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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 )

)

_________________________________________________________________)

REPLY TO THE COMMENTS OF FEDEX BY 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 approximately 8,000 Southwest Airlines pilots. Southwest Airlines is the 

largest US domestic carrier in terms of daily departures and passengers enplaned.

Having reviewed the written summary of request made by the U.S. Government 

(U.S.) to the European Commission’s Directorate General for Mobility and Transport (DG 

MOVE) to meet to ask for its views on the legal meaning and applicability of Article 17 bis 

of the Air Transport Agreement, SWAPA strongly opposes the application of Norwegian Air 

International Limited for an exemption under Article 17 of the U.S.-E.U. Air Transport 

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

bases this rejection on the intent of Norwegian Air International to utilize a flag-ofconvenience regulatory schema not being in the public interest of the United States as is 

clearly stated in Title 49 of U.S.C.

II. ANALYSIS OF THE SUMMARY OF COMMENTS BY EUROPEAN DELEGATION

A. SWAPA OBJECTS TO THE E.U. ASSERTION THAT AN APPLICATION FOR A 

FOREIGN CARRIER PERMIT IS TO BE JOINT DECISION 

SWAPA finds the intent of the E.U. argument that “The context implies that a 

"finding" that concerns are "legitimate" can be made only through agreement between the 

parties and that "responses" cannot be developed unilaterally by one party against the 

interests of the other party” is a false statement and one that implies that by entering into 

the agreement the US has surrendered its ability to grant foreign carrier permits to a joint 

committee function. It is SWAPA’s opinion that the US would not enter into an agreement,
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nor should it have, that usurps the US right to determine fitness of a carrier by any means 

other than internal processes which are defined by under Title 49 U.S.C.

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

PREVENT THIS TYPE OF FLAG-OF-CONVENIENCE STRATEGY

SWAPA believes that even if the E.U. argument of joint oversight of the decision on a 

carrier’s fitness for a US Foreign Carrier permit were to be held true, their call for implied 

joint authority of Article 17 decisions is false. 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. 

There is not definitive language in Article 17 to define the consideration of this 

article as anything other than guidance for a decision of fitness by a sole party to the 

agreement. The E.U. method of tying other section references to the same logic is never 

stated. Implying it is an arbitrary argument based on no evidence such as notes from the 

negotiations or language found in Article 17.

C. THE US DECISION ON A FOREIGN CARRIER PERMIT IS BASED SOLELY ON TITLE 

49 U.S.C. LANGUAGE AND GUIDANCE

SWAPA argues the guidance for the US DOT for the decision on a foreign carrier 

permit resides not in the language of the joint agreement but in Title 49 of the U.S.C. While 

the E.U. comments can be considered in the application ultimate authority resides with the 
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Secretary of Transportation and was never intended to be surrendered to a joint 

commission of the E.U. and US. 

SWAPA also believes that 49U.S.C. §§41302. Permits of foreign air carriers applies 

and usurps any attempt by the E.U. for jurisdiction.

The Secretary of Transportation may issue a permit to a person (except a citizen of the 

United States) authorizing the person to provide foreign air transportation as a foreign air 

carrier if the Secretary finds that—

(1) the person is fit, willing, and able to provide the foreign air transportation to be 

authorized by the permit and to comply with this part and regulations of the Secretary; and

(2)(A) the person is qualified, and has been designated by the government of its 

country, to provide the foreign air transportation under an agreement with the United States 

Government; or

(B) the foreign air transportation to be provided under the permit will be in the public 

interest.

SWAPA believes that this section clearly delineates that the decision to issue a 

permit is that of the Secretary of Transportation and does not make any reference to a third 

party such as the joint committee under E.U.-US treaty. It also reemphasizes that the air 

transportation provided will be in the “public interest”.

Beyond the duty to approve application for Foreign Carrier Permits contained in 

Title 49 language in 49U.S.C.§§41305. Applications for permits (2) (b) is also applicable in 

SWAPA’s opinion.

(b) Terms.—The Secretary may impose terms for providing foreign air transportation 

under the permit that the Secretary finds may be required in the public interest.

SWAPA notes that is well within the right of the Secretary of Transportation to 

impose terms on an applicant such as Norwegian Air International. SWAPA believes that 

requiring guidance to Norwegian Air International to comply and be under the jurisdiction 
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of the labor laws of its home country is a term that could imposed under this guidance to 

meet the standard of “public interest” as stated.

SWAPA is also 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). 

SWAPA also believes the language found in 49U.S.C. §§ 40101(a)(5) is applicable 

and defines fair wages and working conditions as criteria for an applicant.

(5) coordinating transportation by, and improving relations among, air carriers, and 

encouraging fair wages and working conditions.

SWAPA argues the “public interest” as referred to multiple times in Title 49 is not 

served by the granting Norwegian Air International a foreign carrier permit. This is due to 

the flag-of-convenience regulatory schema that Norwegian Air International has 

undertaken to avoid Norwegian labor laws and oversight of their home country 

government of their operation. We also believe that the working conditions under the 

Norwegian application do not rise to the level of “fair” due to the schema put in place to 

avoid their home country labor protections.

III. CONCLUSION

The application by Norwegian Air International should be rejected because it does 

not meet U.S. law, specifically Title 49. Anecdotally as it is not applicable in this decision, 

Norwegian Air International’s application does not meet the Open Skies treaty 
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requirements under Article 17. If the DOT chooses to ignore Title 49, it runs the very real 

risk of maintaining even cursory authority over international flying from within our shores. 

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

should be rejected with prejudice by the Department of Transportation, unless the

Department’s ultimate goal is to acquiesce airline regulatory authority to whatever party 

they have entered into a treaty or agreement with. In this case the E.U. has no authority 

over the US decision on the application of Norwegian Air International.
CERTIFICATE OF SERVICE 

I certify that on this 20th day of August, 2014, the foregoing Comments of 

Southwest Pilots' Association were served by causing a copy to be sent by electronic mail to the 

addresses identified below: 

rom a now@pillsburylaw .com 

peter.nelson@pillsburylaw.com 

steve.morrissey@united.com 

dan.weiss@united.com 

sascha.vanderbellen@delta.com 

howard.kass@usairways.com 

robert. wirick@aa .com 

francis.heil@aa.com 

michael.whitaker@faa.gov 

jesse.elliot@faa.gov 

douglas.schwab@faa.gov 

nicholas.tsokris@faa.gov 

john.allen@faa.gov 

EngleTS@state.gov 

cristinasa@state.gov 

Keith@washingtonairports.com 

sschembs@cwa-union.org 

john.hanlon@elfaa.com 

dberg@airlines.org 

Captain Paul Jackson 

Southwest Pilots' Association 

Chairman 

Governmental Affairs Committee 

jcasey@airlines.org 

ejames@jamhoff.com 

eugene.alford@trade.gov 

matthew.baldwin@ec.europa.eu 

felix.leinemann@eeas.europa.eu 

david.batchelor@sesarju.eu 

ottar.ostnes@sd.dep.no 

pa ul.gretch @dot.gov 

robert.finamore@dot.gov 

nssparks@fedex.com 

dpdean@jamhoff.com 

vegard.einan@parat.com 

thore .selstad .halvorsen@parat.com 

minister@dttas.ie 

emjahan@orange.fr 

jh@eurocockpit.be 

kglatz@airlines.org 

clytle@portoakland.com 

kgeorge@broward.org