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 foreign 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 Mobility and 

Transport (“DG MOVE”) is correct that Article 17 bis of the Air Transport Agreement 

(“Agreement”) does not afford a Party a unilateral basis for denying an application for operating 

authority. The plain language of Article 17 bis, of course, belies 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 Parties 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 Joint Committee,” is prefaced by the word “including,” 

which makes clear that resort to the Joint Committee is simply one option available to the 

Parties. 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 maximize benefits for labor, as well as for 

consumers and airlines. See Agreement at 4 (describing the goals of the Agreement as “opening 

access to markets and maximising benefits for consumers, airlines, labour, and communities on 

both sides of the Atlantic.”) (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 affirm 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 that 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. 

Furthermore, as demonstrated by the attached Declaration of Robert P. Coffman, Mr. 

Byerly’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 negotiating 

sessions, or in the U.S.-only breakout 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 input 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 government negotiators and stakeholders extensively discussed 

“almost every word and phrase of Article 17 bis” over an almost 24-hour period prior to reaching 

agreement, id. at ¶ 2, underscores that no party should now be allowed to supplement the plain 
3

language 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’ flexibility 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

ejames@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 Reply by 

causing a copy to be sent by electronic mail to the addresses identified below:

Josh Romanow 

Peter Nelson 

Counsel for Norwegian Air International 

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 Government 

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@eurocockpit.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. Sparks

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 Trades 

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 Transportation

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 

Airport

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 Commission

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, Ministry of Transport and 

Communications

ottar.ostnes@sd.dep.no

Stephen Shur

President, The Travel Technology 

Association

sshur@traveltech.org

John Hanlon

Secretary General, European Low Fares 

Airline Association

john.hanlon@ELFAA.comJohn J. Fearon

Director 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@visitorlando.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 of 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 2010 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 late into the 

night and resulted in almost 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 well as separate E.U.- and U.S.-only break-out sessions. During the 
Madrid 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 least 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 labor standards of 

particular Party states. The Labor Representatives further conveyed to the U.S. 

negotiators their concerns that such venue-shopping would 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. 

2 
5. 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 

bis 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 bis 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 bis 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 

3 
operating 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 Byerly, 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 1621BACA2CO-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