BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C.

Transcription

1 BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. Application of NORWEGIAN AIR UK LIMITED Docket DOT-OST for an exemption under 49 U.S.C and a foreign air carrier permit pursuant to 49 U.S.C (U.S.-EU Open Skies REPLY OF NORWEGIAN AIR UK LIMITED Communications with respect to this document should be addressed to: Josh Romanow PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, N.W. Washington, D.C Tel: Fax: romanow@pillsburylaw.com January 13, 2017 Counsel for NORWEGIAN AIR UK LIMITED

2 BEFORE THE DEPARTMENT OF TRANSPORTATION WASHINGTON, D.C. Application of NORWEGIAN AIR UK LIMITED Docket DOT-OST for an exemption under 49 U.S.C and a foreign air carrier permit pursuant to 49 U.S.C (U.S.-EU Open Skies REPLY OF NORWEGIAN AIR UK LIMITED Norwegian Air UK Limited ( Norwegian UK submits this Reply in connection with its Motion for Leave to File and Expedited Treatment and Contingent Application for Exemption ( Motion. Several parties submitted answers in strong support of Norwegian UK, including Federal Express Corporation, Atlas Air, Denver International Airport, Greater Orlando Aviation Authority, U.S. Travel Association, Travel Technology Association, Business Travel Coalition, Airports Council International - Europe and Gatwick Airport Limited. 1 The only answer in opposition was filed by those labor groups that oppose Norwegian UK s application ( Opponents. 2 All parties support Norwegian UK s request for expedited review of its motion and exemption application and prompt issuance of a show cause order. The Opponents, 1 These parties join the many others that have filed in support of Norwegian UK s application such as the UK Director General for Civil Aviation of the Department for Transportation, the EU Commissioner for Transport, Port of Oakland, Maryland Aviation Administration and Washington Airports Task Force. OST The Opponents filed two separate answers, one requesting the Department issue a show cause order denying Norwegian UK s application for a foreign air carrier permit and a second requesting the Department deny Norwegian UK s request for exemption authority. OST

3 however, contend Norwegian UK s request for an exemption does not meet the public interest criterion for granting such authority. The Opponents position is plainly contrary to U.S. law and well-established precedent. First, the dismissal of Norwegian UK s prior exemption application 3 was on procedural grounds due solely to the overlap of issues pending in the Norwegian Air International proceeding. 4 The Department resolved those issues over a month ago in favor of Norwegian Air International, concluding the Opponents arguments were untenable. 5 There is no justification for deciding the identical issues in this proceeding differently. Second, contrary to the Opponents claims, issuance of exemption authority is clearly consistent with the public interest and satisfies multiple statutory public interest criteria. Norwegian UK will offer the traveling public competitive, low-priced fares with award-winning service that will promote competition among airlines (49 U.S.C (a(4, (6, (9, (10, (12, (13 and (15 and increased service to previously underserved markets (49 U.S.C (a(11 and (16. Of equal if not greater importance, Congress has stated that if service is proposed under the terms of a bilateral agreement, there is a virtually unrebuttable presumption that grant of the application is in the public interest. 6 The State Department has also concluded that grant of Norwegian UK s 3 The Department dismissed Norwegian UK s original exemption request; it did not deny it as the Opponents have stated. Order The Department s intentional dismissal rather than denial of the exemption evidences the Department s willingness to again consider grant of exemption authority upon resolution of the issues presented in the Norwegian Air International case. 4 The Department was required by 49 U.S.C to make a final decision on the original application for an exemption by June 30, 2016 the date on which Order was served. Order See Order ( [W]e have been advised that the law and our bilateral obligations leave us no avenue to reject this application.. 6 H.R. REP. NO , at 15 (1978; see also Attachment to Joint Applications of Delta/Air France (# and Continental/Air France (# for Statements of Authorization under 14 CFR 212 2

4 application is in the foreign policy interests of the United States. 7 In contrast, the Opponents cite only two factors without Department or other precedent in support of their position while wholly ignoring the many other public interest factors identified by 49 U.S.C (a that weigh heavily in Norwegian UK s favor. Finally, the prompt grant of an exemption is especially in the public interest in light of (i the already lengthy pendency for over a year 8 of Norwegian UK s application, (ii the United States obligation under Article 4 of the U.S.-EU Air Transport Agreement to grant authorization with minimum procedural delay 9 and (iii the Department s statutory obligation to act consistently with obligations of the United States Government under an international agreement. 10 Norwegian UK has a window of opportunity to launch its innovative service from the UK to the U.S. and several worldwide markets for the Summer 2017 season, but such opportunity requires immediate action by the Department. There is no procedural or substantive reason for the Department to delay or withhold approval of Norwegian UK s application. Given the United States clear legal obligation to grant authorization with (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. ; S. REP. NO , 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.. 7 Order , Appendix F. 8 The Department approves applications of other EU airlines (excluding Norwegian Air International on average in 52 days. 9 Article 4, Air Transport Agreement between the U.S. and the European Community and its Member States, signed Apr. 25 and 20, 2007, applied provisionally from Mar. 30, 2008, available at as amended by the Protocol between the U.S. and the European Union and its Member States signed on and applied provisionally from Mar. 25, 2010, available at 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 U.S.C (b(A. 3

5 minimum procedural delay, we urge the Department to immediately issue Norwegian UK exemption authority. Coupling such an exemption with an order to show cause to grant a foreign air carrier permit to Norwegian UK would conform to the treatment properly accorded other EU airlines and is fully merited in this case. 11 Respectfully submitted, Josh Romanow PILLSBURY WINTHROP SHAW PITTMAN LLP 1200 Seventeenth Street, N.W. Washington, D.C Tel: Fax: romanow@pillsburylaw.com January 13, 2017 Counsel for NORWEGIAN AIR UK LIMITED 11 Consistent with the Department s practice in approving foreign air carrier applications by show cause order, any exemption granted by an order to show cause should become effective immediately and remain in effect for a period of at least two years, or until Norwegian UK s foreign air carrier permit becomes effective. In the event the Department is not prepared to immediately issue an order to show cause and exemption, Norwegian UK urges the prompt approval of an exemption by Notice of Action Taken, valid for at least a two-year period. 4

6 CERTIFICATE OF SERVICE The undersigned certifies that on January 13, 2017, a true and correct copy of the foregoing Reply was served by electronic mail on the individuals identified below: Steve Morrissey Dan Weiss United Airlines steve.morrissey@united.com dan.weiss@united.com Chris Walker Delta Air Lines chris.walker@delta.com Robert Wirick Howard Kass American Airlines robert.wirick@aa.com howard.kass@aa.com 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 Courtney Felts Federal Express Corporation nssparks@fedex.com gbleopard@fedex.com cefelts@fedex.com Thomas S. Engle Deputy Assistant Secretary for Transportation Affairs Department of State englets@state.gov Gareth Alston First Secretary, Transport Policy British Embassy Washington, D.C. gareth.alston@fco.gov.uk James Bradbury Delegation of the European Union to the USA Washington, D.C. James.Bradbury@eeas.europa.eu Dan Micklewaite Director General of Civil Aviation U.K. Department for Transport, London dan.micklethwaite@dft.gsi.gov.uk Henrik Hololei Director General, DG-MOVE European Commission, Brussels henrik.hololei@ec.europa.eu Edward Wytkind Transportation Trades Department AFL-CIO edw@ttd.org Alex Garcia Secretary-Treasurer and Air Transport Director Transport Workers Union of America, AFL-CIO agarcia@twu.org Russell Bailey Air Line Pilots Association russell.bailey@alpa.org Sara Nelson President Association of Flight Attendants-CWA snelson@afacwa.org Sito Pantoja General Vice President International Association of Machinists and Aerospace Workers spantoja@iamaw.org Philip von Schoppenthau Secretary General European Cockpit Association pvs@eurocockpit.be Edgar N James Evin F. Isaacson Attorneys for the Allied Pilots Association ejames@jamhoff.com efisaacson@jamhoff.com Michael F. Goldman Counsel for Scandinavian Airlines System (SAS mgoldman@sgbdc.com Adam R. Kokas Executive Vice President, General Counsel & Chief Human Resources Officer Atlas Air, Inc. adam.kokas@atlasair.com James Bradbury Delegation of the European Union to the United States of America James.bradbury@eeas.europa.eu Russell E. Pommer Associate General Counsel & Staff Vice President, Global Regulatory Affairs Atlas Air, Inc. rpommer@atlasair.com /s/melinda A. Hernandez Melinda A. Hernandez