S.I. No. 274/2009 - European Communities (Greenhouse Gas Emissions Trading) (Aviation) Regulations 2009

1. Emissions from aviation activities listed in Schedule 1 shall be subject to verification.

2. The verification process shall include consideration of the report submitted pursuant to Regulation 11 and of monitoring during the preceding year. It shall address the reliability, credibility and accuracy of monitoring systems and the reported data and information relating to emissions, in particular—

a. the reported activity data and related measurements and calculations;

b. the choice and the employment of emission factors;

c. the calculations leading to the determination of the overall emissions; and

d. if measurement is used, the appropriateness of the choice and the employ-ment of measuring methods.

3. Reported emissions may only be validated if reliable and credible data and information allow the emissions to be determined with a high degree of certainty. A high degree of certainty requires the aircraft operator to show that—

a. reported data is free of inconsistencies;

b. the collection of the data has been carried out in accordance with theapplicable scientific standards; and

c. the relevant records of the aircraft used to perform the aviation activitiescovered by the report are complete and consistent.

4. The verifier shall be given access to all sites and information in relation to the subject of the verification.

5. The verifier shall take into account whether the aircraft operator is registered under the Community eco-management and audit scheme (EMAS).

Methodology

Strategic analysis

6. The verification shall be based on a strategic analysis of all the aviation activities covered by the report carried out by the aircraft operator. This requires the verifier to have an overview of all the activities and their significance for emissions.

Process analysis

7. The verification of the information submitted shall, where appropriate, be carried out on the sites used by the aircraft operator to perform the aviation activities covered by the report. The verifier shall use spot-checks to determine the reliability of the reported data and information.

Risk analysis

8. The verifier shall submit all the sources of emissions of the aircraft for which the aircraft operator is responsible to an evaluation with regard to the reliability of the data of each source contributing to the overall emissions of the aircraft.

9. On the basis of this analysis the verifier shall explicitly identify those sources with a high risk of error and other aspects of the monitoring and reporting procedure which are likely to contribute to errors in the determination of the overall emissions. This especially involves the choice of the emission factors and the calculations necessary to determine the level of the emissions from individual sources. Particular attention shall be given to those sources with a high risk of error and the abovementioned aspects of the monitoring procedure.

10. The verifier shall take into consideration any effective risk control methods applied by the aircraft operator with a view to minimising the degree of uncertainty.

Report

11. The verifier shall prepare a report on the validation process stating whether the report pursuant to Regulation 11 is satisfactory. This report shall specify all issues relevant to the work carried out. A statement that the report pursuant to Regulation 11 is satisfactory may be made if, in the opinion of the verifier, the total emissions are not materially misstated.

Minimum competency requirements for the verifier

12. The verifier shall be independent of the aircraft operator, carry out his activities in a sound and objective professional manner, and understand—

a. the provisions of this Directive, as well as relevant standards and guidanceadopted by the Commission pursuant to Article 14(1) of the Directive;

b. the legislative, regulatory, and administrative requirements relevant to theactivities being verified; and

c. the generation of all information related to each source of emissions of theaircraft for which the aircraft operator is responsible, in particular, relatingto the collection, measurement, calculation and reporting of data.

13. The general principles and methodology set out in this Schedule shall apply to the verification of reports of emissions from flights falling within an aviation activity listed in Schedule 1.

Additional provisions for the verification of aviation emission reports

14. The verifier shall in particular ascertain that—

a. all flights falling within an aviation activity listed in Schedule 1 have been taken into account. In this task the verifier shall be assisted by timetable data and other data on the aircraft operator’s traffic including data from Eurocontrol requested by that operator;

b. there is overall consistency between aggregated fuel consumption data and data on fuel purchased or otherwise supplied to the aircraft performing the aviation activity.

Additional provisions for the verification of tonne-kilometre data submitted for the purposes of Regulation 12

15. The general principles and methodology for verifying emissions reports under Regulation 11 as set out in this Schedule, where applicable, also apply correspondingly to the verification of aviation tonne-kilometre data.

16. The verifier shall in particular ascertain that only flights actually performed and falling within an aviation activity listed in Schedule 1 for which the aircraft operator is responsible have been taken into account in that operator’s application under Regulation 12. In this task the verifier shall be assisted by data on the aircraft operator’s traffic including data from Eurocontrol requested by that operator. In addition, the verifier shall ascertain that the payload reported by the aircraft operator corresponds to records on payloads kept by that operator for safety purposes.

Given under my Official Seal,

23 July 2009.

JOHN GORMLEY,

Minister for the Environment, Heritage and Local Government.

EXPLANATORY NOTE

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations provide for the partial transposition of EU Directive 2008/101/EC which extends the EU Emissions Trading Scheme to aviation activities. The Aviation Directive (2008/101/EC) amends the EU Emissions Trading Scheme (ETS) Directive 2003/87/EC. All flights arriving at and departing from EU airports will be included in the ETS from 2012 onwards; there are some exemptions and these are identified in Schedule 1 to these Regulations.

The purpose of these Regulations is to provide for the submission of monitoring plans to the Environmental Protection Agency, which has been designated as the competent authority for the purposes of the Aviation Directive.

The European Commissions Monitoring and Reporting Guidelines for emissions and tonne-kilometre data from aviation activities, adopted pursuant to Article 14(1) of the EU ETS Directive, requires aircraft operators to submit their monitoring plans to the competent authority for approval at least four months prior to the start of the first reporting period. The first reporting year is 2010 in accordance with Article 1(12)(

b

) of the Aviation Directive. As such aircraft operators are required to submit their monitoring plans to the Environmental Protection Agency before the end of August 2009.

1 O.J. No. L8 13.1.2009 p. 3

2 O.J. No. L149 12.6.2009 p. 69

3 O.J. No. L275 25.10.2003 p. 32

4 O.J. No. L229 31.8.2007 p. 1

5 O.J. No. L24 28.1.2009 p. 18

6 O.J. No. L103 23.4.2009 p. 10

7 O.J. No. L257 10.10.1996 p. 26

8 O.J. No. L338 13.11.2004 p. 18

9 O.J. No. L8 13.1.2009 p. 3

10 O.J. No. L240 24.8.1992 p. 1

11 O.J. No. L240 24.8.1992 p.8

17. (1) Where, on application by the Agency to the High Court, the Court is satisfied that an aircraft operator has failed to comply with a direction or a requirement of these Regulations, the Court may by order—

(

a

) direct the person to comply with the direction or requirement, and

(

b

) make such other provision, including provision in relation to the payment of costs, as the Court considers appropriate.

(2) An application for an order under this Regulation shall be by motion, and the High Court, when considering the matter, may make such interim or interlocutory order as it considers appropriate.

(3) An application for an order under this Regulation may be made whether or not there has been a prosecution for an offence under these Regulations in relation to the activity concerned, and shall not prejudice the initiation of a prosecution for an offence under these Regulations in relation to the activity concerned.

Offences

18. (1) A person guilty of an offence under Regulation 6, 9, 11 or 13 shall be liable—

(

a

) on summary conviction to a fine not exceeding €5,000 or imprisonment for a term not exceeding 6 months or both, or

(

b

) on conviction on indictment, to a fine not exceeding €500,000 or to imprisonment for a term not exceeding 3 years or both.

(2) A person who is convicted of an offence under these Regulations shall, on each day on which he or she continues to contravene the Regulations after having been so convicted be guilty of an offence and shall be liable—

(

a

) on summary conviction to a fine not exceeding €1,000, or

(

b

) on conviction on indictment to a fine not exceeding €20,000.

(3) Where a person is convicted of an offence under these Regulations, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Agency the costs and expenses measured by the court, that were incurred by the Agency in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of employees or persons engaged by the Agency.

(4) Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under these Regulations, prosecuted by the Agency, it shall, on the application of the Agency (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the Agency and such payment may be enforced by the Agency, as if it were due to it on foot of a decree or order made by the court in civil proceedings.

(5) Where an offence under these Regulations is committed by a body corporate and is proved to have been so committed with the consent, connivance of or to be attributable to any neglect on the part of a person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person, as well as the body corporate, is guilty of an offence and is liable to be proceeded against and punished as if he or she were guilty of the first mentioned offence.

(6) Summary proceedings for an offence under Regulation 6, 9, 11 or 13, as the case may be, may be brought and prosecuted by the Agency.

Regulation 3

SCHEDULE 1 CATEGORIES OF ACTIVITIES

Activities

Greenhouse gases

AviationFlights which depart from or arrive in an aerodrome situated in the territory of a Member State to which the Treaty applies.The detailed interpretation of these aviation activities, including the exemptions, are set out in the Commissions Interpretation of Aviation Activities.This activity shall not include:(

a

)flights performed exclusively for the transport, on official mission, of a reigning Monarch and his immediate family, Heads of State, Heads of Government and Government Ministers, of a country other than a Member State, where this is substantiated by an appropriate status indicator in the flight plan;(

b

)military flights performed by military aircraft and customs and police flights;(

c

)flights related to search and rescue, firefighting flights, humanitarian flights and emergency medical service flights authorised by the appropriate competent authority;(

d

)any flights performed exclusively under visual flight rules as defined in Annex 2 to the Chicago Convention;(

e

)flights terminating at the aerodrome from which the aircraft has taken off and during which no intermediate landing has been made;(

f

)training flights performed exclusively for the purpose of obtaining a licence, or a rating in the case of cockpit flight crew where this is substantiated by an appropriate remark in the flight plan provided that the flight does not serve for the transport of passengers and/or cargo or for the positioning or ferrying of the aircraft;(

g

)flights performed exclusively for the purpose of scientific research or for the purpose of checking, testing or certifying aircraft or equipment whether airborne or ground-based;(

h

)flights performed by aircraft with a certified maximum take-off mass of less than 5,700 kg;(

i

)flights performed in the framework of public service obligations imposed in accordance with Regulation (EEC) No. 2408/92 11

on routes within outermost regions, as specified in Article 299(2) of the Treaty, or on routes where the capacity offered does not exceed 30,000 seats per year; and(

j

)flights which, but for this point, would fall within this activity, performed by a commercial air transport operator operating either:—fewer than 243 flights per period for three consecutive four-month periods; or—flights with total annual emissions lower than 10,000 tonnes per year.Flights performed exclusively for the transport, on official mission, of a reigning Monarch and his immediate family, Heads of State, Heads of Government and Government Ministers, of a Member State may not be excluded under this point.

Carbon dioxide(CO 2 )

11 O.J. No. L240 24.8.1992 p.8

Regulation 2

SCHEDULE 2 GREENHOUSE GASES

Carbon dioxide (CO2)

Methane (CH4)

Nitrous Oxide (N2O)

Hydrofluorocarbons (HFCs)

Perfluorocarbons (PFCs)

Sulphur Hexafluoride (SF6)

Regulation 6

SCHEDULE 3 PRINCIPLES FOR MONITORING AND REPORTINGREFERRED TO IN REGULATIONS 6, 7, 9, 10, 11 AND 12

Monitoring and reporting of emissions from aviation activities

Monitoring of carbon dioxide emissions

Emissions shall be monitored by calculation. Emissions shall be calculated using the formula

Fuel consumption emission factor

Fuel consumption shall include fuel consumed by the auxiliary power unit. Actual fuel consumption for each flight shall be used wherever possible and shall be calculated using the formula

Amount of fuel contained in aircraft tanks once fuel uplift for the flight is complete — amount of fuel contained in aircraft tanks once fuel uplift for subsequent flight is complete + fuel uplift for that subsequent flight.

If actual fuel consumption data are not available, a standardised tiered method shall be used to estimate fuel consumption data based on best available information.

Default IPCC emission factors, taken from the 2006 IPCC Inventory Guidelines or subsequent updates of these Guidelines, shall be used unless activity-specific emission factors identified by independent accredited laboratories using accepted analytical methods are more accurate. The emission factor for biomass shall be zero.

A separate calculation shall be made for each flight and for each fuel.

Reporting of emissions

Each aircraft operator shall include the following information in its report under Regulation 11

A.

Data identifying the aircraft operator, including

—name of the aircraft operator,

—its administering Member State,

—its address, including postcode and country and, where different, its contact address in the administering Member State,

—the aircraft registration numbers and types of aircraft used in the period covered by the report to perform the aviation activities listed in Schedule 1 for which it is the aircraft operator,

—the number and issuing authority of the air operator certificate and operating licence under which the aviation activities listed in Schedule 1 for which it is the aircraft operator were performed,

—address, telephone, fax and e-mail details for a contact person, and

—name of the aircraft owner.

B.

For each type of fuel for which emissions are calculated

—fuel consumption,

—emission factor,

—total aggregated emissions from all flights performed during the period covered by the report which fall within the aviation activities listed in Schedule 1 for which it is the aircraft operator,

—aggregated emissions from

—all flights performed during the period covered by the report which fall within the aviation activities listed in Schedule 1 for which it is the aircraft operator and which departed from an aerodrome situated in the territory of a Member State and arrived at an aerodrome situated in the territory of the same Member State,

—all other flights performed during the period covered by the report which fall within the aviation activities listed in Schedule 1 for which it is the aircraft operator,

—aggregated emissions from all flights performed during the period covered by the report which fall within the aviation activities listed in Schedule 1 for which it is the aircraft operator and which

—departed from each Member State, and

—arrived in each Member State from a third country,

—uncertainty.

Monitoring of tonne-kilometre data for the purpose of Regulations 10 and 12

For the purpose of applying for an allocation of allowances in accordance with Regulation 12, the amount of aviation activity shall be calculated in tonne-kilometres using the following formula

tonne-kilometres = distance payload

where

“distance” means the great circle distance between the aerodrome of departure and the aerodrome of arrival plus an additional fixed factor of 95 km; and

“payload” means the total mass of freight, mail and passengers carried.

For the purposes of calculating the payload

—the number of passengers shall be the number of persons on-board excluding crew members,

—an aircraft operator may choose to apply either the actual or standard mass for passengers and checked baggage contained in its mass and balance documentation for the relevant flights or a default value of 100 kg for each passenger and his checked baggage.

Reporting of tonne-kilometre data for the purpose of Regulation 12

Each aircraft operator shall include the following information in its application under Regulation 12

A.

Data identifying the aircraft operator, including

—name of the aircraft operator,

—its administering Member State,

—its address, including postcode and country and, where different, its contact address in the administering Member State,

—the aircraft registration numbers and types of aircraft used during the year covered by the application to perform the aviation activities listed in Schedule 1 for which it is the aircraft operator,

—the number and issuing authority of the air operator certificate and operating licence under which the aviation activities listed in Schedule 1 for which it is the aircraft operator were performed,

—address, telephone, fax and e-mail details for a contact person, and

—name of the aircraft owner.

B.

Tonne-kilometre data

—number of flights by aerodrome pair,

—number of passenger-kilometres by aerodrome pair,

—number of tonne-kilometres by aerodrome pair,

—chosen method for calculation of mass for passengers and checked baggage,

—total number of tonne-kilometres for all flights performed during the year to which the report relates falling within the aviation activities listed in Schedule 1 for which it is the aircraft operator.

Regulation 11

SCHEDULE 4 CRITERIA FOR VERIFICATIONREFERRED TO IN REGULATIONS 11 AND 12

Verification of emissions from aviation activities

General Principles

S.I. No. 274 of 2009

EUROPEAN COMMUNITIES (GREENHOUSE GAS EMISSIONS TRADING) (AVIATION) REGULATIONS 2009

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of

24

th July

, 2009.

I, JOHN GORMLEY, Minister for the Environment, Heritage and Local Government, in exercise of the powers conferred on me by

section 3

of the

European Communities Act 1972

(No. 27 of 1972) and for the purpose of giving effect to Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 1

hereby make the following regulations

Citation