. and the European Community and its Member States, signed 

Apr. 25 and 30, 2007, applied provisionally from Mar. 30, 2008, available at 

http://www.state.gov/documents/organization/114872.pdf, as amended by the Protocol between the U.S. 

and the European Community and its Member States signed on and applied provisionally from Mar. 25, 

2010, available at http://www.state.gov/documents/organization/139411.pdf, as applied to the United 

States, the European Union, its Member States, Iceland, and Norway by the Air Transport Agreement 

signed on June 16 and 21, 2011, and applied provisionally from June 21, 2011, available at 

http://www.state.gov/documents/organization/170897.pdf. 2 Answer of Air Line Pilots Association (Dec. 17, 2013); Answer of Transportation Trades Department, 

AFL-CIO (Dec. 17, 2013); Answer of European Cockpit Association (Dec. 17, 2013); Joint Reply of Delta 
3

Pursuant to the Department’s rules of practice, 14 C.F.R. Part 302, Norwegian 

International hereby submits this Consolidated Reply. As demonstrated herein, approval 

of Norwegian International’s application will serve the public interest by increasing 

competition, expanding air service between the U.S. and the EU, and benefiting 

consumers through innovative new service. Furthermore, approval is fully consistent 

with the Open Skies Agreement, including the provisions for authorization in Article 4 

and for reciprocal recognition of regulatory determinations with regard to airline fitness 

and citizenship in Article 6 bis. Norwegian International’s proposed transatlantic service 

is precisely the kind of pro-competitive, pro-consumer, pro-growth innovation that the 

Department has long supported and that was envisioned by the framers of the Open Skies 

Agreement. Norwegian International’s service will open new nonstop routes to U.S. and 

EU passengers and provide competitive, low-fare, high-quality service with new Boeing 

787 Dreamliner aircraft to a range of destinations, including U.S. markets like Fort 

Lauderdale and Oakland that have long been underserved by international carriers.

The objections raised by the Answering Parties are premised on a fundamental 

misreading of the text and purpose of the Open Skies Agreement. They are, quite simply, 

an attempt by U.S. labor groups to achieve through a single foreign air carrier exemption 

and permit proceeding what they failed to achieve during the U.S.-EU negotiations. The 

issues raised by the Answering Parties constitute large-scale policy issues that are 

inappropriate for consideration on an ad hoc basis and are plainly outside this proceeding. 

Norwegian International respectfully submits that the appropriate venue for such policy 

 Air Lines, Inc., United Airlines, Inc., American Airlines, Inc., and US Airways, Inc. (Dec. 20, 2013); 

Answer of Allied Pilots Association (Dec. 20, 2013); Comments of Southwest Airlines Pilots Association 

(Dec. 23, 2013). Airlines for America (“A4A”) also filed an answer calling for consideration of issues 

raised by Norwegian International’s application at the next meeting of the European Union-United States 

Joint Committee (the “Joint Committee”) established under Article 18 of the Open Skies Agreement.
4

considerations is the Joint Committee, which is expressly authorized in Articles 18 and 

17 bis of the Open Skies Agreement to consider such issues and to develop “appropriate 

responses to concerns found to be legitimate.”3 The Answering Parties proffer no legal 

basis for the Department to deny Norwegian International’s application.

I. NORWEGIAN INTERNATIONAL’S PROPOSED SERVICE TO THE U.S. 

WILL SERVE THE PUBLIC INTEREST

Under 49 U.S.C. § 41302, the Department may issue a foreign air carrier permit if 

it finds that the “foreign air transportation to be provided under the permit will be in the 

public interest.”4 Norwegian International will serve the public interest in the same ways 

as its affiliates Norwegian Air Shuttle and Norwegian Long Haul. Since launching 

flights to the U.S. in May 2013, Norwegian Air Shuttle and Norwegian Long Haul have 

provided over 100,000 passengers with an industry-leading low-fare, high-quality travel 

experience between the United States and Europe. The U.S. government has taken the 

position that any service provided under the terms of a bilateral agreement like the Open 

Skies Agreement would serve the public interest.

5 Moreover, Norwegian International’s 

proposed U.S. service would advance other objectives that the United States has 

identified as serving the public interest, among them:

• Innovative Service – Norwegian International will offer a unique lowfare, high-quality service with state-of-the-art Boeing 787 Dreamliner 

aircraft and advanced passenger conveniences. Its long-haul operations 

 3 Open Skies Agreement, at arts. 17 bis, 18. 4 49 U.S.C. § 41302.

5 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.’”). Likewise, the suggestion by some of 

the Answering Parties that U.S. carriers’ competitive positions would be compromised by Norwegian 

International’s application is illogical. Under this theory, European aviation authorities could bar U.S. 

carriers from exercising their open skies right based on a unilateral determination that the carriers’

operations would “compromise” the “competitive position” of EU carriers. This cannot be – and is not –

the proper way to apply the public interest principle.
5

will offer seamless connections to over 100 destinations across Europe, 

Asia, and Northern Africa.6

• Competitive Fares – Norwegian International will be a new entrant in a 

marketplace that is currently dominated by entrenched transatlantic legacy 

carriers – a 2012 study found that 87% of passengers over the North 

Atlantic were transported by carriers affiliated with one of the three major 

airline alliances.7 Norwegian International will promote competition and 

competitive fares in the transatlantic marketplace, with lower fares and 

high-quality service delivering a range of benefits to passengers.8

• Economic Development & New Service – Norwegian International 

intends to serve U.S. airports like Fort Lauderdale, Oakland, and Orlando 

that have limited international service – particularly to Europe. Fort 

Lauderdale and Oakland have both stated that Norwegian is a key driver

of economic growth for their surrounding communities.9

 Encouraging 

tourism to the U.S. is critical to the success of the Obama Administration’s

goal of doubling U.S. exports in five years, with dollars spent by foreign 

tourists constituting exports of U.S. services.

10

• Supporting U.S. Industry – Norwegian Air Shuttle’s recent order for 100 

Boeing 737-MAX aircraft and 22 737-800s was the largest by a European 

airline in Boeing history, with a value of $11.4 billion.11 It has also 

ordered 6 additional Boeing 787-8 and 787-9 aircraft. Norwegian’s 

commitment to Boeing and the U.S. aviation industry supports the U.S. 

economy, manufacturing and jobs in Washington, South Carolina, and 

other states.

II. U.S.-EU RECIPROCAL RECOGNITION PROCEDURES DICTATE 

APPROVAL OF NORWEGIAN INTERNATIONAL’S APPLICATION

The Open Skies Agreement created a streamlined process for awarding traffic 

rights to airlines of signatory countries. Under Article 4 of the Agreement, once a carrier

shows that it is “qualified to meet the conditions prescribed under the laws and 

 6 49 U.S.C. § 40101(a)(12)(A). 7 Edward Russell, Capacity Grip Tight on Transatlantic Market, FLIGHTGLOBAL (Aug. 20, 2012), available 

at http://www.flightglobal.com/news/articles/analysis-capacity-grip-tight-on-transatlantic-market-375623/.

8 49 U.S.C. §§ 40101(e)(2), (a)(4), (6), (10). 9 49 U.S.C. § 40101(e)(7), (a)(8); see also Answer of Broward County Aviation Department; Answer of the

Port of Oakland. 10 See REPORT TO THE PRESIDENT ON THE NATIONAL EXPORT INITIATIVE, at 54 (2010). 11 Boeing, Airbus Land Big Norwegian Orders, SEATTLE TIMES (Jan. 24, 2012).
6

regulations normally applied to the operation of international air transportation” in a 

given country, that country “shall grant appropriate authorizations and permissions with 

minimum procedural delay.”12 Indeed, the very existence of the Open Skies Agreement 

creates a presumption that award of traffic rights is in the public interest.13

In addition, Article 6 bis, which was added to the Agreement in 2010, provides 

for reciprocal recognition of regulatory determinations with regard to airline fitness and 

citizenship, stating that a Party to the Agreement “shall not enquire further into such 

matters” unless that Party has “a specific reason for concern ... that the conditions 

prescribed in Article 4 ... have not been met.”14 Norwegian International’s application 

contains the same level of information provided by other EU carriers that the Department 

has approved since the Open Skies Agreement was signed.15 Norwegian International 

has also committed to providing the Department with its Irish Air Operator Certificate 

when it is issued by the Irish Aviation Authority, as expected in early 2014. Once the 

 12 Open Skies Agreement, at art. 4. 13 See supra note 5; see also Attachment to Joint Applications of Delta/Air France (#98-303) and 

Continental/Air France (#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.”). 14 Open Skies Agreement, at art. 6 bis.

15 See, e.g., Order 2008-1-20 (Deutsche Lufthansa AG); Order 2008-5-5 (Scandinavian Airlines System 

(SAS)); Order 2008-5-10 (Condor Flugdienst GmbH); Order 2008-5-11 (Alitalia Linee Aeree Italiane 

S.p.A.); Order 2008-5-40 (KLM Royal Dutch Airlines, N.V.); Order 2008-6-23 (Iberia Lineas Aereas de 

Espana, S.A.); Order 2008-6-24 (Air Berlin PLC & Co. Luftverkehrs KG); Order 2008-8-8 (BA European 

Ltd t/a Openskies); Order 2008-9-13 (TUI Airlines Belgium d/b/a Jetairfly); Order 2008-9-30 (Finnair 

OYJ d/b/a Finnair OYJ and/or Finnair Cargo OY); Order 2009-6-7 (Thomson Airways Limited); Order 

2009-10-1 (Air Italy S.p.A.); Order 2010-1-7 (TAP Portugal); Order 2010-2-13 (Monarch Airlines 

Limited); Order 2010-3-11 (Brussels Airlines NV/SA); Order 2010-9-19 (Aegean Airlines Societe 

Anonyme d/b/a Aegean Airlines S.A.); Order 2010-10-10 (Tui Airlines Nederland, B.V. d/b/a Arkefly); 

Order 2011-5-15 (Air Europa Lineas Aereas, S.A.); Order 2011-10-10 (Corsairfly S.A. d/b/a Corsairfly); 

Order 2012-5-28 (Polskie Linie Lotnicze Lot S.A.).
7

application is supplemented with the Irish AOC, the Department should then follow the 

Agreement’s direction to issue the requisite operating authority.16

To do otherwise would turn back the clock to a dark era before the Open Skies 

Agreement – and indeed before the global liberalization achieved by open skies 

agreements worldwide – when complicated licensing hurdles often had the effect of 

restricting air transportation in bilateral markets and forcing the United States to deal 

with foreign demands to “pay again” for air services rights already secured. Delay of 

Norwegian International’s application by the Department could prompt a similar response 

by European authorities presented with an application by a U.S. carrier, which would 

contravene both the letter and the spirit of the Open Skies Agreement and its goals to 

liberalize the transatlantic travel marketplace and promote innovation and new services 

by carriers.

As an illustration, imagine if a successful U.S. low-fare carrier applied for longhaul authority from an EU Member State and encountered questions from European 

labor, environmental, or other special interest groups challenging its successful business 

practices and trying to thwart its entry into the EU market as contrary to “the public 

interest” as defined by that Member State. We can be sure that, were the U.S. carrier’s 

application not promptly approved, the Department and entire U.S. government would act 

swiftly and firmly to reverse this denial of U.S. aviation rights.

Rather than risk a potential “race to the bottom” in international aviation relations, 

the Department should continue to pursue the goals and vision of the original framers of 

the Open Skies Agreement, expressed by Deputy Assistant Secretary of State for 

 16 To avoid confusion, particularly in light of comments by several Answering Parties, Norwegian

International is not asking, and does not expect, the Department to approve its application prior to receipt of 

the Irish AOC.
8

Transportation Affairs John Byerly: “The inexorable economic forces that are creating a 

global economy won't bypass civil aviation. Carriers that are prepared for change – and 

postured to take advantage of what's new, what's challenging, and what was heretofore 

unthinkable – will be the winners. And countries that create an environment in which 

flexibility, creativity, and entrepreneurial endeavor are rewarded will stand a much better 

chance of seeing their airlines and economies thrive.”17

III. THE NOVEL READING OF ARTICLE 17 BIS ADVANCED BY THE 

ANSWERING PARTIES IS FUNDAMENTALLY FLAWED

The Answering Parties refer to selected language in paragraph 1 of Article 17 bis

of the Open Skies Agreement18 in making various allegations about Norwegian 

International’s labor policies. Added to the Agreement in 2010, Article 17 bis expresses 

the Parties’ recognition of “the benefits that arise when open markets are accompanied by 

high labor standards” and states that “the opportunities created by the Agreement are not 

intended to undermine labor standards or the labor-related rights and principles contained 

in the Parties’ respective laws.”19 Contrary to what the Answering Parties imply, 

however, Article 17 bis does not define any mandatory or prohibited labor practices, nor 

does it empower a Party, on the basis of allegations related to the “social dimension” such 

as those asserted by the Answering Parties, to take unilateral action to deny operating 

authority to an airline that satisfies the requirements of Article 4. Indeed, the Answering 

Parties largely ignore the explicit language in paragraph 2 of Article 17 bis, which 

provides that “the social effects” of the Agreement are subject to “regular consideration 

 17 John Byerly, Remarks to the International Aviation Club (Apr. 24, 2007).

18 Open Skies Agreement, at art. 17. 19 Id.
9

by the Joint Committee,” which is authorized to develop “appropriate responses to 

concerns found to be legitimate.”

This analysis of Article 17 bis, based on the plain language of the text, is further 

supported by the negotiating history of the Open Skies Agreement. The Answering 

Parties object to basic air service rights established in the first-stage agreement in 2007 –

namely, the rights of nationals of one European country to establish an airline under the 

regulatory oversight of another European country and for that airline to operate to the 

United States from any point in European Common Aviation Area. Indeed, these rights 

were the most fundamental objective of the European Union in the negotiations.20 By 

contrast, Article 17 bis, which the Answering Parties cite as a basis for their objections, 

was added to the Agreement as part of the second-stage agreement of 2010. There is 

nothing in either the text or the negotiating history of Article 17 bis to support the view 

that it was intended by the negotiating Parties to negate the fundamental air service rights

 20 The European Commission received a mandate in 2003 from the EU Member States to negotiate a 

comprehensive air transport agreement with the United States following the 2002 decision of the European 

Court of Justice holding that nationality clauses in individual Member States’ agreements with the U.S.—

i.e., the clauses granting rights only to airlines substantially owned and effectively controlled by nationals 

of the individual Member State that was party to an air services agreement with the U.S.—violated the right 

of establishment guaranteed to all EU nationals, irrespective of citizenship. See, e.g., Comm’n v. United 

Kingdom, 2002 E.C.R. I-09427; Comm’n v. Denmark, 2002 E.C.R. I-09519. The Commission and 

Member States were thus legally obliged by European law to end this nationality-based discrimination. 

Had the EU not secured this fundamental change, the Commission could have pressed for the abrogation of 

the bilateral agreements, potentially destabilizing the entire legal framework for transatlantic air service. In 

practical terms, the “European carrier concept” embedded in the 2007 agreement provided legal certainty 

for intra-European airline mergers and acquisitions such as the Air France/KLM merger, Lufthansa’s 

acquisition of Austrian, Swiss, bmi, and SN Brussels, and the later merger between BA and Iberia. In 

addition, the agreement opened the door to new air service to the U.S. by European airlines from points 

outside their home countries. For example, Aer Lingus received DOT approval to operate between Madrid 

and Washington, an innovative service it implemented through code sharing with United Airlines. See, 

e.g., U.S. Dep’t of Transp., Office of the Sec’y, Notice of United Air Lines, Inc. and Aer Lingus Limited of 

Additional Code-Share Service, Docket 2008-0176 (Feb. 17, 2009). Like Norwegian International’s 

proposed services, this Aer Lingus service triggered outspoken criticism, including picketing, by 

entrenched U.S. labor interests. The reality, however, as noted by former DOT Assistant Secretary Charles 

Hunnicutt, is that the new rights secured by European airlines “have provided consumers with more price 

and service options.” Hunnicutt, U.S.-EU Second Stage Air Transport Agreement: Toward an Open 

Aviation Area, 39 Ga.J.Int’l & Comp.L. 663, at 677.
10

secured in the first-stage agreement, nor should the Department entertain such extrajurisdictional arguments.

If the Answering Parties’ contrary assertions were true, Article 17 bis might be 

cited by the EU or the United Kingdom (on the basis of objections from EU labor groups) 

to negate the right of all U.S. airlines to operate to London’s Heathrow Airport, widely 

regarded as the most important commercial advantage gained by the United States in the 

Agreement. In reality, Article 17 bis was included in the second-stage agreement to 

make clear that the Joint Committee should “regular[ly] consider[]” the social effects of 

the Agreement and, in particular, to signal that, as the sensitive issue of expanded 

opportunities for foreign ownership and control of airlines was considered in the future, 

the “social dimension” of any possible changes would need to be carefully weighed.21 

The “forward-looking” nature of Article 17 bis and the essential nexus to the 

work of the Joint Committee were clearly reflected in the two labor-related paragraphs of 

the formal Memorandum of Consultations signed at the completion of the second-stage 

negotiations.22 In paragraph 18, the EU delegation recognized “the challenges related to 

the increasing cross-border mobility of workers and structure of companies,” noted that 

the Commission “is monitoring the situation and is considering further initiatives” in the 

area, and “stated its willingness to inform the Joint Committee about these and other 

 21 The European Union sought in the second-stage negotiations to secure changes in U.S. law requiring that 

air carriers be owned and controlled by U.S. citizens. The EU’s proposals were vigorously opposed by 

U.S. labor, as evidenced by the extensive exhibits attached to the Answer of the Air Line Pilots 

Association, supra note 3. The EU did succeed, however, in persuading the United States to “commit to 

the shared goal of continuing to remove market access barriers ... including enhancing the access of their 

airlines to global capital markets.” Open Skies Agreement, at art. 21, para. 1. In the context of the secondstage negotiations, the hortatory language of Article 17 bis provided a measure of “balance” to the legal 

commitment in Article 21, paragraph 1, to “enhance access to global capital markets,” coded language for 

liberalizing the restrictions on foreign investment. 

22 Memorandum of Consultations signed by D. Calleja and J. Byerly (Mar. 25, 2010), available at 

http://ec.europa.eu/transport/modes/air/international_aviation/country_index/doc/2010_03_25_us_moc.pdf.
11

related initiatives, as appropriate.”23 In other words, the EU was not taking on legal 

obligations to change European labor laws but agreeing simply to discuss “social 

dimension” issues in the Joint Committee. In paragraph 19, the U.S. delegation referred 

to a principle of U.S. labor law—“selection of a single representative for a defined class 

or craft of employees at an airline”—that is not contained in any EU-wide legislation. 

Although this principle is one that the EU might wish to consider, implementation of this

principle is clearly not a requirement for authorization of an EU airline.

Indeed, the fact that Article 17 bis did not establish binding transatlantic labor 

standards is acknowledged in the answer of the Air Line Pilots Association, which 

describes the unsuccessful efforts of labor interests to introduce restrictions on 

“reflagging,” “social dumping,” and “regulatory shopping” when both the first- and 

second-stage agreements were negotiated.24 Despite extensive discussions of social 

issues at two EU-sponsored “Labor Forums” and the subsequent appointment of a special 

explorateur to build consensus regarding labor polices for inclusion in the Agreement, 

the answer of the Air Line Pilots Association states clearly, and correctly, that “the 

proposals . . . to address the labor-management challenges raised by trans-national 

airlines were ultimately rejected by unions on both sides of the Atlantic. They also were 

not pursued by the EU and U.S. negotiators.”25 It would be perverse indeed to allow the 

Answering Parties, over three years after these negotiations, to distort the meaning and 

intent of Article 17 bis to achieve labor objectives that, by ALPA’s own admission, U.S. 

and EU negotiators left on the cutting room floor. Under Articles 17 bis and 18, the Joint 

 23 Id. at para. 18. 24 See Answer of Air Line Pilots Association, at 9. 25 Id. at 12 (emphasis added).
12

Committee is available to address labor issues, and the Department should not entertain 

the Answering Parties’ attempts to unilaterally impose novel labor requirements on a 

European airline in this foreign air carrier regulatory proceeding.

IV. AFTER CONCLUDING OVER 100 OPEN SKIES AGREEMENTS WITH 

GOVERNMENTS AROUND THE WORLD, ANY HESITATION BY THE 

DEPARTMENT IN APPROVING NORWEGIAN INTERNATIONAL’S 

APPLICATION UNDER THE OPEN SKIES AGREEMENT WOULD 

SEND THE WRONG MESSAGE TO U.S. OPEN SKIES PARTNERS

The United States has long been the most powerful global advocate for open 

skies, and the policy is a cornerstone of U.S. aviation strategy.

26 The Department should 

not turn its back on the compelling message of open aviation markets that it has promoted 

so successfully for two decades to the enormous benefit of American consumers and 

communities, especially in this instance where the application is clearly in the public 

interest and squarely within the provisions of Article 4. A sudden departure in this 

proceeding from the Department’s well-established approach to the review and approval 

of exemption authority and foreign air carrier permits for European airlines would not 

only be unprecedented and disproportionate, it would also run contrary to the Obama 

Administration’s National Travel & Tourism Strategy, which states: “To support growth 

in trade and in the travel and tourism industry, the Federal government should expand its 

efforts at working with foreign governments to identify and lower barriers to trade in 

travel services, including working towards incremental liberalization of aviation series 

and additional open-skies agreements.”27

 26 See TASK FORCE ON TRAVEL AND COMPETITIVENESS, NATIONAL TRAVEL & TOURISM STRATEGY, AT 21

(2012) (identifying open skies outreach and liberalization among the key strategies to be pursued by the 

Task Force on Travel and Competitiveness established by President Obama’s January 19, 2012 Executive 

Order).

27 Id. at 19.
13

V. DOT PERMIT PROCEEDINGS OF A SINGLE AIRLINE ARE AN 

INAPPROPRIATE FORUM TO CREATE NEW POLICY REGARDING 

THE OPEN SKIES AGREEMENT

The Answering Parties have raised objections that have no place in a foreign air 

carrier permit proceeding in which the authority requested is clearly provided for in an 

open skies agreement. As described above, their objections are an attempt to resuscitate 

via an individual permit application, rather than through the Joint Committee or other 

proper diplomatic negotiation, substantive changes in transatlantic labor laws and 

practices that were never endorsed by the negotiators of the Open Skies Agreement.

Given their past attempts to introduce labor considerations into the Open Skies 

Agreement, the Answering Parties are fully aware that the Joint Committee is the proper 

forum for discussing policy matters like the ones they have described in their briefs. 

Foreign air carrier permit proceedings like the present one exist to implement 

international air services agreements reached through negotiations – not to unilaterally set 

new U.S. aviation policy. The Answering Parties should heed the advice of A4A in this 

docket, and leave these policy issues to the Joint Committee.28

VI. DELAY OF NORWEGIAN INTERNATIONAL’S APPLICATION COULD 

DISTORT COMPETITION, CONTRARY TO DEPARTMENT POLICY 

AND PRECEDENT

Consistent with the core principle of ensuring to all carriers a fair and equal 

opportunity to compete, Department precedent reflects a strong commitment to equal, 

non-discriminatory treatment of similarly-situated carriers. In its Order granting a 

foreign air carrier permit to Transportes Aereos Bolivianos, for example, the Department 

declined to approve a request by a competing carrier to impose new Fifth Freedom 

 28 See generally Answer of Airlines for America.
14

conditions on the applicant’s traffic rights.29 “Whatever the merits of TransAmerica’s 

position,” the Department wrote, “its answer concerns a class of carriers, and a permit 

proceeding for one carrier is not the appropriate forum to decide this issue.”30

Equal treatment considerations should also guide the Department in this 

proceeding. Delay of Norwegian International’s application would do nothing to hinder 

carriers that have received economic authority from the Department from adopting 

similar practices to those of Norwegian International. By singling out Norwegian 

International for special review, the Department would create an uneven playing field for 

competition among U.S. and foreign air carriers. As described above, the proper forum 

for discussing the application of Article 17 bis and “develop[ing] ... appropriate 

responses to concerns found to be legitimate”31 is at the inter-governmental level, not in 

routine regulatory proceedings where one carrier may be disadvantaged while others are 

allowed to employ substantially similar practices. Finally, the Department has a statutory 

charge to “encourage entry into air transportation markets by new and existing air carriers 

. . . to ensure a more effective and competitive airline industry,”32 which will not be 

fulfilled by disparate treatment of similarly-situated air carriers in this proceeding. 

Particularly at a time when consolidation of airlines on both sides of the Atlantic has 

significantly reduced the number of competitors – with 87% of transatlantic traffic 

concentrated with members of the three major airline alliances, as noted above – the 

Department should not delay approval of the application of a new, innovative, and 

fundamentally consumer-oriented airline. 

 29 Order 85-7-34 (Transportes Aereos Bolivianos) (order issuing foreign air carrier permit). 30 Id. at 6. 31 Open Skies Agreement, at art. 17. 32 49 U.S.C. § 40101(a)(13).
15

WHEREFORE, for the foregoing reasons, especially the public benefits to be 

provided by its proposed service, Norwegian International respectfully requests that the 

Department grant the exemption and foreign air carrier permit requested in its application 

upon issuance of Norwegian International’s AOC by the Irish Aviation Authority.

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

December 31, 2013 Counsel for NORWEGIAN AIR 

INTERNATIONAL LIMITED
16

CERTIFICATE OF SERVICE

The undersigned certifies that on December 31, 2013, a true and correct copy of 

the foregoing Consolidated Reply of Norwegian Air International Limited was served by 

electronic mail on the individuals identified below:

Steve Morrissey

Thomas N. Bolling

United Airlines

steve.morrissey@united.com

thomas.bolling@united.com

Dan Weiss 

Continental Airlines

dan.weiss@coair.com 

Sascha Vanderbellen

Delta Airlines

sascha.vanderbellen@delta.com

Howard Kass

U.S. Airways

howard.kass@usairways.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

American Airlines, Inc.

robert.wirick@aa.com

francis.heil@aa.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

Krishna Urs

Department of State

urskr@state.gov

Eugene Alford

Department of Commerce

eugene.alford@trade.gov

Matthew Baldwin

Director of Air Transport

European Commission

Matthew.Baldwin@ec.europa.eu

Dr. Felix Leinemann

First Secretary

Delegation of the European 

Union to the USA

Felix.LEINEMANN@eeas.euro

pa.eu

David Batchelor

SJU Liason Officer

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

/s/Melinda A. Hernandez

Melinda A. Hernandez