[Federal Register Volume 80, Number 213 (Wednesday, November 4, 2015)]
[Proposed Rules]
[Pages 68289-68290]
[FR Doc No: 2015-28102]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 180

[EPA-HQ-OPP-2015-0032; FRL-9936-13]

Receipt of Several Pesticide Petitions Filed for Residues of
Pesticide Chemicals in or on Various Commodities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of filing of petitions and request for comment.

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SUMMARY: This document announces the Agency's receipt of several
initial filings of pesticide petitions requesting the establishment or
modification of regulations for residues of pesticide chemicals in or
on various commodities.

DATES: Comments must be received on or before December 4, 2015.

ADDRESSES: Submit your comments, identified by docket identification
(ID) number and the pesticide petition number (PP) of interest as shown
in the body of this document, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments. Do not submit
electronically any information you consider to be Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute.
     Mail: OPP Docket, Environmental Protection Agency Docket
Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC
20460-0001.
     Hand Delivery: To make special arrangements for hand
delivery or delivery of boxed information, please follow the
instructions at http://www.epa.gov/dockets/contacts.html.
    Additional instructions on commenting or visiting the docket, along
with more information about dockets generally, is available at http://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Susan Lewis, Registration Division
(RD) (7505P), main telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>The mailing address for each contact person is:
Office of Pesticide Programs, Environmental Protection Agency, 1200
Pennsylvania Ave. NW., Washington, DC 20460-0001. As part of the
mailing address, include the contact person's name, division, and mail
code. The division to contact is listed at the end of each pesticide
petition summary.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    You may be potentially affected by this action if you are an
agricultural producer, food manufacturer, or pesticide manufacturer.
The following list of North American Industrial Classification System
(NAICS) codes is not intended to be exhaustive, but rather provides a
guide to help readers determine whether this document applies to them.
Potentially affected entities may include:
    [emsp14]Crop production (NAICS code 111).
    [emsp14]Animal production (NAICS code 112).
    [emsp14]Food manufacturing (NAICS code 311).
    [emsp14]Pesticide manufacturing (NAICS code 32532).
    If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed under FOR
FURTHER INFORMATION CONTACT for the division listed at the end of the
pesticide petition summary of interest.

B. What should I consider as i prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
    2. Tips for preparing your comments. When preparing and submitting
your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.
    3. Environmental justice. EPA seeks to achieve environmental
justice, the fair treatment and meaningful involvement

of any group, including minority and/or low-income populations, in the
development, implementation, and enforcement of environmental laws,
regulations, and policies. To help address potential environmental
justice issues, the Agency seeks information on any groups or segments
of the population who, as a result of their location, cultural
practices, or other factors, may have atypical or disproportionately
high and adverse human health impacts or environmental effects from
exposure to the pesticides discussed in this document, compared to the
general population.

II. What action is the agency taking?

    EPA is announcing its receipt of several pesticide petitions filed
under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA),
21 U.S.C. 346a, requesting the establishment or modification of
regulations in 40 CFR part 180 for residues of pesticide chemicals in
or on various food commodities. The Agency is taking public comment on
the requests before responding to the petitioners. EPA is not proposing
any particular action at this time. EPA has determined that the
pesticide petitions described in this document contain the data or
information prescribed in FFDCA section 408(d)(2), 21 U.S.C.
346a(d)(2); however, EPA has not fully evaluated the sufficiency of the
submitted data at this time or whether the data support granting of the
pesticide petitions. After considering the public comments, EPA intends
to evaluate whether and what action may be warranted. Additional data
may be needed before EPA can make a final determination on these
pesticide petitions.
    Pursuant to 40 CFR 180.7(f), a summary of each of the petitions
that are the subject of this document, prepared by the petitioner, is
included in a docket EPA has created for each rulemaking. The docket
for each of the petitions is available at http://www.regulations.gov.
    As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA
is publishing notice of the petition so that the public has an
opportunity to comment on this request for the establishment or
modification of regulations for residues of pesticides in or on food
commodities. Further information on the petition may be obtained
through the petition summary referenced in this unit.

New Tolerance

    1. PP 3E8203. (EPA-HQ-OPP-2013-0730). Interregional Research
Project Number 4 (IR-4), 500 College Road East, Suite 201 W.,
Princeton, NJ 08540, requests to amend petition, PP 3E8203, that
originally published in the Federal Register of December 30, 2013 (78
FR 79359), to establish a tolerance in 40 CFR part 180 for the combined
residues of the insecticide spinetoram, expressed as a combination of
XDE-175-J: 1-H-as-indaceno[3,2-d]oxacyclododecin-7,15-dione, 2-[(6-
deoxy-3-O-ethyl-2,4-di-O-methyl-a-L-mannopyranosyl)oxy]-13-
[[(2R,5S,6R)-5-(dimethylamino)tetrahydro-6-methyl-2H-pyran-2-yl] oxy]-
9-ethyl-2,3,3a,4,5,5a,5b,6,9,10,11,12,13,14,16a,16b-hexadecahydro 14-
methyl- (2R,3aR,5aR,5bS,9S,13S, 14R,16aS,16bR); XDE-175-L: 1H-as-
indaceno[3,2-d]oxacyclododecin-7,15-dione, 2-[(6-deoxy-3-O-ethyl-2,4-
di-O-methyl-a-L-mannopyranosyl)oxy]-13-[[(2R,5S,6R)-5-
(dimethylamino)tetrahydro-6-methyl-2H-pyran-2-yl]oxy]-9-ethyl-
2,3,3a,5a,5b,6,9,10,11, 12,13,14,16a,16b-tetradecahydro-4,14-dimethyl-
(2S,3aR,5aS,5bS,9S,13S,14R,16aS, 16bS); ND-J:
(2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR)-9-ethyl-14-methyl-13-
[[(2S,5S,6R)-6-methyl-5-(methylamino)tetrahydro-2H-pyran-2-yl]oxy]-
7,15-dioxo-2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-
octadecahydro-1H-as-indaceno[3,2-d]oxacyclododecin-2-yl 6-deoxy-3-O-
ethyl-2,4-di-O-methyl-alpha-L-mannopyranoside; and NF-J: (2R,3S,6S)-6-
([(2R,3aR,5aR,5bS,9S,13S,14R,16aS,16bR)-2-[(6-deoxy-3-O-ethyl-2,4-di-O-
methyl-alpha-L-mannopyranosyl) oxy]-9-ethyl-14-methyl-7,15-dioxo-
2,3,3a,4,5,5a,5b,6,7,9,10,11,12,13,14,15,16a,16b-octadecahydro-1H-as-
indaceno[3,2-d]oxacyclododecin-13-yl]oxy)-2-methyltetrahydro-2H-pyran-
3-yl(methyl)formamide in or on the following raw agricultural
commodity: Quinoa, grain at 0.04 part per million (ppm). Adequate
tolerance enforcement methods are available for spinetoram residues in
a variety of plant matrices including a number of high-performance
liquid chromatography (HPLC)/Mass Spectrometry (MS)/MS methods. For
more details on relevant enforcement methods for spinetoram, see EPA
Memorandum--``SUBJECT: Spinosad and Spinetoram; Human-Health Assessment
Scoping Document in Support of Registration Review'' dated August 9,
2011. Contact: (RD)
    2. PP 3E8204. (EPA-HQ-OPP-2013-0727). Interregional Research
Project Number 4 (IR-4), 500 College Road East, Suite 201 W.,
Princeton, NJ 08540, requests to amend petition, PP 3E8204, that
originally published in the Federal Register of December 30, 2013 (78
FR 79359), to establish a tolerance in 40 CFR part 180 for residues of
the insecticide spinosad, a fermentation product of Saccharopolyspora
spinosa, consisting of two related active ingredients: Spinosyn A
(Factor A: CAS Registry No. 131929-60-7) or 2-[(6-deoxy-2,3,4-tri-O-
methyl-[alpha]-L-manno-pyranosyl)oxy]-13-[[5-(dimethylamino)-
tetrahydro-6-methyl-2H-pyran-2-yl]oxy]-9-ethyl-
2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b-tetradecahydro-14-methyl-1H-as-
Indaceno[3,2-d]oxacyclododecin-7,15-dione; and Spinosyn D (Factor D:
CAS Registry No. 131929-63-0) or 2-[(6-deoxy-2,3,4-tri-O-methyl-
[alpha]-L-manno-pyranosyl)oxy]-13-[[5-(dimethyl-amino)-tetrahydro-6-
methyl-2H-pyran-2-yl]oxy]-9-ethyl-
2,3,3a,5a,5b,6,9,10,11,12,13,14,16a,16b-tetradecahydro-4,14-methyl-1H-
as-Indaceno[3,2-d]oxacyclododecin-7,15-dione, in or on the raw
agricultural commodities: Quinoa, grain at 1.0 part per million (ppm).
Adequate analytical enforcement methods are available for spinosad
residues in a variety of plant matrices including; a number of high-
performance liquid chromatography (HPLC)/ultraviolet (UV), and HPLC/MS
(mass spectrometry) methods as well as various immunochemical methods.
For more details on relevant enforcement methods, see EPA Memorandum--
``SUBJECT: Spinosad and Spinetoram; Human-Health Assessment Scoping
Document in Support of Registration Review'' dated August 9, 2011.
Contact: (RD).

    Authority: 21 U.S.C. 346a.

    Dated: October 22, 2015.
Susan Lewis,
Director, Registration Division, Office of Pesticide Programs.
[FR Doc. 2015-28102 Filed 11-3-15; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 86, Number 93 (Monday, May 17, 2021)]
[Notices]
[Pages 26759-26763]
[FR Doc No: 2021-10340]

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SECURITIES AND EXCHANGE COMMISSION

[Investment Company Act Release No. 34270; File No. 812-15119-01]

Delaware Wilshire Private Markets Master Fund, et al.; Notice of
Application

May 12, 2021.
AGENCY: Securities and Exchange Commission (``Commission'').

ACTION: Notice.

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SUMMARY OF APPLICATION : Notice of an application for an order under
section 17(d) of the Investment Company Act of 1940 (the ``Act'') and
rule 17d-1 under the Act permitting certain joint transactions
otherwise prohibited by section 17(d) of the Act and rule 17d-1 under
the Act. Applicants request an order to permit certain closed-end
investment companies to co-invest in portfolio companies with each
other and with affiliated investment funds and accounts.

APPLICANTS : Delaware Wilshire Private Markets Master Fund (``Master
Fund''); Delaware Wilshire Private Markets Fund (``Feeder Fund A'');
Delaware Wilshire Private Markets Tender Fund (``Feeder Fund T'');
Delaware Management Company, a series of Macquarie Investment
Management Business Trust (``Macquarie'', on behalf of itself and its
successors \1\); Wilshire Advisors LLC (``Wilshire'', on behalf of
itself and its successors); BVK Europe Opportunities Fund I, L.P.; BVK
Europe Opportunities Fund II, L.P.; BVK Europe Opportunities Fund III,
L.P.; Summit Hill Credit Fund, L.P.; Summit Hill Real Assets Fund,
L.P.; Wilshire BVV Europe Venture Fund, L.P. (Series I); Wilshire BVV
Europe, L.P. (Series I); Wilshire BVV Europe, L.P. (Series II);
Wilshire BVV Europe, L.P. (Series III); Wilshire BVV Europe, L.P.
(Series IV); Wilshire BVV Europe, L.P. (Series V); Wilshire BVV U.S.,
L.P. (Series I); Wilshire BVV U.S., L.P. (Series II); Wilshire BVV
U.S., L.P. (Series III); Wilshire BVV U.S., L.P. (Series IV); Wilshire
BVV U.S., L.P. (Series V); Wilshire BVV U.S., L.P. (Series VI);
Wilshire Global Private Markets Fund IX, L.P.; Wilshire New Waves Fund,
L.P.; Wilshire Private Credit Annual Fund Series, L.P.; Wilshire
Private Equity Annual Fund Series, L.P.; Wilshire Private Markets
Family Office Fund I, L.P.; Wilshire Private Markets Family Office Fund
II, L.P.; Wilshire Private Markets Family Office Fund III, L.P.;
Wilshire Private Markets Family Office Fund IV, L.P.; Wilshire Private
Markets Real Estate Family Office Fund I, L.P. (together with each such
entity's direct and indirect wholly owned subsidiaries, collectively,
``Existing Affiliated Funds'').
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    \1\ The term ``successor'' as applied to each Adviser (as
defined below), means an entity that results from a reorganization
into another jurisdiction or change in the type of business
organization.

DATES: The application was filed on April 2, 2020, and amended on
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November 13, 2020, March 30, 2021 and May 6, 2021.

HEARING OR NOTIFICATION OF HEARING : An order granting the requested
relief will be issued unless the Commission orders a hearing.
Interested persons may request a hearing by emailing the Commission's
Secretary at<EMAIL_ADDRESS>and serving Applicants with a
copy of the request email. Hearing requests should be received by the
Commission by 5:30 p.m. on June 7, 2021, and should be accompanied by
proof of service on the Applicants, in the form of an affidavit, or,
for lawyers, a certificate of service. Pursuant to rule 0-5 under the
Act, hearing requests should state the nature of the writer's interest,
any facts bearing upon the desirability of a hearing on the matter, the
reason for the request, and the issues contested. Persons who wish to
be notified of a hearing may request notification by emailing the
Commission's Secretary.

ADDRESSES: The Commission<EMAIL_ADDRESS>Applicants:
Michael Beattie, SEI Investments<EMAIL_ADDRESS>Nick Teunon,
Wilshire Advisors LLC<EMAIL_ADDRESS>David Connor, Delaware
Management Company<EMAIL_ADDRESS>and Sean Graber, Esq.,
Morgan, Lewis & Bockius LLP<EMAIL_ADDRESS>
FOR FURTHER INFORMATION CONTACT: Barbara T. Heussler, Senior Counsel,
at<PHONE_NUMBER>, or Trace W. Rakestraw, Branch Chief, at (202) 551-
6825 (Chief Counsel's Office, Division of Investment Management).

SUPPLEMENTARY INFORMATION: The following is a summary of the
application. The complete application may be obtained via the
Commission's website by searching for the file number, or for an
applicant using the Company name box, at http://www.sec.gov/search/search.htm or by calling<PHONE_NUMBER>.

Applicants' Representations

    1. Master Fund is a Delaware statutory trust and is a non-
diversified, closed-end management investment company registered under
the Act. Master Fund's Objectives and Strategies \2\ are to provide
efficient access to the private markets with the goals of offering
long-term capital appreciation and current income. Master Fund has a
board of trustees, a majority of which is comprised of members who are
not ``interested persons'' within the meaning of section 2(a)(19) of
the Act (the ``Non-Interested Trustees''). No Non-Interested Trustee
will have any direct or indirect financial interest in any Co-
Investment Transaction (as defined below) or any interest in any
portfolio company, other than indirectly through share ownership (if
any) in Master Fund, Feeder Fund A, Feeder Fund T or a Future Regulated
Fund (as defined below).
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    \2\ ``Objectives and Strategies'' means, with respect to a
Regulated Fund (as defined below), the investment objectives and
strategies of such Regulated Fund, as described in such Regulated
Fund's registration statement, other filings the Regulated Fund has
made with the Commission under the Act, under the Securities Act of
1933, as amended (``1933 Act'') or under the Securities Exchange Act
of 1934, as amended, or in the Regulated Fund's reports to
shareholders.
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    2. Each of Feeder Fund A and Feeder Fund T is a Delaware statutory
trust and is a non-diversified, closed-end management investment
company registered under the Act. Each of Feeder Fund A's and Feeder
Fund T's Objectives and Strategies are to provide efficient access to
the private markets with the goals of offering long-term capital
appreciation and current income by investing substantially all of their
assets in the Master Fund. Each of Feeder Fund A and Feeder Fund T has
a board of trustees, the majority of which are Non-Interested Trustees.
No Non-Interested Trustee will have any direct or indirect financial
interest in any Co-Investment Transaction or any interest in any
portfolio company, other than indirectly through share ownership (if
any) in Feeder Fund A, Feeder Fund T, Master Fund or a Future Regulated
Fund.
    3. The Existing Affiliated Funds are investment funds each of which
would be an investment company but for section 3(c)(1) or 3(c)(7) of
the Act. The investment adviser to the Existing Affiliated Funds is
Wilshire.
    4. Macquarie is a series of a Delaware statutory trust and
registered with the Commission as an investment adviser under the
Investment Advisers Act of 1940 (``Advisers Act''). Macquarie serves as
the investment adviser to the

Existing Regulated Funds \3\ and has engaged Wilshire to serve as sub-
adviser to the Existing Regulated Funds.
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    \3\ ``Existing Regulated Funds'' means Feeder Fund A, Feeder
Fund T and Master Fund.
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    5. Wilshire, a California corporation, is an investment adviser
registered with the Commission under the Advisers Act. Wilshire
identifies investment opportunities and executes on trading strategies
for the Existing Regulated Funds subject to investment guidelines
agreed to by Macquarie and Wilshire. Macquarie has established
guidelines, monitoring and reporting procedures to evaluate the
performance of Wilshire but is not responsible for making or ratifying
any investment decisions made by Wilshire. Macquarie is not an
affiliated person (as defined in Section 2(a)(3) of the Act) of
Wilshire.
    6. Applicants seek an order (``Order'') to permit one or more
Regulated Funds \4\ and/or one or more Affiliated Funds \5\ to
participate in the same investment opportunities through a proposed co-
investment program (the ``Co-Investment Program''), where such
participation would otherwise be prohibited under rule 17d-1, by (a)
co-investing with each other in securities issued by issuers in private
placement transactions in which an Adviser negotiates terms in addition
to price; \6\ and (b) making additional investments in securities of
such issuers, including through the exercise of warrants, conversion
privileges, and other rights to purchase securities of the issuers
(``Follow-On Investments''). ``Co-Investment Transaction'' means any
transaction in which a Regulated Fund (or a Wholly-Owned Investment
Subsidiary (as defined below)) participates together with one or more
other Regulated Funds and/or one or more Affiliated Funds in reliance
on the requested Order. ``Potential Co-Investment Transaction'' means
any investment opportunity in which a Regulated Fund (or a Wholly-Owned
Investment Subsidiary) could not participate together with one or more
Affiliated Funds and/or one or more other Regulated Funds without
obtaining and relying on the Order.\7\
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    \4\ ``Regulated Fund'' means the Existing Regulated Funds and
any Future Regulated Fund. ``Future Regulated Fund'' means any
closed-end investment management company (a) that is registered
under the Act, (b) whose investment adviser (and any sub-adviser, if
any) is a Wilshire Adviser, and (c) that intends to participate in
the Co-Investment Program. The term ``Macquarie Adviser'' means (a)
Macquarie and (b) any future investment adviser that controls, is
controlled by or is under common control with Macquarie, is
registered as an investment adviser under the Advisers Act and is
not a Regulated Fund or a subsidiary of a Regulated Fund. The term
``Wilshire Adviser'' means (a) Wilshire, and (b) any future
investment adviser that controls, is controlled by or is under
common control with Wilshire, is registered as an investment adviser
under the Advisers Act, or is a relying adviser of an investment
adviser that is registered under the Advisers Act and that controls,
is controlled by or is under common control with Wilshire, and is
not a Regulated Fund or a subsidiary of a Regulated Fund. The term
``Adviser'' means (a) a Macquarie Adviser or (b) a Wilshire Adviser;
provided that a Wilshire Adviser serving as a sub-adviser to an
Affiliated Fund (defined below) is included in this term only if (i)
the investment adviser is a Wilshire Adviser and (ii) such Adviser
controls the entity. Applicants state that the Macquarie Advisers
will only be subject to conditions 2(c)(iv), 12, 13 and 14 of the
application.
    \5\ ``Affiliated Fund'' means the Existing Affiliated Funds, any
Future Affiliated Fund and any Wilshire Proprietary Accounts.
``Future Affiliated Fund'' means any entity (a) whose investment
adviser (and any sub-adviser, if any) is a Wilshire Adviser, (b)
that would be an investment company but for Section 3(c)(1) or
3(c)(7) of the Act, and (c) that intends to participate in the Co-
Investment Program. ``Wilshire Proprietary Accounts'' means any
existing or future direct or indirect, wholly or majority-owned
subsidiary of Wilshire, or a Wilshire Adviser, that, from time to
time, may hold various financial assets in a principal capacity.
    \6\ The term ``private placement transactions'' means
transactions in which the offer and sale of securities by the issuer
are exempt from registration under the 1933 Act.
    \7\ All existing entities that currently intend to rely upon the
requested Order have been named as Applicants. Any other existing or
future entity that subsequently relies on the Order will comply with
the terms and conditions of the application.
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    7. Applicants state that Macquarie has delegated responsibility for
the Co-Investment Program to Wilshire. Applicants further state that
Wilshire has sole responsibility for causing the Regulated Funds and
any Affiliated Fund to enter into a Potential Co-Investment Transaction
and is responsible for ensuring that the Wilshire Advisers, the
Regulated Funds, and any Affiliated Funds comply with the conditions of
the application.
    8. Applicants state that a Regulated Fund may, from time to time,
form one or more Wholly-Owned Investment Subsidiaries.\8\ Such a
subsidiary would be prohibited from investing in a Co-Investment
Transaction with any Affiliated Fund or Regulated Fund because it would
be a company controlled by its parent Regulated Fund for purposes of
rule 17d-1. Applicants request that each Wholly-Owned Investment
Subsidiary be permitted to participate in Co-Investment Transactions in
lieu of its parent Regulated Fund and that the Wholly-Owned Investment
Subsidiary's participation in any such transaction be treated, for
purposes of the requested Order, as though the parent Regulated Fund
were participating directly. Applicants represent that this treatment
is justified because a Wholly-Owned Investment Subsidiary would have no
purpose other than serving as a holding vehicle for the parent
Regulated Fund's investments and, therefore, no conflicts of interest
could arise between a Regulated Fund and its Wholly-Owned Investment
Subsidiary. The Regulated Fund's Board would make all relevant
determinations under the conditions with regard to a Wholly-Owned
Investment Subsidiary's participation in a Co-Investment Transaction,
and the Regulated Fund's Board would be informed of, and take into
consideration, any proposed use of a Wholly-Owned Investment Subsidiary
in the Regulated Fund's place. If a Regulated Fund proposes to
participate in the same Co-Investment Transaction with any of its
Wholly-Owned Investment Subsidiaries, the Board will also be informed
of, and take into consideration, the relative participation of the
Regulated Fund and the Wholly-Owned Investment Subsidiary.
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    \8\ The term ``Wholly-Owned Investment Subsidiary'' means an
entity (i) that is wholly-owned by the applicable Regulated Fund
(with such Regulated Fund at all times holding, beneficially and of
record, 100% of the voting and economic interests); (ii) whose sole
business purpose is to hold one or more investments and incur debt
(which is or would be consolidated with other indebtedness of such
Regulated Fund for financial reporting or compliance purposes under
the Act) on behalf of the Regulated Fund; (iii) with respect to
which the Regulated Fund's board of trustees (``Board'') has the
sole authority to make all determinations with respect to the
entity's participation under the conditions of the application; and
(iv) that would be an investment company but for sections 3(c)(1) or
3(c)(7) of the Act.
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    9. When considering Potential Co-Investment Transactions for any
Regulated Fund, the applicable Adviser will consider only the
Objectives and Strategies, investment policies, investment positions,
capital available for investment (``Available Capital''), and other
pertinent factors applicable to that Regulated Fund. Each Adviser, as
applicable, undertakes to perform these duties consistently for each
Regulated Fund, as applicable, regardless of which of them serves as
investment adviser for these entities. The participation of a Regulated
Fund in a Potential Co-Investment Transaction may only be approved by
both a majority of the trustees of the Board who have no financial
interest in such transaction, plan or arrangement and a majority of
such trustees who are Non-Interested Trustees (a ``Required
Majority''),\9\ eligible to vote on that Co-Investment Transaction (the
``Eligible Trustees'').\10\
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    \9\ ``Required Majority'' has the meaning provided in Section
57(o) of the Act. The trustees of a Regulated Fund that make up the
Required Majority will be determined as if the Regulated Fund were a
business development company (``BDC'') subject to Section 57(o).
    \10\ The term ``Eligible Trustees'' means the trustees who are
eligible to vote under Section 57(o) as if the Regulated Fund were a
BDC subject to Section 57(o).

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    10. Other than pro rata dispositions and Follow-On Investments as
provided in conditions 7 and 8, and after making the determinations
required in conditions 1 and 2(a), the Regulated Fund's Adviser will
present each Potential Co-Investment Transaction and the proposed
allocation to the Regulated Fund's Eligible Trustees, and the Required
Majority will approve each Co-Investment Transaction prior to any
investment by the participating Regulated Fund.
    11. With respect to the pro rata dispositions and Follow-On
Investments provided in conditions 7 and 8, a Regulated Fund may
participate in a pro rata disposition or Follow-On Investment without
obtaining prior approval of the Required Majority if, among other
things: (i) The proposed participation of each Regulated Fund and
Affiliated Fund in such disposition is proportionate to its outstanding
investments in the issuer immediately preceding the disposition or
Follow-On Investment, as the case may be; and (ii) the Board of the
Regulated Fund has approved that Regulated Fund's participation in pro
rata dispositions and Follow-On Investments as being in the best
interests of the Regulated Fund. If the Board does not so approve, any
such disposition or Follow-On Investment will be submitted to the
Regulated Fund's Eligible Trustees. The Board of any Regulated Fund may
at any time rescind, suspend or qualify its approval of pro rata
dispositions and Follow-On Investments with the result that all
dispositions and/or Follow-On Investments must be submitted to the
Eligible Trustees.
    12. Applicants state that if an Adviser or its principals, or any
person controlling, controlled by, or under common control with an
Adviser or its principals, and any Affiliated Fund (collectively, the
``Holders'') own in the aggregate more than 25% of the outstanding
voting shares of a Regulated Fund (the ``Shares''), then the Holders
will vote such Shares as required under condition 14.

Applicants' Legal Analysis

    1. Section 17(d) of the Act and rule 17d-1 under the Act prohibit
affiliated persons of a registered investment company from
participating in joint transactions with the company unless the
Commission has granted an order permitting such transactions. In
passing upon applications under rule 17d-1, the Commission considers
whether the company's participation in the joint transaction is
consistent with the provisions, policies, and purposes of the Act and
the extent to which such participation is on a basis different from or
less advantageous than that of other participants.
    2. Applicants state that in the absence of the requested relief,
the Regulated Funds would be, in some circumstances, limited in their
ability to participate in attractive and appropriate investment
opportunities. Applicants believe that the proposed terms and
conditions will ensure that the Co-Investment Transactions are
consistent with the protection of each Regulated Fund's shareholders
and with the purposes intended by the policies and provisions of the
Act. Applicants state that the Regulated Funds' participation in the
Co-Investment Transactions will be consistent with the provisions,
policies, and purposes of the Act and on a basis that is not different
from or less advantageous than that of other participants.

Applicants' Conditions

    Applicants agree that the Order shall be subject to the following
conditions:
    1. Each time an Adviser considers a Potential Co-Investment
Transaction for an Affiliated Fund or another Regulated Fund that falls
within a Regulated Fund's then-current Objectives and Strategies, the
Regulated Fund's Adviser will make an independent determination of the
appropriateness of the investment for the Regulated Fund in light of
the Regulated Fund's then-current circumstances.
    2. (a) If the Adviser deems a Regulated Fund's participation in any
Potential Co-Investment Transaction to be appropriate for the Regulated
Fund, it will then determine an appropriate level of investment for the
Regulated Fund.
    (b) If the aggregate amount recommended by the applicable Adviser
to be invested by the applicable Regulated Fund in the Potential Co-
Investment Transaction, together with the amount proposed to be
invested by the other participating Regulated Funds and Affiliated
Funds, collectively, in the same transaction, exceeds the amount of the
investment opportunity, the investment opportunity will be allocated
among them pro rata based on each participant's Available Capital, up
to the amount proposed to be invested by each. The applicable Adviser
will provide the Eligible Trustees of each participating Regulated Fund
with information concerning each participating party's Available
Capital to assist the Eligible Trustees with their review of the
Regulated Fund's investments for compliance with these allocation
procedures.
    (c) After making the determinations required in conditions 1 and
2(a), the applicable Adviser will distribute written information
concerning the Potential Co-Investment Transaction (including the
amount proposed to be invested by each participating Regulated Fund and
Affiliated Fund) to the Eligible Trustees of each participating
Regulated Fund for their consideration. A Regulated Fund will co-invest
with one or more other Regulated Funds and/or one or more Affiliated
Funds only if, prior to the Regulated Fund's participation in the
Potential Co-Investment Transaction, a Required Majority concludes
that:
    (i) The terms of the Potential Co-Investment Transaction, including
the consideration to be paid, are reasonable and fair to the Regulated
Fund and its shareholders and do not involve overreaching in respect of
the Regulated Fund or its shareholders on the part of any person
concerned;
    (ii) the Potential Co-Investment Transaction is consistent with:
    (A) The interests of the Regulated Fund's shareholders; and
    (B) the Regulated Fund's then-current Objectives and Strategies;
    (iii) the investment by any other Regulated Funds or Affiliated
Funds would not disadvantage the Regulated Fund, and participation by
the Regulated Fund would not be on a basis different from or less
advantageous than that of any other Regulated Funds or Affiliated
Funds; provided that if any other Regulated Funds or Affiliated Funds,
but not the Regulated Fund itself, gains the right to nominate a
director for election to a portfolio company's board of directors or
the right to have a board observer or any similar right to participate
in the governance or management of the portfolio company, such event
shall not be interpreted to prohibit the Required Majority from
reaching the conclusions required by this condition (2)(c)(iii), if:
    (A) The Eligible Trustees will have the right to ratify the
selection of such director or board observer, if any;
    (B) the applicable Adviser agrees to, and does, provide periodic
reports to the Regulated Fund's Board with respect to the actions of
such director or the information received by such board observer or
obtained through the exercise of any similar right to participate in
the governance or management of the portfolio company; and
    (C) any fees or other compensation that any Affiliated Fund or any
Regulated Fund or any affiliated person

of any Affiliated Fund or any Regulated Fund receives in connection
with the right of the Affiliated Fund or Regulated Fund to nominate a
director or appoint a board observer or otherwise to participate in the
governance or management of the portfolio company will be shared
proportionately among the participating Affiliated Funds (who each may,
in turn, share its portion with its affiliated persons) and the
participating Regulated Fund in accordance with the amount of each
party's investment; and
    (iv) the proposed investment by the Regulated Fund will not benefit
the Advisers, any Affiliated Funds or other Regulated Funds or any
affiliated person of any of them (other than the parties to the Co-
Investment Transaction), except (A) to the extent permitted by
condition 13, (B) to the extent permitted by section 17(e) of the Act,
as applicable, (C) indirectly, as a result of an interest in the
securities issued by one of the parties to the Co-Investment
Transaction, or (D) in the case of fees or other compensation described
in condition 2(c)(iii)(C).
    3. Each Regulated Fund has the right to decline to participate in
any Potential Co-Investment Transaction or to invest less than the
amount proposed.
    4. The applicable Adviser will present to the Board of each
Regulated Fund, on a quarterly basis, a record of all investments in
Potential Co-Investment Transactions made by any of the other Regulated
Funds or Affiliated Funds during the preceding quarter that fell within
the Regulated Fund's then-current Objectives and Strategies that were
not made available to the Regulated Fund, and an explanation of why the
investment opportunities were not offered to the Regulated Fund. All
information presented to the Board pursuant to this condition will be
kept for the life of the Regulated Fund and at least two years
thereafter, and will be subject to examination by the Commission and
its staff.
    5. Except for Follow-On Investments made in accordance with
condition 8,\11\ a Regulated Fund will not invest in reliance on the
Order in any issuer in which another Regulated Fund, an Affiliated Fund
or any affiliated person of another Regulated Fund or Affiliated Fund
is an existing investor.
---------------------------------------------------------------------------

    \11\ This exception applies only to Follow-On Investments by a
Regulated Fund in issuers in which the Regulated Fund already holds
investments.
---------------------------------------------------------------------------

    6. A Regulated Fund will not participate in any Potential Co-
Investment Transaction unless the terms, conditions, price, class of
securities to be purchased, settlement date, and registration rights
will be the same for each participating Regulated Fund and Affiliated
Fund. The grant to an Affiliated Fund or another Regulated Fund, but
not the Regulated Fund, of the right to nominate a director for
election to a portfolio company's board of directors, the right to have
an observer on the board of directors or similar rights to participate
in the governance or management of the portfolio company will not be
interpreted so as to violate this condition 6, if conditions
2(c)(iii)(A), (B) and (C) are met.
    7.
    (a) If any Affiliated Fund or any Regulated Fund elects to sell,
exchange or otherwise dispose of an interest in a security that was
acquired in a Co-Investment Transaction, the applicable Adviser will:
\12\
---------------------------------------------------------------------------

    \12\ Any Wilshire Proprietary Account that is not advised by an
Adviser is itself deemed to be an Adviser for purposes of Conditions
7(a)(i) and 8(a)(i).
---------------------------------------------------------------------------

    (i) Notify each Regulated Fund that participated in the Co-
Investment Transaction of the proposed disposition at the earliest
practical time; and
    (ii) formulate a recommendation as to participation by each
Regulated Fund in the disposition.
    (b) Each Regulated Fund will have the right to participate in such
disposition on a proportionate basis, at the same price and on the same
terms and conditions as those applicable to the participating
Affiliated Funds and Regulated Funds.
    (c) A Regulated Fund may participate in such disposition without
obtaining prior approval of the Required Majority if: (i) The proposed
participation of each Regulated Fund and each Affiliated Fund in such
disposition is proportionate to its outstanding investments in the
issuer immediately preceding the disposition; (ii) the Board of the
Regulated Fund has approved as being in the best interests of the
Regulated Fund the ability to participate in such dispositions on a pro
rata basis (as described in greater detail in the application); and
(iii) the Board of the Regulated Fund is provided on a quarterly basis
with a list of all dispositions made in accordance with this condition.
In all other cases, the Adviser will provide its written recommendation
as to the Regulated Fund's participation to the Eligible Trustees, and
the Regulated Fund will participate in such disposition solely to the
extent that a Required Majority determines that it is in the Regulated
Fund's best interests.
    (d) Each Affiliated Fund and each Regulated Fund will bear its own
expenses in connection with any such disposition.
    8.
    (a) If any Affiliated Fund or Regulated Fund desires to make a
Follow-On Investment in a portfolio company whose securities were
acquired in a Co-Investment Transaction, the applicable Adviser will:
    (i) Notify each Regulated Fund that participated in the co-
investment transaction of the proposed Follow-On Investment at the
earliest practical time; and
    (ii) formulate a recommendation as to the proposed participation,
including the amount of the proposed Follow-On Investment, by each
Regulated Fund.
    (b) A Regulated Fund may participate in such Follow-On Investment
without obtaining prior approval of the Required Majority if: (i) The
proposed participation of each Regulated Fund and each Affiliated Fund
in such investment is proportionate to its outstanding investments in
the issuer immediately preceding the Follow-On Investment; and (ii) the
Board of the Regulated Fund has approved as being in the best interests
of the Regulated Fund the ability to participate in Follow-On
Investments on a pro rata basis (as described in greater detail in the
application). In all other cases, the Adviser will provide its written
recommendation as to the Regulated Fund's participation to the Eligible
Trustees, and the Regulated Fund will participate in such Follow-On
Investment solely to the extent that a Required Majority determines
that it is in the Regulated Fund's best interests.
    (c) If, with respect to any Follow-On Investment:
    (i) The amount of the opportunity is not based on the Regulated
Funds' and the Affiliated Funds' outstanding investments immediately
preceding the Follow-On Investment; and
    (ii) the aggregate amount recommended by the applicable Wilshire
Adviser to be invested by the applicable Regulated Fund in the Follow-
On Investment, together with the amount proposed to be invested by
other participating Regulated Funds and Affiliated Funds, collectively,
in the same transaction, exceeds the amount of the investment
opportunity, then the investment opportunity will be allocated among
them pro rata based on each participant's Available Capital, up to the
amount proposed to be invested by each.
    (d) The acquisition of Follow-On Investments as permitted by this
condition will be considered a Co-

Investment Transaction for all purposes and subject to the other
conditions set forth in the application.
    9. The Non-Interested Trustees of each Regulated Fund will be
provided quarterly for review all information concerning Potential Co-
Investment Transactions and Co-Investment Transactions, including
investments made by any other Regulated Funds or Affiliated Funds that
the Regulated Fund considered but declined to participate in, so that
the Non-Interested Trustees may determine whether all investments made
during the preceding quarter, including those investments that the
Regulated Fund considered but declined to participate in, comply with
the conditions of the Order. In addition, the Non-Interested Trustees
will consider at least annually the continued appropriateness for the
Regulated Fund of participating in new and existing Co-Investment
Transactions.
    10. Each Regulated Fund will maintain the records required by
section 57(f)(3) of the Act as if each of the Regulated Funds were a
BDC and each of the investments permitted under these conditions were
approved by the Required Majority under section 57(f) of the Act.
    11. No Non-Interested Trustee of a Regulated Fund will also be a
director, general partner, managing member or principal, or otherwise
an ``affiliated person'' (as defined in the Act) of an Affiliated Fund.
    12. The expenses, if any, associated with acquiring, holding or
disposing of any securities acquired in a Co-Investment Transaction
(including, without limitation, the expenses of the distribution of any
such securities registered for sale under the 1933 Act) will, to the
extent not payable by the Advisers under their respective investment
advisory agreements with Affiliated Funds and the Regulated Funds, be
shared by the Regulated Funds and the Affiliated Funds in proportion to
the relative amounts of the securities held or to be acquired or
disposed of, as the case may be.
    13. Any transaction fee \13\ (including break-up or commitment fees
but excluding broker's fees contemplated section 17(e) of the Act)
received in connection with a Co-Investment Transaction will be
distributed to the participating Regulated Funds and Affiliated Funds
on a pro rata basis based on the amounts they invested or committed, as
the case may be, in such Co-Investment Transaction. If any transaction
fee is to be held by an Adviser pending consummation of the Co-
Investment Transaction, the fee will be deposited into an account
maintained by such Adviser at a bank or banks having the qualifications
prescribed in section 26(a)(1) of the Act, and the account will earn a
competitive rate of interest that will also be divided pro rata among
the participating Regulated Funds and Affiliated Funds based on the
amounts they invest in such Co-Investment Transaction. None of the
Affiliated Funds, the Advisers, the other Regulated Funds, or any
affiliated person of the Regulated Funds or Affiliated Funds will
receive additional compensation or remuneration of any kind as a result
of or in connection with a Co-Investment Transaction (other than (a) in
the case of the Regulated Funds and the Affiliated Funds, the pro rata
transaction fees described above and fees or other compensation
described in condition 2(c)(iii)(C); and (b) in the case of an Adviser,
investment advisory fees paid in accordance with the investment
advisory agreements between such Adviser and the Regulated Fund or
Affiliated Fund).
---------------------------------------------------------------------------

    \13\ The Applicants are not requesting, and the staff is not
providing, any relief for transaction fees received in connection
with any Co-Investment Transaction.
---------------------------------------------------------------------------

    14. If the Holders own in the aggregate more than 25% of the Shares
of a Regulated Fund, then the Holders will vote such Shares in the same
percentages as the Regulated Fund's other shareholders (not including
the Holders) when voting on (1) the election of directors; (2) the
removal of one or more directors; or (3) any other matter under either
the Act or applicable state law affecting the Board's composition, size
or manner of election.
    15. Each Regulated Fund's chief compliance officer, as defined in
rule 38a-1(a)(4) under the Act, will prepare an annual report for the
Board of such Regulated Fund that evaluates (and documents the basis of
that evaluation) the Regulated Fund's compliance with the terms and
conditions of the application and procedures established to achieve
such compliance.

    For the Commission, by the Division of Investment Management,
under delegated authority.
J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2021-10340 Filed 5-14-21; 8:45 am]
BILLING CODE 8011-01-P


b Source: International Civil Aviation Organization ( ICAO), Aircraft Engine Exhaust Emissions Data Bank, July 26 2004. This data bank is available at http:// www. caa. co. uk/ srg/ environmental/ emissions/ default. asp. In addition, a copy of tables including data of engine NOx emissions from the ICAO data bank and their margin to today's NOx standards and the CAEP/ 6 NOx standards can be found in Docket OAR 2002 0030. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 78 2. What Are The Issues With Applying Today's NOx Standards to Newly Manufactured Engines of Already Certified Models?

One commenter expressed that EPA conceded in the proposed rule that it has historically applied aircraft emission standards to newly manufactured engines of already certified models,

and doing so this time would prohibit the indefinite continued production of aircraft engines that would meet only the previous standards. " EPA does not explain why it is proposing a sudden departure from the past practice of regulating already certified, newly manufactured engines

i. e., what is different about this particular rulemaking that justifies the exemption of such engines." With the long life of aircraft engines and the availability of newly manufactured engines of already certified models in the future, there is a need to apply the proposed NOx standards to this category of aircraft engines.

State and local governments recommended that the standards for newly manufactured engines of already certified models should be implemented one year after the effective date of the final rulemaking. At a minimum, EPA should have an implementation date that prohibits engine manufacturers from selling already certified engines unless the engines were recertified or redesigned to meet the proposed standards. Such a provision would be consistent with a stated objective of the rulemaking, which is to assure that progress in reducing aircraft engine emissions is not reversed in the future. Without such standards high emitting engines can continue to be produced and brought into service, further adding to the long term growth in Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 79 aircraft emissions that is anticipated without a more aggressive approach to regulating this source.

Airlines commented that as the proposal acknowledges, market incentives lead manufacturers to bring their engines to the levels of the CAEP/ 4 NOx standards as soon as possible once the standards take effect. Air carriers investing in costly, long lasting assets prefer to buy engines that meet the latest standards, and demand engines that perform better than the standard without regulatory intervention of a production cut off ( applying standards to newly manufactured engines of already certified models). Such market forces together with EPA's four year delay in proposing to adopt the CAEP/ 4 NOx standards, account for the fact that 94 percent of in production engines already meet the standard.

In addition, airlines expressed that for the same reasons that the Agency should generally align with ICAO standards, it should be consistent with ICAO on whether to apply CAEP/ 4 standards to newly manufactured engines of already certified models. If EPA differed from ICAO on this provision, there would be the very inconsistency between domestic and international practice that aligning with ICAO requirements avoids. Furthermore, if EPA adopts such a provision prior to ICAO, such action would potentially place U. S. manufacturers and air carriers at a competitive disadvantage for what EPA acknowledges to be minimal environmental benefit.

In addition, one airline expressed that it presently has the JT8D 219 engine on some of its commercial jets. The proposal indicated that the JT8D 219 would be used in supersonic business jets, which the airline does not operate; however, it ( and maybe other domestic air carriers) operates this engine in our commercial aircraft fleet. Therefore, the implication of these Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 80 provisions has not been fully investigated by EPA as mandated by the CAA. ( See the Summary and Analysis of Comments for this rulemaking for further discussion of comments.)

In response, as indicated earlier, the implementation date applicable to newly designed and certified engines under CAEP/ 4, December 31, 2003, has already occurred for the CAEP/ 4 standards, and at this late date to promulgate a provision to apply today's standards to newly manufactured engines of already certified models ( a production cut off) could be disruptive to the production planning of engine manufacturers. EPA and ICAO ( as we mentioned in the proposal and as one commenter noted in its comments) have historically adopted production cutoffs for previous standards, but in today's unique case the lateness of the rule may not provide manufacturers enough lead time for such planning. However, as we discussed earlier in section 1, we intend to consider more stringent NOx standards in a future rulemaking, and similar to CAEP/ 6' s future plans described above, we also intend to consider applying more stringent standards to newly manufactured engines of already certified models for such a future rulemaking. This provision is an important issue that we expect to fully consider for future standards.

While we solicited comment on extending the CAEP/ 4 standards to newly manufactured engines of already certified models, we did not develop a record that fully analyzes the emissions benefits ( if any) and the implementation costs of going beyond CAEP in this manner. Therefore,

the public has not been provided an opportunity to analyze and comment upon these important factors. We believe that our analysis of these factors would need to be weighed through a noticeand comment process in determining whether a production cut off, with a specific lead time period, would be appropriate under CAA section 231 in this case. Particularly regarding the cost Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 81 of compliance within necessary lead time issue, we are concerned that there is insufficient data that specifically addresses the appropriate lead time for subjecting the few remaining inproduction engine models to the CAEP/ 4 standards, and that our selection of a production cut off date could therefore be viewed as arbitrarily chosen.

Since we have not yet provided that opportunity for public comment on our analysis of this issue, and since attempting to do so now would in our view unacceptably slow down this rulemaking, in the interests of expediency and of bringing U. S. domestic law into conformity with our obligations under the Chicago Convention ( albeit tardily), we have decided that the most appropriate course for now, under CAA section 231 ( a), is to simply update our regulations to track CAEP/ 4 in terms of both stringency levels and scope of applicability. Similarly, without having developed the necessary record and analysis, at this time we are unable to respond to the substantive comments offered by commenters regarding the production cutoff issue, and our decision today should in no way be viewed as either endorsing or rejecting the concept of a production cut off. Given the need to quickly promulgate standards that are at least as stringent as CAEP/ 4, we must decline to resolve the numerous issues raised either in favor of or in opposition to applying the CAEP/ 4 standards to newly manufactured engines of already certified models.

IV. Amendments to Criteria on Calibration and Test Gases for Gaseous Emissions Test and Measurement Procedures Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 82 In today's rulemaking, EPA will incorporate by reference ICAO's 1997 amendments to the criteria on calibration and test gases for the test procedures of gaseous emissions ( ICAO International Standards and Recommended Practices Environmental Protection, Annex 16,

Volume II, " Aircraft Engine Emissions," Second Edition, July 1993; Amendment 3, March 20,

1997, Appendices 3 and 5) in 40 CFR 87.64 . ICAO's amendments, which became effective on March 20, 1997, apply to subsonic ( newly certified and newly manufactured engines93) and supersonic gas turbine engines. The technical changes will correct a few inconsistencies between the specifications for carbon dioxide ( CO2) analyzers ( Attachment B of Appendices 3 and 5) and the calibration and test gases ( Attachment D of Appendices 3 and 5) of gaseous emissions. The test procedure amendments incorporated by reference will be effective 30 days after the publication of the final rule.

For CAEP/ 3 in 1995, the Russian Federation presented a working paper entitled,

" Corrections to Annex 16, Volume II," that stated the following: 94 93Such engines include newly manufactured engines of already certified models.

94Russian Federation, " Corrections to Annex 16, Volume II," Agenda Item 2: Review of reports of working groups relating to engine emissions and the development of recommendations to the Council thereon, Working Paper 19, Presented by A. A. Gorbatko, November 11, 1995 ( distributed November 30, 1995), CAEP/ 3, Montreal, December 5 to 15, 1995. A copy of this paper can be found in Docket OAR 2002 0030. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 83 According to CAEP/ 2 recommendations, in the list of calibration and test gases ( see the table in Attachment of Appendices 3 and 5) " CO2 in N2" was replaced with " CO2 in air" gas. At the same time the following sub paragraph was newly introduced into Attachment B ( Appendices 3 and 5) :

( g) The effect of oxygen ( O2) on the CO2 analyzer response shall be checked. For a change from 0 percent O2 to 21 percent O2 the response of a given CO2 concentration shall not change by more than 2 per cent of reading. If this limit cannot be met and appropriate correction factor shall be applied.

Since the best way to carry out this checking procedure is to calibrate the analyzer first with CO2 in nitrogen and then with CO2 in air, both " CO2 in N2" and " CO2 in air" gases have to be retained in the list. It seems then that " CO in air," " CO2 in air," " NO in N2" and now " CO2 in N2" have to be replaced with " CO in zero air," " CO2 in zero air," " CO2 in zero nitrogen" and " NO in zero nitrogen" just by analogy with the gaseous mixtures of different hydrocarbons diluted by zero air and listed in the same table. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 84 In addition, at CAEP/ 3 the United Kingdom then presented a working paper on this same issue. 95 They indicated that CAEP's Working Group 3 ( Emissions Working Group) had accepted the above proposals of the Russian Federation paper on correcting inconsistencies in the list of calibration and test gases specified in Annex 16, Volume II, Attachment D to Appendices 3 and 5, and Working Group 3 had recommended that these proposals be presented at CAEP/ 3. The United Kingdom also recommended the adoption of these Russian Federation proposals   to utilize CO2 in nitrogen gas mixture to check the effect of oxygen on CO2 analyzers. In addition, they recommended the specification of all calibration and test gases required for all the gaseous emissions tests required in Annex 16.

At CAEP/ 3, the CAEP members agreed that the above amendments to the calibration and test gases were justified, and thus, these amendments were then adopted. 96 Today, EPA will incorporate by reference the amendments to the criteria on calibration and test gases for the test 95United Kingdom, " Amendments to Annex 16, Volume II, Attachment D to Appendices 3 and 5 ( Calibration and Test Gases)," Agenda Item 2: Review of reports of working groups relating to engine emissions and the development of recommendations to the Council thereon,

Working Paper 20, Presented by M. E. Wright, November 14, 1995 ( distributed November 30,

1995), CAEP/ 3, Montreal, December 5 to 15, 1995. A copy of this paper can be found in Docket OAR 2002 0030.

96ICAO/ CAEP, Report of Third Meeting, Montreal, Quebec, December 5 15, 1995,

Document 9675, CAEP/ 3. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 85 procedures of gaseous emissions, because the changes improve the test procedures by correcting inconsistencies and distinguishing between calibration and test gases. The amendments will include the following: ( 1) listing all calibration gases separately from test gases for HC, CO2, CO and NOx analyzers, ( 2) changing " N2" to " zero nitrogen" in relation to the test gases for the HC and NOx analyzers, ( 3) adding " CO2 in zero nitrogen" as a test gas for CO2 analyzer, ( 4)

changing " air" to " zero air" in relation to the test gas for CO and CO2 analyzers, ( 5) revising the accuracy to "+ 1 percent" for the " propane in zero air" test gas of HC analyzer, ( 6) amending the accuracy to "+ 1 percent" for the " CO2 in zero air" test gas of CO2 analyzer, ( 7) adding the accuracy "+ 1 percent" for the " CO2 in zero nitrogen" test gas of CO2 analyzer, ( 8) changing accuracy to "+ 1 percent" for test gas of CO analyzer, and ( 9) revising accuracy to "+ 1 percent"

for test gas of NOx analyzer.

Manufacturers are already voluntarily complying with ICAO's 1997 amendments to the criteria on calibration and test gases for the test procedures of gaseous emissions. Thus, formal adoption of these ICAO test procedure amendments will require no new action by manufacturers.

In addition, the existence of ICAO's requirements will ensure that the costs of compliance ( as well as the air quality impact) with these test procedures will be minimal. ( In the 1982 and 1997 final rules on aircraft engine emissions ( 47 FR 58462, December 30, 1982 and 62 FR 25356,

May 8, 1997, respectively), EPA incorporated by reference the then existing ICAO testing and measurement procedures for aircraft engine emissions ( ICAO International Standards and Recommended Practices Environmental Protection, Annex 16, Volume II, " Aircraft Engine Emissions," First and Second Editions, Appendices 3 and 5 were incorporated by reference in 40 Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 86 CFR 87.64) in order to eliminate confusion over minor differences in procedures for demonstrating compliance with the U. S. and ICAO standards.)

V. Correction of Exemptions for Very Low Production Models Because of an editorial error, the section in the aircraft engine emission regulations regarding exemptions for very low production models is incorrectly specified ( see section 40 CFR 87.7( b)( 1) and ( 2)). In the October 18, 1984 final rulemaking ( 49 FR 41000), EPA intended to amend the low production engine provisions of the aircraft regulations by revising paragraph ( b) and deleting paragraphs ( b)( 1) and ( b)( 2) in order to eliminate the maximum annual production limit of 20 engines per year. In the revisions to paragraph ( b), EPA retained the maximum total production limit of 200 units for aircraft models certified after January 1,

1984.97 For § 87.7( b), Today, EPA will correct this editorial error by eliminating paragraph ( b)( 1) and ( b)( 2).

As discussed further in the 1984 final rulemaking, this action will provide more flexibility for engine manufacturers in scheduling during the last few engine production years.

Also, the air quality impact of eliminating the annual production limit will be very small.

VI. Coordination with FAA 97This action was taken in 1984 to provide greater flexibility to manufacturers for scheduling engine production rates during the final years. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 87 The requirements contained in this action are being promulgated after consultation with the FAA. Note: in 49 CFR 1.47( g), the Secretary's functions under part B of title II of the CAA ( § § 231 234) were delegated to the Administrator of the FAA Section 231( a)( 2)( B)( i) of the CAA requires EPA to " consult with the Administrator of the [ FAA] on aircraft engine emission standards" and section 231( a)( 2)( B)( ii) indicates that EPA " shall not change the aircraft engine emission standards if such change would significantly increase noise...." Section 231( b) of the CAA states that "[ a] ny regulation prescribed under this section ( and any revision thereof) shall take effect after such period as the Administrator finds necessary ( after consultation with the Secretary of Transportation) to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period."

Section 231( c) provides that any regulation under section 231 " shall not apply if disapproved by the President  on the basis of a finding by the Secretary of Transportation that any such regulation would create a hazard to aircraft safety." Under section 232 of the CAA, the Department of Transportation ( DOT) has the responsibility to enforce the aircraft emission standards established by EPA under section 231.99 . As in past rulemakings and pursuant to the above referenced sections of the CAA, EPA has coordinated with the Federal Aviation Administration ( FAA) of the DOT with respect to today's action.

99 The functions of the Secretary of Transportation under part B of title II of the Clean Air Act ( § § 231 234, 49 U. S. C. § § 7571 7574) have been delegated to the Administrator of the FAA. 49 C. F. R. § 1.47( g). Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 88 Moreover, FAA is the official U. S. delegate to ICAO. FAA agreed to the 1997 and 1999 amendments at ICAO's Third and Fourth Meetings of the Committee on Aviation Environmental Protection ( CAEP/ 3 and CAEP/ 4) after advisement from EPA. 100 FAA and EPA were both members of the CAEP's Working Group 3 ( among others), whose objective was to evaluate emissions technical issues and develop recommendations on such issues for CAEP/ 3 and CAEP/ 4. After assessing emissions test procedure amendments and new NOx standards,

Working Group 3 made recommendations to CAEP on these elements. These recommendations were then considered at the CAEP/ 3 and CAEP/ 4 meetings, respectively, prior to their adoption by ICAO in 1997 and 1999.

In addition, as discussed above, FAA will have the responsibility to enforce today's requirements. As a part of its compliance responsibilities, FAA conducts the emission tests or delegates that responsibility to the engine manufacturer, which is then monitored by the FAA.

Since the FAA does not have the resources or the funding to test engines, FAA selects engineers at each plant to serve as representatives ( called designated engineering representatives ( DERs))

for the FAA while the manufacturer performs the test procedures. DERs' responsibilities include evaluating the test plan, the test engine, the test equipment, and the final testing report sent to FAA. DERs' responsibilities are determined by the FAA and today's rulemaking will not affect their duties.

100The Third Meeting of CAEP ( CAEP/ 3) occurred in Montreal, Quebec from December 5 through 15 in 1995. CAEP/ 4 took place in Montreal from April 6 through 8, 1998. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 89 VII. Possible Future Aviation Emission Reductions ( EPA/ FAA Voluntary Aviation Emissions Reduction Initiative)

As discussed in the proposal, there is growing interest, particularly at the state and local level, in addressing emissions from aircraft and other aviation related sources. Such interest is often related to plans for airport expansion which is occurring across the country. It is possible that other approaches may provide effective avenues to achieve additional aviation emission reductions, beyond EPA establishing aircraft engine emission standards.

Concerns by state and local air agencies and environmental and public health organizations about aviation emissions, led to EPA and FAA signing a memorandum of understanding ( MOU) in March 1998 agreeing to work to identify efforts that could reduce aviation emissions. 101 FAA and EPA participated in a national stakeholder initiative led by states and industry whose goal was to develop a voluntary program to reduce pollutants from aircraft and other aviation sources that contribute to local and regional air pollution in the United States. The major stakeholders that participated in this initiative included representatives of the 101FAA and EPA, " Agreement Between Federal Aviation Administration and Environmental Protection Agency Regarding Environmental Matters Relation to Aviation,"

signed on March 24, 1998 by FAA's Acting Assistant Administrator for Policy, Planning, and International Aviation, Louise Maillet, and EPA's Acting Assistant Administrator for Air and Radiation, Richard Wilson. A copy of this document can be found in Docket OAR 2002 0030. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 90 aviation industry ( passenger and cargo airlines and engine manufacturers), airports, state and local air pollution control officials, environmental organizations, and NASA.

Initially, the discussions with stakeholders focused on the prospect of aircraft engine emission reduction retrofit kits, which might be applied to certain existing aircraft engines. 102 However, as the initiative evolved, the focus was expanded by the stakeholders to identify strategies for various types of ground service equipment ( GSE) in use at airports, 103 in addition to strategies to reduce aircraft emissions. 104 FAA developed a program, with Congressional approval, to fund conversion of airport infrastructure and ground support vehicles to alternative fuels technologies. Unfortunately, the state and industry stakeholders did not reach consensus on a national aviation emissions reduction program. The Agencies are currently contemplating 102Two engine models were indeed certificated with emissions retrofit kits, and a number of these engines have been purchased for aircraft with the retrofit kits installed in their stock configuration. However, retrofit kits have not to date provided widescale emissions improvements because it seems they may have limited applicability to certain engine types, small emission benefits, and cost issues.

103The stakeholders considered the impact, operation and design of GSE at airports, and whether to undertake projects at several airports to reduce overall emissions.

104Operational strategies, such as reducing the time in which aircraft are in idle and taxi modes and the impact of auxiliary power units ( APUs) were also considered. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 91 next steps following from the national stakeholder initiative and discussions of potential voluntary programs.

In addition, in the proposal EPA invited comment on the national stakeholder initiative and any other approaches for aviation emission reductions, and we received many suggestions from commenters. We may consider these suggested approaches during our current reflection on the stakeholder initiative and for future voluntary programs.

Finally, the FAA has two other initiatives that will assist in addressing concerns with respect to emissions from aircraft. First, in September 2003 it created a Center of Excellence   Partnership for Reduction of Air Transportation Noise and Emissions Reduction ( PARTNER) a consortium of 8 universities, 29 industry representatives as well as NASA and Transport Canada

to develop new approaches and solutions to reduce aviation's environmental impacts. Second,

with the assistance of the National Academy of Sciences, FAA is developing the next generation of aviation noise and emissions models and analytical tools improve measurement,

understanding, and targeted solutions. See the Summary and Analysis of Comments for further discussion of approaches to additional aviation emission reductions.

VIII. Regulatory Impacts Aircraft engines are international commodities, and thus, they are designed to meet international standards. Today's action will have the benefit of establishing consistency between U. S. and international emission standards and test procedures. Thus, an emission certification test which meets U. S. requirements will also be applicable to all ICAO requirements. Engine Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 92 manufacturers are already developing improved technology in response to the ICAO standards that match standards promulgated here, and EPA does not believe that the costs incurred by the aircraft industry as a result of the existing ICAO standards should be attributed to today's regulations. Also, the test procedure amendments ( revisions to criteria on calibration and test gases) necessary to determine compliance are already being adhered to by manufacturers during current engine certification tests. Therefore, EPA believes that today's regulations will impose no additional burden on manufacturers.

The existence of ICAO's requirements results in minimal cost as well as air quality benefits from today's requirements. 105 Since aircraft and aircraft engines are international commodities, there is commercial benefit to consistency between U. S. and international emission standards and control program requirements. Also, the adoption of the ICAO standards and related test procedures is consistent with our treaty obligations.

IX. Public Participation 105CAEP's Forecasting and Economic Analysis Support Group ( FESG) concluded at CAEP/ 4 that their assessment of these new NOx standards indicates that the direct costs of the standards would be minimal, and the benefits would be modest. ( ICAO, CAEP/ 4, Working Paper 4, " Economic Assessment of the EPG NOx Stringency Proposal," March 12, 1998,

Presented by the Chairman of FESG, Agenda Item 1: Review of proposals relating to NOx emissions, including the amendment of Annex 16, Volume II.. A copy of this paper can be found in Docket OAR 2002 0030. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 93 A number of interested parties participated in the rulemaking process that culminates with this final rule. This process provided opportunity for submitting written public comments following the proposal that we published on September 30, 2003 ( 68 FR 56226). We considered these comments in developing the final rule. In addition, we held a public hearing on the proposed rulemaking on November 13, 2003, and we have considered comments presented at the hearing.

We have prepared a detailed Summary and Analysis of Comments document, which describes comments we received on the proposal and our response to each of these comments.

The Summary and Analysis of Comments is available in the e docket for this rule, as well as on the Office of Transportation and Air Quality homepage ( www. epa. gov/ otaq/ aviation. htm). In addition, comments and responses for key issues are included throughout this preamble.

X. Statutory Provisions and Legal Authority The statutory authority for today's proposal is provided by sections 231 and 301( a) of the Clean Air Act, as amended, 42 U. S. C. 7571 and 7601( a). See section II of today's rule for discussion of how EPA meets the CAA's statutory requirements.

XI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 94 Under Executive Order 12866 ( 58 FR 51735, October 4, 1993), the Agency must determine whether this regulatory action is " significant" and therefore subject to Office of Management and Budget ( OMB) review and the requirements of the Executive Order. The Order defines " significant regulatory action" as one that is likely to result in a rule that may:

( 1) Have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

( 2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

( 3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or ( 4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, OMB has notified EPA that it considers this a " significant regulatory action" within the meaning of the Executive Order. EPA has submitted this action to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

B. Paperwork Reduction Act Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 95 This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U. S. C. 3501 et seq. Any reporting and recordkeeping requirements associated with these standards would be defined by the Secretary of Transportation in enforcement regulations issued later under the provisions of section 232 of the Clean Air Act. Since most if not all manufacturers already measure NOx and report the results to the FAA, any additional reporting and record keeping requirements associated with FAA enforcement of today's regulations would likely be very small.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Analysis Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 96 EPA has determined that it is not necessary to prepare a regulatory flexibility analysis in connection with this final rule. The EPA has also determined that the final rule will not have a significant economic impact on a substantial number of small entities.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: ( 1) a small business that meet the definition for business based on SBA size standards; ( 2) a small governmental jurisdiction that is a government of a city, county, town,

school district or special district with a population of less than 50,000; or ( 3) a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field. The following Table XI C 1 provides an overview of the primary SBA small business categories potentially affected by this regulation.

Table XI. C 1   Primary SBA Small Business Categories Potentially Affected by This Regulation Industry NAICSa Codes Defined by SBA as a small business if: b Manufacturers of new aircraft engines 336412 < 1,000 employees Manufacturers of new aircraft 336411 < 1,500 employees Scheduled air carriers, passenger and freight 481 < 1,500 employees a North American Industry Classification System ( NAICS)

b According to SBA's regulations ( 13 CFR part 121), businesses with no more than the listed number of employees or dollars in annual receipts are considered " small entities" for purposes of a regulatory flexibility analysis. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 97 After considering the economic impacts of today's rule on small entities, EPA has concluded that this action will not have a significant economic impact on a substantial number of small entities. This rule will not impose any requirements on small entities. Because of the limited classes of aircraft engines to which today's regulations apply, no small entities will be affected. Our review of the list of manufacturers of commercial aircraft gas turbine engines with rated thrust greater than 26.7 kN indicates that there are no U. S. manufacturers of these engines that qualify as small businesses. We are unaware of any foreign manufacturers with a U. S.

based facility that will qualify as a small business. In addition, the rule will not impose significant economic impacts on engine manufacturers. As discussed earlier, today's action will codify emission standards that manufacturers currently adhere to ( nearly all in production engines already meet the standards). These standards are equivalent to the ICAO international consensus standards. Today's emission standards will not impose any additional burden on manufacturers because they are already designing engines to meet the ICAO standards. Also, the test procedure amendments ( revisions to criteria on calibration and test gases) necessary to determine compliance are already being adhered to by manufacturers during current engine certification tests. Therefore, EPA believes that today's regulations will impose no additional burden on manufacturers. The existence of ICAO's requirements results in minimal cost from these requirements.

D. Unfunded Mandates Reform Act Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 98 Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Public Law 104 4,

establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA,

EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with " Federal mandates" that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any one year.

Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.

Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

EPA has determined that this rule does not contain a Federal mandate that may result in expenditure of $ 100 million or more for State, local, or tribal governments, in the aggregate or Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 99 the private sector in any one year. This rule contains no regulatory requirements that might significantly or uniquely affect small governments. Today's action will codify emission standards that manufacturers currently adhere to ( nearly all in production engines already meet the standards). These standards are equivalent to the ICAO international consensus standards.

Today's emission standards will not impose any additional burden on manufacturers because they are already designing new engines to meet the ICAO standards. Thus, the annual effect on the economy of today's standards will be minimal. Today's rule is not subject to the requirements of sections 202 and 205 of the UMRA.

E. Executive Order 13132: Federalism Executive Order 13132, entitled " Federalism" ( 64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure " meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications."

" Policies that have federalism implications" is defined in the Executive Order to include regulations that have " substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government."

Today's rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. As discussed earlier, section 233 of the CAA preempts Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 100 states from adopting or enforcing aircraft engine emission standards that are not identical to our standards. This rule merely modifies existing EPA aircraft engine emission standards and test procedures and therefore will merely continue an existing preemption of State and local law.

Thus, Executive Order 13132 does not apply to this rule.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicited comment on the proposed rule from State and local officials.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments Executive Order 13175, entitled " Consultation and Coordination with Indian Tribal Governments" ( 65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications."

This rule does not have tribal implications, as specified in Executive Order 13175. The promulgated emission standards and other related requirements for private industry in this rule have national applicability and therefore do not uniquely affect the communities of Indian Tribal Governments. As discussed earlier, section 233 of the CAA preempts states from adopting or enforcing aircraft engine emission standards that are not identical to our standards. This final rule merely modifies existing EPA aircraft engine emission standards and test procedures and therefore will merely continue an existing preemption of State and local law. In addition, Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 101 today's rule will be implemented at the Federal level and impose compliance obligations only on engine manufacturers. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children from Environmental Health & Safety Risks Executive Order 13045, " Protection of Children from Environmental Health Risks and Safety Risks" ( 62 FR 19885, April 23, 1997) applies to any rule that ( 1) is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, Section 5 501 of the Order directs the Agency to evaluate the environmental health or safety effects of the planned rule on children,

and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because the Agency does not have reason to believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children. EPA believes that the NOx emission reductions ( NOx is a precursor to the formation of ozone and PM) from this rulemaking will further improve air quality and will further improve children's health.

H. Executive Order 13211: Actions that Significantly Affect Energy Supply, Distribution, or Use Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 102 This rule is not a " significant energy action" as defined in Executive Order 13211,

" Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use"

( 66 FR 28355 ( May 22, 2001)) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. As discussed earlier, today's action will codify emission standards that manufacturers currently adhere to ( nearly all in production engines already meet the standards). These standards are equivalent to the ICAO international consensus standards.

The final standards will have no likely adverse energy effects because manufacturers are already designing engines to meet the ICAO standards. Also, the test procedure amendments ( revisions to criteria on calibration and test gases) necessary to determine compliance are already being adhered to by manufacturers during current engine certification tests. Thus, we have concluded that this rule is not likely to have any adverse energy effects.

I. National Technology Transfer Advancement Act Section 12( d) of the National Technology Transfer and Advancement Act of 1995 (" NTTAA"), Public Law 104 113, section 12( d) ( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 103 This final rulemaking involves technical standards for testing emissions for commercial aircraft gas turbine engines. EPA will use test procedures contained in ICAO International Standards and Recommended Practices Environmental Protection, with the modifications contained in this rulemaking. 106 These procedures are currently used by all manufacturers of commercial aircraft gas turbine engines ( with thrust greater than 26.7 kN) to demonstrate compliance with ICAO emissions standards.

J. Congressional Review Act 106ICAO International Standards and Recommended Practices Environmental Protection,

Annex 16, Volume II, " Aircraft Engine Emissions," Second Edition, July 1993  Amendment 3,

March 20, 1997. Copies of this document can be obtained from ICAO ( www. icao. int). The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U. S. Senate, the U. S. House of Representatives, and the Comptroller General of the United States prior to Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 104 publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a " major rule" as defined by 5 U. S. C.

804( 2). This rule will be effective [ Insert date 30 days after date of publication in the FEDERAL REGISTER].

List of Subjects in 40 CFR Part 87 Environmental protection, Air pollution control, Aircraft, Incorporation by reference.

Dated: _______ XX, 200X Michael O. Leavitt,

Administrator.

For the reasons set out in the preamble, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 87  CONTROL OF AIR POLLUTION FROM AIRCRAFT AND AIRCRAFT ENGINES 1. The authority citation for part 87 continues to read as follows:

Authority: Secs. 231, 301( a), Clean Air Act, as amended ( 42 U. S. C 7571, 7601( a)). Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 105 Subpart A   [ Amended]

2. Section 87.7 is amended by removing paragraphs ( b)( 1) and ( b)( 2).

3. A new section 87.8 is added to read as follows:

§ 87.8 Incorporation by reference.

We have incorporated by reference the documents listed in this section. The Director of the Federal Register approved the incorporation by reference as prescribed in 5 U. S. C. 552( a)

and 1 CFR part 51. Anyone may inspect copies at the U. S. EPA, Air and Radiation Docket and Information Center, 1301 Constitution Ave., NW., Room B102, EPA West Building,

Washington, DC 20460 or the Office of the Federal Register, 800 N. Capitol St., NW., 7th Floor,

Suite 700, Washington, DC.

( a) ICAO material. Table 1 of § 87.8 lists material from the International Civil Aviation Organization that we have incorporated by reference. The first column lists the number and name of the material. The second column lists the sections of this part where we reference it. Anyone may purchase copies of these materials from the International Civil Aviation Organization, Document Sales Unit, 999 University Street, Montreal, Quebec, Canada H3C 5H7.

Table 1 follows: Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 106 Table 1 of § 87.8   ICAO Materials Document number and name Part 1039 reference International Civil Aviation Organization Annex 16, Environmental Protection, Volume II, Aircraft Engine Emissions, Second Edition, July 1993, Including Amendment 3 of March 20, 1997. 87.8, 87.64, 87.71, 87.82,

87.89 ( b) [ Reserved]

Subpart C   [ Amended]

4. Section 87.21 is amended by adding paragraph ( d)( 1)( vi) and ( d)( 1)( vii) to read as follows:

§ 87.21 Standards for exhaust emissions. Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 107 * * * * *

( d) * * *

( 1) * * *

( vi) Engines of a type or model of which the date of manufacture of the first individual production model was after December 31, 2003:

( A) Engines with a rated pressure ratio of 30 or less:

( 1) Engines with a maximum rated output greater than 89 kilonewtons:

Oxides of Nitrogen: ( 19 + 1.6( rPR)) grams/ kilonewtons rO.

( 2) Engines with a maximum rated output greater than 26.7 kilonewtons but not greater than 89 kilonewtons:

Oxides of Nitrogen: ( 37.572 + 1.6( rPR)  0.2087( rO)) grams/ kilonewtons rO.

( A) Engines with a rated pressure ratio greater than 30 but less than 62.5:

( 1) Engines with a maximum rated output greater than 89 kilonewtons: Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 108 Oxides of Nitrogen: ( 7 + 2( rPR)) grams/ kilonewtons rO.

( 2) Engines with a maximum rated output greater than 26.7 kilonewtons but not greater than 89 kilonewtons:

Oxides of Nitrogen: ( 42.71 + 1.4286( rPR)  0.4013( rO) + 0.00642( rPR  X rO)) ( Note: check all of these throughout) grams/ kilonewtons rO.

( A) Engines with a rated pressure ratio of 62.5 or more:

Oxides of Nitrogen: ( 32 + 1.6( rPR)) grams/ kilonewtons rO.

( i) The emission standards prescribed in paragraph ( d)( 1)( vi) of this section shall apply as prescribed beginning [ Insert date 30 days after date of publication in the FEDERAL REGISTER].

* * * * *

Subpart G   [ Amended]

5. Section 87.64 is revised to read as follows: Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 109 § 87.64 Sampling and analytical procedures for measuring gaseous exhaust emissions.

The system and procedures for sampling and measurement of gaseous emissions shall be as specified by Appendices 3 and 5 to ICAO Annex 16 ( incorporated by reference in § 87.8).

6. Section 87.71 is revised to read as follows:

§ 87.71 Compliance with gaseous emission standards.

Compliance with each gaseous emission standard by an aircraft engine shall be determined by comparing the pollutant level in grams/ kilonewton/ thrust/ cycle or grams/ kilowatt/ cycle as calculated in § 87.64 with the applicable emission standard under this part. An acceptable alternative to testing every engine is described in Appendix 6 to ICAO Annex 16 ( incorporated by reference in § 87.8). Other methods of demonstrating compliance may be approved by the Secretary with the concurrence of the Administrator.

7. Section 87.82 is revised to read as follows:

§ 87.82 Sampling and analytical procedures for measuring smoke exhaust emissions.

The system and procedures for sampling and measurement of smoke emissions shall be as specified by Appendix 2 to ICAO Annex 16 ( incorporated by reference in § 87.8). Preliminary Draft   Do not Cite, Quote, or Distribute 1/ 13/ 05 110 8. Section 87.89 is revised to read as follows:

§ 87.89 Compliance with smoke emission standards.

Compliance with each smoke emission standard shall be determined by comparing the plot of SN as a function of power setting with the applicable emission standard under this part.

The SN at every power setting must be such that there is a high degree of confidence that the standard will not be exceeded by any engine of the model being tested. An acceptable alternative to testing every engine is described in Appendix 6 to ICAO Annex 16 ( incorporated by reference in § 87.8).