### U.S. EPA Response to OMB EO12866 Interagency Review Comments on “interagency comments aircraft NOx rule 04142011.docx”

This respond s to the interagency comments on the draft notice of proposed rulemaking for aircraft engine emission standards that were provided to us on April 14, 2011 . We agree with many of the comments and have incorporated them either directly or with some modification as reflected in the attached redline/strikeout version of the revised draft preamble and regulations. However, there are a number of areas where we disagree with the substance of the comments. Specifically, there are five outstanding issues. For convenience, we have summarized the

comments on each issue and provided our response in the remainder of this document

.
Exemptions from the Proposed Tier 6 NOx Standard Production Cutoff

Comment : The FAA disagrees with the adoption of a limit that substantively differs from what the FAA agreed to at ICAO as guidance. The FAA believes that EPA’s argument that the more

rest rictive limit is somehow better is seriously undercut by EPA’s own admission that they do not expect the situation to occur and that there may be special circumstances that allow the limit
to be exceeded. FAA states that a reference to ICAO guidance as a b asis provides for our proposal is all of the flexibility needed in the United States without specifying meaningless regulatory limits that the agencies can ignore. Further, FAA states that if the ICAO guidance changes, we will not be locked into a compari son of provisions as needed

. Finally, FAA further states that they would not be able to justify the proposed limit of 75 per type certificate holder so as to adopt it into their standards.

Response : We would like to respond to the concerns raised by FAA through the points below.

EPA agreed to the draft ICAO ETM language in August 2009 knowing that time had run out for further debate on the exemption limits for the CAEP/6 (Tier 6) NOx production

cut

- off for engines used on new aircraft. Time was needed f or the CAEP Certification Task Group (CTG) to draft its report and ETM guidance language for the meeting of the CAEP Steering Group in October 2009. At that time, we made it clear to the parties involved in the CTG, including the FAA, that we thought that the value of 75 per type
certificate in the draft ETM guidance was inappropriate and that we would continue to work the issue post CAEP/8 as we prepared our proposed rulemaking to adopt the NOx standards and related provisions. As discussed below, we also did so knowing that the ETM is indeed guidance, and that we could propose to adopt a different value based on our additional efforts, if justified.

Duri ng subsequent deliberations as more information became available it became apparent to us that incomplete information to the CTG regarding the potential need for exemptions was leading to a focus on an unnecessarily large value. As summarized in the pream ble, when discussions first began in the CTG there were reportedly up to twentymodels/sub

- models that may have been affected by the CAEP/6 (Tier 6) NOx production

cut

- off. By the time we completed our consultations for this draft NPRM the number was
down to only one or two models potentially needing exemptions each for a number much less than 75. Thus, in our judgment, the ETM limit of 75 per type certificate is an unnecessary loophole that potentially could be used to inappropriately exempt a large
numb er of engines for new production aircraft. It is worth noting that FAA technical staff participated in the consultations with the manufacturers and were aware of the responses we received to our questions on the exemption level and the manufacturers’

pers pectives on the need for 75 per type certificate. We also held separate conversations
with FAA technical staff on this issue.

Regarding the FAA’s comment about uniformity with the ETM, we do not believe we are compelled nor is it wise to be consistent wi th ICAO guidance just for the sake of consistency itself , especially when there are compelling reasons to propose a different approach. Even the Chicago Convention (the basis of ICAO) allows nations to adopt their own unique standards that differ from the language in Annex 16.

In addition WTO’s Technical Barriers to Trade Agreement , Annex 3: “Code of good practice for the preparation, adoption, and application of standards”, paragraph F. states :

“Where international standards exist or their completion is imminent, the standardizing body shall use them, or the relevant parts of them, as a basis for the standards it develops, except where such international standards or relevant parts would be ineffective or inappropriate, for instance, because of an insuff icient level of protection or fundamental climatic or geographical factors or fundamental technological problems.”

While ICAO’s ETM is only guidance and does not constitute a technical regulation or standard by the World Trade Organization’s definitions (S ee WTO’s Technical Barriers to Trade Agreement, Annex 1: Terms and their definitions for the purpose of this Agreement), we still assert that the ETM in this case is ineffective because of its insufficient level of protection against the potential for exce ssive exempti ons. For example, if one calculates the hypothetical maximum for exemptions under ICAO’ s ETM provision of 75 exemptions per type certificate , one sees that this maximum exceeds industry’s projected production of all engines by nearly a factor of two. While such a situation may not fully occur, c learly, this provision offers an insufficient level of protection relative to the proposed Tier 6 production cutoff

. Furthermore, even though
we believe we have shown that a difference is justifiable, the WTO’s TBT agreement states that the burden of proof is upon the complainant regarding any claim that a difference from an international technical regulation or standard is inconsistent with the TBT provisions. (See WTO Website on Interpretation of Art icle 2.4).Based on this , there can be no doubt that a difference from ETM guidance is within the

accepted boundaries of the Convention and the WTO’s TBT Agreement . As described above we think we have a good policy reason to be different. Furthermore, u nlike the ETM limit, a different approach could respond directly to the potential needs of the engine manufacturers. The numerical value we identified is based on discussions with the engine manufacturers affected by the proposed Tier 6 standards, and the y agreed that
it was reasonable for Tier 6. In fact, this approach was suggested by one of the manufacturers. In other EPA mobile source rules we have provisions for hardship exemptions for unusual circumstances. These exemptions are crafted carefully to meet a justified ne ed but not to be unnecessarily generous. We are concerned that specifically identifying an exemption provision that is too generous could create an expectation that potential future exemption provisions wil l be equally generous even if not warranted by
da ta or policy considerations.

FAA asserts that our provision including a regulatory flexibility that would allow for additional exemptions in unusual circumstances undercuts our position with regard to the appropriateness of 75 per type certificate holder . However, we strongly disagree. It has been our experience that such regulatory flexibility is invaluable in providing EPA provisions to address unexpected circumstances and developments. This was also suggested by the engine manufacturers.

We must di sagree with the FAA concern that an inconsistency now would lock us into a comparison of provisions if ICAO guidance changes in the future. Even if the exemption provisions were consistent now as suggested by FAA , good public policy would
necessitate a cr itical review any time ICAO provisions changed in the future. Thus we
see no real basis for a concern here.

We also note that in general the exemption provision has no cost associated with it for the government or industry and there is no cost savings under either approach. It is designed to provide manufacturers with an opportunity to reduce costs or adverse economic effects should the need for exemptions arise.

Finally, t he assertion by FAA that they could not adopt a regulatory provision that differs
from the ETM in their regulations is troubling . That would be an interagency review and notice/comment issue for their later rule proposing changes to 14 CFR 34. While we would hope that FAA would propose and adopt this limit, we do not believe that they need a separate justification to develop implementing regulations under section 232 of the Clean Air Act to enforce emission standards EPA adopts under section 2 31 of the Clean
Air Act.EPA does not feel bound to follow ETM guidance in these circumstances. We are continuing to

deliberate on an improved approach for an appropriate regulatory provision that is responsive to
the identified need but do es not include the potential for excessive exemptions contained in the current ETM exemption provision

.

Comment : Replace “exemption” with “exception” in the context of exemptions for spare engines.

Response : We do not understand the FAA’s insistence to substitute “exc eption” for “exemption” with regard to spare engines. First, doing so is inconsistent with language in the ICAO guidance and is therefore potentially confusing to the regulated community. Second, FAA’s distinction between spare and new engines seems to b e based on a process difference (no need for a pre

- approval for spare engines) not on a program difference (the fact that the regulations would allow spares exemption from proposed Tier 6 requirements as needed). However, even for spares there is an impli ed approval in our regulatory process consistent with the ICAO guidance and the need for recordkeeping and reporting to EPA. In our view such a wording change is not needed or helpful.

Foreign Aircraft and Exemptions

Comment : The FAA recommends removing most of the discussion on exemptions for foreign aircraft because they deem it to be confusing and in their judgment contains presumed conclusions about U.S. decisions based on the decisions of foreign certificating authorities. They
also stated that it i s not feasible or likely that approvals will be processed among all authorities
worldwide.

Response : The purpose of this text is to lay out how the U.S. government would coordinate with other certificating authorities with regard to exemption requests and our view on how we would handle requests from airlines for U.S. airworthiness certificates when the original exemption was granted by an authority which did not coordinate with us.

The number of exemptions covered in any one request is intended to apply toward a world

- wide total limit of 75. We believe it provides a helpful explanation of the U.S.’ intent with respect to international coordination and is consistent with our understanding of the manner in which this provision of the ETM is to be implement ed. We believe this language is helpful to engine manufacturers and even necessary because concerns have been expressed that different treatment by the four certificating authorities (without coordination) could create competitive imbalances
for manufactu rers. This text also explains how the proposed regulations would address exemptions for foreign aircraft (aircraft certificated by another authority). It is consistent with our understanding of FAA certification practice and the intent of the ETM. While the preambletext can be clarified, we disagree that these discussions should be removed. The revised

preamble text is provided below:

iv. Coordination of Exemption Requests

The limit on the number of potentially exempt engines as described in the ETM i s intended to apply to overall worldwide production. Toward that end, the ETM envisions collaboration and consultation among certificating authorities and member states whenever any authority receives an exemption request. Specifically, the ETM states:

“ Exemptions for new engines should be processed and approved by the competent authorities for both the manufacture of the exempted engines and the initial operator of the aircraft to which they are to be fitted. Given the international nature of the aviati on enterprise, civil aviation authorities of member states should attempt to collaborate and consult on the details of exemptions. In the case where engine type certification is done through a reciprocity agreement between or among member states, the stat es involved should coordinate on the processing of exemptions and concur before approval is granted.” 1

Working with the FAA, we would fully expect to conduct such collaboration and consultation among the competent authorities whenever we receive an exempt ion request. This would include consultation with other certificating authorities as well as coordination with the competent civil aviation authority of any country where the aircraft with the exempted engines will be registered.

To facilitate this consu ltation and coordination we are proposing that manufacturers also include in their requests a list of countries in which the aircraft are expected to be registered. While not specifically listed in the ETM, we believe that this information is consistent w ith the ETM as it would be necessary to ensure proper coordination. The ETM appears to presume that each member country will recognize exemptions granted by other countries. This presumption seems reasonable assuming that the exemption being granted is c onsistent with the guidelines of the ETM and that the collaboration, consultation and coordination called for in the ETM was conducted in good faith. However, there should be no presumption that EPA would agree to an exemption for an engine model if the a forementioned collaboration, consultation, and coordination were not conducted. The Clean Air Act (which provides EPA with its authority to establish emission standards) includes no provisions that would allow any foreign country to exempt subject aircr aft engines, over the objection of FAA and EPA, from the applicable standards EPA promulgates. Nevertheless, since our proposed exemptions provisions are

1 ICAO, “Committee on Aviation Environmental Protection (CAEP), Eighth Meeting, Montreal, 1 to 12 February 2010,” CAEP/8

- WP/80, Agenda Item 2: Review of Technical Proposals Relating to A ircraft Emissions, April 2, 2010. A copy of this document is in docket n umber EPA

- HQ

- OAR

- 2010

- 0687.consistent with the procedures called for in the ETM, assuming appropriate consultation and

coordinat ion in accordance with the ETM, we would not expect FAA and EPA to object to exemptions for engines properly exempted by other countries under those procedures. The FAA
would still need to take the certification action as called out in 14CFR 91.203 and 14 CFR
21.183.

This, however, raises the question as to how we would respond to an exemption request when another certificating authority did not consult or coordinate on a previous request for the same engine model. For example, it could well be problemat ic if a manufacturer was seeking 75 exemptions from more than one certificating authority. A related concern arises if a type certificate is sought under a reciprocity agreement and the original exemption was not
coordinated with the United States. Such requests would likely be viewed as new exemption requests if the anticipated collaboration, consultation, and coordination had not occurred.

Thus to avoid these issues, in most cases, manufacturers should be working with all relevant certificating au thorities at the same time as well as the civil aviation authority of nation(s) where the aircraft will be initially registered or operated if that nation requires a type certificate issued under its own regulations to operate in its air space consistent w ith international
agreements.

Emission Inventories

Comment : FAA commented that the previous version of the preamble included other source data for comparative purposes. FAA supported that data being included, and requested more detail to properly characterize aviation’s contribution to the total NOx emissions i nventory. The percent contribution of aviation should be included here to disclose to the public the extent of aviation emissions impact. This is important context for the public to be able to adequately address EPA’s question later on about additional c ontrol measures that might be necessary. Specifically, FAA added a sentence that according to the EPA National Emissions Inventory for 2008, the contribution of commercial aviation NOx emissions is less than 1% of the total inventory for the United States

.
Response : In response to FAA’s desire for more emission inventory information, we accept their addition regarding aviation’s contribution to the total U.S. NOx inventory from landing and takeoff operations. However, that statistic by itself presents a misleading picture of aviation’s
contribution in ozone non

- attainment areas, which allows a better characterization of potential health and welfare effects. Therefore, we will correct that imbalance by adding comparisons for those areas. Additionally f or completeness, we are adding information on the contribution of full flight emissions to the total U.S. NOx inventory.

The revised preamble text is provided below:

A. Inventory ContributionIn contrast to all other mobile sources, whose emissions occur completely at ground

level, the emissions from aircraft and aircraft engines can be divided into two flight regimes. The first regime includes the emissions that are released in the lower layer of the atmosphere and directly affect local and regiona l ambient air quality. These emissions generally occur at or below 3,000 feet above ground level, i.e., during the landing and takeoff (LTO) cycle. The aircraft operations that comprise an LTO cycle are: engine idle at the terminal gate (and
sometimes du ring ground delays while holding for the active runway); taxiing between the terminal and the runway; take

- off; climb

- out; and approach to the airport. The second regime includes emissions that occur above 3,000 feet above ground level, known as non

- LTO

e missions. Collectively, the emissions associated with all ground and flight operations are generally referred to as full flight emissions.

The aircraft engine NOx emission inventories for the LTO and non

- LTO flight regimes
described above are discussed s eparately in the following sections.

1. Landing and Takeoff Emissions

In this section, we will discuss NO X emission inventories for commercial turbine

- engine aircraft, both nationally and for selected ozone nonattainment areas (NAAs). These inventories reflect emissions during the landing and takeoff cycle only. The most recent comprehensive analysis of historical and current LTO emissions from aircraft engines comes from a study undertaken for us by Eastern Research Group (ERG). 2 The study analyzed t he national emissions of commercial aircraft operations in the United States, and showed that in the most recent year studied (2008), such aircraft operations contributed about 97 thousand tons to the
national NO X inventory. A summary of the national inve ntory of LTO NO X emissions is shown in Table 1. When these nationwide LTO emissions are compared to the total U.S. mobile source inventory for 2009, they account for less than one percent of the total. However, such a comparison may be a bit misleading, a s it only includes those aircraft emissions that occur below 3000 feet altitude, while comparing them to the entirety of other mobile source emissions. In the U.S., LTO emissions account for only about ten percent of full flight NO X emissions. When
consi dering full flight aircraft emissions (i.e., including both LTO and non

- LTO emissions), the
contribution of aircraft to the total mobile source NO X inventory is approximately 7.7 percent. 3

Table 1: Current National NO X Emissions from Commercial Aircraft

Ai rcraft Category 2008 Total NO X (thousand tons)
Air Carrier 86
Commuter/Air Taxi 11
Total Commercial 97

2 “Historical Assessment of Aircraft Landing and Take

- off Emissions (1986

- 2008),” Eastern Research Group, May XX, 2011. A copy of this document can be fo und in public docket EPA

- HQ

- OAR

- 2010

- 0687.

3 “Comparison of Aircraft LTO and Full Flight NO X Emissions to Total Mobile Source NO X Emissions,” memorandum from John Mueller, U.S. EPA, to docket EPA

- HQ

- OAR

- 2010

- 0687, May XX, 2011.In addition, it is important to assess the contribution of commercial aircraft LTO NO X

emissions on a local level, especially in areas containing or adjacent to airports. The historical analysis conducted by ERG also included an assessment of selected ozone nonattainment areas (NAAs). The top 25 ozone NAAs were identified based first in t erms of NAAs with airports which had high commercial traffic volumes and then those with the largest population. There was some overlap, and this led to a total of 41 NAAs for the study. These 41 NAAs collectively include 200 airports, accounting for abo ut 70 percent of commercial air traffic operations. Current (2008) and projected (2020) NO X emissions for these 41 NAAs, as well as the percent contribution of aircraft to total mobile source inventories (as compared to 2005 and 2020 mobile
source invento ries), are shown in Table 2. 4 The relative contribution of aircraft in any given
NAA varies based on activity in other transportation and industrial sectors. As can be seen from this table, expected growth in aircraft operations in many of these areas co mbined with anticipated reductions in NO X emissions from other mobile source categories results in the growth of the relative contribution of aircraft LTO emissions to mobile source NO X emissions in
NAAs.

Table 2 : Current NO X Emissions in Selected Ozone Nonattainment Areas

Nonattainment Area 2008 Total NO X (tons) 2008 Aircraft Percent of Mobile Source NO X 2020 Aircraft Percent of Mobile Source NO X Albuquerque, NM 380 1.6 4.3 Anchorage, AK 2,538 23. 4 49.3 Aspen 16 2.0 6.6 Atlanta, GA 5,808 2.6 8.2 Baltimore, MD 1,148 1.3 4. 4 Boston including MA and NH NAAs 2,131 1.0 2. 7 Charlotte

- Gastonia

- Rock Hill, NC

- SC 1,917 2.6 10.0 Chicago

- Gary

- Lake County,
IL

- IN 6,007 1.8 5.0
Cincinnati

- Hamilton, OH

- KY

IN 1,287 1.5 3.3
Cleveland

- Akron

- Lorain, OH 680 0. 5 1. 3
Dallas

- Fort Worth, TX 3,880 1.7 6.9
Denver

- Boulder

- Greeley

- Fort Collins

- Loveland, CO 2,649 2.5 7.1 Detroit

- Ann Arbor, MI 2,312 1.1 3.0 El Paso, TX 223 0.9 1.1 Greater Connecticut, CT 405 0.8 2.4
Houston

- Galveston

- Brazoria,
TX 3,045 1.3 3. 4 Indianapolis, IN 1,089 1.4 3.0 Las Vegas, NV 2,308 6.0 15.8 Los Angeles South Coast Air Basin, CA 6,479 1. 5 4. 5 Louisville, KY

- IN 1211 1.9 6.2 Memphis, TN

- AR 2,988 6.3 16.8
Milwaukee

- Racine, WI 557 0.9 3.2 Minneapolis

- St Paul, MN 2,154 1.0 5.1
New York

- N. New Jersey

- 10,093 2.3 6. 3

4 “Relative Contribution of Aircraft to Total Mobile Source NO X Emissions in Selected Ozone Nonattainment Areas,” memorandum from John Mueller, U.S. EPA, to docket EOA

- HQ

- OAR

- 2010

- 0687, MayXX, 2011.Long Island, NY

- NJ

- CT

Philadelphia

- Wilmington

Atlantic City, PA

- NY

- MD

- DE 2,308 1.0 2.8 Phoenix

- Mesa, AZ 2,298 1.4 3.3 Pittsburgh

- Beaver Valley, PA 480 0.5 1.1
Providence (entire State), RI 232 1.0 2. 3 Raleigh

- Durham

- Chapel Hill, NC 565 1.0 3.2 Reno, NV 246 1.9 4.4 Riverside County (Coachella Valley), CA 70 0.2 0.5 Sacramento Metro, CA 603 1.0 2.0 Salt Lake City, UT 1,235 4.4 14.1 San Diego, CA 1,035 1.4 3. 4
San Francisco Bay Area, CA 4,405 2. 7 6. 7 San Joaquin Valley, CA 74 0.0 0.1
Seattle

- Tacoma, WA 1,958 1. 4 3.9 St. Louis, MO

- IL 810 0.6 1.6 Syracuse, NY 139 0.8 1.9 Washington, DC

- MD

- VA 2,983 2.0 6. 2

Table 3 shows how commercial aircraft operations are projected to rise in the future on a nationwide basis. As operations increase, the inventory impact of these aircraft on national and
local NO X inventories will also increase, as was seen in Table 2.

Table 3 : Current and Projected Commercial Aircraft Operations

Year Air Carrier Operations (millions) Commuter/

Air Taxi Operations (millions) Total Commercial

Operations (millions) Total increase in

commercial operations over 2008 (percent)
2008 14.1 13.8 27.9

-- 2020 16.5 14.1 30.5 9
2030 20.6 16.0 36.6 31

Source: December 2010 FAA TAF, which is located at http://aspm.faa.gov/main/taf.asp

.

Derivative Engines

Comment : The FAA commented that it does not have a description of the certification process for distinguishing derivatives, and suggested a revised definition and related edits to resolve their concerns. The FAA also struck text allowing it to approve derivatives on the basis of safety alone, and suggested other editorial revisions.

Response : We agree with FAA’s suggestion that the regulations should use a new term “derivative engine for emission certification purposes”.

We believe FAA’s request to strike the text related to safety was based on a misreading of the provision as a necessary con dition for derivatives. However, the provision actually treats safety concerns as a sufficient rationale for modifying engine models, without regard to whether the modified engines meet the emission criteria.We made some of the editorial suggestions. Ho wever, we did not make those that were incorrect

or incompatible with keeping the safety

- related provision. For example, we did not incorporate the following changes:

(a) General. A type certificate holder may request from the FAA a determination that an engine model is considered a derivative engine for emissions certification purposes. This would mean that the engine model is determined to be similar in design for t he purposes
of smoke and exhaust emissions evaluations. In order to be considered a derivative engine for emissions purposes under this part, it must have been: [Note: Should be gaseous and smoke rather than smoke and exhaust since smoke is an exhaust em ission]

(a)(1) Derived from an engine certificated to the requirements of 14 CFR part 33 and this part; and [Note: This incorrectly replaces safety language]

(a)(2) Demonstrate that it meets the emissions criteria specified in paragraph (b) of this
sectio n. The criteria specified in paragraph (b) of this section may be adjusted by the
FAA based on unusual circumstances when the type certificate holder has made
determinations consistent with good engineering judgment. [Note: FAA makes the
determinations r

ather than the type certificate holder]

(b) (2) If the characteristic level of the originally certificated engine before modification is at or above 95% of the applicable standard for any pollutant, the type certificate holder must measure the proposed der ivative for all pollutants to demonstrate that the derivative engine’s resulting characteristic levels will not exceed the applicable emission standards. If the characteristic level of the originally certificated engine before modification is
below 95% of the applicable standard for any pollutant , then consistent with good engineering judgment, the type certificate holder may use engineering analysis to demonstrate that the derivative engine will not exceed the applicable emission standards. [Note: Emissi ons must be below 95% of the applicable standard for ALL pollutants]

Paragraphs (a) and (b) now read as follows:

(a) General . A type certificate holder may request from the FAA a determination that an engine model is considered a derivative engine for emi ssions certification purposes .This would mean that the engine model is determined to be similar in design to a previously certificated engine(the “original” or “parent” engine) for purposes of compliance with exhaust emission standards (gaseous and smok e). In order for the engine model to be considered a derivative engine for emission purposes under this part, it must have been derived from an original engine that was certificated to the requirements of 14 CFR part 33, and one of the following condition s must be met:(1) The modifications to the engine were necessary for both improved safety and continued

airworthiness, as determined by FAA.

(2) Emissions from the derivative engines are determined to be similar. In general, this
means the emissions must meet the criteria specified in paragraph (b) of this section. FAA may adjust these criteria in unusual circumstances, consistent with good engineering judgment.

(b) Emissions similarity . The type certificate holder must demonstrate that the proposed
der ivative engine model’s emissions meet the applicable standards and differ from the original model’s emission rates only within the following ranges:

(1) The difference between emission rates of a derivative engine and the original engine
should be within the following allowable ranges:

(i) ± 3.0 g/kN for NOx.

(ii) ± 1.0 g/kN for HC.

(iii) ± 5.0 g/kN for CO.

(iv) ± 2.0 SN for smoke.

(2) If the characteristic level of the original certificated engine model (or any other sub

- models within the emission type certificate family tested for certification) before modification is at or above 95% of the applicable standard for any pollutant, you must measure the proposed derivative engine model’s emissions for all pollutants to demonstrate that the derivative engine ’s resulting characteristic levels will not exceed the applicable emission standards. If the characteristic levels of the originally certificated engine model (and all other sub

- models within the emission type certificate family tested for certification) are below 95% of the applicable standard for each pollutant, then consistent with good engineering judgment, you may use engineering analysis to demonstrate that the derivative engine will not exceed the applicable emission standards. The engineering anal ysis must address all modifications from the original engine, including those approved for previous derivative engines.

Incorporation the ICAO Annex 16 by Reference

Comment : The FAA does not believe that it is legally permissible to incorporate basic stan dards by reference to a foreign document. Such an attempt fails as legal notice of the proposed standard and does not give regulated entities access to the standards with which they must comply without resort to purchasing a document from a foreign entity (in this case ICAO). We confirmed this position of the Federal Register with their counsel in March 2011.If the FAA were adopting parts of the ICAO Appendices, we would do so by repeating those

provisions into our regulations as we would be required to do. We have not rewritten the standards into EPA’s regulatory text as U.S. regulations.

Response : We bel ieve that the FAA is wrong about the legality and permissibility of incorporating the ICAO Annex 16 by reference into the applicable regulations, and may have misunderstood the Federal Register counsel’s response to their inquiry. In the attached email

re cord (see Appendix) , the Director of Legal Affairs and Policy at the Office of the Federal Register (OF R ) is in full agreement with incorporating the copyrighted annex appendices by reference. In fact, it is the only approach that conforms to OF R ’s requir ements.

We recommend that the FAA seek guidance on repeating parts of the copyrighted ICAO annex in its regulations. Our understanding is that such an approach would conflict with OFR’s requirements and is therefore impermissible.

Regarding FAA’s comm ent on public availability, OFR requires that a copy of the IBR reference
be maintained and publically available by the incorporator ( in this case EPA ) . We will do this by placing the annex appendices in the public docket for the rulemaking. Our webpage that announces the publication of the proposed rule will clearly explain that we have incorporated the annex material by reference in the regulations

, and that a copy of the appendices are publically available in the rulemaking docket. Finally, OFR also r etains a copy of the material.APPENDIX

Documentation Approving Use of IBR for the Aircraft Engine Emission Standards NPRM from the Office of the Federal Register

From: "Bunk, Amy" <abunk@gpo.gov> To: Alan Stout/AA/USEPA/US@EPA Cc: "Vincent, Miriam" <mvincent@gpo.gov> Date: 04/20/2011 04:13 PM Subject: RE: Aircraft IBR

Alan,

Thank you for providing the draft proposed rule and the standards EPA wishes to incorporate by reference when this proposal becomes a final rule. The International Civil Aviation Organization (ICAO) Annex 16 and appendices provided qualify for incorporation by reference under our regulations at 1 CFR part 51. Please let us know if you have any further questions or want us to pre

- review a draft of the f inal rule. You can find drafting guidance in our Document Drafting Handbook Chapter 6.

Amy Bunk Director of Legal Affairs and Policy Office of the Federal Register work: 202

- 741

- 6025 Blackberry: 202

- 271

- 8041