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) ) _________________________________________ )

COMMENTS OF NORWEGIAN AIR INTERNATIONAL LIMITED , AND JOINT DECLARATION OF JOHN BYERLY AND DANIEL CALLEJA

Communications with respect to this document should be addressed to:

Asgeir Nyseth Josh Romanow Chief Executive Officer Peter Nelson NORWEGIAN AIR PILLSBURY WINTHROP SHAW INTERNATIONAL LIMITED PITTMAN LLP Ground Floor Imbus House 2300 N Street, N.W. Dublin Airport, Co. Dublin, IRELAND Washington, D.C. 20037 Tel: + 353 18 141851 Tel: (202) 663-8000 E- mail: a sgeir. nyseth@norwegian.com E- mail: romanow@pillsburylaw.com E-mail: peter.nelson@pillsburylaw.com August 18, 2014 Counsel f or NORWEGIAN AIR INTERNATIONAL LIMITED1 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) ) _________________________________________ )

COMMENTS OF NORWEGIAN AIR INTERNATIONAL LIMITED, A ND JOINT DECLARATION OF JOHN BYERLY AND DANIEL CALLEJA

Norwegian Air International Limited ( “ Norwegian International ” ) welcomes the opportunity to comment on the Department’s Notice of August 4, 2014 (the “ Notice ”)

. The Notice summarizes the meeting held in Brussels o n July 14, at the request of Secretary Anthony Foxx, between senior U.S. Government and European Commission (“ Commission ”) officials . The purpose of the meeting was to obtain the views of the
Commission on the legal meaning and applicability of Article 17 bis of the U.S.

- EU Open Skies Air Transport Agreement (the “ Open Skies Agreement ” or the “ Agreement ”) , and specifically on whether a Party to the Agreement may unilaterally deny an application for operating authorization based on Article 17 bis of the Agr eement. The

answer from the Commission is unequivocally “no.” Norwegian International respectfully submits that the Department should immediately approve its application, as no basis for further delay exists.2 The unambiguous views expressed by the Direct or of Aviation on behalf of the Commission correspond fully to Norwegian International’s understanding of Article 17
bis as described in its earlier pleadings , namely that Article 17 bis may not be unilaterally relied upon by a Party as a basis to deny Nor wegian International’s application. These
views are further confirmed by the attached Joint Declaration of the Chairmen of the United States and European Union delegations, John Byerly 1 and Daniel Calleja, who led the negotiation of the historic Open Skies Agreement, including the 2010 Protocol containing Article 17 bis (the “ Joint Declaration ” ). The Commission’s position puts to rest once and for all the unfounded views
advanced by opponents of Norwegian International’s application ( referred to herein as
the “ Opposing Parties ” ) that seek to deny the public the benefits of : (1) new American jobs, (2) increased international tourism, (3) economic growth, (4) greater airline competition, (5) lower fares, and (6) new non
- sto p air service that Norwegian
Interna tional will bring to the transatlantic market currently dominated by the three
immunized legacy alliances

. Norwegian International respectfully urges the Department,
consistent with the timeframe established in 49 U.S.C. § 41710, 2 to grant its application for an exemption together with an Order to Show Cause for the approval o f a Foreign Air
Carrier Permit no later than August 31, 2014.

1 As the Department and the Opposing Parties are aware, John Byerly is advising Norwegian International in this proceeding. 2 See , e .g. , Joint Application of Air Canada et a l., Order 2009 -1- 18 (January 28, 2009) , at 1; Joint Application of Alita lia

- Linee Aeree Italia ne
- S.P.A. et a l., Order 2005 -12- 12 (December 22, 2005), at 2; Texas Air

- TWA Acquisition Case, Order 85 -8- 25 (August 9, 1985), at 1 ; Texas Air

- Eastern Acquisition Case, Orde r 86 -4- 24, at 1 (April 9, 1986) ; USAir

- Piedmont Acquisition Case, Order 87 -7- 32 (July 15, 1987), at 3

.3 I. THE EUROPEAN COMMISSION CORRECTLY INTERPRETS THE MEANING AND APPLICABILITY OF ARTICLE 17 BIS
At the July 14 meeting, the Director offered the Commission’s perspective on two key legal points . First, “ Article 17 bis does not provide a legal basis for unilaterally denying an application under Article 4 because (1) Article 4 makes no reference to
Article 17 bis and (2) A rticle 17 bis itself does not formulate a legal rule that can be applied unilaterally by one party. ” 3 Second, “ any unilateral decision to deny an applicatio n using Article 17 bis runs against the letter and spirit of the Agreement. ” 4 Indeed, the Commiss ion’ s statements mirror the comments of Norwegian International in
its Consolidated Reply of December 31, 2013 ( the “ Reply ”): “ Article 17 bis does not
define any mandatory or prohibited labor practices, nor does it empower a Party, on the
basis of allegati ons 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.” 5 These statements decisively support
immediate approv al of Norwegian Internationa l’ s application

. Because Norwegian International has fully satisfied the requirements set forth in Article 4 , which mandates that a Party “ shall grant appropriate authorizations and permissions with minimum

3 Notice at 2. 4 Notice at 3. The support for approval of Norwegian International’s application voiced by the Government of the Republic of Ireland ( See Letter dated February 13, 2014, from Leo Varadkar, Irish Minister for Transport, To urism & Sport to Secretary Anthony Foxx; Letter dated July 30, 2014, from John Fearon, Director General of Civil Aviation, Irish Department of Transport, Tourism & Sport to Paul Gretch, Director, Office of International Aviation) and by the Commission at the Joint Committee meeting s on January 8, 2014 and June 10, 2014 make clear that th e hypothetical possibility mentioned in the Notice that the parties might “ decid e together to deny an application using Article 17 bis ” is not applicable to the application of Norwegian International. See DOT Notice in Docket No. OST

- 2013

- 0204 , dated January 31, 2014. 5 Reply at 8.4 proce dural delay, ” 6 the Department is obliged under international law to grant Norwegian
International’ s application

. The Commission’s view on the legal meaning of A rticle 17 bis is supported by established legal norms of treaty interpret ation and is confirmed in the Joint Declaration , which states : [T] he following two statements expressed by the Director, as reported in the Notice, are consistent in every respect with our intentions as D elegation C hairmen at the time of the negotiation of the Air Transport Agreement, including the negotiation of the text of A rticle 17 bis , and with our view of the meaning and applicability of the Agreement, including Article 17 bis , as intended by the Parties: (1) “ Article 17 bis does not provide a legal basis for unilaterally denying an application under Article 4 ” ; and (2) “ any unilateral decision to deny an application using Article 17 bis runs against the letter and spirit of the Agreement. ” 7 These accepted principles should be given far greater weigh t by the Department than the Opposing Parties ’ feeble attempt s to interpret the Agreement to suit their own narrow special interests.
II. INTERNATIONAL LAW SUPPORTS THE COMMISSION’S INTERPRETAT ION OF THE OPEN SKIES AGREEMENT In interpreting an internation al agreement, the Department should apply the principles of customary international treaty law, as expressed in the Vienna Convention on the Law of Treaties ( “ VCLT ” ). 8 T he VCLT establishes that what matters most is the

6 Open Skies Agreement art. 4. 7 See Joint Declaration of John Byerly and Daniel Calleja , attached hereto as Exhibit A

. 8 VCLT, opened for signa ture May 23, 1969, 1155 U.N.T.S. 331. Although the United States has not ratified the VCLT , the State Department considers it to reflect Customary International Law. See State Department, Vienna Convention on the Law of Treaties, http://www.state.gov/s/l /treaty/faqs/70139.htm (“ The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties. ” ) (last accessed Aug. 5, 2014); S. Exec. Doc. No. 65

– 118, at 1 (1971) (Secretary of State Rodgers emphasizing that VCLT “ is already generally recognized as the authoritative guide to current treaty law and practice ”) . Certain U.S.5 text : “ A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.” 9 Here, the ordinary meaning o f the terms of Article 17 bis in their context and the object and purpose of the Open Skies Agreement, including Article 17 bis , fully support the Commission’s position.
A. THE ORDINARY MEANING AND CONTEXT OF ARTICLE 17 BIS ESTABLISH NO SUBSTANTIVE OBLIGATIONS AND DO NOT EMPOWER A PARTY UNILATERALLY TO DENY OPERATING AUTHORITY TO AN AIRLINE OF THE OTHER PARTY
The ordinary meaning and context of Article 17 bis clearly align with the
Commission’s and Norwegian International’s position that Article 17 bis (1) does not

e stablish a l egally binding rule and (2) does not en abl e a P ar ty to u nilaterally d erogate
from its o bligations in Article 4

. 1. Art icle 17 bis Does not Establish a Legal ly Binding Rule

. As the Commission correctly stated, the text of Article 17 bis “ does not formulate a legal rule ” that would enable a P arty to deny an application under A rticle 4. 10 International Court of Justice cases distinguish as binding those text s that carry specific

Courts of Appeals follow the principles in the VCLT. See, e.g. , Kreimerman v. Casa Verrkamp , 22 F.3d 634, 638 (5th Cir. 1994)

. The Supreme Court, although not expressly endorsing the VCLT, does not diverge substantially fr om its approach. See, e.g. , Abbott v. Abbot, 560 U.S. 1 , 10

- 20 (2010) (analyzing a convention’s text, objects and purposes, subsequent state practice, and negotiating history). In interpreting international agreements, t he Supreme Court also give s special deference to the views of the Executive Branch (which has not opined in this case), and “ considerable weight ” to the “ opinions of ... sister signatories, ” which in this case would includ e the opinion of the European Commission – the treaty representative of the European Union

. See id

. at 12. 9 VCLT art. 3 1(2) defines “ context ” as including text, preamble and annexes, as well as contemporaneous instruments and agreements made by the parties to the treaty “ in connection with the conclusion of treaty. ” M oreover , per VCLT art. 31( 3 ), subsequent agreements and practice establishing agreement between the parties in interpretation, and relevant international law rules shall also be taken into account. In addition, supplementary means of interpretation, such as preparatory works, may also be used to confirm the meaning resulting from the text, or determine the meaning when textual analysis lea d s to an ambiguous or unreasonable result

. See VCLT art. 32

. 10 Notice at 2

.6 obligations or rights (binding) from text that is aspirational or “hortatory” (not binding)

. 11
Where treaties intend to create obliga tions or rights , their text expresses as much through mandatory language , such as “ the [Parties] undertake, ” 12 or “ the Parties shall. ” In this
case, t he ordinary meaning of the text of Article 17 bis is aspirational , e.g. “ the P arties recognize the import ance, ” “ the opportunitie s are not intended to .” 13 The inclusion of

“ the p rinciples

... shall guide the Parties ” — though it uses “ shall ” — is also aspirational.
The definition of “ guide ” — to “ direct or lead ” or “ direct or influence the thoughts or
behavior of” 14 — makes clear that the paragraph is not a binding legal rule, but rather a guideline. Moreover, “ the Parties ” are the object in the provision, rather than the subject taking on a legal obligation or right (in contrast with “ the [Parties] undertake ” o r “ shall apply” ) above. If the Parties had wanted to establish a clear obligation, they could have easily done so in the text of Article 17 bis

. They did not, and as confirmed in the Joint Declaration, this was not their intent. 15 By contrast, the Partie s did use such mandatory language in other contexts – for example, in Articles 4 and 6 bis

. Unlike Article 17 bis, Article 4 and Article 6 bis both establish clear obligations

. Article 4 states that “ [t] he P arty shall grant appropriate

11 See, e.g. , ICAO Council Case , 1972 ICJ 92 , 107, fn. 1 (J. Dillard) (“ treaties establishing functioning institutions frequently contain articles that represent ideals and aspirations which, being hortatory, are not considered to be legally binding except by those who seek to apply them to the other fellow . On the other hand there are other articles which are generally recognised as imposing definite legal obligations .”). 12 See Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bos. v. Serb.), 200 7 ICJ 43, 103

- 11 (Feb. 26) (Court identified ordinary meaning of “ undertake ” a s a “ formal promise, to bind or engage oneself, to give a pledge or promise, to agree, to accept an obligation. It is a word regularly used in treaties setting out the obligation s.” ). 13 Open Skies Agreement art. 17 bis (as amended by J une 2010 Protocol). 14 W EBSTER ’ S D ICTIONARY , http://www.merriam

- webster.com/dictionary/guide (last accessed Aug. 6, 2014). 15 See Joint Declaration , ¶ 8.7 authorizations and permissions with minimal procedural delay. ” 16 Similarly Article 6 bis
states that “ the . . . Party shall recognize any fitness and/or citizenship determination made by the first Party with respect to that air carrier as if such a determination had been made by its own aeronautical authorities. ” 17
As the Commission articulate d at the Brussels meeting , 18 Article 17 bis must be interpreted in light of Article 4 in connection with a Party’s decision to grant or deny a license application. A rticle 4 lays out cle ar criteria – all of which are met in this case – that obligate a P arty to grant an authorization subject to specific exceptions ( referring to ownership and control requirements, qualification to “meet the conditions prescribed under the laws and regulations normally applied,” and A rt icles 8 (safety) and 9 (security) ), which do not include A rticle 17 bis. 19 Thus, were the Department to deny on
the basis of A rticle 17 bis , the U nited States would be in breach of its binding obligations
under A rticle 4

. Final ly , context also clarifies that Article 17 bis creates no binding obligations for

an airline

. Consider, by way of contrast , Article 7 , which expressly requires airlines to comply with “ laws and regulations of a Party relating to the admission to or depart ure from its territory. ” 20 The language of Article 17 bis contains no such binding provision on airlines with respect to labor standards.

16 Open Skies Agreement art. 4

. 17 Open Skies Agr eement art. 6. 18 Notice at 2 ( D irector stating that “ Article 4 makes no reference to Article 17 bis .” ). 19 Were O pposing P arties’ views correct, one would also expect to see in Article 5 (Revocation of Authorization) a reference to Article 17 bis as grounds for unilateral revocation of the operating authorization of the Party’s airline, but Article 5 contains no such reference. Rather, Article 5 refers solely to Article 7 (Application of Laws, which includes various requirements for airlines with respect to admission and departure from territory but no reference either to Article 17 bis or to any “ social dimension ” laws or principles), Article 8 (Safety), and Article 9 (Security). 20 Open Skies Agreement art. 7, ¶ 1

.8 2. Art icle 17 bis Does not Empower a Party to Unilaterall y D eny Operating Authority to an A irline of the O ther Part y. E ven if A rticle 17 bis were deemed to embody a legal rule , that rule would be limited to joint action by the Parties and thus would not be a basis for unilateral denial

. The text of A rticle 17 bis contemplates joint action only. As the Commission observed in
the Notice , the text refers solely to the plural : “ Parties as they implement ” and “ regular consideration by the Joint C ommittee , pursuant to Article 18 , of the social effects of the Agreement and the development of appropriate responses found to be leg itimate .” 21 T he

text of Article 17 bis explicitly references A rt icle 18, which – using the same language as
Article 17 bis – charges the J oint C ommittee to “develop cooperation by: ... considering the social effects of the agreement as it is implemented and developing appropriate responses to concerns found to be legitimate

. ” 22 Nothing in Article 17 bis refers to action by “ a Party, ” and nothing in Article 17 bis empowers “ a Party ” to take unilateral action. Rather, the reference s to “ the Parties ” and to “ th e Joint Committee ” — which “ shall operate on the basis of consensus” 23 — thus exclude unilateral actions. 24
Furthermore , where the Open Skies Agreement intends to distinguish between joint action or views of “ the P arties ” as opposed to unilateral actions by “ a Party, ” the Agreement uses precisely those terms. For example, in paragraph 1 of amended Article 15, similar to Article 17 bis , the text states “ [t]he Parties recogni ze e the importance ” of protecting the environment

. 25 P aragra ph 2 of A rticle 15 then states that “ [w] hen a Party

21 Open Skies Agreement art. 17 bis (as a men ded by June 2010 Protocol). 22 Open Skies Agreement art. 18(4)(b) (as a men ded by June 2010 Protocol art. 5). 23 Open Skies Agreement art. 18, ¶ 6. 24 Expressio unius est exclusio alterius (“ The expression of one thing is the exclusion of another ” ). 25 Open Skies Agreement art. 15 bis (as a men ded by June 2010 Protocol).9 is considering ... it should evaluate ... ” 26 In other words, had the United States and European Union wished for Article 17 bis to authorize unilateral action by “ a Party, ” t hey could easily have done so – th e Agreement , however, reflects a different conclusion.
B. THE OBJECT AND PURPOSE OF THE OPEN SKIES AGREEMENT SUPPORT THE COMMISSION’S VIEWS The central goal of the Open Skies Agreement was to open air service markets. 27
This core “ object and purpose ” of the Agreement fully supports the textual analysis above that precludes one Party from unilaterally limiting market access on the basis of
Article 17 bis

. The preamble expresses the desire to “ promote . . . competition among airlines in the marketplace with mi nimum government interference and regulation, ” expand “ international air transport opportunities, ” and enable airlines “to offer...competitive prices and open markets. ” Indeed, three former Secretaries of Transportation — Andrew Card, Norman Mineta, and Mar y Peters — have confirmed
that these guiding principles of breaking down barriers and increasing competition are the

core values the U.S. has sought to promote in Open S kies agreements. 28

26 Id. 27 See Answer of Federal Express Corporation (Feb. 12, 2014), at 3 -4 (“ There is not a single labor law standard in the [Agreement] under which all carriers must operate. The history of the agreement clearly demonstrates that it was intended to permit application of the individual national laws governing employee/employer relationships, rather than to set up a single trans

- Atlantic labor standard. While some participant in the talks did seek for the U.S. to submit itself to a single labor standard along with Europe, that view did not prevail. ”). 28 Se e Norman Mineta and Mary E. Peters , Open the Skies to Norwegian Air , T HE H ILL (A pril 9, 2014) , available at http://thehill.com/opinion/op

- ed/2 02974

- open
- the

- skies

- to

- norwegian

- air (“ Recognizing the benefits of deregulation for consumers and the U.S. airline industry, in the early 1990s, the George H.W. Bush Administration announced an initiative to pursue the equivalent of domestic deregulation in the international arena through a policy called Open Skies. True to its name, this policy opens international aviation markets through air service agreements that remove restrictions on the destinations, the frequency and capacity of flights, and the fares that American and foreign airlines may offer their customers. ”) ; Andrew Card, Don’t Let the Big Guys Block Norwegian , A VIATION W EEK ( June 9, 2014 ) (“ As transportation secretary under President George H.W. Bush, I was honored to participate in the nego tiation of the first open

- skies treaty, signed in 1992 with the Netherlands. Since then, my successors at DOT in the Clinton, George W. Bush and Obama administrations have continued to break down barriers in the10 The Parties expected the opening and large

- scale economic deregulatio n of the transatlantic market to benefit not only consumers and economic development but also all sectors of the air transport industry itself, “ including airline workers. ” 29 Article 17 bis’ s specific language concerning “opportunities” “ not intended to undermine labor
standards” is noticeably absent from both the 2007 preamble and the preamble to the 2010 pr otocol , showing such “intentions” to be even more peripheral from the
A greement’s central objective. In the Open Skies Agreement of 2007, the Parties provided in paragraph 4 of
Article 18 that “ [t]he Joint Committee shall also develop cooperation by: ... (b) considering the social effects of the Agreement as it is implemented and developing appropriate responses to concerns found to be legitimate. ” 30 This language, as noted above, is focused solely on “cooperation” between the two Parties and creates no legal basis for unilateral action to deny authorization for an airline of the other side. This proscription o f unilateral action was left untouched by the 2010 Protocol, concluded at the end of the second stage of negotiations. The focus in 2007 on cooperation and the absence of any authorization for
unilateral action were not changed by the addition of Article 17 bis in 2010. The object and purpo se of Article 17 bis was not to revers e the liberalization of the transatlantic market and the encouragement of vigorous airline competition achieved in 2007. Rather, the purpose was to give formal expression to the Parties’ intention, as they moved

international aviation marketplace by conclu ding open

- skies agreements with over 100 countries worldwide. ”). 29 Open Skies Agreement , p mbl. 30 Open Skies Agreement art. 18, ¶ 4.11 forwa rd to “ implement the agreement, ” to be “guided” by principles linked to the soci al dimension of the Agreement. In particular, Article 17 bis recognized the concerns of labor regarding the future implementation of the Parties’ new commitment , added to Artic le 21 in 2010 , “ to the shared goal of continuing to remove market access barriers ... including enhancing the access of airlines to global capital markets. ” 31 As noted in Norwegian International’s Consolidated Reply of December 31, 2013, 32 the European Union had sought in the
second

- stage negotiations to liberalize U.S. law requiring that air carriers be owned and controlled by U.S. citizens, a proposal strongly opposed by U.S. labor unions. Although the United States did not accept the EU proposal to seek immediate changes to U.S. statutes, it did agree to the language in Article 21 ( “Further Expansion of Opportunities” ), which was understood as a reference to liberalization of these statutory restrictions on foreign investment. 33

It was the European Union, not the United States, that proposed the inclusion of a

“ social dimension ” article in the O pen Skies Agreement. This occurred at the penultimate round of the second

- stage negotiations, by which time it was clear that the United States would not agree to seek immediate changes to U.S. statutory restrictions. The object and purpose of these amendments in 2010 was to link the “ further expansion of opportunities ” envisioned in Article 21 with the “guidance” to the Parties on the

“ social dimension ” in Article 17 bis . As both articles make clear, the Joint Committee would bear responsibility for defining how to achieve expanded opportunities in a

31 Open Skies Agreement a rt

. 21, ¶ 1. 32 Reply at 10

- 12

. 33 Id.12 manner consistent with social dimension concerns. The Joint Committee is itself required to “operate on the basis of consensus” 34 – in other words jointly, not unilaterally.
T he Director confirmed that “ any unilateral decision to deny an application using
Article 17 bis runs against the letter and spirit of the Agreement. ” 35 The reasons underpinning this position with respect to the letter of the Agreement have been examined in depth above. As to the spirit of the Agreement, from the perspective of the European Union, the primary and motivating purpose o f negotiating a comprehensive air transport agreement with the United States was to secure American acceptance of the
fundamental “ right of establishment ” guaranteed by the treaties establishing the EU. 36 Indeed, the Commission received a mandate from the Member States to negotiate with the United States only after a 2002 decision of the European Court of Justice (“ ECJ ”). 37
The ECJ held 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 this fundamental right. 38 The Commission achieved this legally

- compelled negotiating o bjective through the acceptance by the
United States of the “ Community A irline ” concept: the right of any airline owned and controlled by Europeans (including Norwegians) and licensed by any EU Member State (such as Ireland) to fly from any point in the E U to a ny point in the United States.

34 Open Skies Agreement a rt

. 18, ¶ 6. 35 Notice at 3. 36 See Reply at 9, fn. 20. 37 See Charles Hunnicutt, U.S.

- EU Second Stage Air Transport Agreement: Toward an Open Aviation Area , 39 G A .J.I NT ’ L & C OMP .L. 663, at 674 -5. 38 See, e .g. , Comm’n v. United Kingdom, C- 466/98 2002 E.C.R. I- 09427; Comm’n v. Denmark, C467/98 2002 E.C.R. I- 09519

.13 The “ social dimension ” language that became Article 17 bis cannot contradict this fundamental right , as the Opposing Parties would suggest. To do so would place the United States in fundamental disagreement with the Ag reement itself, the stated legal position of the Commission , and the views of the lead negotiators for both sides as confirmed in the Joint Declaration . It would ultimately result in a material breach of the Open Skies A greement. After concluding O pen Ski es agreements wi th 113 countries around the world – the most recent with Equatorial Guinea this month – and trumpeting the benefits of Open Skies to other governments for over two decades , no basis exists for the Department to
renege on its side of the Open Skies bargain with the European Union. Granting Norwegian International’s application will reassure our Open Skies partners that the Department’s commitment to Open Skies is clear and unwavering.
III. NORWEGIAN INTERNATIONAL’S SERVICE WILL PROMOTE THE B ENEFITS SOUGHT BY THE FRAMERS OF U.S. OPEN SKIES POLICY The Department has recognized that where the operating authority sought by a
carrier is auth orized by a bilateral agreement, then the public interest in preserving international comity virtually demands approval of the requested authority. 39 With the Commission having stated its view that Article 17 bis does not provide a basis for the U.S. to unilaterally deny an application, there is no doubt that Norwegian International
meets the two conditions fo r approval of foreign air carrier permits set forth in 49 U.S.C.

39 S ee Attachment to Joint Applications of Delta/Air France (#98

- 303) and Continental/Air France (# 98

- 330) for Statements of Authorization under 14 CFR 212 (Aug. 6, 1998) (“It is our policy in determining the public interest to consider a n umber of factors, most importantly, the extent to which the authority sought is covered by and consistent with bilateral agreements.”) ; see also 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 gree ment 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.’”).14 § 41302: it is (1) “ fit, willing and able” to provide the foreign air transp ortation that it
seeks to offer and (2) “qualified . . . to provide the foreign air transportation under an
agreeme nt with the United States Government .” The Department should act in
accordance with its well

- established precedents and advance the public interest by approving Norwegian International’s application. Recognizing the public benefits and real

- world opportu nities presented by Norwegian International’s proposed service , former Secretaries Card, Mineta, and Peters

— who collectively oversaw 45 of the Open Skies a greements now in effect — have urged the Department to let Norwegian International fly. Mineta and Peters recently

wrote that “[b] y promptly approving Norwegian Air International's application to serve
the United States , the Department of Transportation has the opportunity to uphold the cornerstone of one of America's most successful policy reforms – a nd grow the economy and benefit consumers in the process. ” 40 Similarly, Card has noted that approval of Norwegian International’s application could advance the Obama administration ’s goals
of “promoting international tourism and a major reduction in barriers to trade between the U.S. and EU,” as well as demonstrating its commitment to broader trade liberalization. 41 Norwegian’s motto – “ everyone should afford to fly ” – captures the benefits of Open Skies noted by the three former Secretaries. 42 By challengi ng the dominant position of the legacy alliances on transatlantic routes , Norwegian International will promote competition and lower fares in the marketplace. Norwegian’s experience in

40 Norman Mineta and Mary Peters, Open the Skies to Norwegian Air , T HE H ILL ( Apr il 9, 2014). 41 Andrew Card, Don’t Let the Big Guys Block Norwegian , A VIATION W EEK ( June 9, 2014 ). 42 These advantages have also been recognized in endorsements by USA Today and The Wall Street Journal

. See Editorial, Let Discount Norwegian Fly: Our View , US A T ODAY (May 18, 2014) available at http://www.usatoday.com/story/opinion/2014/05/18/norwegian

- air

- cheap

- flights

- pilots

- union

- editorials

debates/9255831/ ; Editorial, Free the Viking Skies , W ALL S TREET J OURNAL (M ay 14, 2014) available at http://online.wsj.c om/news/articles/SB10001424052702304914904579435022628612110?mg=reno64

- wsj

.15 Europe is that lower fares increase total demand for tickets – allowin g many people to fly who previously could not afford to. Norwegian International’s affiliates, Norwegian Air Shuttle and Norwegian Long Haul, have experienced passenger load factors above 90%
in their first year of serving the U.S., even while the legacy carriers report similarly high
load factors – suggesting huge suppressed demand for international travel on both sides
of the Atlantic

. By 2021, Norwegian International estimates that it will have flown just short of 14 million passengers between the U.S. and Europe, providing more customers for the U.S. travel and tourism industries, and help ing Norwegian International be a n

even better partner of the U.S. aviation industry, which it already supports as one of the largest operators of Boeing aircraft in E urope. 43 Norweg ian International ’s support for the U.S. economy extends from the airports in previously- underserved markets where it has announced new or expanded transatlantic service, to the local communities where its U. S.

- based cabin crew members reside. Norwegian International thus presents the exact case that the three former Secretaries had in mind when they described the ways in which Open Skies policy serves the public
interest in an open letter to the U.S. Congress, noting that Open S kies agreeme nts have

“ have been an economic generator of jobs and opportunity here at home, increased America’s global competitiveness, and strengthened our domestic aviation industry.” 44 Norwegian International’s application is compelling both because of its legal
merits – including the interpretation of Article 17 bis advanced above – and because of

43 Norwegian’s role as one of Boeing’s leading customers will not just pay off for Boeing employees in states like Washington and South Carolina. The efficiency of its Boeing 787 Dreamliner and Boeing 737

- MAX fleet has led Norwegian to announce an ambitious goal of lowering emissions per flown passenger by 30 percent by 2015. Helping to reduce the environmental consequences of air travel is just one more of the many ways in which Norwegian International’s application presents a winning case for approval. 44 Letter from Andrew Card, Norman Mineta, and Mary Peters to the U.S. Congress ( July 15 , 2014) available at http://www.openourskies.com/an

- open
- letter

- to

- the -u-s- congress/

.16 the public benefits that its service would provide. Few other carriers that promise to offer so much to the U.S. public have been asked to wait so long for approval from the
De partment. Norwegian International respectfully requests that the Department heed the
deadline established in 49 U.S.C. § 41710, and approve its application for an exemption and foreign air carrier permit without further delay.
Respectfully sub mitted,

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 August 18, 2014 Counsel for NORWEGIAN AI R INTERNATIONAL LIMITEDCERTIFICATE OF SERVICE The undersigned certifies that on August 18 , 2014 , a true and correct copy of the foregoing Comments of Norwegian Air International Limited was served by electronic mail on the individuals identified below:

Dan Weiss United Airlines dan.weiss@united .com Sascha Van der B ellen Delta Airlines sascha.vanderbellen@delta.com Malcolm L. Benge Counsel for North American/World Airways mlbenge@zsrlaw.com
Russell E. Pommer Atlas Air Inc. rpommer@atlasair.com
Rus sell 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 Howard Kass American Airlines, Inc. U.S. Airways, Inc. robert.wirick@aa.com francis.heil@aa.co m h oward.kass@ aa .com Airline Info info@airlineinfo.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 Je nnifer 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 Thomas S. Engle Department of State EngleTS @state.gov
Steve Shur Travel Te chnology Association sshur@traveltech.org Eugene Alford Department of Commerce eugene.alford@trade.gov Matthew Baldwin Director of Air Transport European Commission Matthew.Baldwin@ec.europa.eu
Emmanuelle Maire DG

- MOVE European Commission Emmanuelle.Mai re @ec.europa.eu
David Batchelor SESAR Joint Undertaking Delegation of the European Union to the USA David.Batchelor@sesarju.eu
Ottar Ostnes Director General, Norwegian M inistry of Transport and Communications Ottar.Ostnes@sd.dep.no
John Hanlon Europea n 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
Charles Leocha Travelers United Charles.Leocha@travelersunited.org
Keith Meurlin Washington Airports Task Force keith@washingtonairports.com
Paul Ruden American Society of Travel Agents pruden@asta.org Roger Dow U.S. Travel Association rdow@ustravel.org
/s/ Peter Nelson Peter NelsonEXHIBIT A
JOINT DECLARATION OF JOHN BYERLY AND DANIEL CA LLEJA