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What is the impact of the ETS Prohibition Act?

On 27 November 2012, President Obama signed the ETS Prohibition Act into law giving the US Secretary of Transportation the authority to prohibit US aircraft operators from taking part in the scheme. The objective of this FAQ is to clarify some misunderstandings about the impact of the ETS Prohibition Act on US operators subject to the EU ETS regulations.

Paragraph 2 a) and b) of the ETS Prohibition Act states that US operators are prohibited from participating in the EU ETS if the Secretary of Transportation determines the EU ETS to be against the (US) public interest. Since the Secretary of Transportation has not yet taken any action, there is currently no conflict between European and US law, and the Act does not automatically prohibit US operators from complying with the EU ETS.

Now that the European Commission (EC) has proposed to suspend intercontinental flights from the EU ETS for a period of one year, we believe it is highly unlikely that the Secretary of Transportation will ban US operators from participating in the scheme at least until the outcome of the ICAO Assembly taking place in September/October 2013 and the subsequent decision by the EC to either lift or extend the suspension.

Consequently, US operators are still required to comply with the EU ETS regulation in its current and proposed modified form, which means, at least, reporting 2012 emissions for intra-EEA flights and flights between EEA and Switzerland / Croatia by 31 March 2013.

We also remind you that the condition for not reporting intercontinental flights is to either have not received or to have returned the free allowances allocated in 2012 that correspond to the reported 2010 tonne-kilometre data in relation to intercontinental flights. This would be a business decision as it might be financially beneficial for some operators to continue to report intercontinental flights.

» Read ETS Prohibition Act (full text)
» Read ETS Prohibition Act (committee reports)
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