U.S. DOT Issues Proposed Order on Norwegian Air International

The U.S. Department of Transportation (DOT) today issued a show cause order concerning Norwegian Air International (NAI), the Irish-flag subsidiary of Norwegian Air Shuttle.  DOT’s order is now open for public comment by interested parties.

NAI’s application led to an extensive number of filings that were submitted throughout the course of the case, both in support of and opposition to the application.  The substantive legal and regulatory points raised by the parties reflected the novel and complex nature of the case, which required careful and comprehensive DOT review.

In the show cause order, DOT acknowledged that the labor-related concerns raised by NAI’s opponents warranted proceeding with caution and careful consideration.  Given the importance of the arguments raised, especially those about the legal effect of the labor provision of the U.S.-EU Agreement, the Department went to great lengths to give full consideration to such issues.  In addition to the Department’s Office of the General Counsel performing its own international law analysis, DOT took the unprecedented step of formally consulting two agencies with special expertise on international law, the Department of Justice’s Office of Legal Counsel (OLC) and the Department of State (DOS), to solicit their views.

DOT’s show cause order states that, based on the record as a whole, as well as its consultations with the Departments of Justice and State, the provision in the U.S.-EU Agreement that addresses labor does not afford a basis for rejecting an applicant that is otherwise qualified to receive a permit.  In this regard, the order states that NAI appears to meet DOT’s normal standards for award of a permit and that there appears to be no legal basis to deny NAI’s application.

The DOT order and all of the filings in the case can be viewed accessing the Federal Docket Management System at www.regulations.gov and searching for Docket DOT-OST-2013-0204.  [Objections to DOT’s tentative decision are due May 6, 2016, and answers to objections are due May 13, 2016.  DOT will then review those submissions before issuing a final order.]

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DOT 41-16