1 BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C.

___________________________________________ ______________________ ) Application of ) ) NORWEGIAN AIR INTERNATIONAL LIMITED ) ) Docket DOT
- OST
- 2013
- 0204 For an exemption under 49 U.S.C. § 40109 and a ) foreign air carrier permit pursuant to ) 49 U.S.C. § 41301 ) )

____________

_____________________________________________________ )

REPLY TO THE COMMENTS OF FEDEX BY THE SOUTHWEST AIRLINES PILOTS’ ASSO C I ATION

Communications with respect to this document should be addressed to: Paul Jackson Government Affairs Southwest Airlines Pilots ’ Association 1450 Empire Central Dallas, TX 75247 (800) 969

- 7972 pjackson@swapa.org2 I. INTRODUCTION
The Southwest Airlines Pilots Association (“SWAPA”) is the exclusive b argaining representative for approximately 8 , 0 00 Southwest Airlines pilots . Southwest Airlines is the largest US domestic carrier in terms of daily departures and passengers enplaned. Having reviewed the written summary of request made by the U.S. Government (U.S.) to the Eu ropean Commission’s Directorate General for Mobility and Transport (DG MOVE) to meet to ask for its views on the legal mean ing and applicability of Article 17 bis of the Air Transport Agreement , SWAPA strongly opposes the application of Norwegian Air
International Limited for an exemption under Article 17 of the U.S.

- E.U. Air Transport
A greement , Title 49 U.S.C. §§ 40101(a)(5) and Title 49 U.S.C. 40101 §§ (a)(15). SWAPA bases this rejection on the intent of Norwegian Air International to utilize a flag

- of

convenience regulatory schema not being in the public interest of the Unite d States as is clearly s tated in Title 49 of U.S.C

.

II. ANALYSIS OF THE SUMMARY OF COMMENTS BY EU ROPEAN DELEGATION
A. SWAPA OBJECTS TO THE E.U. ASSERTION THAT AN APPLICATION FOR A FOREIGN CARRIER PERMIT IS TO BE JOINT DECISION
SWAPA finds the intent of the E

. U

. argument that “ The context implies that a "finding" that concerns are "legitimate" can be made only through agreement between the parties and that "responses" cannot be developed unilaterally by one party against the interests of the other party ” is a false statement a nd one that implies that by entering into the agreement the US has surrendered its ability to grant foreign carrier permits to a joint committee function. It is SWAPA’s opinion that the US would not enter into an agreement ,3

nor should it have , that usurps the US right to determine fitness of a carrier by any means other than internal processes which are defined by under Title 49 U.S.C.
B. ARTICLE 17 OF THE U.S.
- E.U. AGREEMENT WAS DRAFTED SPECIFICALLY TO PREVENT THIS TYPE OF FLAG
- OF
- CONVENIENCE STRATEGY
S WAPA believes that even if the E.U. argument of joint oversight of the decision on a carrier’s fitness for a US Foreign Carrier permit were to be held true, their call for implied joint authority of Article 17 decisions is false. The “Social Dimension ” article was added in
2010 , three years after the Air Transport Agreement was originally penned in 2007 , to address the danger of venue shopping to select the most lenient host state(s) for selected regulatory compliance. Although other docket responses ha ve addressed this fact, it bears repeating in our response : a Norwegian

- based carrier operating u nder an Irish operating certificate, crewed by employees hired by a staffing agency based in Singapore, to be based
in Thailand doesn’t pass even a cursor y ex amination of whether it meet s the intent of
international treat ies and regulatory agreements. There is not definitive language in Article 17 to define the consideration of this article as anything other than guidance for a decision of fitness by a sole p arty to the agreement. The E.U. method of tying other section references to the same logic is never stated. Implying it is an arbitrary argument based on no evidence such as notes from the negotiations or language found in Article 17.
C. THE US DECISION ON A FOREIGN CARRIER PERMIT IS BASED SOLELY ON TITLE 49 U.S.C. LANGUAGE AND GUIDANCE SWAPA argues the guidance for the US DOT for the decision on a foreign carrier permit resides not in the language of the joint agreement but in Title 49 o f the U.S.C. While
the E.U. comments can be considered in the application ultimate authority resides with the4

Secretary of Transportation and was never intended to be surrendered to a joint
commission of the E.U. and US.
SWAPA also believes that 49U.S.C . § §41302. Permits of foreign air carriers applies and usurps any attempt by the E.U. for jurisdiction

. The Secretary of Transportation may issue a permit to a person (except a citizen of the United States) authorizing the person to provide foreign air tra nsportation as a foreign air carrier if the Secretary finds that

— (1) the person is fit, willing, and able to provide the foreign air transportation to be authorized by the permit and to comply with this part and regulations of the Secretary; and (2)(A) the person is qualified, and has been designated by the government of its country, to provide the foreign air transportation under an agreement with the United States Government; or (B) the foreign air transportation to be provided under the permit will be in the public interest.

SWAPA believes that this section clearly delineates that the decision to issue a permit is that of the Secretary of Transportation and does not make any reference to a third party such as the joint committee under E.U.

- US treaty. It also reemphasizes that the air transportation provided will be in the “public interest”. Beyond the duty to approve application for Foreign Carrier Permits contained in Title 49 language in 49U.S.C.§ § 41305. Applications for permits (2) (b) is also applicable in SWAPA’s opinion

. (b) Terms.

— The Secretary may impose terms for providing foreign air transportation under the permit that the Secretary finds may be required in the public interest.
SWAPA notes that is well within the right of the Secretary of Transportation to impose terms on an applicant such as Norwegian Air International. SWAPA believes that requiring guidance to Norwegian Air International to comply and be under the jurisdiction5

of the labor laws of its home country is a term that co uld imposed under this guidance to meet the standard of “public interest ” as stated. SWAPA is also specifically concerned that approving the Norwegian Air International application would not meet the “strengthening the competitive position of air
carriers to at least ensure equality with foreign air carriers, including the attainment of the opportunity for air carriers to maintain and increase their profitability in foreign air transportation” stipulation 49U.S.C.§§ 40101(a)(15). SWAPA also believes the lang uage found in 49U.S.C. §§ 40101(a)( 5) is applicable and defines fair wages and working conditions as criteria for an applicant. (5) coordinating transportation by, and improving relations among, air carriers, and encouraging fair wages and working conditio ns. SWAPA argues the “public interest” as referred to multiple times in Title 49 is not served by the granting Norwegian Air International a foreign carrier permit. This is due to
the flag

- of

- convenience regulatory schema that Norwegian Air International has undertaken to avoid Norwegian labor laws and oversight of their home country government of their operation. We also believe that the working conditions under the Norwegian application do not rise to the level of “fair” due to the schema put in place to avoid their home country labor protections.

III . CONCLUSION

The application by Norwegian Air International should be rejected because it does not meet U.S. law, specifically Title 49. Anecdotally as it is not applicable in this decision, Norwegian Air International’s application does not meet the Open Skies treaty6

requirements under Article 17. I f the DOT chooses to ignore Title 49, it runs the very real risk of maintaining even cursor y authority over international flying from within our shores.
The u se of a strategy clearly born from a flag

- of

- convenience regulatory schema
should be rejected with prejudice by the Department of Transportation , unless the Department’s ultimate goal is to acquiesce airline regulatory authority to whatever party they have entered into a treaty or agreement with. In this case the E.U. has no authority over the US decision on the application of Norwegian Air International.CERTIFICATE OF SERVICE
I certify that on this 20th day of August, 2014, the foregoing Comments of Southwest Pilots' Association were served by causing a copy to be sent by electronic mail to the addresses identified below:

rom a now@pillsburylaw .com peter.nelson@pillsburylaw.com steve.morrissey@united.com dan

. weiss@united.com sascha.vanderbellen@delta.com howard.kass@usairways.com robert. wirick@aa .com francis.heil@aa.com michael.whitaker@faa.gov jesse.elliot@faa.gov douglas.schwab@faa.gov nicholas.tsokris@faa.gov john.allen@faa.gov EngleTS@state.gov cristinasa@state.gov Keith@washingtonairports.com sschembs@cwa-union.org john

. hanlon@elfaa

. com dberg@airlines.org

Captain Paul Jackson Southwest Pilots' Association Chairman Governmental Affairs Committee jcasey@airlines.org ejames@jamhoff.com eugene.alford@trade.gov matthew.baldwin@ec

. europa.eu felix.leinemann@eeas.europa.eu david.batchelor@sesarju.eu ottar.ostnes@sd.dep.no pa ul.gretch @dot.gov robert.finamore@dot.gov nssparks@fedex

. com dpdean@jamhoff.com vegard.einan@parat.com thore .selstad

. halvorsen@parat.com minister@dttas.ie emjahan@orange.fr jh@eurocockpit.be kglatz@airlines.org clytle@portoakland.com kgeorge@broward.org