### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION

WASHINGTON, DC

______________________________________ ) Application of ) ) Docket No. OST
‐ 2013
‐ 0204 NORWEGIAN AIR INTERNATIONAL ) LIMITED ) ) for an exemption under 49 U.S.C. § 40109 ) and a fore ign air carrier permit pursuant to ) 49 U.S.C. § 41301 (US
‐ EU Open Skies) )

______________________________________ )

REPLY OF ALLIED PILOTS ASSOCIATION TO COMMENTS OF NORWEGIAN AIR INTERNATIONAL LIMITED, AND JOINT

DECLARATION OF JOHN BYERLY AND DANIEL CALLEJA The Allied Pilots Association ( “ APA ” ) writes in reply to the Comments of Norwegian Air International Limited ( “ NAI ” ) and Joint Declaration of John Byerly and Daniel Calleja. NAI argues that the European Commission’s Directorate General for Mobil ity and Transport (“ DG MOVE ”) is correct that Article 17 bis of the Air Transport Agreement (“ Agreement ”) does not afford a P arty a unilateral basis for denying an application for operating authority. The plain language of Article 17 bis , of course, belie s this assertion. Article 17 bis dictates that the principles recited in Paragraph 1 of Article 17 bis “ shall guide” the Parties as they implement the Agreement , without distinguishing unilateral and collective implementation, thereby requiring the Partie s to take labor practices and standards into account when considering an application for operating authority. (Emphasis added.) Moreover, the reference in Article 17 bis , Paragraph 2 to “consideration by the Joi nt Committee,” is prefaced by the word “incl uding,”
which makes clear that resort to the Joint Committee is simply one option available to the
P arties. This interpretation of the Article 17 bis is also that most in accord with the purpose of

### 2

the Agreement as stated in its Preamble, which was to ma ximize benefits for labor, as well as for
consumers and airlines. See Agreement at 4 (describing the goals of the A greement as “opening access to markets and maximising benefits for consumers, airlines, labour , and communities on
both sides of the Atlanti c.”) (emphasis added).
In arguing for an interpretation of Article 17 bis contrary to its plain language and based on unexpressed, supplemental notions , NAI relies heavily on the Joint Declaration of John Byerly and Daniel Calleja, which purports to af firm that the views of DG MOVE are consistent with the intent of the Agreement’s government negotiators. APA believes , however, that the testimony offered by Mr. Bylerly is misleading, in that it contains a material omission : Mr. Byerly fails to disclose t hat he is a paid lobbyist for NAI, whose portfolio is specifically focused on assisting NAI with Department of Transportation exemption and foreign carrier permit applications. See Declaration of Robert P. Coffman (“ Coffman Decl .”), ¶¶ 11

- 12 , Ex. A.
Furt hermore , as demonstrated by the attached Declaration of Robert P. Coffman, Mr. By erly’s current position with respect to the limited legal significance of Article 17 bis was never expressed by U.S. or E.U. government negotiators either during the plenary n egotiating sessions, or in the U.S.

- only b reakout sessions , in the Madrid negotiations regarding Article 17 bis

. Coffman Decl. ¶¶ 2, 3, 7

- 10 . Rather, as described by Mr. Coffman, Article 17 bis was formulated by the E.U. and U.S. negotiators, with the in put of stakeholders, including Labor Representatives, in part to address Labor Representatives’ concern that Carriers might seek to evade social laws and undermine the Parties’ labor standards by engaging in venue

- shopping. Id . at ¶¶ 4

- 5

. The fact that g overnment negotiators and stakeholders extensively discussed “almost every word and phrase of Article 17 bis ” over an almost 24

- hour period prior to rea ching agreement , id . at ¶ 2 , underscores that no party should now be allowed to supplement the plain

### 3

lan guage with additional restrictions and that the Parties intended the existing provision to have legal significance

. NAI also argues that, because Article 17 bis does not define any mandatory or prohibited labor practices, it was not intended to empower a party to unilaterally deny an application for operating authority on the basis of allegations related to the social dimension. As Mr. Coffman’s declaration confirms, however, Article 17 bis was formulated broadly in order to maximize the Parties’ flexibi lity in applying the principles recited in Paragraph 1 of Article 17
bis , not to render the resulting provision unenforceable. Id

. at ¶ ¶ 6, 9 . NAI’s contrary view,
which in effect reads Article 17 bis out of the Agreement as mere precatory language , is inconsistent with this bargaining history.

Respectfully submitted, /s/ EDGAR N. JAMES Edgar N. James JAMES & HOFFMAN, P.C. 1130 Connecticut Avenue, N.W. Suite 950 Washington, D.C. 20036

- 3975 (telephone) 202

- 496

- 0500 (facsimile) 202

- 496

- 0555 ejame s@jamhoff.com Attorney for the Allied Pilots Association

Dated: August 25, 2014

### 4 CERTIFICATE OF SERVICE I certify that I have, on this 25th day of August , 2014, served the foregoing R eply by causing a copy to be sent by electronic mail to the addresses identified below: Josh Romanow Peter Nelson Counsel for Norwegian Air Internation al Limited romanow@pillsburylaw.com peter.nelson@pillsburylaw.com Steve Morrissey Thomas Bolling United Airlines steve.morrissey@united.com thomas.bolling@united.com
Dan Weiss Hershel Kamen United Airlines dan.weiss@united.com hershel.kamen@united.com Sascha Van der Bellen Delta Airlines sascha.vanderbellen@delta.com Howard Kass U.S. Airways howard.kass@usairways.com
Robert Wirick Francis Heil American Airlines, Inc. robert.wirick@aa.com francis.heil@aa.com
Robert Land Senior Vice President of Govern ment Affairs and Association General Counsel robert.land@jetblue.com Russell E. Pommer Associate General Counsel & Sr. Director Regulatory Affairs Atlas Air Inc. rpommer@atlasair.com Celine Canu Philip Von Schoppenthau European Cockpit Association cc@e urocockpit.be pvs@eurocockpit.be Malcom L. Benge Counsel for North American/World Airways Zuckert Scoutt & Rasenberger, L.L.P. mlbenge@zsrlaw.com
John M. Allen Michael Whitaker Jesse Elliot Douglas Schwab Nicholas Tsokris Federal Aviation Administration john.allen@faa.gov michael.whitaker@faa.gov jesse.elliot@faa.gov douglas.schwab@faa.gov nicholas.tsokris@faa.gov john.chen@faa.gov
Anita Mosner Jennifer Nowak Counsel for UPS Holland & Knight anita.mosner@hklaw.com jennifer.nowak@hklaw.com

### 5

Nancy S. Sp arks Bailey Leopard Federal Express Corporation nssparks@fedex.com gbleopard@fedex.com Russell Bailey Jonathan Cohen Air Line Pilots Association, International russell.bailey@alpa.org jonathan.cohen@alpa.org Edward Wytkind President, Transportation Trade s Department, AFL

- CIO edw@ttd.org Thomas S. Engle Kristin Westphal Department of State englets@state.gov westphalkl@state.gov cristinasa@state.gov Paul Gretch Robert Finamore Brian Hedberg Reese Davidson Esta Rosenberg Brett Kruger U.S. Department of Tra nsportation paul.gretch@dot.gov robert.finamore@dot.gov brian.hedberg@dot.gov reese.davidson@dot.gov esta.rosenberg@dot.gov brett.kruger@dot.gov David Berg James Casey Keith Glatz Cecilia Bethke Airlines for America dberg@airlines.org jcasey@airlines.org kglatz@airlines.org ebethke@airlines.org Vegard Einan Vice President Parat vegard.einan@parat.com Chris Lytle Executive Director, Port of Oakland clytle@portoakland.com Kent G. George Director of Aviation Fort Lauderdale

- Hollywood International Airpor t kgeorge@broward.org Mark Richardson President, Southwest Airline Pilots’ Association mrichardson@swapa.org Eugene Alford Air Transport Services eugene.alford@trade.gov Matthew Baldwin Director, Aviation and International Transport Affairs European Comm ission matthew.baldwin@ec.eurpoa.eu
Felix Leinemann First Secretary, Transport felix.leinemann@eeas.europa.eu

### 6

David Batchelor Representative, Single European Sky ATM Research Joint Undertaking david.batchelor@sesarju.eu
Ottar Ostnes Director General, Mi nistry of Transport and Communications ottar.ostnes@sd.dep.no Stephen Shur President, The Travel Technology Association sshur@traveltech.org John Hanlon Secretary General, E u r opean Low Fares Airline Association john.hanlon@E LFAA.co m John J. Fearon Direc tor General of Civil Aviation johnfearon@dttas.ie
Leo Varadkar Minister for Transport, Tourism and Sport minister@dttas.ie Leo Schefer President, Washington Airports Task Force leo@washingtonairports.com Buddy Dyer Mayor, City of Orlando, Florida buddy. dyer@cityoforlando.net
Teresa Jacobs Mayor, Orange County, Florida mayor@ocfl.net Phillip Brown Frank Kruppenbacher Greater Orlando Aviation Authority pbrown@goaa.org fkruppenbacher@goaa.org George Aguel President and CEO, Visit Orlando george.aguel@vis itorlando.com Concerned Citizen for a Fair America ashburnxxx@gmail.com info@airlineinfo.com

### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION WASHINGTON, DC

Application of
NORWEGIAN AIR INTERNATIONAL LIMITED
for an exemption under 49 U.S.C. § 40109 and a foreign air carrier permit pursuant to 49 U.S.C. § 41301 (US-EU Open Skies) ) ) ) ) ) ) ) ) ) ) Docket No. OST-2013-0204

DECLARATION OF ROBERT P. COFFMAN IN SUPPORT OF REPLY OF ALLIED PILOTS ASSOCIATION
I , Robert P. Coffman , do hereby depose and state as follows : 1. I am Chairman of the Government Affairs Committee for the Allied Pilots
Association , which represents the pilots o f American Airlines

. In that capacity , I served

as member of the U.S. Delegation in the negotiation of both the original U.S

. - E

. U. Air Transport Agreement and the current U.S

. -E.U. Air Transport Agreement , concluded in
2010

. 2. As a Labor Representative in the U.S. Delegation , I was directly involved
in the negotiation and drafting of the final form of Article 17 bis of the 20 10 Agreement.
In particular, I participated in the final round of negotiations concerning Article 17 bis , which took place in Madrid , Spain. These Madrid negotiations extended lat e into the night and resulted in a lmo st 24 hours of negotiating. I was present throughout that entire period

. The Madrid negotiations consisted of plenary sessions between the U.S

. and E.U. Delegations , as we ll as separate E.U

. - and U.S

. -on l y break-out sessions. During theMadrid negotiations, the other Labor Representatives and I extensively discussed almost
every word and phrase of Article 17 his with the U.S. government negotiat(lrs , including
those now at issue with respect to the application of Norwegian Air International ( " NAI")
for an exemption and foreign carrier permit. In addition, I observed the U.S. and E.U. government negotiators discuss almost every word and phrase of Aliicle 17 his with eachother, including those now at issue with respect to NAI's applications. Furthermore , towards the end of Madrid negotiations , when we were finalizing the wording and phrasing of Article 17 his , I participated in at le ast one trans-Atlantic phone call with U.S.
Assistant Secretary of Transportation Susan Kurland concerning the protections afforded by Article 17 his.
3. I have read the Comments of Norwegian Air International Limited , and
Joint Declaration of John Byerly and Daniel Calleja, DOT-OST-2013-0204-0153, as well

as the Notice discussing the views ofDG MOVE , DOT-OST-2013-0204-0134 , and they

are not consistent with my recollections or notes regarding the negotiations concerning
Article 17 his.
4. In the course of the negotiations and discussions in Madrid , the Labor Representatives discussed with U.S. government negotiators their concern that Carriers might engage in venue-shopping in order to avoid the social laws and l abor standards of particular Party states. The Labor Representatives further conveyed to the U.S. negotiators their concerns that such venue-shopping wou ld undermine the labor standards
of the respective Parties to the 2010 Agreement. It was in this context that the U.S. and
E.U. negotiators formulated the language of Article 17 bis , with input from stakeholders, including Labor Representatives.

25. Based on the statements of the U.S. and E.U. government negotiators during the Madrid negotiations of Article 17 bis , I understood that Article 17 bis was intended to ensure that the market liberalization benefits sought by the 2010 Agreement
did not come at the expense of the labor standards of the Parties.
6. Furthermore, based on statements of the U.S. and E.U. government negotiators during the Madrid negotiations , I understood that the language of Article 17
bi s was intended to be flexible so that the Parties to the Agreement could apply the social
dimension principles set forth in Paragraph 1 of Article 17 bis in a wide range of
situations.
7. At no time during the Madrid negotiations over Article 17 bis did I hear
any government negotiator express the view that Article 17 bi s was not intended to provide a legal basis for a Party to unilaterally deny a Carrier ' s application for operating authority.
8

. At no time during the Madrid negotiations over Article 17 bis did I hear
any government negotiator express the view that Article 17 bis would be enforceable only through the actions of the Joint Committee.
9. At no time during the Madrid negotiations over Article 17 bi s did I hear
any government negotiator express the view that Article 17 bis was written in broad language , without reference to mandatory or prohibited labor standards or practices , in
order to make unenforceable by the Parties.
10. At no time during the Madrid negotiations over Article 17 bis did I hear
any government negotiator express the view that it would be counter to the letter and the spirit of the 2010 Agreement for a Party to unilaterally deny a Carrier ' s application for

3operating authority pursuant to Article 17 his , where that Carrier had engaged in venueshopping and / or had adopted a business model that would undermine or erode the Party ' s labor standards or social laws.
11. In researching Mr. John B y erly , I discovered what I believe to be a material fact that was not disclosed by Mr. Byerly in his Declaration: Mr. Byerly is a registered lobbyist for Norwegian Air Shuttle. In particular , Mr. Byerly's Lobbying Registration indicates that the specific issues on which he is lobbying include

" Department of Transportation exemption and foreign carrier permit applications ."
12. Mr. Byerly ' s Lobbying Registration , attached as Exhibit A to this Declaration, was retrieved from the U.S. Senate ' s Office of Public Records Website , at:
htt : // so rweb.senate. ovlindex.cfm?event :::: aetFilin Details&filinaID = D 1621BAC
### A2CO-4171-A48J-OAB 1 DAD6DDBC&filin ' rV)CID = J

. . ........................ ....................................... . . g"l
I declare that the foregoing is true and correct to the best of my knowledge and
belief.

# FFMAN

Dated: August 25 , 2014

4

# EXHIBIT A