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

- 800 7 romanow@pillsburylaw.com peter.nelson@pillsburylaw.com December 31 , 2013 Counsel for NORWEGIAN AIR INTERNATIONAL LIMITED2 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 Agreeme nt”). 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 applicati on 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 an d 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 Delta3 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

o f 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 transatlanti c service is precisely the kind of pro - competiti ve , pro - consumer, pro - growth innovation that the Department has long supported and that was envisione d by the framers of the Open Skies Agreement . Norwegian International’s service will open new nonstop rout es 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 internationa l carriers.
T he objections raised by the A nswering P arties 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 carrie r 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 outs ide 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 Southw est 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 Articl e 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 t o consider such issues and to develop “appropriate responses to concerns found to be legitimate.” 3 The Answering Parties proffer n o legal basis for the Department to deny Norwegian International’s application

. I. NORWEGIAN INTERNATIONAL’S PROPOSED SERVICE TO THE U.S. WILL SERVE T HE 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 a ffiliates 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 10 0 ,000 passengers with an industry

- leading l ow - fare , high

- quality travel experience between the United States and Europe

. T he U.S. government has taken the position that any service provided under the terms of a bilat eral agreement like the Open Skies Agreement would serve the public interest

. 5 Mo reover , 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 low

fare , 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 art s. 17 bis , 18

. 4 49 U.S.C. § 41302. 5 S. REP. NO. 96

- 329, at 4 (1979), reprin ted in 1980 U.S.C.C.A.N. 54, 57 (“[T]he negotiation of a bilateral a greement 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 carrier s’ operations would “compromise” th e “competitive position” o f EU carriers. This cannot be

– and is not

– t he 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 Fare s

– 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 c arrier 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 , F LIGHT G LOBAL (A ug. 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 R EPORT TO THE P RESIDENT ON THE N ATIONAL E XPORT I NITIATIVE , at 54 (2010). 11 Boeing, Airbus Land Big Norwegian Orders , S EATTLE T IMES ( 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 permissi ons 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 r eciprocal 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 condition s 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 Departm ent 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 n ote 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 imp ortantly, 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 K G); 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 Finna ir 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 Ark efly); Order 2011

- 5

- 15 (A ir 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 Dep artment 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

a greements 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 o f 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 goa ls to liberalize the transatlantic travel marketplace and promote innovation and new services by carriers. As an illustration, i magine if a successful U

. S

. low

- fare carrier applied for long

haul authority from an EU Member State and encountered questions f rom 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 th at Member State. We can be sure that, were the U.S. carrier’s appl ication 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,
t he 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 B yerly: “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 t he 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 1 7 BIS ADVANCED B Y THE ANSWERING PARTIES IS FUNDAMENTALLY FLAWED The Answering Parties refer to selected language in paragraph 1 of Article 17 bis of the Open Skies Agreement 18 in making various allegations about Norwegian International’s labor policies. Added to the Agre ement 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 A nswering P arties imply , however, Article 17 bis does not define any mandatory or prohibited labor practices , nor does it empower a Part y , 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 Parti es 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

conc erns found to be legitimate.”
Th is analysis of Article 17 bis , based on the plain language of the text, is further supported by the neg otiating history of the Open Skies Agreement. The Answering Parties object to basic air service rights established in the first

- stage agreement in 200 7

– 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 C ommon Aviation Area. Indeed, these rights were the most fundamental objective of the Europe an 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 indi vidual 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 Europe an 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 a ir 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 S ecretary 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. 66 3 , at 677.10 secured in the first

- sta ge agreement , nor should the Department entertain such e xtra

jurisdictional 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 agreemen t 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 i n 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 comp anies,” 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 ext ensive 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 ac cess of their airlines to global capital markets.” Open Skies Agreement , at art. 21, para. 1. In the context of the second

stage 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 rep resentative for a defined class or craft of employees at an airline”

— that is not contained in any EU

- wide legislation

. A lthough this principle is one that the EU might wish to consider, implementation of this principle is clearly not a requirement for aut horization of a n 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 descr ibe s 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 ” an d the subsequent appointment of a special explorateur to build consensus regarding labor polices for inclusion in the Agreement, the answer of the Air L ine 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, b y ALPA’s own admission, U.S. and EU negotiators left on the cutting room floor. Under Articles 17 bis and 18, t he Joint

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

.12 Committee i s 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 AGREEMENT S WITH GOVERNMENTS AROUND T HE WORLD, ANY HESITA TION BY THE DEPARTMENT IN APPROV ING NORWEGIAN INTERN ATION AL’S APPLICATION UNDER TH E OPEN SKIES AGREEMENT WOULD SEND THE WRONG MESSA GE TO U.S. OPEN SKIE S PARTNERS The United States has lo ng been the most powerful global advocate for open skies , and the policy is a cornerstone of U.S. aviation strategy

. 26 T he 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 Depa rtment’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 Nation al 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 T ASK F ORCE ON T RAVEL AND C OMPETITIVENESS , N ATIONAL T RAVEL & T OURISM S TRATEGY , 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 ind ividual 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 p ast 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 c arrier 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 Americ a
.14 conditions on the applicant’s traffic rights. 29 “Whatever the merits of TransAmerica’s position,” the Department wrote, “its ans wer 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. D elay of Norwegian International’s applicat ion 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, t he 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 int er - governmental leve l, 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 transportat ion markets by new and existing air carriers . . . to ensure a more effective a nd 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 consoli dation 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,

J osh Roma now 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 LIMITED16 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 identifi ed 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 mlbeng e@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 Richa rdson 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. Sp arks 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@euro cockpit.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.Batch elor@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. Hernande z Me linda A. Hernandez