DoT tentatively grants Norwegian Air International economic authority; FAA has safety obligations?

Norwegian Air air carrier permit
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Norwegian Air Foreign Air Carrier Permit

Some would say that the end of the aviation world, as it is presently known, will come to an end if a final decision on a request by an EU carrier for authority to the US is granted. The criticism falls under a long articulated maritime expletive “flag of convenience”, which many credit with the diminution of global safety at sea. The battle before the US Department of Transportation may involve the right, yet poorly articulated, point—SAFETY—in front of an economic authority—wrong forum.

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.

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The prolonged battle, the application was filed in 2013, has included vitriolic pleadings on both sides of the debate. The legal argument has been about what the DoT, as an economic authority, may or may not do in response to the NAI proposal under a diplomatic document which the US initiated in order to spread aviation competition. The true underlying debate has little to do with Open Skies.

The 57 page Order and attachments are largely devoted to the debate of whether the NAI business plan (headquarters in Norway, Air Operating Certificate in Ireland, pilot/flight attendant bases in Thailand & Singapore and operations within the EU to the US) can be denied legally. The legal debate was crystalized to this central legal question:

Assuming that an air carrier of a Party to the U.S.-EU Agreement is otherwise qualified to receive a permit under DOT’s authorities and the U.S.-EU Agreement, does Article 17 bis allow the United States to unilaterally deny an application for a permit by such carrier, and, if so, under what circumstances?

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The DoT General Counsel, the US Department of State and the US Department of Justice’s Office of Legal Counsel were all asked to opine on this essential question and all concurred that:

“Article 17 bis does not provide an independent basis upon which the United States may deny a permit to an air carrier of the Party to the Agreement if that carrier is otherwise qualified to receive such a permit.” Both the specificity of their opinions and the added imprimatur of DOS and OLC on top of the DoT memorandum is a very strong case.

The Order sets a procedure for anyone with objections to this tentative decision to grant NAI the authority requested from the DoT and it is likely that the opponents who have attacked this request will continue to submit their objections. Here is the list of those filing against NAI:

Delta Air Lines, Inc., United Airlines, Inc., American Airlines, Inc., US Airways, Inc., Deutsche Lufthansa AG, Scandinavia Airlines System, Air France, KLM Royal Dutch Airlines, Austrian Airlines AG, the Air Line Pilots Association, the Allied Pilots Association, the Southwest Airlines Pilots’ Association, the Transportation Trades Department AFL-CIO, the Association of Flight Attendants-CWA, the International Association of Machinists and Aerospace Workers, the Transport Workers Union of America, Captain Stephen Colman, the European Cockpit Association (ECA), the European Transport Workers’ Federation, the Norwegian trade union Parat, and the Signatories to the Joint Declaration Against EU-Based Flags of Convenience in Aviation as Endorsed on 5 June 2014 by the Air Crew Working Group of the Sectoral Dialogue Committee.

The ordering paragraph of Show Cause 2016-4-12 includes the following carefully crafted words:

“In reaching our decision, the Department tentatively finds that the applicant has demonstrated, based on the record, that it is financially and operationally fit to perform the services authorized; that Irish aviation safety oversight satisfies Federal Aviation Administration (FAA) and ICAO standards; and, that the applicant is substantially owned and effectively controlled by citizens of Member States of the European Union, consistent with the provisions of the U.S.-EU Agreement.”

[emphasis added]

It seems odd that the DoT decision states that it has found that the Irish authority “satisfies” the ICAO standards; in a previous similar DoT action there was no mention of the FAA in a similar paragraph and in another recent § 402 permit issuance, “consultation” (“…have consulted…”) with the FAA was part of the decision. It could be argued that this finding of compliance may prejudge the FAA’s exercise of its 49 USC § 1372, 40113, 40119, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44901-44904, 44906, 44912, and 46105, plus 14 CFR Part 129 authorities.

The ordinary process is for the FAA’s exercise of its jurisdiction of a foreign air carrier seeking Part 129 authority is found in the FAA’s Flight Standards Information Management System’s Volume 12 Chapters 1 and 2. One of the premises to that process is found in Volume 12, Chapter 1, 12-83, to wit that “The Flight Standards (AFS) International Aviation Safety Assessment (IASA) program involves assessing whether another country’s oversight of its air carriers that operate, or seek to operate, into the United States complies with minimum international standards for aviation safety.” The FAA’s IASA rating of the Irish Aviation Authority (commercial semi state company employing 650 people at six locations around Ireland) is Category 1 or meets ICAO standards.

It is fair to presume that when the FAA conducted its audit of the IAA, it did not include whether their Irish counterpart had the resources (human and financial) to scrutinize a multinational carrier with significant operations on three continents and more than four countries. A long list of questions must be asked before the FAA places total reliance on a 650 person agency which depends on user fees for its finances. To add to the enormity of this task, the unions of Ireland’s existing low cost carrier assert that the IAA is not doing a good job surveilling that carrier.

Even EASA seems to recognize that its Member States do not produce an equal level of standards within Europe. Perhaps, the FAA would be well advised, in the name of the safety of future US passengers traveling on NAI, for the FAA to engage EASA and the IAA to be certain that the Irish organization is up to the challenge which NAI uniquely poses as a case of first impression.

In any event, the opponents of NAI should give up their debate over Open Skies and shift their attention to proving safety problems to the FAA.

 

ARTICLE: DOT Gives Tentative Approval for Norwegian’s Irish Unit to Serve the U.S.
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