The Barriers are down, why were they torn down? Here comes the dreaded Norwegian International

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Norwegian Air Issued Proposed Order by DoT

Why It Took 3 Years

norwegian air dot proposed orderNot since the 1st century has the appearance of a ship from Norway engendered such fear as the application of Norwegian Air International Limited (NAI)’s filing on December 2, 2013. NOW the final grant of foreign air carrier authority to these modern, aviator Vikings has been issued by the US DOT. Unlike the marauders of old, for whom surprise was their signature tactic, appearing suddenly over the horizon, NAI’s bureaucratic voyage to and through the sovereign state of the United States over the North Atlantic has been an exceedingly slow process.

In the past few days, a threatening message came from the European Commission and THEN coincidentally or as a result thereof, the US DoT issued the requested authority!

The European invasion began on December 2, 2013 with a filing by the carrier’s US counsel for authority from the DOT. The initial response was a mere twelve comments, but now, according to regulations.gov, the docket now includes some 15,000 documents. It appears that about 90% of the “pleadings” are submissions, which were drafted by groups, filled by the individuals FOR and AGAINST the grant. Staunch opposition was expressed by Delta, United and American Airlines (one pleading example) and vehemently by 8 US and European labor unions (one pleading example). {FedEx has taken the opposite position}

Their arguments as to the interpretations of the bilateral agreements have been rejected by the DoT (and the Department of State and the DoJ Office of Legal Counsel) throughout this proceeding. Essentially the opponents aver that the multi-continental carrier cannot be found “fit.” Their underlying equity argument has been that this “carrier of convenience” has selected a number of jurisdictional/operational bases to avoid labor requirements as to the flight crews.

norwegian air dot proposed order

Back to the Viking threat and DOT process in response to the NAI application: ordinarily, when a foreign government grants one of its domestic carrier authority, particularly when the bilateral relationship between the US and the other country falls under the Open Skies category, the request is granted almost on a ministerial basis, i.e. apply the “GRANTED” rubber stamp.

This did not happen for it took two and one-half years for the issuance of the critical document. Susan McDermott, DoT’s Deputy Assistant Secretary for Aviation and International Affairs, a career position, signed and issued DoT Order to Show Cause 2016-4-12, in which the Department tentatively decided under 49 U.S.C. §41301 that Norwegian Air International Limited (NAI) should be issued the foreign air carrier permit. Simultaneously therewith, the DoT issued a press release.

In the period between initial application and that issuance of the Order to show cause, Congressional Hearings, two Presidential campaign position papers and an inordinate number of political actions by both sides filled that vacuum. The delay was so embarrassing that European diplomatic inquiries and entreaties were made complaining of the US’ apparently deliberate delay for what should be an automatic, ministerial act.

With all of the focus on economics, the absence of any discussion of safety concerns has been notable (DoT tentatively grants Norwegian Air International economic authority; FAA has safety obligations?).

Seven months later, on December 2, 2016 (the three-year anniversary of the first NAI filing) “the [European] Commission and the EU Member States share the view that the failure of the U.S. authorities to act on this request made in 2013 constitutes a breach of the EU-US Air Transport Agreement. The Commission informed the U.S. authorities of this position already in November 2014 and regrets that no suitable solution could be found despite intensive discussions at all levels. The Commission acted in good faith during this process and still invites the U.S. authorities to comply with the EU-US Air Transport Agreement in order to reach an amicable solution.”

According to the records, BINGO on November 30, 2016 Order 2016-11-2016 was decided, but not served until December 2, 2016.  NAI was granted its permit to fly. No DoT press release or Twitter as of 12/04/2016.

Two days later, this headline, Norwegian to Open New US Crew Bases Starting in March 2017, appeared in AirlineGeeks.comConsumer advocates look forward to this new competition.

The Vikings are coming; prepare to travel to Europe on lower fares.

The aviation unions historically have effectively cited safety as a criticism of their foes like Eastern Airlines. More recently foreign repair stations and LCCs like Allegiant have been accused of substandard safety standards. One can forecast a series of allegations that cheap labor does not meet US safety rules.

Stay tuned, Norwegian Air International WILL BE LANDING HERE SOON.

 


Europe Accuses U.S. of Breaching Open Skies PactDATED 12/02/2016

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