Climate Change Response (Moderated Emissions Trading) Amendment Act 2009

1: Title
This Act is the Climate Change Response (Moderated Emissions Trading) Amendment Act 2009
2: Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
3: Principal Act amended
This Act amends the Climate Change Response Act 2002 2009-12-08 Climate Change Response Act 2002
1: Amendments to Climate Change Response Act 2002
4: Application of Schedules 3 and 4
1: Section 2A
1: Any provision in this Act that imposes an obligation on, or provides an entitlement to, a person in respect of an activity listed in Schedule 3 or 4—
a: does not apply to that person unless—
i: the Part or subpart in Schedule 3 or 4 in which the activity is listed applies; and
ii: the person, if carrying out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3, falls within a class of persons prescribed in an Order in Council that applies that subpart; and
b: applies subject to sections 2C(3) 222A to 222D
2: Section 2A(5) , unless repealed under subsection (10) before that date
3: Section 2A(6) , unless repealed under subsection (11) before that date
4: Section 2A(8) 1 January 2011 if the Governor-General makes an Order in Council to that effect a date appointed by the Governor-General by Order in Council
5: Section 2A(9) 1 January 2011 if the Governor-General makes an Order in Council to that effect a date appointed by the Governor-General by Order in Council
6: Section 2A(10) to (13)
5: New sections 2B and 2C inserted
The following sections are inserted after section 2A
2B: Orders in Council in relation to Part 5 of Schedule 3
1: An Order in Council made under section 2A(8) or (9) appointing a date on and after which subpart 2 or 4 of Part 5 of Schedule 3 applies must—
a: be made on the recommendation of the Minister responsible for the administration of this Act; and
b: appoint a date that is 1 January in a year; and
c: be made at least 1 year before the date appointed in the Order in Council; and
d: not appoint a date earlier than 1 January 2013.
2: One or more Orders in Council made under section 2A(8) or (9) may provide that subpart 2 or 4 of Part 5 of Schedule 3 applies—
a: specifically to 1 or more classes of persons who carry out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 on and after a date appointed in the order; or
b: generally to all persons who carry out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 on and after a date appointed in the order.
3: Before recommending that an Order in Council be made under section 2A(8) or (9), the Minister must have regard to—
a: the need for the chief executive responsible for the administration of Parts 4 and 5 of this Act to be able to verify information contained in emissions returns of the persons who will become participants in respect of an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 by operation of the order; and
b: the likelihood that, as a result of becoming participants by operation of the order, persons carrying out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 will reduce their emissions; and
c: the desirability of minimising—
i: the compliance and administration costs of persons who will become participants in respect of an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 by operation of the order; and
ii: the administration costs of the Crown in administering the greenhouse gas emissions trading scheme established under this Act.
4: Before recommending the making of an Order in Council under section 2A(8) or (9), the Minister must consult, or be satisfied that the chief executive has consulted, persons (or their representatives) that appear to the Minister or the chief executive likely to have an interest in the order.
2C: Effect of Orders in Council in relation to Part 5 of Schedule 3
1: This section applies if an Order in Council made under section 2A(8) or (9) has the effect that subparts 1 and 2 of Part 5 of Schedule 3, or subparts 3 and 4 of Part 5 of Schedule 3, apply at the same time.
2: If this section applies, then regulations made under section 163(1) may require—
a: a person carrying out an activity listed in subpart 1 of Part 5 of Schedule 3 and a person carrying out an activity listed in subpart 2 of Part 5 of Schedule 3 to—
i: collect data or other information relating to the same synthetic fertiliser; and
ii: calculate emissions in respect of emissions relating to the same synthetic fertiliser; or
b: a person carrying out an activity listed in subpart 3 of Part 5 of Schedule 3 and a person carrying out an activity listed in subpart 4 of Part 5 of Schedule 3 to—
i: collect data or other information relating to the same ruminant animals, pigs, horses, or poultry; and
ii: calculate emissions relating to the same ruminant animals, pigs, horses, or poultry.
3: However,—
a: on and after the date from which the person carrying out an activity listed in subpart 2 of Part 5 of Schedule 3 is required to surrender units for emissions relating to the fertiliser, this Act no longer applies to the person carrying out the activity listed in subpart 1 of Part 5 of Schedule 3 in relation to the fertiliser; and
b: on and after the date from which the person carrying out an activity listed in subpart 4 of Part 5 of Schedule 3 is required to surrender units for emissions relating to the ruminant animals, pigs, horses, or poultry, this Act no longer applies to the person carrying out the activity listed in subpart 3 of Part 5 of Schedule 3 in relation to those ruminant animals, pigs, horses, or poultry.
4: If an Order in Council is made under—
a: section 2A(8) that has the effect of applying subpart 2 of Part 5 of Schedule 3 to all persons who carry out an activity listed in that subpart from a date appointed in that order, then section 2A(5) and subpart 1 of Part 5 of Schedule 3 expire and are repealed on the date from which all persons carrying out an activity listed in subpart 2 of Part 5 of Schedule 3 are liable to surrender units in respect of emissions from the activity:
b: section 2A(9) that has the effect of applying subpart 4 of Part 5 of Schedule 3 to all persons who carry out an activity listed in that subpart from a date appointed in that order, then section 2A(6) and subpart 3 of Part 5 of Schedule 3 expire and are repealed on the date from which all persons carrying out an activity listed in subpart 4 of Part 5 of Schedule 3 are liable to surrender units in respect of emissions from the activity.
5: If, by operation of subsection (3)(a) or (b) or (4)(a) or (b)
a: section 54(4) applies, with any necessary modifications, to any person who has ceased, by operation of the provision, to be a participant in respect of that activity; and
b: the person is not required to comply with section 59, but the chief executive may, for the purposes of section 59(2), determine that the person has ceased to carry out the activity.
6: Purpose
1: Section 3
2: Section 3
3: For the purposes of this section, business-as-usual levels
7: New section 3A inserted
The following section is inserted after section 3
3A: Treaty of Waitangi (Te Tiriti o Waitangi)
In order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi,—
a: with respect to section 2B
b: with respect to section 75 section 72
c: with respect to section 76 section 74
d: with respect to section 161
i: the Minister must, when appointing members to a review panel under section 160(6)
ii: the review panel must consult with the representatives of iwi and Māori that appear to the panel likely to have an interest in the review; and
iii: the terms of reference for the review panel must incorporate reference to the principles of the Treaty of Waitangi:
e: with respect to section 161G section 161G(1)
f: with respect to section 162 (which relates to regulations adding further activity to Part 2 of Schedule 4), before recommending the making of a regulation under section 162(1), the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation:
g: with respect to section 163 (which relates to regulations relating to methodologies and verifiers), before recommending the making of a regulation under section 163(1), the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation:
h: with respect to section 164 (which relates to regulations relating to unique emissions factors), before recommending the making of a regulation under section 164, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation:
i: with respect to section 224 (which relates to the gazetting of targets), before the Minister responsible for the administration of this Act may set, amend, or revoke a target, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the target:
j: with respect to section 225 section 225(1)
8: Interpretation
1: The definition of allocation plan section 4(1) section 79 or 80 section 70
2: Section 4(1) allocate
a: means the allocation or provisional allocation of New Zealand units; but
b: does not include the transfer of New Zealand units animal welfare export certificate Australian eligible industrial activity consolidated group Crown holding account
a: means a holding account that is established and held by the Crown in accordance with a direction of the Minister of Finance under section 6; and
b: does not include a holding account opened by any other person on behalf of the Crown under section 18A eligible activity
a: an eligible agricultural activity; or
b: an eligible industrial activity eligible agricultural activity eligible industrial activity section 161A eligible land eligible person
a: section 80(1)
b: section 85(1)
c: any regulations made under this Act:
d: an allocation plan financial year fishing allocation plan section 74 member nominated entity pre-1990 forest land allocation plan section 72 provisional allocation section 81 solid biofuel unincorporated body
a: means an unincorporated body of persons; and
b: includes (but is not limited to)—
i: a partnership, a joint venture, or the trustees of a trust; and
ii: if land, a lease, a forestry right, or a Crown conservation contract is not owned, held, or entered into by a partnership, joint venture, or the trustees of a trust, 3 or more joint—
A: landowners; or
B: leaseholders; or
C: holders of a registered forestry right; or
D: parties to a Crown conservation contract; but
c: does not, unless they are partners, joint venturers, or trustees of a trust, include 2 joint—
i: landowners; or
ii: leaseholders; or
iii: holders of a registered forestry right; or
iv: parties to a Crown conservation contract .
3: The definition of carbon accounting area ; or
c: is constituted as a carbon accounting area by operation of section 188(7)(b) or 192(3)(b) .
4: The definition of chief executive section 4(1) or subpart Part
5: Section 4(1) Convention Convention
a: means the United Nations Framework Convention on Climate Change done at New York on 9 May 1992, a copy of the English text of which is set out in Schedule 1; and
b: includes any amendments made to the Convention that are, or will become, binding on New Zealand from time to time .
6: Section 4(1) draft allocation plan
7: Paragraph (a) of the definition of forest land section 4(1) when the forest species reach maturity
8: Paragraph (c)(i) of the definition of forest land section 4(1) at maturity
9: Paragraph (c)(ii) of the definition of forest land section 4(1) at maturity
10: The definition of forest species section 4(1) located located, but does not include tree species grown or managed primarily for the production of fruit or nut crops
11: Paragraph (b) of the definition of post-1989 forest land section 4(1) between 1 January 1990 and 31 December 2007 in the period beginning on 1 January 1990 and ending on 31 December 2007
12: Section 4(1) Protocol Protocol
a: means the Protocol to the United Nations Framework Convention on Climate Change done at Kyoto on 11 December 1997, a copy of the English text of which is set out in Schedule 2; and
b: includes any amendments made to the Protocol that are, or will become, binding on New Zealand from time to time .
13: The definition of waste section 4(1) waste
a: including (but not limited to) any disposed of or discarded thing that is defined by its composition or source (for example, organic waste, electronic waste, or construction and demolition waste); but
b: excluding any solid biofuel combusted for the purposes of generating electricity or industrial heat .
14: Section 4
5: Despite anything in this Act, a hectare of land is not to be treated as pre-1990 forest land if,—
a: on 1 January 2008, the land had—
i: no standing exotic forest species (dead or alive), other than a strip of standing exotic forest species that had, or was likely to have, tree crown cover of an average width of less than 30 metres; and
ii: no other merchantable timber from exotic forest species; and
b: 4 years after the date on which the land met the conditions in paragraph (a)
9: Minister of Finance may carry out trading activities with respect to units
1: The heading to section 6 direct Registrar regarding establishment of Crown holding accounts and may
2: Section 6(a) Crown or close
10: New section 14 inserted
The following section is inserted after section 13
14: Registrar must give effect to directions
The Registrar must give effect to any direction relating to the transfer of units from a Crown holding account (or in the case of reimbursement, from a surrender account) to the holding account of an eligible person or a participant (or, if required, in the prescribed circumstances to another holding account notified by one of those persons) that is given by a Minister or chief executive authorised to give such direction in accordance with a provision in Part 4 or 5 of this Act.
11: New section 17A inserted
The following section is inserted after section 17
17A: Power of Registrar to delegate
1: The Registrar may, in writing, delegate to any person who is employed in the State services all or any of the functions, duties, and powers exercisable by the Registrar under this Act, except this power of delegation.
2: Subject to any general or special directions given or conditions specified at any time by the Registrar, the person to whom any functions, duties, or powers are delegated under this section must perform and may exercise those functions, duties, and powers in the same manner and with the same effect as if they had been conferred on that person directly by a section of this Act and not by delegation.
3: Every person purporting to act under any delegation under this section is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.
4: Any delegation under this section may be to a specified person or to persons of a specified class, or may be to the holder or holders for the time being of a specified office or specified classes of offices.
5: Every delegation under this section is revocable in writing at will by the Registrar, and no such delegation prevents the exercise of any function, duty, or power by the Registrar.
6: Every delegation under this section, until revoked, continues in force according to its tenor, even if the Registrar by whom it was made has ceased to hold office.
7: For the purposes of this section, State services
12: Closing holding accounts
Section 18B
7: The Registrar must give effect to any directions given by the chief executive under subsection (2) in accordance with, and subject to, the procedures set out in this subpart and any regulations made under section 30G.
13: Effect of surrender, retirement, cancellation, and conversion
Section 18CA
3: A Kyoto unit that is transferred to a surrender account may only be further transferred, in accordance with—
a: a direction from the Minister of Finance, to a retirement account or a cancellation account; or
b: a direction of the chief executive of the department responsible for the administration of Part 4 given under section 124, to a participant's holding account.
4: A New Zealand unit or an approved overseas unit that is transferred to a surrender account may only be further transferred in accordance with a direction of the chief executive of the department responsible for the administration of Part 4 given under section 124.
14: Trusts, representatives, and assignees of bankrupts
Section 18E
1: Notice of a trust, whether express, implied, or constructive, may not be entered on the unit register except in accordance with subsection (1A)
1A: If the trustees of a trust apply to open a holding account under section 18A, then—
a: the trustees may specify the name of the trust as the name of the holding account; and
b: the Registrar may enter on the unit register the name of the trust as the name of the holding account.
15: Registration procedure for Kyoto units
1: Section 21(1) the Minister of Finance a Minister or chief executive authorised to give the direction under a provision of this Act
2: Section 21(1)(a) an unique a unique
3: Section 21(1)(c)(ii)(A) Minister of Finance Minister or chief executive who gave the direction
4: Section 21(2)(c)(i) Minister of Finance Minister or chief executive who gave the direction
5: Section 21(3)(d)(i) Minister of Finance Minister or chief executive who gave the direction
16: Registration procedure for New Zealand units and approved overseas units
1: Section 21AA(1) the Minister of Finance a Minister or chief executive authorised to give the direction under a provision of this Act
2: Section 21AA(1)(c)(ii)(A) Minister of Finance Minister or chief executive who gave the direction
3: Section 21AA(2)(c)(i) Minister of Finance Minister or chief executive who gave the direction
4: Section 21AA(3)(d)(i) Minister of Finance Minister or chief executive who gave the direction
17: Electronic registration
Section 21A by the Minister of Finance to the Registrar by a Minister or chief executive under a provision of this Act
18: Priority of registration
Section 24(1) by the Minister of Finance to the Registrar by a Minister or chief executive under a provision of this Act
19: Correction of unit register
Section 25(1)
a: the Minister or chief executive who gave the direction, if the Registrar registered the transaction following receipt of a direction from a Minister or chief executive authorised to give the direction under a provision of this Act; or .
20: Restrictions on certain New Zealand units allocated to landowners of pre-1990 forest land
Section 30F
1: This section applies to any New Zealand units transferred or to be transferred after 31 December 2012 in accordance with the pre-1990 forest land allocation plan issued under section 70
21: Regulations
Section 50
8: The Governor-General may, by Order in Council, make regulations—
a: amending Schedule 1 by making any amendments to the text of the Convention set out in that schedule as are required to bring the text up to date:
b: revoking Schedule 1 and substituting a new schedule setting out in an up-to-date form the text of the Convention:
c: amending Schedule 2 by making any amendments to the text of the Protocol set out in that schedule as are required to bring the text up to date:
d: revoking Schedule 2 and substituting a new schedule setting out in an up-to-date form the text of the Protocol.
22: Participants
1: Section 54(1)(a)(i) and (2) 180 or 204 180, 204, or 213
2: Section 54(1)(b)(ii) or 193
3: Section 54(4) (including, but not limited to, the obligation to retain records in accordance with section 67) obligations
23: Associated persons
1: Section 55(3)(b)
ii: member of an unincorporated body; or .
2: Section 55(3)(b)(iii) a member member
24: Applications to be registered as participant in respect of activities listed in Schedule 4
1: Section 57(4) ; and
c: has paid any prescribed fees or charges.
2: Section 57(6)(b) 209(2)(a), or 213(2)(a) , or 209(2)(a)
3: Section 57(7) 4, or 5 or 4
4: Section 57(8) 209(2)(b), or 213(2)(b) or 209(2)(b)
25: Removal from register of participants in respect of activities listed in Schedule 4
1: Section 58(3)(c) 209(3)(a), or 213(3)(a) or 209(3)(a)
2: Section 58(4) 209(3)(b), or 213(3)(b) or 209(3)(b)
26: Removal from register of participants in respect of activities listed in Schedules 3 and 4
1: Section 59(2)(b) 209(3)(a), or 213(3)(a) or 209(3)(a)
2: Section 59(3) , 211, and 215 and 211
27: Exemptions in respect of activities listed in Schedule 3
1: Section 60(1)(a) an the
2: Section 60(1)(b) an the
3: Section 60(1)(c) an the
4: Section 60
1A: An Order in Council made under subsection (1) may specify any terms and conditions (including, but not limited to, terms and conditions imposing geographical or operational restrictions) that the Governor-General thinks fit.
5: Section 60(2)(b) of not of
28: New section 61 substituted
Section 61
61: Requirement to have holding account
1: A participant or an eligible person must have a holding account for the purpose of—
a: surrendering units or repaying units as required under this Part or Part 5:
b: receiving New Zealand units to which the participant or eligible person is entitled under this Part or Part 5.
2: Despite anything in subsection (1) subsection (1)
3: Despite anything in this Act, the Registrar must, subject to section 18A(5), open a holding account in the name of—
a: a person—
i: who applies to open a holding account in accordance with section 56(1)(b) or 57(3); and
ii: whose name has been entered on a register kept for the purposes of section 56 or 57; or
b: an eligible person.
29: Monitoring of emissions and removals
Section 62
d: keep, in the prescribed format (if any), records of the data or information and calculations.
30: Entitlement to receive New Zealand units for removal activities
Section 64
2: If a participant submits an emissions return to the chief executive that contains an assessment of the participant's entitlement to receive New Zealand units, then the chief executive must, within 20 working days of receiving the emissions return, direct the Registrar to transfer the number of New Zealand units contained in the assessment to the participant’s holding account.
3: Subsection (2)
31: Annual emissions returns
1: Section 65(1) Between 1 January and 31 March In the period beginning on 1 January and ending on 31 March
2: Section 65(4) 30 April 31 May
32: New subpart 2 of Part 4 substituted
Subpart 2
2: Issuing and allocating New Zealand units
68: Issuing New Zealand units
1: The Minister may, at any time, direct the Registrar to issue New Zealand units into a Crown holding account.
2: Before giving a direction, the Minister must—
a: consult the Minister of Finance; and
b: have regard to the following matters:
i: the number of units that New Zealand has received, or that the Minister expects New Zealand to receive, under any international agreement; and
ii: New Zealand's international obligations, including any obligation to retire units equal to the number of tonnes of emissions that are emitted in New Zealand; and
iii: the proper functioning of the greenhouse gas emissions trading scheme established under this Act; and
iv: any other matters that the Minister considers relevant; and
c: if the direction under subsection (1)
i: New Zealand's annual emissions for the 5 years (on record) before the year of the direction under consideration; and
ii: the report of the most recent review completed under section 160(1)
iii: New Zealand's obligations under the Convention (if any); and
iv: New Zealand's anticipated future international obligations.
3: The Registrar must give effect to a direction given by the Minister under subsection (1)
4: As soon as practicable after giving a direction under subsection (1)
a: publish a copy of the direction in the Gazette
b: ensure that the direction is accessible via the Internet site of the department of the chief executive responsible for the administration of this Act; and
c: present a copy of the direction to the House of Representatives.
5: Each copy of the direction under subsection (4) subsection (2)(b) subsection (2)(c)
69: Notification of intention regarding New Zealand units
1: The Minister must give notice in the Gazette
a: the first commitment period:
b: each subsequent commitment period (if any):
c: if there is no subsequent commitment period, then—
i: the 5-year period commencing on 1 January 2013:
ii: each subsequent 5-year period after the period specified in subparagraph (i)
2: The notice must include—
a: the number of New Zealand units that are intended to be issued under section 68
b: the time frames for issuing the New Zealand units under section 68
c: the intended time frame for any allocation of New Zealand units, or the sale of New Zealand units and the method of sale.
3: The Minister must present a copy of the report under section 160(7)(b)
4: The Minister must ensure that a copy of any notice given under subsection (1)
5: The Crown is not bound by any notice given under subsection (1) Allocation of New Zealand units in relation to pre-1990 forest land and fishing
70: Governor-General may issue allocation plans
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, issue an allocation plan providing for the matters in section 72 or 74
2: The allocation plan must—
a: comply with any relevant requirements specified in this subpart; and
b: be presented to the House of Representatives as soon as practicable after it is issued, along with, in the case of the fishing allocation plan, the report provided to the Minister under section 76(5)
3: An allocation plan comes into force on the day after the date it is presented to the House of Representatives.
4: An allocation plan is a regulation for the purposes of the Regulations (Disallowance) Act 1989 and for the purposes of the Acts and Regulations Publication Act 1989.
71: Correction of allocation plans
1: For the purpose of correcting any minor mistakes or defects in an allocation plan, the Minister may, without complying with section 75 or 76
2: An amended allocation plan comes into force at the time it is issued.
3: Section 70(2)(b) and (3)
72: Allocation in respect of pre-1990 forest land
1: The Minister must recommend to the Governor-General that an allocation plan be issued under section 70
2: The pre-1990 forest land allocation plan must provide for—
a: an allocation of New Zealand units to—
i: landowners, or former landowners, of eligible land who are eligible persons; or
ii: a person appointed in accordance with section 73 paragraph (b)(i)(A)
b: an allocation of New Zealand units of—
i: 18 New Zealand units for each hectare of eligible land that was Crown forest licence land on 1 January 2008 and—
A: will not have been transferred to iwi as part of a Treaty of Waitangi settlement by the date on which the allocation plan is issued; or
B: has been, or will have been, transferred to iwi as part of a Treaty of Waitangi settlement either on or after 1 January 2008 but before the date on which the allocation plan is issued:
ii: 39 New Zealand units for each hectare of eligible land, other than land covered by subparagraph (i)
A: after 31 October 2002; or
B: before 1 November 2002 if, since that date, ownership (including, if specified in the allocation plan, the beneficial ownership) of any body corporate owning the land or, if specified in the allocation plan, the beneficial ownership of the land owned by a body corporate, has changed in the manner and to the extent specified in the allocation plan:
iii: 60 New Zealand units for each hectare of eligible land not covered in subparagraph (i) or (ii)
3: The pre-1990 forest land allocation plan must provide that the New Zealand units allocated under the plan will be transferred so that—
a: a person allocated 18 units for each hectare of eligible land in accordance with subsection (2)(b)(i)
i: 7 units for each hectare of eligible land by 31 December 2012; and
ii: 11 units for each hectare of eligible land after 31 December 2012; and
b: a person allocated 39 units for each hectare of eligible land in accordance with subsection (2)(b)(ii)
i: 15 units for each hectare of eligible land by 31 December 2012; and
ii: 24 units for each hectare of eligible land after 31 December 2012; and
c: a person allocated 60 units for each hectare of eligible land in accordance with subsection (2)(b)(iii)
i: 23 units for each hectare of eligible land by 31 December 2012; and
ii: 37 units for each hectare of eligible land after 31 December 2012.
4: In addition to the matters provided for in subsections (2) and (3)
a: must specify—
i: the landowners, or former landowners, of the eligible land who are eligible persons; and
ii: the manner in which, and the extent to which, the ownership of eligible land must have changed to constitute a transfer subsection (2)(b)(ii)(A) or (B)
iii: the circumstances, if any, in which a transfer for the purposes of subsection (2)(b)(ii)
iv: the manner in which, and the extent to which, the ownership of any body corporate owning eligible land must have changed for the purposes of subsection (2)(b)(ii)(B)
v: the data and information, or the kind of data and information, that each eligible person must supply, and the form in which the person must supply the data and information, in order to—
A: receive an allocation of New Zealand units under the plan; and
B: enable the Minister to determine the person’s correct allocation of New Zealand units under the allocation plan; and
vi: in relation to an eligible person who receives an allocation of New Zealand units,—
A: the records, or the kinds of records, that the person must retain; and
B: the form in which the person must retain the records; and
C: the period for which the person must retain the records; and
b: may specify—
i: the manner in which, and the extent to which, the beneficial ownership of eligible land must have changed to constitute a transfer subsection (2)(b)(ii)(A) or (B)
ii: the manner in which, and the extent to which, the beneficial ownership of any body corporate owning eligible land, or, if relevant, the beneficial ownership of the land owned by a body corporate, must have changed for the purposes of subsection (2)(b)(ii)(B)
c: may provide for any other matters contemplated by this subpart, necessary for its administration, or necessary for giving it full effect.
5: Despite subsection (2)(b) subsection (2)(b)(iii)
6: For the purposes of—
a: this section,—
i: eligible land is to be treated as transferred on the settlement date, unless the pre-1990 forest land allocation plan specifies another date or event upon which any or all eligible land is to be treated as transferred; and
ii: Crown forest licence land
b: subsection (2)(b)(ii)
i: transfer
ii: body corporate
73: Minister to appoint person to hold certain New Zealand units
1: The Minister must, before making a determination in respect of the eligible land specified in section 72(2)(b)(i)(A) Gazette
a: appoint a person to—
i: apply for an allocation of New Zealand units in respect of the land; and
ii: hold on trust for the future owners of the land any New Zealand units allocated in respect of the land; and
b: notify—
i: the structure, composition, and functions of the person; and
ii: the terms and conditions upon which the person is to hold the New Zealand units.
2: If the Minister has not appointed a person in accordance with subsection (1) section 77(1) Gazette section 72(2)(b)(i)(A) subsection (1)
74: Allocation to owners of fishing quota
1: The Minister must recommend to the Governor-General that an allocation plan be issued under section 70
2: The fishing allocation plan must provide for—
a: an allocation of New Zealand units to persons who—
i: were shown on the quota register kept under Part 8 of the Fisheries Act 1996 as owners of fishing quota on 24 September 2009; and
ii: meet any tests or thresholds that are specified in the allocation plan; and
b: a total of 700 000 New Zealand units to be available for allocation under the allocation plan; and
c: an allocation of New Zealand units to each eligible person calculated in accordance with the following formula: P = A × (B + C)/(D + E) where— P is the eligible person's allocation entitlement under the fishing allocation plan A is 700 000 New Zealand units B is the total quota weight equivalent (expressed in kilograms) of stocks, other than Foveaux Strait dredge oysters, owned by the eligible person on the close of 24 September 2009 C is the total quota weight equivalent (expressed as a number of oysters) of Foveaux Strait dredge oyster stock owned by the eligible person on the close of 24 September 2009 divided by 9.8 D is the sum of the total allowable commercial catch (expressed in kilograms) of stocks, other than Foveaux Strait dredge oysters (excluding any quota shown in the quota register kept under Part 8 of the Fisheries Act 1996 as being owned by the Crown), on the close of 24 September 2009 E is the sum of the total allowable commercial catch (expressed as a number of oysters) of the Foveaux Strait dredge oyster stock divided by 9.8 (excluding any quota shown in the quota register kept under Part 8 of the Fisheries Act 1996 as being owned by the Crown) on the close of 24 September 2009; and
d: the data and information, or the kind of data and information, that each eligible person must supply, and the form in which the person must supply the data and information, in order to—
i: receive an allocation of New Zealand units under the allocation plan; and
ii: enable the Minister to determine the person's correct allocation of New Zealand units under the allocation plan; and
e: in relation to an eligible person who receives an allocation of New Zealand units,—
i: the records, or the kinds of records, that the person must retain; and
ii: the form in which the person must retain the records; and
iii: the period for which the person must retain the records; and
f: any other matters contemplated by this subpart, necessary for its administration, or necessary for giving it full effect.
3: For the purposes of this section, quota weight equivalent total allowable commercial catch
75: Consultation on pre-1990 forest land allocation plan
1: Before making a recommendation under section 72
2: A failure to comply with this section does not affect the validity of any pre-1990 forest land allocation plan issued under section 70
3: Any consultation undertaken before the commencement of this section in respect of the pre-1990 forest land allocation plan is to be treated as the consultation required for the purposes of this section.
76: Consultation on fishing allocation plan
1: Before making a recommendation under section 74(1)
a: prepare a draft fishing allocation plan; and
b: consult, or be satisfied that the chief executive has consulted, persons (or their representatives) that appear to the Minister or the chief executive likely to have an interest in the fishing allocation plan.
2: The draft fishing allocation plan must provide for the matters set out in section 74(2)
3: The Minister must ensure that—
a: public notice is given of the draft fishing allocation plan; and
b: the draft fishing allocation plan is made available in hard copy at the office of, and is accessible via the Internet site of the department of, the chief executive responsible for the administration of this Act and at such other places as the Minister considers appropriate.
4: The notice of the draft fishing allocation plan given under subsection (3)
a: how a hard copy of the draft fishing allocation plan may be obtained; and
b: that any person may make a submission on the draft fishing allocation plan, how submissions may be made, and by what date submissions must be made (which must be no earlier than 20 working days after the date on which notice is given).
5: If any submission is made on the draft fishing allocation plan under subsection (4)
77: Determinations made in accordance with allocation plan
1: As soon as practicable after an allocation plan comes into force, the Minister must give public notice inviting any person who may be eligible for an allocation of New Zealand units under the allocation plan to apply for an allocation.
2: The notice under subsection (1)
a: the form in which an application must be made; and
b: the final date by which applications for an allocation of New Zealand units under the allocation plan must be received by the Minister (which must, in the case of a pre-1990 forest land allocation plan, be no earlier than 40 working days after the date on which the notice is given and, in the case of a fishing allocation plan, be no earlier than 20 working days after the date on which the notice is given); and
c: the data and other information, or the kind of data and other information, that must accompany the application in order for the person’s application to be considered (which must be the data and other information specified in the allocation plan); and
d: how the data and other information are to be supplied.
3: To avoid doubt, data and information supplied under subsection (2)
4: Despite anything in this subpart or in any allocation plan,—
a: a person is not entitled to receive an allocation of New Zealand units under an allocation plan unless the person applies to the Minister for an allocation under the allocation plan and supplies the required data and other information in the required format; and
b: the Minister is not required to make a determination in respect of an application for an allocation if the application is received after the date specified in the notice under subsection (2)(b)
5: The Minister must, in relation to each application received by the date specified in the notice given under subsection (1)
a: whether the person is eligible to receive an allocation of New Zealand units under the plan; and
b: the total number of New Zealand units the person is entitled to receive under the plan (which may be expressed by reference to a formula); and
c: the year or years in which the New Zealand units will be transferred to the person.
6: After making a preliminary determination, the Minister must notify the applicant of the following:
a: whether, in the Minister's opinion, the person is an eligible person under the allocation plan, and—
i: if so, the total number of New Zealand units the Minister has determined the person is entitled to receive under the plan (which may be expressed by reference to a formula) and the year or years in which those units will be transferred; and
ii: if not, the reasons for that opinion; and
b: that, if the applicant believes there are any errors or miscalculations in the Minister’s preliminary determination of eligibility or entitlement, the person may provide further information to the Minister supporting a different determination; and
c: the final date by which any further information must be received by the Minister (which must, in the case of a pre-1990 forest land allocation plan, be no earlier than 20 working days after the date on which the notice is given, and in the case of a fishing allocation plan, be no earlier than 10 working days after the date on which the notice is given).
7: Following the expiry of the date referred to in subsection (6)(c) subsection (5)
8: As soon as practicable after making a final determination under subsection (7)
a: notify the applicant of the determination; and
b: publish the determination in the Gazette
c: ensure that the determination is accessible via the Internet site of the department of the chief executive responsible for the administration of this Act; and
d: if New Zealand units are allocated to an applicant, direct the Registrar to transfer the allocated New Zealand units to the applicant's holding account in the amounts and on the date or dates specified in the determination.
9: For the purposes of making a preliminary determination under subsection (5) subsection (7)
10: To avoid doubt, and without limiting the powers conferred under sections 94 to 106, the chief executive or any other person with powers under sections 94 to 106 may exercise those powers for the purposes of ascertaining whether a person who applies for an allocation of New Zealand units or is allocated New Zealand units under an allocation plan is complying with, or has complied with,—
a: any requirement in this section or section 78 or 79
b: any requirement in the relevant allocation plan (for example, a requirement to keep records).
78: Power to revoke and replace determinations
1: Despite anything in section 77(7) or (8) section 77(7)
a: the allocation plan under which the determination was made is amended; or
b: in the Minister's opinion, the determination has resulted, or would otherwise result, in a person receiving an incorrect allocation because—
i: of an error in the application of the criteria specified in the applicable allocation plan; or
ii: a person has provided altered, false, incomplete, or misleading information in response to a notice given under section 77(1) or (6) or 86E
2: Before revoking and replacing a determination that would affect the number of units allocated to a person, the Minister must—
a: make a preliminary determination of the matters specified in section 77(5)
b: give notice to the person of—
i: the ground specified in subsection (1)
ii: the Minister’s preliminary determination made under paragraph (a)
c: follow the procedure in section 77(6) to (8)
3: The Minister may not revoke or replace a determination under this section after the expiry of 4 years from the date of notification of the Minister’s first determination under section 77(7)
4: Despite subsection (3)
5: Subsections (6) and (7)
a: the Minister has made a determination under section 77
b: New Zealand units have been transferred to Te Ohu Kai Moana Trustee Limited under the determination in respect of unallocated quota; and
c: Te Ohu Kai Moana Trustee Limited has allocated and transferred unallocated quota together with New Zealand units associated with that quota to any iwi or mandated iwi organisation in accordance with section 138A(2) of the Maori Fisheries Act 2004; and
d: the Minister reconsiders the determination.
6: In reconsidering the determination of Te Ohu Kai Moana Trustee Limited's entitlement, the Minister must treat an iwi or a mandated iwi organisation which has received unallocated quota from Te Ohu Kai Moana Trustee Limited as if it owned that quota on 24 September 2009.
7: If the Minister decides that the determination of Te Ohu Kai Moana Trustee Limited’s entitlement to New Zealand units should be revoked, the Minister must make a new determination of—
a: Te Ohu Kai Moana Trustee Limited’s entitlement to be allocated New Zealand units under the fishing allocation plan as if the unallocated quota that Te Ohu Kai Moana Trustee Limited owns on the date of the new determination were all the unallocated quota it owned on 24 September 2009; and
b: the entitlement of an iwi or a mandated iwi organisation that has received unallocated quota to be allocated New Zealand units under the fishing allocation plan as if that iwi or mandated iwi organisation owned the unallocated quota it received on 24 September 2009.
8: In subsections (5) to (7) and section 79(4) iwi mandated iwi organisation unallocated quota
79: Effect of new determination
1: If the Minister makes a new determination in accordance with section 78
a: the new determination applies and replaces the earlier determination from the date the new determination is made; and
b: the Minister—
i: may, if practicable, amend or revoke any direction given under section 77(8)(d)
ii: must otherwise give any new direction necessary under section 77(8)(d)
2: Subject to subsection (3)
3: If New Zealand units have been transferred to a person under an earlier determination and the person would not be entitled under the new determination to those New Zealand units (including where the result of the new determination is that the person would not be entitled to any New Zealand units under the allocation plan), then—
a: the notice of the new determination given to the person under section 77(8)
i: the number of units required to be repaid; and
ii: the Crown holding account into which they must be transferred; and
b: the person must, within 60 working days after the date of the notice, repay those units by transferring the specified number of units to a Crown holding account in accordance with the notice, and sections 134 and 135 apply, with any necessary modifications, as if—
i: the units the person is required to repay were units transferred to the person in error; and
ii: the requirement to repay the units arose under section 125.
4: This section applies to any new determination made in accordance with section 78(7)
a: only the New Zealand units associated with the unallocated quota held by Te Ohu Kai Moana Trustee Limited at the date of the new determination had been transferred to it under the earlier determination; and
b: the New Zealand units associated with the unallocated quota transferred to an iwi or a mandated iwi organisation by Te Ohu Kai Moana Trustee Limited had been transferred to the iwi or mandated iwi organisation under the earlier determination. Allocation of New Zealand units in relation to industry and agriculture
80: Criteria for allocation of New Zealand units to industry
1: A person is eligible for an allocation of New Zealand units for an eligible industrial activity in respect of a year if the person carries out the activity at any time in a year.
2: Subsection (1) sections 86E and 161D(7)
81: Entitlement to provisional allocation for eligible industrial activities
Subject to section 82 PA = LA × ∑(PDCT × AB) where— PA is the person’s provisional allocation entitlement for the eligible industrial activity for the year LA is the level of assistance for the eligible industrial activity for the year, being,—
a: for a moderately emissions-intensive eligible industrial activity,—
i: 0.6 in 2010, 2011, and 2012; and
ii: in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a moderately emissions-intensive eligible industrial activity) (expressed to 2 decimal places):
b: for a highly emissions-intensive eligible industrial activity,—
i: 0.9 in 2010, 2011, and 2012; and
ii: in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a highly emissions-intensive eligible industrial activity) (expressed to 2 decimal places) ∑ is the symbol for summation (of each PDCT × AB calculation) PDCT is the amount of each prescribed product from the eligible industrial activity produced by the person in the year immediately preceding the year to which the provisional allocation relates, as determined, if relevant, in accordance with regulations made under this Act AB is the prescribed allocative baseline for the applicable product that is required to be used by the eligible person by regulations made under this Act.
82: Entitlement to allocation for eligible industrial activities where provisional allocation not received
1: An eligible person who carries out an eligible industrial activity at any time in a year, but did not carry out that activity during the immediately preceding year (a new entrant section 81 subsection (2)
2: A new entrant or other eligible person who did not receive a provisional allocation of New Zealand units for an eligible industrial activity in respect of a year is entitled to an allocation of New Zealand units for the eligible industrial activity for the year calculated in accordance with the formula in section 83(2)
83: Annual allocation adjustment
1: A person who has received a provisional allocation of New Zealand units for an eligible industrial activity in respect of a year must, subject to section 84
a: determining the person’s final allocation entitlement for the eligible industrial activity in respect of the year in accordance with the formula in subsection (2)
b: then determining the annual allocation adjustment in accordance with the formula in subsection (3)
2: The formula for the calculation of a person’s final allocation entitlement is as follows: FA = LA × ∑(PDCT × AB) where— FA is the person’s final allocation entitlement for the eligible industrial activity for the year LA is the level of assistance for the activity for the year, being,—
a: for a moderately emissions-intensive eligible industrial activity,—
i: 0.6 in 2010, 2011, and 2012; and
ii: in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a moderately emissions-intensive eligible industrial activity) (expressed to 2 decimal places):
b: for a highly emissions-intensive eligible industrial activity,—
i: 0.9 in 2010, 2011, and 2012; and
ii: in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a highly emissions-intensive eligible industrial activity) (expressed to 2 decimal places) ∑ is the symbol for summation (of each PDCT × AB calculation) PDCT is the amount of each prescribed product from the eligible industrial activity produced by the person in the year, as determined, if relevant, in accordance with regulations made under this Act AB is the prescribed allocative baseline for the applicable product that is required to be used by the eligible person by regulations made under this Act.
3: The formula for the calculation of a person’s annual allocation adjustment is as follows: AA = PA – FA where— AA is the person’s annual allocation adjustment of units for the eligible industrial activity for the year PA is the person's provisional allocation for the eligible industrial activity notified by the chief executive under section 86B FA is the person's final allocation entitlement for the eligible industrial activity for the year calculated under subsection (2)
4: If the figure for AA calculated under the formula in subsection (3)
a: is a negative number, then the person is entitled to be allocated the number of units in the annual allocation adjustment:
b: is a positive number, then the person is liable to repay the number of units in the annual allocation adjustment.
5: If an eligible person is entitled to be allocated the number of units in an annual allocation adjustment and the person—
a: makes an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, then the person must record the adjustment in the person's application for a provisional allocation for the following year:
b: does not make an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, the person may make a separate application under section 86
6: If an eligible person is liable to repay the number of units in an annual allocation adjustment and the person—
a: makes an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, then—
i: the person must record the adjustment for the year in the person's application for a provisional allocation for the following year; and
ii: subject to section 86B
b: does not make an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, then the person must—
i: by 30 April in the year following the year to which the annual allocation adjustment relates, notify the chief executive of the person’s annual allocation adjustment; and
ii: by 31 May in the year following the year to which the annual allocation adjustment relates, repay the number of units in the annual allocation adjustment by transferring the units to a Crown holding account designated by the chief executive.
7: If a person is required to repay units under this section, then—
a: the units repaid must be of a type that may be transferred to a surrender account at the time the units are repaid; and
b: sections 134 and 135 apply, with any necessary modifications, as if—
i: the units the person is required to repay were units transferred to the person in error; and
ii: the requirement to repay the units arose under section 125.
84: Closing allocation adjustment
1: An eligible person who has received a provisional allocation for an eligible industrial activity in respect of a year and who ceases during the year to carry out that activity must, within 20 working days of ceasing to carry out the activity,—
a: calculate the person’s final allocation entitlement for the activity for the year in accordance with the formula in section 83(2)
b: using the formula in section 83(3) section 83(3)
c: if the closing allocation adjustment is—
i: a negative number, apply to the chief executive under section 86
ii: a positive number, notify the chief executive of the person's closing allocation adjustment and repay the number of units in the closing allocation adjustment by transferring the units to a Crown holding account designated by the chief executive.
2: For the purposes of subsection (1)
a: is not immediately to be treated as having ceased to carry out the activity; but
b: must, if the person does not carry out the activity for a period of 3 months in the year, notify the chief executive as soon as practicable after the expiry of that 3-month period of that fact; and
c: must, if given notice by the chief executive (following receipt of the person’s notice under paragraph (b) subsection (1) subsection (1)
3: Subject to subsection (4) subsection (1)
a: is not required to comply with section 83
b: may not calculate an annual allocation adjustment under section 83
4: A person who has applied for or notified a closing allocation adjustment in accordance with subsection (1)
a: may calculate an annual allocation adjustment for the year in accordance with the following formula: AA = PA – FA – CAA where— AA is the person’s annual allocation adjustment of units for the eligible industrial activity for the year PA is the person's provisional allocation for the eligible industrial activity for the year notified by the chief executive under section 86B FA is the person's final allocation entitlement for the eligible industrial activity for the year (which must be calculated in accordance with section 83(2) CAA is the amount of the person’s closing allocation adjustment for the eligible industrial activity; and
b: is entitled to be allocated the number of units in the person’s annual allocation adjustment (as calculated under paragraph (a) section 83(5)
5: Section 83(7) section 83
85: Allocation of New Zealand units in relation to agriculture
1: A person is eligible for an allocation of New Zealand units for an eligible agricultural activity in respect of a year if the person carries out the activity at any time in the year.
2: An eligible person is entitled to an allocation for the eligible agricultural activity in respect of the year calculated in accordance with the following formula: A = LA × ∑(PDCT × AB) where— A is the person's allocation entitlement for the eligible agricultural activity for the year LA is the level of assistance for the eligible agricultural activity for the year, being—
a: 0.9 for 2015; and
b: for each year after 2015, the level of assistance from the previous year less 1.3% (the phase-out rate for an eligible agricultural activity) (expressed to 2 decimal places) ∑ is the symbol for summation (of each PDCT × AB calculation) PDCT is the total amount of each product from the eligible agricultural activity produced by the person in the year as determined, if relevant, in accordance with regulations made under this Act AB is the prescribed allocative baseline for the applicable product.
3: Despite section 86(1)(c) section 86 subsection (2)
4: A person—
a: is not to be treated as having ceased to carry out an eligible agricultural activity for the purposes of subsection (3)
b: must, if the person does not carry out the eligible agricultural activity for a period of 3 months in a year, be treated as having ceased to carry out the activity in the year.
5: Subject to subsection (6) closing year subsection (3) section 86
6: An eligible person who has applied in accordance with subsection (3) section 86 subsection (3) subsection (2)
86: Applications for allocation of New Zealand units for industry and agriculture
1: An eligible person who wishes to be allocated New Zealand units for an eligible industrial activity or eligible agricultural activity under this subpart must, unless this subpart otherwise provides, apply to the chief executive for an allocation—
a: no later than 30 April in the year to which it relates, if the application is for a provisional allocation for an eligible industrial activity in respect of a year; and
b: no later than 30 April in the year following the year to which it relates, if the application is for an allocation (other than a provisional allocation for an industrial activity) in respect of a year (including for an allocation of an annual allocation adjustment); and
c: on or after 1 January and before 31 December in the year following the year to which it relates, if the application is for an allocation for an eligible agricultural activity in respect of a year.
2: An application under subsection (1)
a: be in the prescribed form; and
b: contain, as relevant, the applicant’s assessment of,—
i: in the case of an eligible industrial activity, the person’s—
A: provisional allocation entitlement in respect of the year calculated in accordance with section 81
B: final allocation entitlement in respect of the previous year calculated in accordance with section 83(2)
C: annual allocation adjustment relating to the previous year calculated in accordance with section 83(3) or 84(4)
D: closing allocation adjustment for the year calculated as required under section 84(1)(b)
ii: in the case of an eligible agricultural activity, the person’s—
A: allocation entitlement in respect of the previous year calculated in accordance with section 85(2)
B: if section 85(3)
c: be accompanied by—
i: any other information that the chief executive may require; and
ii: the prescribed fee (if any); and
d: contain the account number of the eligible person’s holding account, required by section 61
86A: Provisional allocation to industry in and after 2013
Despite section 86(1)(a) section 161A(1)(a) prescribing year
a: commencing on the date the regulation prescribing the activity as an eligible industrial activity comes into force; and
b: ending on the date 3 months after the date in paragraph (a)
86B: Decisions on applications for allocations of New Zealand units to industry and agriculture
1: On receipt of an application under section 86
a: whether the applicant is eligible to receive an allocation in respect of the application:
b: if in the chief executive’s opinion the applicant is eligible for an allocation in respect of the application, the number of units the applicant is entitled to be allocated in respect of the application that, if the application relates to a provisional allocation for an eligible industrial activity, must—
i: include any units to which the person is entitled in respect of an annual allocation adjustment for the previous year; or
ii: be net of any units required to be deducted from the person’s provisional allocation entitlement in accordance with section 83(6)(a)
2: If the chief executive decides under subsection (1)
a: notify the applicant of—
i: the number of units the applicant has been allocated in respect of the application and, in the case of an eligible industrial activity, any adjustment to that allocation that the chief executive has made under subsection (1)
ii: the person's right under section 144 to seek a review of the allocation decision; and
b: direct the Registrar to transfer to the holding account notified in the person’s application the number of units notified under paragraph (a) subsection (1)
3: If the chief executive decides under subsection (1) section 83(6)(a)
a: the chief executive's decision; and
b: the reasons for the decision; and
c: if the result of the decision is that the person is liable to repay more units than the number of units to which the person would have been entitled in respect of the application, the number of units in the shortfall; and
d: the person's right under section 144 to seek a review of the allocation decision.
4: If a person has failed to notify the chief executive of an annual allocation adjustment or a closing allocation adjustment when required by section 83(6)(b) or 84(1)(c)(ii) section 83(6)(b) or 84(1)(c)(ii)
5: The chief executive must, as soon as practicable, after deciding an eligible person’s final allocation for an eligible activity in respect of a year,—
a: publish the decision in the Gazette
b: ensure it is accessible via the Internet site of the department of the chief executive responsible for the administration of this Act.
6: For the purposes of subsection (5)
a: the final allocation of a person who received a provisional allocation for an eligible industrial activity is the person’s provisional allocation for the activity in respect of the year adjusted by the annual allocation adjustment for the activity for the year (or closing allocation adjustment, as the case may be); and
b: the chief executive is not required to publish the final allocation of an eligible person for an eligible activity in respect of a year, or ensure it is accessible via the Internet, if the chief executive considers that publishing that information would be likely to prejudice unreasonably the commercial position of the eligible person who received the allocation.
86C: Reconsideration of allocation decisions
1: Without limiting section 144, the chief executive may reconsider, vary, or revoke any decision made under section 86B
a: of an error in the calculation of the person’s entitlement to an allocation or liability to repay units under this subpart; or
b: the person has provided altered, false, incomplete, or misleading information in or with an application.
2: The chief executive may not make a decision in relation to an annual allocation adjustment or a closing allocation adjustment under section 86B(4) subsection (1)
3: However, if the chief executive is satisfied that a notice under section 83(6)(b) or 84(1)(c)(ii) section 86, 86E section 86B(4) subsection (1)
4: If the chief executive makes a decision in relation to an annual allocation adjustment or a closing allocation adjustment under section 86B(4) subsection (1) section 83(6)(b) or 84(1)(c)(ii)
a: the particulars of the decision, or variation or revocation of the decision; and
b: any grounds or information upon which the decision or variation or revocation of the decision was based; and
c: the person's right under section 144 to seek a review of the allocation decision.
5: If the result of a decision in relation to an annual allocation adjustment or a closing allocation adjustment under section 86B(4) subsection (1)
a: units to which the person was not entitled, or to have repaid too few units, the person must within 90 working days after the date of the notice under subsection (4)
b: fewer units than the person was entitled to, or to have repaid too many units, the chief executive must, as soon as practicable after the date of the notice under subsection (4)
6: Section 83(7) subsection (5) section 83
86D: Retention of records and materials in relation to allocation
1: A person who has been allocated New Zealand units for an eligible activity must keep sufficient records to enable the chief executive to verify, for any year in respect of which the person received an allocation,—
a: that the person was an eligible person; and
b: the person’s calculations of the person’s entitlement to be allocated New Zealand units or liability to repay units under the relevant subsections in sections 81 to 85
c: the total amount of each product produced by the person from the eligible activity in the year, as determined, if relevant, in accordance with regulations made under this Act; and
d: any other prescribed information.
2: The records specified in subsection (1)
a: must include—
i: a copy of any application made to the chief executive under section 86 section 83(6)(b) or 84(1)(c)(ii)
ii: any information used to prepare the application or notice; and
b: must be retained for a period of at least 7 years after the end of the year to which the application or notice relates.
86E: Minister or chief executive may require further information for purpose of carrying out functions under subpart
1: For the purposes of making a determination under section 77 or 78 section 86B
a: a person who has made an application for an allocation of New Zealand units or notified an annual allocation adjustment or closing allocation adjustment:
b: a person who has failed to notify an annual allocation adjustment or closing allocation adjustment as required by section 83(6)(b) or 84(1)(c)(ii)
c: a person who may be affected by a reconsideration of a determination or decision.
2: A notice under subsection (1)
3: A notice under subsection (1)
a: eligible for an allocation of New Zealand units; or
b: entitled to the allocation that the person has applied for or received (in relation to an annual allocation adjustment or a closing allocation adjustment).
4: The Minister or chief executive may, as appropriate, for the purpose of verifying whether a determination made under section 77 or 78 section 86B
5: A person who has received a notice under this section must supply the information requested within the period specified in the notice.
6: A person who fails to comply with a notice under this section within the period specified in the notice, or any further period agreed with the Minister or chief executive as appropriate, and who—
a: has applied for an allocation under an allocation plan or under section 86
b: has been allocated but not yet received some or all units allocated to the person under an allocation plan is not entitled to be transferred any units or any further units allocated to the person under the plan.
86F: Balance of units at end of true-up period or other balance date
1: By the end of the true-up period, the Minister must ensure that the Crown holds, in any Crown holding account in the Registry, or in any retirement or surrender account, a number of Kyoto units equal to the number of New Zealand units issued into a Crown holding account during the first commitment period, but not including New Zealand units that are, during the first commitment period,—
a: transferred to a conversion account in accordance with section 30E; or
b: allocated to pre-1990 forest land owners under the pre-1990 forest land allocation plan that will be transferred after 31 December 2012 and that have not been transferred to a cancellation account; or
c: transferred to a cancellation account.
2: Subsection (3)
a: the Protocol during a subsequent commitment period; or
b: a successor international agreement.
3: If this subsection applies the Governor-General may, by Order in Council made on the recommendation of the Minister, specify a date by which the Crown must hold, in any Crown holding account in the Registry, or in any retirement or surrender account, a number of Kyoto units or approved overseas units received under any international agreement as calculated under subsection (4)
4: The number of Kyoto or approved overseas units held in accordance with subsection (3)
a: transferred to a conversion account in accordance with section 30E; or
b: allocated to pre-1990 forest land owners under the pre-1990 forest land allocation plan that will be transferred after 31 December 2012 and that have not been transferred to a cancellation account; or
c: transferred to a cancellation account.
5: If an Order in Council is made under subsection (3)
6: For the purposes of subsection (1) true-up period
33: Functions of chief executive
1: Section 87(1)
ba: administer allocations relating to industry and agriculture in accordance with sections 80 to 86E .
2: Section 87(1)
d: direct the Registrar to transfer New Zealand units to which participants are entitled for removal activities to participants’ holding accounts; and .
34: Chief executive to publish certain information
1: Section 89(1)(e) subsection (3) subsections (3) and (4)
2: Section 89(1)
i: the total number of New Zealand units allocated under subpart 2 less any units repaid.
3: Section 89(3) or the information required under subsection (1)(i) in respect of an activity
4: Section 89(3) or an eligible person's own allocation emissions
5: Section 89(3)(a) participant participant or eligible person
6: Section 89
4: The chief executive is only required to publish the total quantity of emissions and the total quantity of removals in aggregate for the activities in Part 1 of Schedule 4.
35: Power of entry for investigation
Section 100(1) and Part 5 or Part 5
36: Matters in relation to which chief executive may decline to make emissions rulings
Section 108
1: The chief executive may not make an emissions ruling––
a: with respect to a provision that authorises or requires the chief executive to—
i: impose or remit a penalty; or
ii: inquire into the correctness of any return or other information supplied by any person; or
iii: prosecute any person; or
iv: recover any debt owing by any person; or
b: if the information submitted with the application for the ruling, including (but not limited to) information submitted under section 107(3), raises questions of fact that the chief executive would need to determine in order to make the ruling.
37: Submission of final emissions returns
1: Section 118(3)
a: a person who has—
i: ceased to carry out an activity listed in Schedule 3 or 4 in relation to which the person was a participant; and
ii: left, or is about to leave, New Zealand: .
2: Section 118(4)
a: contain all of the information required in an annual emissions return under section 65(2), but only in respect of the following periods, as relevant:
i: if the return is submitted in response to a requirement of the chief executive under subsection (2), the period specified by the chief executive:
ii: if the return is made under subsection (3)(a)
A: beginning on the later of 1 January in the year in which the return is submitted, or the day after the end of the period covered by the last emissions return submitted by the person for the activity; and
B: ending on the day the person ceased to carry out the specified activity, or the last of the specified activities covered by the return:
iii: if the return is made under subsection (3)(c) or (d), the period determined by the submitter; and .
3: Section 118
6: Despite anything in subsection (3),—
a: a person who meets the conditions in that subsection, and who is (at the time of meeting those conditions) a member of a consolidated group, may not submit a final emissions return; and
b: the nominated entity of the consolidated group of which the person is a member may not submit a final emissions return in respect of the person.
7: To avoid doubt, a person who submits a final emissions return in respect of a specified activity under this section—
a: is not required to submit an annual emissions return under section 65 that covers the activity for any period covered by the return submitted under this section; but
b: must, if the final emissions return does not cover the full period in which the activity was carried out by the participant in a year, submit an annual emissions return under section 65 in respect of the activity that covers any part of the year in which the activity was carried out by the participant that is not covered by the return submitted under this section.
38: Power to extend date for emissions returns
Section 119(a) before by
39: Effect of amendment or assessment
Section 123
5: If the amendment or assessment results in an entitlement for a participant to receive New Zealand units for the participant's removal activities, the chief executive must direct the Registrar to transfer the number of New Zealand units to which the participant is entitled to the participant's holding account.
40: Reimbursement of units by chief executive
Section 124
124: Reimbursement of units by chief executive
1: If the chief executive is required to arrange for the reimbursement of units to a person under section 123(4), 126(2), 138(2), or 189(7), the chief executive must direct the Registrar to transfer units to the person in accordance with subsection (2)
2: If the reimbursement is of—
a: New Zealand units or approved overseas units, the chief executive must direct the Registrar to transfer the applicable number of New Zealand units or approved overseas units from the appropriate surrender account or Crown holding account to the person's holding account; or
b: Kyoto units, the chief executive must direct the Registrar to transfer the applicable number and type of Kyoto units from the appropriate surrender account or Crown holding account to the person's holding account.
3: The chief executive must take into account the views of the person to whom units will be reimbursed about the type of units to be reimbursed when determining what units to reimburse.
41: Repayment of units by persons in case of error
Section 125(1) or other Crown account or other account held by the Crown
42: Strict liability offences
1: Section 129(1)(b)
iia: fails to comply with the requirements relating to the calculation of, application for, or notification of an annual allocation adjustment or closing allocation adjustment under section 83 or 84 section 84(1)(a) to (c) section 84(2)(c)
iii: fails to keep records as required—
A: under section 67 or 86D
B: by a fishing allocation plan; or
C: by a pre-1990 forest land allocation plan; or .
2: Section 129(1)(b)
v: fails to notify the chief executive, within the time required, of a matter required to be notified under section 84(2)(b) or 192(3)
43: Other offences
1: Section 132(1)
da: knowingly fails to comply with the requirements relating to the calculation of, application for, or notification of an annual allocation adjustment or a closing allocation adjustment under section 83 or 84 84(1)(a) to (c) section 84(2)(c)
e: knowingly fails to keep records as required—
i: under section 67 or 86D
ii: by a fishing allocation plan; or
iii: by a pre-1990 forest land allocation plan; or .
2: Section 132(1)(f) the Minister or emissions returns) to
44: Evasion or similar offences
1: Section 133(1)
ba: fails to comply with the requirements relating to calculation and application for or notification of an annual allocation adjustment or a closing allocation adjustment under section 83 or 84 section 84(1)(a) to (c) section 84(2)(c)
c: fails to keep records as required—
i: under section 67 or 86D
ii: by a fishing allocation plan; or
iii: by a pre-1990 forest land allocation plan; or .
2: Section 133(1)(e) the Minister or emissions returns) to
45: New section 136 substituted
Section 136
136: Additional penalty for knowing failure to comply
1: This section applies to a person who—
a: is or was liable following—
i: a new determination under section 78 section 86C
ii: an amendment under section 120 or an assessment under section 121 to surrender units (or additional units) or to repay units, in respect of any period covered by, or that should have been covered by, an emissions return; and
b: is convicted of an offence under section 132(1)(c) to (f) or 133 that relates to—
i: the units allocated and transferred to the person (including, but not limited to, the provision of information); or
ii: an emissions return that was—
A: amended under section 120; or
B: assessed under section 121.
2: If this section applies, the person is liable, in addition to any penalty imposed in respect of the offence, to—
a: as the case may require,—
i: transfer to the Crown holding account designated by the Minister or chief executive in the notice referred to in section 79(3) or 86C(4) section 79(3)(a) or 86C(4)
ii: surrender a number of units equivalent to the number of units determined by the chief executive in the amendment under section 120 or the assessment under section 121, or in any review or appeal proceedings relating to that determination; and
b: pay an excess emissions penalty of $30 for each unit the person is liable to transfer or surrender under paragraph (a)
3: If this section applies, the chief executive must give a notice to the person that—
a: sets out the—
i: number of additional units that the person is required to transfer to a Crown holding account or surrender under subsection (2)
ii: amount of the excess emissions penalty to which the person is liable under subsection (2)
b: requires the person to transfer to the designated Crown holding account or surrender the additional units, and pay the penalty within 90 days after the date of the notice; and
c: advises that, unless both the units are transferred to the designated Crown holding account or surrendered (as the case may require) and the penalty paid in full by the due date, interest on the amount of the penalty will accrue in accordance with section 137.
4: To avoid doubt, any liability to transfer units to a Crown holding account or surrender units and pay a penalty under subsection (2)
5: The amount of the excess emissions penalty, together with any interest that accrues on that penalty, constitutes a debt due to the Crown and is recoverable by the chief executive in a court of competent jurisdiction.
46: Interest for late payment
1: Section 137
1: This section applies if—
a: a person—
i: has failed to surrender or repay units when required to do so and is liable to pay an excess emissions penalty in relation to those units under section 134(2)(b)(i) or (iii); or
ii: is required to surrender or repay units under section 123 and is liable to pay an excess emissions penalty in relation to those units under section 134(2)(b)(ii); or
iii: is required to transfer units to a Crown holding account or surrender units and pay an excess emissions penalty under section 136
b: the person does not comply, or comply in full, with the requirement to surrender or repay units and to pay the penalty by the relevant date.
2: Section 137(2)
b: for the period from the date by which the penalty was due to be paid until the associated liability to surrender or repay units or to transfer units to a Crown holding account under section 136
3: Section 137
3: To avoid doubt, interest accrues under subsection (2) even if the amount of the excess emissions penalty in a penalty notice has been paid in full if the associated requirement to surrender or repay units or to transfer units to a Crown holding account under section 136
4: Section 137(4)
a: the failure of the person to comply with the requirement to surrender or repay units or to transfer units to a Crown holding account under section 136 .
47: Obligation to pay penalty not suspended by appeal
1: Section 138
1: The obligation to pay and the right to receive and recover any excess emissions penalty or interest imposed under section 134, 136 section 136
2: Section 138
2: If the applicant or appellant is successful in the review or appeal, the amount of any excess emissions penalty or interest paid by the applicant must be refunded to the applicant or appellant by the chief executive, and any units not required to be transferred to a Crown holding account or surrendered must be reimbursed in accordance with the procedure specified in section 124
48: Formation of consolidated group
1: Section 150(6)(a) consolidated formation of the
2: Section 150(6)(a) the following that
3: Section 150(6)(b) consolidated formation of the
4: Section 150(6)(b) year following the next year following year
5: Section 150
6A: Despite subsection (1), 2 or more members of a group may, if they elect to form a consolidated group in respect of an activity, give notice to the chief executive under subsection (3)—
a: at the same time they all give notice to the chief executive under section 56 in respect of that activity; or
b: at the same time they all submit an application under section 57 in respect of that activity.
6B: Despite sections 56(1), 57(3), and 61 subsection (6A) section 61
a: the notice given in accordance with subsection (6A)
b: the nominated entity specified in the notice given in accordance with subsection (6A)
49: Changes to consolidated groups
1: Section 151
4: Subject to subsection (6)
2: Section 151
6: An entity may, if the entity elects to be treated as a member of a consolidated group on and after the date the entity is registered as a participant in respect of an activity, give notice to the chief executive under subsection (1)—
a: at the same time as giving notice to the chief executive under section 56 in respect of that activity; or
b: when submitting an application under section 57 in respect of that activity.
7: Despite sections 56(1), 57(3), and 61 subsection (6) section 61
a: giving notice to the chief executive under section 56 in respect of that activity; or
b: submitting an application under section 57 in respect of that activity.
50: New section 151A inserted
The following section is inserted after section 151
151A: Addition of activities to consolidated groups
1: A member of a consolidated group may elect to add to the activities in respect of which the member is treated as a member of the consolidated group by giving notice to the chief executive in the prescribed form.
2: A notice given under subsection (1)
a: include the name of the member and the activity or activities the member is electing to add to the activities in respect of which the member is treated as a member of the consolidated group; and
b: contain the agreement of every existing member of the consolidated group—
i: to be jointly and severally liable with the other members of the group for any obligations under this Part or Part 5 in respect of emissions and removals resulting from the member's activity or activities specified in the notice; and
ii: to the transfer to the consolidated group’s holding account, on behalf of the group, of any units to which the adding member may become entitled in respect of the activity or activities specified in the notice.
3: The chief executive must acknowledge that the member has added the activity or activities specified in the notice under subsection (1)
4: If a member has elected under subsection (1)
a: if the notice of the election is received by the chief executive by 30 September in a year, on and after 1 January of that year:
b: if the notice of the election is received by the chief executive after 30 September in a year, on and after 1 January of the next year.
51: Effect of being member of consolidated group
1: Section 153(6)(a)(ii) section 118 in respect of a participant section 187 in respect of an entity
2: Section 153
7: To avoid doubt, an emissions return for a consolidated group or any member of a consolidated group may be submitted only by the nominated entity of the consolidated group.
52: Emissions returns by consolidated group in respect of activities in Part 1 of Schedule 4
1: Section 154(1)(a) an activity 1 or more of the activities
2: Section 154(1)
ab: may, if section 189(2)(d) section 189(4A) .
3: Section 154(2) or, if the return does not relate to a period covered by the emissions return, as if section 153(2) to (5) referred to the liability to surrender units or entitlement to be transferred units in relation to the emissions return covered by the emissions return
4: Section 154
3: To avoid doubt, only the nominated entity may submit an emissions return for a consolidated group that has been formed in respect of 1 or more of the activities listed in Part 1 of Schedule 4.
53: Ceasing to be member of consolidated group
1: Section 155(2)
a: if subsection (1)(a) applies and the notice of election to cease to be a member of the consolidated group is received by the chief executive—
i: by 30 September in any year, on and after 1 January of that year; or
ii: after 30 September in any year, on and after 1 January of the following year; and .
2: Section 155(2)(d) consolidated nominated entity for the
3: Section 155
6: Subsection (7)
a: ceases to be a member of a consolidated group but remains a participant; and
b: does not have its own holding account.
7: An entity to which this subsection applies must,—
a: immediately upon ceasing to be a member of the consolidated group, apply to open a holding account under section 18A; and
b: supply the account number of the holding account, or ensure the account number of the holding account is supplied, to the chief executive within 10 working days of receiving the account number from the Registrar.
54: New section 156A inserted
The following section is inserted after section 156
156A: Removal of activities from consolidated groups
1: A member of a consolidated group may elect to remove 1 or more activities from the activities in respect of which the member is treated as a member of the consolidated group by giving notice to the chief executive in the prescribed form.
2: The activity or activities specified in the notice under subsection (1)
a: if the notice of the election is received by the chief executive by 30 September in a year, on and after 1 January of that year:
b: if the notice of the election is received by the chief executive after 30 September in a year, on and after 1 January of the next year.
3: The chief executive must acknowledge that the activity or activities specified in the notice under subsection (1)
4: If a member has removed an activity from the activities in respect of which the member is treated as a member of a consolidated group, that member continues to be jointly and severally liable with the other members of the consolidated group for any obligations under this Part or Part 5 in respect of emissions and removals related to the activity, and jointly entitled to any units transferred for the activity (if it is a removal activity), in respect of the period in which the activity was an activity in respect of which the member was treated as a member of the consolidated group.
5: Subsection (6)
a: removes 1 or more activities from the activities in respect of which the member is treated as a member of the consolidated group; and
b: remains a participant in respect of 1 or more of those activities; but
c: does not have its own holding account.
6: A member of a consolidated group to which this subsection applies must—
a: apply to open a holding account under section 18A immediately upon removal of the activity or activities from the activities in respect of which the member is treated as a member of the consolidated group; and
b: supply the account number of the holding account, or ensure the account number of the holding account is supplied, to the chief executive within 10 working days of receiving the account number from the Registrar.
55: New sections 157 and 157A substituted
Section 157
157: Unincorporated bodies
1: This section applies if the members of an unincorporated body—
a: jointly carry out an eligible activity; or
b: are required under section 180, 204, or 213
c: if paragraph (b)
2: If this section applies,—
a: the members of the unincorporated body are not individually to be treated as persons carrying out the activity; and
b: if the activity is an eligible activity,—
i: the members of the unincorporated body may not apply individually for an allocation of New Zealand units for the eligible activity under section 86
ii: the unincorporated body may, as the eligible person, make such an application under section 86
c: if the activity is an activity listed in Schedule 3 or 4,—
i: the members of the unincorporated body—
A: are not liable to, and may not, be registered as a participant under section 56 in respect of the activity; and
B: may not be registered as a participant under section 57 in respect of the activity; and
ii: the unincorporated body—
A: must notify the chief executive that it is the participant under section 56 in respect of the activity (if the activity is an activity listed in Schedule 3):
B: may apply to be registered as the participant under section 57 in respect of the activity (if the activity is an activity listed in Schedule 4):
C: when notifying under section 56 or applying to be registered under section 57, as the case may be, advise the chief executive of the name of the unincorporated body that should be entered on the register of participants kept for the purposes of section 56 or 57; and
iii: the chief executive must, for the purpose of section 56(3) or 57(5) (as applicable), enter the name of the unincorporated body on the register kept for the purposes of section 56 or 57; and
d: the unincorporated body must, when applying for an allocation, or notifying the chief executive under section 56, or applying to the chief executive to be registered as a participant under section 57, as the case may be, provide the chief executive with—
i: the names and contact details of the members of the unincorporated body; and
ii: the name and contact details of the person to whom notices are to be given under this Act on behalf of the unincorporated body; and
e: subject to subsections (3) to (5)
3: Each person who is or has ceased to be a member of an unincorporated body is, in respect of the period during which the person is or was a member of the unincorporated body,—
a: jointly and severally liable for the obligations of the unincorporated body as an eligible person (or a person to whom units have been allocated) or as a participant in respect of the activity; and
b: jointly entitled to the benefits of the unincorporated body as an eligible person or as a participant in respect of the activity.
4: If this Act requires any thing to be done by or on behalf of an eligible person (or a person to whom units have been allocated) or a participant that is an unincorporated body,—
a: it is the joint and several liability of all the members of the unincorporated body to do the thing; and
b: any such thing done by 1 member of the unincorporated body is sufficient compliance with the requirement.
5: A notice that is addressed to an unincorporated body and given in accordance with this Act to the person nominated by the unincorporated body under subsection (2)(d)(ii) section 157A(2)(a)
6: To avoid doubt, if this Act requires a landowner, registered leaseholder, holder of a registered forestry right, or party to a Crown conservation contract to be treated as the person carrying out an eligible activity or an activity listed in Schedule 3 or 4, and the land, registered lease, registered forestry right, or Crown conservation contract is owned, held, or has been entered into, as the case may be, jointly by 2 persons, those persons—
a: must together be treated as the person carrying out the activity for the purposes of this Act; and
b: are, as relevant, together the eligible person in respect of the eligible activity, or the participant in respect of any activity listed in Schedule 3, or may together be registered as the participant in respect of an activity listed in Schedule 4; and
c: are jointly and severally liable for the obligations, or entitled to the benefits, of an eligible person (or a person to whom units have been allocated) or a participant in respect of the activity.
157A: Changes to unincorporated bodies that are participants
1: This section applies if—
a: a member of an unincorporated body joins or leaves an unincorporated body that is registered as a participant; or
b: the name or contact details of the person to whom notices are to be given changes; or
c: an unincorporated body wishes to change the name under which the body is registered as a participant.
2: If this section applies,—
a: the unincorporated body must, as relevant,—
i: within 20 working days of a person joining or leaving the unincorporated body, give the chief executive notice of—
A: the name and contact details of the person joining or leaving; and
B: the date on which the person joined or left the unincorporated body; or
ii: within 20 working days of a change in the name or contact details of the person to whom notices are to be given, give the chief executive notice of that matter; or
iii: give the chief executive notice if the unincorporated body wishes to change the name under which the body is recorded as a participant on the register kept for the purposes of section 56 or 57; and
b: the chief executive must, as soon as practicable after receiving the notice,—
i: amend—
A: the chief executive’s records to reflect the change in membership of the unincorporated body or the change in the name or contact details of the person to whom notices are to be given; or
B: the register kept under section 56 or 57, as the case may be, to record the change in the name of the unincorporated body; and
ii: notify the Registrar of the change in membership of the unincorporated body, the change in the name or contact details of the person to whom notices are to be given, or the change in the unincorporated body’s name; and
iii: notify the unincorporated body of the amendment to the chief executive’s records or the participant register and the notification to the Registrar.
3: A notice given under subsection (2)
a: be in the prescribed form; and
b: contain any other information the chief executive may require; and
c: be accompanied by the prescribed fee (if any).
4: For the purposes of subsection (1) section 192(1)(a)
a: the transfer of land from members of an unincorporated body to members of an unincorporated body if at least 60% of the members of an unincorporated body are the same following the transfer; and
b: the transfer of a registered lease, registered forestry right, or Crown conservation contract relating to post-1989 forest land from members of an unincorporated body to members of an unincorporated body if at least 60% of the members of an unincorporated body are the same following the transfer.
56: New sections 160 to 161H substituted
Sections 160 161
160: Reviews of operation of emissions trading scheme
1: The Minister responsible for the administration of this Act must initiate a review of the operation and effectiveness of the emissions trading scheme established by this Act in each of the following periods:
a: the first commitment period and each subsequent commitment period (if any); and
b: if there is no subsequent commitment period,—
i: the 5-year period commencing on 1 January 2013; and
ii: each subsequent 5-year period after the period specified in subparagraph (i)
2: Each review initiated under subsection (1)
3: Despite anything in subsections (1) and (2)
a: the Minister responsible for the administration of this Act must ensure that a review of the matters listed in subsection (5)(j) allocation review
i: the 5-year period commencing on 1 January 2011; and
ii: each subsequent 5-year period after the period specified in subparagraph (i)
b: subsections (6) to (8) subsection (1)
c: the person conducting each allocation review may consider any other matter, including (but not limited to) the matters listed in subsection (5); and
d: if the person conducting an allocation review considers the matters specified in subsection (5) in the relevant period, that consideration satisfies the obligation of the Minister responsible for the administration of this Act under subsection (1)
4: For the avoidance of doubt, if a review initiated under subsection (1) subsection (5)(j) subsection (3)(a) subsection (3)
5: Without limiting the scope of the review, a review under subsection (1)
a: whether an amendment to this Act in relation to the emissions trading scheme is necessary or desirable; and
b: whether New Zealand has undertaken, or is expected to undertake, any international obligations with respect to its emissions and removals that are different from or additional to any international obligations that New Zealand had undertaken when this section came into force, or since the last review under this section; and
c: the stringency of any of the international obligations specified in paragraph (b)
d: the contribution of the emissions trading scheme established under this Act towards any targets that are in effect in accordance with section 224 or 225
e: the types of Kyoto units and overseas units that may be surrendered for compliance with the emissions trading scheme established by this Act; and
f: the operation of the commitment period reserve (if any); and
g: the potential for linkage of the emissions trading scheme established under this Act to other greenhouse gas emissions trading schemes, including (but not limited to) Australia's carbon pollution reduction scheme; and
h: the appropriateness of any methodologies that are prescribed for calculating emissions and removals; and
i: whether it is necessary or desirable to—
i: omit any of the activities from Schedule 3 or 4; and
ii: add any additional removal activities to Part 2 of Schedule 4; and
iii: amend the level of participant opt-in thresholds in Schedule 4; and
j: whether changes to the provision of any allocation to industry or agriculture under subpart 2
i: whether New Zealand has undertaken, or is expected to undertake, any international obligations with respect to its emissions and removals that are different from, or additional to, any international obligations that New Zealand had undertaken when this section came into force, or since the last review under this section; and
ii: the stringency of any of the international obligations specified in subparagraph (i)
iii: any change proposed to the activities listed in Schedule 3 or 4 following consideration of the matters specified in paragraph (i)
iv: the relative climate change obligations and emissions policies of New Zealand's trade competitors and trading partners; and
v: any significant changes in emissions mitigation technology; and
vi: the cost to the taxpayer and the economy of providing free allocation under subpart 2
k: the appropriateness of the penalties in subpart 4 of this Part; and
l: the implications (if any) of the following matters for the notification of intention under section 69
i: New Zealand's annual emissions for the 5 years before notification; and
ii: the average price of units for the 2 years before notification; and
m: the impacts of the forestry sector elements of the emissions trading scheme established under this Act on biodiversity within New Zealand; and
n: the costs and benefits of establishing an independent or quasi-independent government body to carry out the allocation process, or any part of the allocation process, contained in subpart 2
o: the social, economic, and environmental effects of the emissions trading scheme established by this Act (other than those considered under paragraphs (a) to (n)
p: any other matter that the Minister responsible for the administration of this Act considers relevant.
6: The Minister responsible for the administration of this Act must appoint a panel to conduct any review under subsection (1)
7: Following the completion of each review under subsection (1)
a: publish the report of the panel on the review; and
b: present a copy of the report to the House of Representatives.
8: If the panel recommends any change in relation to allocation to industry or agriculture that involves amending any Act or making or amending regulations under this Act, the Minister responsible for the administration of this Act must—
a: prepare a report that contains a response to the panel's recommendations for legislative change; and
b: present a copy of his or her report to the House of Representatives.
9: To avoid doubt, this section does not limit the ability of the Minister responsible for the administration of this Act to initiate reviews of the operation and effectiveness of the emissions trading scheme established by this Act at any time and may use any method of review (including, but not limited to, the method specified in this section).
161: Appointment and conduct of review panel
1: When appointing members to a review panel under section 160
a: ensure that there are a minimum of 3 and a maximum of 7 members; and
b: ensure that the majority of the members are not employees under the State Sector Act 1988; and
c: consider whether the members have, in the Minister's opinion, the appropriate knowledge, skill, and experience to conduct the review, including knowledge, skill, and experience of—
i: this Act; and
ii: New Zealand's international obligations under the Protocol and the Convention and any other relevant international agreement; and
iii: the operation of the emissions trading scheme established under this Act, including its environmental, social, and economic effects; and
d: appoint 1 member as the chairperson of the panel.
2: The Minister must, by written notice to the panel, specify the terms of reference for the review to be conducted by the panel.
3: A review panel must complete a draft report on the review and provide the report to the Minister responsible for the administration of this Act at least 1 month before the date on which the review is required to be completed under section 160
4: The review panel must—
a: allow the Minister at least 10 working days within which to respond to and comment on the contents of the draft report; and
b: after considering the Minister's response and comments (if any), prepare a final report and provide it to the Minister by the date on which the review is required to be completed under section 160
5: In conducting a review, the review panel—
a: must establish a procedure that is appropriate, fair in the circumstances, and in accordance with the terms of reference for the review; and
b: must consult persons (or their representatives) that appear to the panel likely to have an interest in the review; and
c: may call for submissions.
161A: Regulations in relation to eligible industrial activities
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
a: prescribing, for the purposes of subpart 2
b: prescribing in respect of each eligible industrial activity, as appropriate,—
i: a description of the activity, including (but not limited to)—
A: the input or inputs:
B: the output or outputs:
C: the physical, chemical, or biological transformation that takes place to transform the inputs into the outputs:
ii: whether the activity is—
A: highly emissions-intensive; or
B: moderately emissions-intensive:
iii: the products to be used as the basis for an allocation of New Zealand units in respect of the activity:
iv: a methodology or methodologies for calculating the amount of each prescribed product for the purposes of sections 81 to 84
c: prescribing, for each prescribed product,—
i: 1 or more allocative baselines; and
ii: for the purpose of sections 81 to 84
d: prescribing—
i: an allocation factor or factors for—
A: electricity:
B: natural gas feedstock:
ii: how each allocation factor must be used for the purpose of calculating allocative baselines in accordance with section 161B(3)
e: prescribing information that must be kept for the purposes of section 86D
2: A regulation made under subsection (1)
a: 1 January of the year in which the regulation is made even if the regulation comes into force on a later date in that year:
b: 1 January or 1 July in a year before the year in which the regulation is made provided the regulation comes into force on or before 31 December 2012.
3: Before recommending that a regulation be made under subsection (1)(a)
a: is—
i: moderately emissions-intensive or highly emissions-intensive; and
ii: trade-exposed; or
b: may be treated as meeting the criteria in paragraph (a) section 161B(1)
4: Despite anything in this section or section 161B or 161C subsection (1)
5: The following regulations made under subsection (1) Gazette
a: a regulation that revokes a regulation prescribing an activity as an eligible industrial activity:
b: a regulation that amends a regulation providing that an eligible industrial activity is highly emissions-intensive to provide that the eligible industrial activity is moderately emissions-intensive.
161B: Australian eligible industrial activities
1: An activity may be treated as meeting the criteria specified in section 161A(3)(a)
2: If an activity is treated as meeting the criteria specified in section 161A(3)(a)
a: the same activity description for the activity, including (but not limited to) the matters listed in section 161A(1)(b)(i)
b: the same products to be used as a basis for an allocation of New Zealand units in respect of the activity as the products that are, or are likely to be, used as a basis for the allocation of emissions units in respect of the Australian eligible industrial activity; and
c: the same emissions-intensity level of the activity as the emissions-intensity level, or the likely emissions-intensity level, of the Australian eligible industrial activity; and
d: for each prescribed product of the activity an allocative baseline or baselines that is or are the same as the allocative baseline or baselines that is or are, or is likely to be or are likely to be, specified as the allocative baseline or baselines of the equivalent product of the Australian eligible industrial activity.
3: Despite subsection (2)(d) section 161A(1)(c) section 161A(1)(d)
161C: Other eligible industrial activities
1: For the purposes of section 161A(3)(a)
a: moderately emissions-intensive if the specified emissions from the activity are equal to or greater than 800 whole tonnes per $1 million of specified revenue from the activity, but less than 1 600 whole tonnes per $1 million of specified revenue from the activity:
b: highly emissions-intensive if the specified emissions from the activity are equal to or greater than 1 600 whole tonnes per $1 million of specified revenue from the activity:
c: trade-exposed unless, in the Minister’s opinion,—
i: there is no international trade of the output of the activity across oceans; or
ii: it is not economically viable to import or export the output of the activity.
2: If an activity meets the criteria in section 161A(3)(a) subsection (1) AB = SE/STA where— AB is the allocative baseline of the product SE is the specified emissions from the activity STA is the specified total amount of the product from the activity.
3: For the purposes of this section,—
a: the specified revenue from an activity is the amount of revenue obtained by adding together the revenue from the activity of persons who provided the information referred to in section 161D(1)(e)(i)(A) section 161D(1)
b: the specified emissions, in respect of the emissions intensity of an activity, is the number of whole tonnes of included emissions obtained by adding together the included emissions from the activity of persons who provided the information referred to in section 161D(1)(e)(i)(B) section 161D(1)
c: the specified emissions, in respect of the allocative baselines of an activity, is the number of whole tonnes of included emissions obtained by adding together the included emissions from the activity of persons who provided the information referred to in section 161D(1)(e)(i)(C) section 161D(1)
d: the specified total amount of product from the activity is the amount of the product obtained by adding together the amount of the product produced by each person who provided the information referred to in section 161D(1)(e)(i)(D) section 161D(1)
4: Despite subsection (3)(c) section 161D(1)(e)(i)(C) section 161D(1)
5: If the Minister has adjusted the tonnes of emissions of 1 or more persons under subsection (4)
161D: Power to require information for purposes of allocation to industry
1: The Minister may, for any of the purposes in subsection (3) Gazette
a: specify a description of an activity, including the matters listed in section 161A(1)(b)(i)
b: specify in respect of the activity each product that may be used, if the activity is prescribed in regulations as an eligible industrial activity, as the basis for an allocation of New Zealand units in respect of the activity (a specified product
c: specify in respect of the activity—
i: the emissions that must be included in any information provided under paragraph (e) included emissions
ii: the emissions that may not be included in any information provided under paragraph (e) excluded emissions
d: specify the financial years for which information must be provided under paragraph (e)
e: require any person carrying out the activity specified under paragraph (a)
i: any or all of the following information for the financial years specified in the notice:
A: financial statements that show the total revenue of the person from the activity in those years, calculated in accordance with any methodology specified under paragraph (g)(i)
B: information showing the number of whole tonnes of included emissions from the activity carried out by the person in those years, calculated in accordance with any methodology specified under paragraph (g)(ii)
C: information showing the number of whole tonnes of included emissions from the activity carried out by the person in those years, calculated in accordance with any methodology specified under paragraph (g)(iii)
D: information showing the amount of each specified product produced by the person in those years calculated in accordance with any methodology specified under paragraph (g)(iv)
ii: copies of any electricity-related contracts in force on the date of the notice that affect the electricity cost increase that the persons carrying out the activity will face owing to the obligation imposed by this Act on participants to surrender units, or any information in relation to such contracts:
iii: any other information that would, in the Minister’s opinion, assist the Minister to determine any of the matters listed in subsection (3)
f: specify the date by which the information required to be provided under paragraph (e)
g: specify a methodology or methodologies for calculating—
i: revenue from the activity for the purpose of paragraph (e)(i)(A)
ii: emissions from the activity (emissions-intensity) for the purpose of paragraph (e)(i)(B)
iii: emissions from the activity (allocative baselines) for the purpose of paragraph (e)(i)(C)
iv: the amount of any specified product from the activity for the purpose of paragraph (e)(i)(D)
2: A methodology specified in a notice in accordance with subsection (1)(g)
3: The purpose for which a notice may be issued under subsection (1)
a: whether an activity meets the criteria listed in section 161A(3)(a)
i: whether the activity is highly emissions-intensive or moderately emissions-intensive; and
ii: the appropriate allocative baseline or baselines for each product of the activity:
b: whether it is necessary to adjust any person's number of whole tonnes of included emissions provided under subsection (1)(e)(i)(C) section 161C(4)
c: any other matter listed in section 161A(1)
d: whether any matter should be considered by a review under section 160
4: A Gazette subsection (1)
5: Following the provision of information by any person in accordance with subsection (1)(e)
a: requiring the person to provide any further information that the Minister considers is necessary to enable the verification of the accuracy of the information; and
b: specifying the date by which the further information specified in the notice must be provided to the Minister.
6: If a person who is required to comply with a notice under subsection (1) or (5)
7: Despite anything in this Act, if an activity specified in a notice made under subsection (1)(a)
a: any person who carried out the activity at the date of the notice and who without reasonable excuse failed to supply the data and information required by the date specified in a notice given under subsection (6)
b: any associated person of a person referred to in paragraph (a)
161E: Requirements in respect of notice given under section 161D
1: Before giving notice of an activity under section 161D(1)
a: the requirement to define each activity by reference to a physical, chemical, or biological transformation of inputs into outputs; and
b: the undesirability of activities being defined by reference to the technology employed, the fuel used, the age of the plant, or the quality of the types of feedstock used when the activity is carried out; and
c: the desirability of defining activities—
i: consistently and equitably across industries; and
ii: in a way that takes into account the impact that definitions may have on business investment, geographical location, and the structure of activities; and
iii: in a way that takes into account the potential for intermediate inputs produced when the activity is carried out to be substituted for bought-in inputs; and
d: the desirability of there being no overlap between activity definitions; and
e: the desirability of activity definitions reflecting activity definitions used in Australia; and
f: any other matters the Minister considers relevant.
2: For the purposes of section 161D(1)(c)
a: the emissions that must be included in any information provided under section 161D(1)(e)(ii) and (iii)
i: emissions of greenhouse gases resulting from—
A: the direct use of any coal, natural gas, geothermal fluid, used oil, or waste oil as part of the activity; and
B: the direct use of any coal, natural gas, geothermal fluid, used oil, or waste oil to generate steam that is used as part of the activity; and
C: any of the activities listed in Part 4 of Schedule 3 carried out as part of the activity; and
ii: a number of whole tonnes of emissions, which must be treated for the purpose of this section and sections 161C and 161D E = MWh × pEAF where— E is the number of whole tonnes of emissions from the activity that may be included in any information submitted under section 161D(1)(e)(ii) and (iii) MWh is the number of megawatt hours of electricity used when the activity is carried out pEAF is a prescribed electricity allocation factor; and
b: the emissions that may not be included in any information provided under section 161D(1)(e)(ii) and (iii)
i: the use of machinery and equipment, and other processes, that are not integral to, nor essential to, the physical, chemical, biological, or other transformation taking place when the activity is carried out; and
ii: any extraction or production of raw materials that are subsequently used when the activity is carried out; and
iii: the transportation of inputs used in the activity to storage at the location where the activity is carried out; and
iv: the transportation of outputs of the activity from storage at the location where the activity is carried out to another location; and
v: the transportation of intermediate products between different locations where the activity is carried out; and
vi: operations that are complementary to the activity, including (but not limited to) packaging, head office operations, and administration and marketing (whether carried out at the same location where the activity is carried out or at another location); and
vii: the generation of electricity at the location where the activity is carried out; and
c: before giving notice of the emissions that must be included in, or excluded from, any information provided in accordance with a notice issued under section 161D
i: the matters listed in subsection (1)
ii: the desirability of all notices given under section 161D
3: If an activity specified in a notice under section 161D
161F: Consultation on activities that may be prescribed as eligible industrial activities
1: If an activity is treated as meeting the criteria specified in section 161A(3)(a) section 161A
2: Before notifying an activity in the Gazette section 161D
3: The processes for consultation under subsections (1) and (2)
a: giving adequate and appropriate notice of the proposed terms and conditions of the recommendation or the notice and the reasons for them; and
b: the provision of a reasonable opportunity for interested persons to consider the proposed terms and conditions of the recommendation or the notice and make submissions; and
c: adequate and appropriate consideration of submissions.
4: A failure to comply with this section does not affect the validity of—
a: any regulations made under section 161A
b: any Gazette section 161D
5: The Minister is not required to consult under subsection (2) section 161D
161G: Regulations in relation to eligible agricultural activities
1: The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:
a: prescribing in respect of each eligible agricultural activity, as appropriate,—
i: the product or products of the activity:
ii: an allocative baseline for each product:
b: prescribing, for the purpose of subsection (2)
i: a methodology or methodologies for calculating—
A: the total number of tonnes of methane and nitrous oxide emissions that resulted from the eligible agricultural activity carried out to produce the prescribed product or products in the prescribed years; and
B: the total amount of each prescribed product produced from the eligible agricultural activity in the prescribed years; and
ii: the year or years for the purposes of subparagraph (i)
c: prescribing a methodology or methodologies for calculating the amount of any prescribed product of an eligible agricultural activity for the purposes of sections 85 and 161H
d: prescribing information that must be kept for the purposes of section 86D
2: For the purposes of subsection (1)(a)(ii) AB = ∑(E) / ∑(PDCT) where— AB is the allocative baseline for the product E is the total number of tonnes of methane and nitrous oxide emissions that resulted from the eligible agricultural activity carried out to produce the product in the prescribed year or years, calculated in accordance with methodologies prescribed in regulations made under this Act PDCT is the total amount of the product produced from the eligible agricultural activity in the prescribed year or years, calculated in accordance with methodologies prescribed in regulations made under this Act ∑ is the symbol for the summation of E for the year or years for which E must be calculated (as prescribed by regulations made under this Act) and of PDCT for the year or years for which PDCT must be calculated (as prescribed in regulations made under this Act).
3: Before recommending the making of a regulation under subsection (1)
4: The process for consultation under subsection (3)
a: giving adequate and appropriate notice of the proposed allocative baseline or baselines and the reasons for them; and
b: the provision of a reasonable opportunity for interested persons to consider the proposed allocative baseline or baselines and make submissions; and
c: adequate and appropriate consideration of submissions.
5: A failure to comply with subsections (3) and (4) subsection (1)
6: Despite section 4 section 161H eligible agricultural activity
a: means any activity or subclass of any activity listed in Part 5 of Schedule 3; but
b: excludes any activity or subclass of any activity listed in subpart 2 or 4 of Part 5 of Schedule 3, unless an Order in Council has been made under section 2A(8) or (9) in respect of any such activity or subclass of activity.
161H: Power to request information showing output from eligible agricultural activities
1: The Minister may, after 1 January 2011, by notice in the Gazette
a: specify an eligible agricultural activity in respect of which information must be provided under paragraph (d)
b: specify, in respect of the eligible agricultural activity specified under paragraph (a) paragraph (d)
c: specify the year or years for which information must be provided under paragraph (d)
d: require any person carrying out the eligible agricultural activity on the date of the notice to provide to the Minister information that shows the amount of each specified product from the activity specified by the person in the year or years specified in the notice, determined (if relevant) in accordance with any prescribed methodologies:
e: specify the date by which the information specified in the notice must be provided to the Minister, which must be no earlier than 30 working days from the date of the notice.
2: If a person who is required to comply with a notice given under subsection (1)
3: Despite anything in this Act, if notice is given under subsection (1) subpart 2
a: any person who—
i: carried out the activity at the date of the notice given under subsection (1)
ii: failed, without reasonable excuse, to supply the data and information required by the date specified in the notice given under subsection (2)
b: any associated person of a person referred to in paragraph (a)
4: A Gazette subsection (1)
57: Regulations relating to methodologies and verifiers
Section 163(1)
ab: authorising, in respect of an activity listed in Part 1 of Schedule 3 or Part 1 of Schedule 4, the chief executive to specify the location where, and the device by which, the data or other information prescribed in accordance with paragraph (a) must be collected; and .
58: Regulations relating to fees and charges
1: Section 167
2: The Governor-General may, by Order in Council, make regulations prescribing the fees or charges payable by a person—
a: who has made an application for an emissions ruling under section 107, to enable the recovery of all or part of the direct and indirect costs of the chief executive in—
i: receiving and processing the application; and
ii: considering whether to make the ruling, making the ruling, or declining to make the ruling; or
b: who is a participant, or who has applied to be a participant, in respect of an activity listed in Part 1 or 2 of Schedule 4, to enable the recovery of all or part of the direct and indirect costs of the chief executive in—
i: publicising and informing people about the operation of this Part and Part 5 in relation to an activity listed in Part 1 or 2 of Schedule 4:
ii: administering the operation of this Part and Part 5 in relation to an activity listed in Part 1 or 2 of Schedule 4:
iii: enforcing and monitoring compliance with this Part or Part 5 in relation to an activity listed in Part 1 or 2 of Schedule 4:
iv: doing anything else authorised or required under this Part or Part 5 in relation to an activity listed in Part 1 or 2 of Schedule 4.
2: Section 167(3)
b: the costs of providing, operating, and maintaining systems, databases, and other processes in connection with—
i: the making of emissions rulings; or
ii: the administration of this Part or Part 5 in relation to an activity listed in Part 1 or 2 of Schedule 4: .
3: Section 167(4) ; and
i: authorise the chief executive to recover the full costs of services from third parties (other than services in respect of which a fee or charge is prescribed) in circumstances prescribed in the regulations; and
j: authorise the chief executive to grant, in whole or in part, an exemption, waiver, or refund in relation to any fee or charge.
59: Other regulations
1: Section 168(1)(c)
2: Section 168(1)(ca) , which must be no later than 1 July 2010
3: Section 168(1)(h) and (i)
60: When deforestation to be treated as occurring in respect of pre-1990 forest land
Section 181
4: This section applies only if section 4(5) does not apply.
61: Applications for exemption for land holdings of less than 50 hectares of pre-1990 forest land
1: Section 183(1)(a) section 71 section 72
2: Section 183(3)(a)(ii) , which must be no later than 1 July 2010
62: Exemptions for deforestation of land with tree weeds
1: Section 184(1)
a: a forest species growing on the land, or that was cleared from the land as part of the deforestation process on or after 1 January 2008, is or was a specified type of tree weed; and .
2: Section 184(1)
b: no allocation of units to a landowner has been made in respect of the land under the pre-1990 forest land allocation plan.
3: Section 184(2)(b) priorities criteria and priorities
4: Section 184(2) ; and
d: the number of whole tonnes of emissions from the deforestation of the specified types of tree weed that will be covered by exemptions granted in relation to the notice.
5: Section 184(3) or was there is
6: Section 184(4)(d)
ii: a forest species growing on the land, or that grew on the land before it was cleared as part of the deforestation process, is or was a specified type of tree weed; and .
7: Section 184(5) priorities in criteria, and priorities in, and the number of whole tonnes of emissions that are to be covered by exemptions granted in respect of,
8: Section 184(5)(b) the land any land
9: Section 184
6: The clearing of tree weeds on exempt land that has not been cleared before the land was declared exempt land must be—
a: commenced within 24 months of the date of notification of the exemption; and
b: completed by the end of—
i: the first commitment period, if the exemption is granted in that commitment period; or
ii: any subsequent commitment period in which the exemption is granted; or
iii: if there is no subsequent commitment period,—
A: the 5-year period commencing on 1 January 2013, if the exemption is granted in that 5-year period; or
B: any subsequent 5-year period, after the period in subsubparagraph (A)
10: Section 184
9: For the purposes of this section, tree weed
a: a pest in a pest management strategy under the Biosecurity Act 1993; or
b: a tree weed in regulations made under this Act.
63: Conditions on registration as participant in respect of certain activities relating to post-1989 forest land
1: Section 187(3) and subject to sections 191 and 193,
2: Section 187
4: A person may not be registered as a participant under section 57 in respect of carrying out an activity listed in Part 1 of Schedule 4 in respect of post-1989 forest land unless—
a: any action taken by the person in respect of the post-1989 forest land since 1 January 2008 (including, but not limited to, removal of any existing vegetation before planting of a forest species on the land) complied with the Resource Management Act 1991, including any plan under that Act, or the Forests Act 1949 that was in force at the time the action was taken; and
b: if the post-1989 forest land is subject to a pest management strategy under the Biosecurity Act 1993 that imposes requirements in respect of any forest species on the land, the person—
i: has complied with the requirements; or
ii: verified that any other person required to comply with the requirements has done so.
64: Registration as participant in respect of post-1989 forest land
1: Section 188(1)
c: must be accompanied by a declaration, in the prescribed form, that—
i: any action taken by the applicant since 1 January 2008 in relation to the post-1989 forest land in respect of which the application is submitted (including, but not limited to, removal of any existing vegetation before planting of a forest species on the land) complied with the Resource Management Act 1991, including any plan under that Act, or the Forests Act 1949, that was in force at the time the action was taken; and
ii: if the post-1989 forest land is subject to a pest management strategy under the Biosecurity Act 1993 that imposes requirements in respect of any forest species on the land, the applicant has—
A: complied with the requirements; or
B: verified that any other person required to comply with the requirements has done so; and .
2: Section 188
2: The chief executive must, for every person who is a participant in respect of an activity listed in Part 1 of Schedule 4, keep a record of—
a: the carbon accounting area or areas in respect of which the person is a participant; and
b: the unit balance of each carbon accounting area in respect of which the person is a participant, as calculated in accordance with section 190(2)
3: Section 188(3)(a)(i) or areas area
4: Section 188(3)(a)(ii) a carbon accounting area any carbon accounting area or areas
5: Section 188(3)(b) , as soon as practicable, must
6: Section 188(6)(b)
ii: update the participant's record to reflect the addition of the carbon accounting area; and
iii: notify the participant accordingly.
7: Section 188(7)(b)
(ii): update the participant's record to reflect,—
A: if a carbon accounting area is removed or the person has ceased to carry out the activity in respect of all of the carbon accounting area, the removal of the carbon accounting area from the post-1989 forest land in respect of which the person is recorded as a participant; or
B: if land has been removed from a carbon accounting area or the person has ceased to carry out the activity in respect of part of a carbon accounting area, a new carbon accounting area constituted from the remaining land and the unit balance of the new carbon accounting area determined in accordance with section 190(3)(b)
iii: notify the participant accordingly.
8: Section 188
8: A change made to the participant's record under subsection (6)(b)(ii) or (7)(b)(ii) subsection (6)(b)(iii) or (7)(b)(iii)
9: Section 188
9: Subsection (10)
10: If this subsection applies,—
a: despite section 57(8), the person registering as a participant is to be treated as being a participant in respect of the land formerly the subject of the covenant on and after the date the covenant was registered on the land under section 67ZD of the Forests Act 1949; and
b: for the purposes of sections 189 to 194
c: the post-1989 forest land formerly the subject of the covenant constitutes a single carbon accounting area in respect of which the person is registered as a participant for the purposes of subsection (2)
65: Emissions returns for post-1989 forest land activities
1: Section 189(2) ; and
d: may submit an emissions return in accordance with subsection (4A), if—
i: the person is considering entering into a transaction described in section 192(1)(a) or (b)
ii: the expiry of an interest referred to in section 192(1)(c)
iii: within 20 working days after applying under section 188(3)(a)(i) to remove a carbon accounting area from the land in respect of which the person is recorded as carrying out an activity listed in Part 1 of Schedule 4 or being removed from the register as a participant in respect of all the land in respect of an activity listed in Part 1 of Schedule 4, the person applies to—
A: add a carbon accounting area or areas consisting of all the post-1989 forest land that was the subject of the application under section 188(3)(a)(i); or
B: register as a participant under section 57 in relation to all the post-1989 forest land in respect of which the person had ceased to be registered as a participant.
2: Section 189(3)
a: inserting on 1 occasion, applies may,
b: omitting before on or before
3: Section 189(3)(c)(i)
BA: the date of constitution of the carbon accounting area (as specified in section 190(5) section 188(7)(b)(ii)(B) section 192(3)(b) .
4: Section 189(4)(b)(i)(B) ; and ; or
C: the date of constitution of the carbon accounting area (as specified in section 190(5) section 188(7)(b)(ii)(B) section 192(3)(b)
D: the day after the end of the period covered by the last emissions return submitted for the carbon accounting area under subsection (4A) .
5: Section 189
4A: A person to whom this section applies may, in the circumstances in subsection (2)(d)
a: commencing on the latest of—
i: the first day of the mandatory emissions return period in which the return is submitted; or
ii: the date on which the land in the carbon accounting area became post-1989 forest land; or
iii: the date of constitution of the carbon accounting area (as specified in section 190(5) section 188(7)(b)(ii)(B) section 192(3)(b)
iv: if an emissions return has already been submitted under this subsection in relation to the carbon accounting area during the mandatory emissions return period, the day after the end of the period covered by the last emissions return submitted for the carbon accounting area under this subsection; and
b: ending on the date of submission of the emissions return.
6: Section 189
5: An emissions return submitted under subsection (3), (4), or (4A)
a: must, in respect of each carbon accounting area covered by the return,—
i: record the activity in respect of which the person is recorded as a participant for the carbon accounting area; and
ii: record the emissions and removals from the carbon accounting area during the emissions return period as calculated under section 62(b) and, if required, as verified under section 62(c); and
iii: contain an assessment of the participant’s gross liability to surrender units for emissions or entitlement to receive New Zealand units for removals from the carbon accounting area that takes into account sections 188(10) and 190(1)
iv: contain the information required by subsection (6), if relevant; and
v: contain an assessment of the participant’s net liability to surrender units in respect of emissions or entitlement to receive New Zealand units for removals from the carbon accounting area during the emissions return period, taking into account sections 188(10) and 190(1)
b: may contain an assessment of the participant's net liability to surrender or repay units or net entitlement to receive New Zealand units in respect of all carbon accounting areas covered by the return, as referred to in subsection (8); and
c: must be—
i: accompanied by—
A: the prescribed fee (if any); and
B: any prescribed information; and
ii: signed by the participant; and
iii: submitted in the prescribed manner and format.
7: Section 189(6)(b)(ii) net gross
8: Section 189(6)(b)(ii) as recorded under subsection (5)(a)(iii)
9: Section 189
7A: Subsections (6) and (7) apply to a return submitted under subsection (4A)
66: New sections 190 to 193 substituted
Sections 190 to 193
190: Special rules regarding surrender of units in relation to post-1989 forest land
1: Despite section 63, a person who is or was a participant in respect of an activity listed in Part 1 of Schedule 4 is not liable to surrender more units in relation to any carbon accounting area or part of a carbon accounting area than the unit balance of that carbon accounting area or part of a carbon accounting area.
2: The unit balance of a carbon accounting area must be calculated in accordance with the following formula: UB = (A – B) + OUB where— UB is the unit balance of the carbon accounting area A is the net number of New Zealand units transferred for removals from the carbon accounting area since the date it was constituted (that is, the number of units transferred for removals less any units repaid under section 123(6) or 189(8)) B is the net number of New Zealand units surrendered for emissions from the carbon accounting area since the date it was constituted (that is, the number of units surrendered, less any units reimbursed under section 124 or 189(7)) OUB is,—
a: if the carbon accounting area is constituted from land from another carbon accounting area (following the removal of land from a carbon accounting area, or transmission of an interest as defined in section 192 subsection (3)
b: if the carbon accounting area is not constituted as described in paragraph (a)
c: if the carbon accounting area is not constituted from land from another carbon accounting area or land that was subject to a forest sink covenant, zero.
3: The following provisions apply if a person is required by this subpart to calculate the unit balance of a newly constituted carbon accounting area:
a: if a carbon accounting area ( CAA2 section 192(3)(b)(iii) CAA1 subsection (4)
i: H is the number of hectares of post-1989 forest land in CAA1; and
ii: Hp is the number of hectares of post-1989 forest land in CAA2; and
iii: UB is the unit balance of CAA1 calculated in accordance with subsection (2) section 193(1)
iv: UBp is the opening unit balance for CAA2 for the purposes of subsection (2)
b: if a carbon accounting area ( CAA2 section 188(7)(b)(ii)(B) CAA1 section 191(4) r section 191(3)
c: if a carbon accounting area ( CAA2 section 192(3)(b)(ii)
i: calculating the unit balance of any whole carbon accounting areas that form part of CAA2 in accordance with subsection (2) section 193(1)
ii: calculating the unit balance of any part carbon accounting area that forms part of CAA2 in accordance with subsection (4)
A: H is the number of hectares of post-1989 forest land in the carbon accounting area of which the part carbon accounting area formed a part before the transmission of the interest; and
B: Hp is the number of hectares of post-1989 forest land in the part carbon accounting area; and
C: UB is the unit balance of the carbon accounting area of which the part carbon accounting area formed a part before the transmission of the interest, including (but not limited to) any units transferred or surrendered in respect of the removals or emissions reported in the emissions return under section 193(1)
iii: adding together the unit balances obtained under subparagraphs (i) and (ii)
4: The unit balance of part of a carbon accounting area must be calculated in accordance with the following formula: UBp = UB/H × Hp where— UBp is the unit balance of the part of the carbon accounting area UB is the unit balance of the carbon accounting area of which the part carbon accounting area formed a part, calculated in accordance with subsection (2) H is the number of hectares in the carbon accounting area of which the part carbon accounting area formed a part Hp is the number of hectares in the part of the carbon accounting area for which a unit balance is calculated.
5: For the purposes of this section,—
a: units transferred for removals, surrendered, repaid, or reimbursed in respect of a carbon accounting area include units that a person would have been entitled to receive, or would have been required to surrender or repay, in respect of a carbon accounting area, but which were not actually transferred, surrendered, repaid, or reimbursed because of an election under section 189(8); and
b: the date that a carbon accounting area is constituted is—
i: the date the person’s registration as a participant in respect of the activity in the application took effect in accordance with section 57(8) for a carbon accounting area defined in an application referred to in section 188(1); and
ii: the date the participant’s record is updated under section 188(6) or (7) section 188(3)(a)(i)
iii: the date the carbon accounting area was constituted under that section for a carbon accounting area constituted by operation of section 192(3)(b)
c: hectare
191: Ceasing to be registered as participant in respect of post-1989 forest land
1: Subject to section 193
a: must submit an emissions return to the chief executive within 20 working days of—
i: being removed from the register in respect of that activity; or
ii: removing a carbon accounting area or ceasing to be a participant in respect of a carbon accounting area in respect of which the person is recorded as a participant under section 188; or
iii: removing land from a carbon accounting area or ceasing to carry out the activity in respect of part of a carbon accounting area in respect of which the person is recorded as a participant under section 188; and
b: is, in respect of any carbon accounting area,—
i: required to be covered by the return under subsection (2)
ii: required to be covered by the return under subsection (3)
A: liable to surrender the unit balance relating to any land removed from the carbon accounting area or on which the person has ceased to carry out the activity, plus or minus any units that the person is required to surrender for emissions or entitled to receive for removals in respect of the land remaining in the carbon accounting area, as calculated under subsection (4)
B: entitled to receive the number of units assessed as the participant’s entitlement for removals from the land remaining in the carbon accounting area, less the unit balance relating to any land removed from the carbon accounting area or upon which the person has ceased to carry out the activity, calculated under subsection (4)
2: An emissions return submitted under this section—
a: must,—
i: if subsection (1)(a)(i)
ii: if subsection (1)(a)(ii)
b: must record the unit balance of each carbon accounting area required to be covered by the return under paragraph (a) section 190(2)
3: An emissions return submitted under this section because subsection (1)(a)(iii)
a: be in respect of each carbon accounting area from which land is removed or in respect of which the person is ceasing to carry out the activity on part of the land in the carbon accounting area; and
b: for each carbon accounting area required to be covered by the return under paragraph (a)
i: commencing on the latest of—
A: the first day of the mandatory emissions return period (as defined in section 189(9)) in which the land was removed from the carbon accounting area (or the person ceased to carry out the activity on part of the land in the carbon accounting area); or
B: the date on which the land in the carbon accounting area became post-1989 forest land; or
C: the date of constitution of the carbon accounting area (as specified in section 190(5) section 188(7)(b)(ii)(B) section 192(3)(b)
D: if an emissions return has been submitted under section 189(4A)
ii: ending on the date the land is removed from the carbon accounting area or the person ceases to carry out the activity on part of the land in the carbon accounting area; and
c: in respect of each carbon accounting area required to be covered by the return under paragraph (a)
i: comply with section 189(5)(a)
ii: record the notional unit balance of the carbon accounting area, calculated by taking the unit balance of the carbon accounting area (as calculated under section 190(2) section 189(5)(a)(v)
A: entitled to receive units in respect of removals from the carbon accounting area during the emissions return period, adding that number of units to the unit balance; or
B: liable to surrender units in respect of emissions from the carbon accounting area during the emissions return period, subtracting that number of units from the unit balance; and
iii: record the person’s assessment of the person’s net liability to surrender units or entitlement to receive units in respect of the post-1989 forest land being removed from and the land remaining in the carbon accounting area calculated in accordance with subsection (4)
4: Net liability to surrender units or entitlement to receive units in respect of a carbon accounting area required to be covered by the return under subsection (3)(a) X = UB CAA r where— X is,—
a: if positive, the number of units the person must surrender in respect of the land being removed from the carbon accounting area or upon which the person has ceased to carry out the activity (as adjusted by any units required to be surrendered for emissions, or units to which the person is entitled for removals, from the land remaining in the carbon accounting area); or
b: if negative, the number of units to which the person is entitled in respect of removals from the land remaining in the carbon accounting area (as adjusted by any units required to be surrendered for the land being removed from the carbon accounting area or in respect of which the person has ceased to carry out the activity) UB CAA is the unit balance of the carbon accounting area before the removal of the land and submission of the return under this section, calculated in accordance with section 190(2) UB r is the unit balance of the land remaining in the carbon accounting area calculated as follows: UB r CAA CAA r where— NUB CAA is the notional unit balance of the carbon accounting area calculated under subsection (3)(c)(ii) H CAA is the number of hectares in the carbon accounting area before removal of the land or before the person ceased to carry out the activity in respect of part of the land H r is the number of hectares in the carbon accounting area, less the number of hectares being removed or in respect of which the person has ceased to carry out the activity.
5: If a person submits an emissions return under subsection (3)
6: Section 189(8) applies to a person who submits an emissions return under this section with any necessary modifications.
7: An emissions return submitted under this section must be—
a: submitted in the prescribed manner and format; and
b: accompanied by any prescribed fee and any other prescribed information.
192: Effect of transmission of interest in post-1989 forest land
1: This section applies—
a: if, subject to section 157A(4)
b: if a person registered as a participant in respect of an activity listed in Part 1 of Schedule 4 and who is described in the first column of Part B of the following table grants an interest or enters into a contract described in the second column of Part B of the table:
c: if an interest described in the second column of Part C of the following table expires or is terminated, and the person described in the first column of Part C of the table is, in relation to that interest, registered as a participant in respect of an activity listed in Part 1 of Schedule 4: Part A Existing participant Interest transferred New participant New activity in Part 1 of Schedule 4 Landowner of post-1989 forest land Post-1989 forest land in respect of which the person is recorded as a participant New land owner Owning post-1989 forest land Holder of a registered forestry right over post-1989 forest land Registered forestry right over post-1989 forest land in respect of which the person is recorded as a participant New forestry right holder Holding a registered forestry right over post-1989 forest land Leaseholder under a registered lease of post-1989 forest land Registered lease over post-1989 forest land in respect of which the person is recorded as a participant New lessee Being the leaseholder under a registered lease of post-1989 forest land Party to a Crown conservation contract Crown conservation contract over post-1989 forest land in respect of which the person is recorded as a participant New party to the Crown conservation contract Being a party to a Crown conservation contract Part B Existing participant Interest entered into New participant New activity in Part 1 of Schedule 4 Landowner of post-1989 forest land Registered forestry right over post-1989 forest land in respect of which the person is recorded as a participant Holder of a registered forestry right over post-1989 forest land Being the holder of a registered forestry right over post-1989 forest land Landowner of post-1989 forest land Registered lease of post-1989 forest land in respect of which the person is recorded as a participant Lessee under a registered lease of post-1989 forest land Being a lessee under a registered lease of post-1989 forest land Landowner of Crown land that is post-1989 forest land Crown conservation contract over post-1989 forest land in respect of which the person is recorded as a participant Party to the Crown conservation contract Being a party to a Crown conservation contract Part C Existing participant Interest expired or terminated New participant New activity in Part 1 of Schedule 4 Holder of a registered forestry right over post-1989 forest land Registered forestry right over post-1989 forest land in respect of which the person is recorded as a participant Landowner of the post-1989 forest land Owning post-1989 forest land Leaseholder under a registered lease of post-1989 forest land Registered lease over post-1989 forest land in respect of which the person is recorded as a participant Landowner of the post-1989 forest land Owning post-1989 forest land Party to a Crown conservation contract Crown conservation contract over post-1989 forest land in respect of which the person is recorded as a participant Landowner of the post-1989 forest land Owning post-1989 forest land.
2: In subsections (1) and (3) to (7) and section 193
a: affected carbon accounting area
i: means a carbon accounting area that contains post-1989 forest land to which a transmitted interest relates; and
ii: includes, where a transmitted interest relates to post-1989 forest land in part of a carbon accounting area, that carbon accounting area:
b: each of the persons described in the first column of the table in subsection (1) transferor
c: each of the persons described in the third column of the table in subsection (1) transferee
d: transmitted interest
i: in the circumstances described in subsection (1)(a)
ii: in the circumstances described in subsection (1)(b)
iii: in the circumstances described in subsection (1)(c)
e: date of transmission
i: in the circumstances described in subsection (1)(a)
A: the post-1989 forest land:
B: the registered forestry right over post-1989 forest land:
C: the registered lease of post-1989 forest land:
D: the Crown conservation contract:
ii: in the circumstances described in subsection (1)(b)
iii: in the circumstances described in subsection (1)(c)
3: If this section applies, then,—
a: within 20 working days of the date of transmission of the transmitted interest,—
i: the transferor and transferee must notify the chief executive of the transmission; and
ii: the transferor must submit an emissions return as required by section 193
b: from the date of transmission,—
i: the transferor ceases to be a participant under this Act in relation to the post-1989 forest land to which the transmitted interest relates and the transferee becomes a participant in respect of the activity listed in Part 1 of Schedule 4 that is referred to in the fourth column of the table in subsection (1)
ii: the area of post-1989 forest land to which the transmitted interest relates constitutes a new carbon accounting area in respect of which the transferee is the participant; and
iii: any post-1989 forest land remaining in an affected carbon accounting area and to which the transmitted interest does not relate constitutes a new carbon accounting area in respect of which the transferor is the participant.
4: If this section applies because a transmitted interest has been transmitted by operation of law, then—
a: the notice given under subsection (3)(a)(i)
b: the emissions return required under section 193
5: A notice given under subsection (3)(a)(i)
a: in the prescribed form; and
b: accompanied by any prescribed fees or charges and any prescribed information; and
c: signed by both the transferor and the transferee.
6: Following receipt of a notice complying with subsection (5) section 193
a: if the transferee is not already registered under section 57, enter the transferee's name on the register kept under section 57 as a participant in respect of an activity listed in Part 1 of Schedule 4 that is referred to in the fourth column of the table in subsection (1)
b: if the transferee is already registered under section 57, but not in respect of the activity listed in Part 1 of Schedule 4 that is referred to in the fourth column of the table in subsection (1)
c: if the transferor is registered under section 57 only in respect of carrying out the activity listed in Part 1 of Schedule 4 in respect of post-1989 forest land to which the transmitted interest relates, remove the transferor's name from the register in respect of that activity:
d: update the chief executive’s records under section 188(2)
i: removing the affected carbon accounting areas from the transferor’s record (if the transferor remains a participant only in respect of an activity listed in Part 1 of Schedule 4); and
ii: recording any new carbon accounting areas constituted by operation of subsection (3)(b)(ii) or (iii)
iii: recording the opening unit balance of any carbon accounting area referred to in subparagraph (ii) section 190(3)(a) or (c)
e: as applicable, give notice to the transferor and transferee of the action taken by the chief executive under paragraphs (a) to (d)
7: To avoid doubt,—
a: for the purposes of section 54(4), a transferor continues to be liable in respect of any obligations that arose in relation to the carbon accounting area or part of the carbon accounting area while the transferor was a participant in respect of the post-1989 forest land to which the transmitted interest relates (for example, in respect of the submitting of returns and surrendering of units required under section 189); and
b: a transferor is not required to notify the chief executive separately under section 59 if the result of the transfer is that the transferor is ceasing to carry out the activity; and
c: the chief executive is not required to notify any person under section 188(6)(a) of the registration of the transferee under section 57 if that registration is in accordance with this section.
193: Emissions returns in relation to transmitted interests
1: If section 192 section 191 section 192(3)(a) 192(4)(b)
2: An emissions return under this section must—
a: be in respect of all affected carbon accounting areas; and
b: in respect of each carbon accounting area covered by the return, be for the period—
i: commencing on the latest of—
A: the first day of the mandatory emissions return period (as specified in section 189(9)) in which the interest was transmitted; or
B: the date on which the land in the affected carbon accounting area became post-1989 forest land; or
C: the date of constitution of the carbon accounting area (as specified in section 190(5) section 188(7)(b)(ii)(B) section 192(3)(b)
D: if an emissions return has been submitted under section 189(4A)
ii: ending on the date of transmission; and
c: comply with section 189(5)
3: If a person submits an emissions return under this section,—
a: section 189(7) applies to the person as if the references in that provision to subsection (4) were references to this section; and
b: section 189(8) applies to the person as if the reference in that provision to this section section 193
67: Information about status of forest land
1: Section 194(2)(a) since the carbon accounting area or areas were constituted request
2: Section 194(2)
b: the unit balance of the carbon accounting area or areas covered by the information request.
3: Section 194(2)(c)
68: First emissions return for pre-1990 forest land activities
Section 196(2A) 30 April 31 May
69: Section 196A repealed
Section 196A
70: New section 201 substituted
Section 201
201: Effect of registration by purchasers of jet fuel
A participant in respect of an activity listed in Part 2 of Schedule 3 is not required to surrender units in respect of obligation jet fuel that is purchased by a person who is a participant in respect of an activity listed in Part 3 of Schedule 4.
71: Participant with respect to mining coal or natural gas
Section 204
3: Despite subsection (2)(a), subsection (4)
a: a permit relating to mining coal is held by 2 or more persons jointly under terms that entitle the individual holders to a proportion of the coal mined under the permit; or
b: a permit relating to mining natural gas is held by 2 or more persons jointly under terms that entitle the individual holders to a proportion of the gas mined under the permit.
4: If this subsection applies,—
a: section 157
b: each of the individual holders referred to in subsection (3)
i: is to be treated as the person carrying out the activity referred to in subsection (1) in relation to any natural gas or coal (as applicable) to which the person is entitled under the permit; and
ii: must comply with the obligations of a participant under this Act in relation to the natural gas or coal (as applicable) to which the person is entitled under the permit.
72: Mining natural gas in exclusive economic zone and continental shelf
Section 205
1A: To avoid doubt, a person who carries out the activity of mining natural gas, other than for export, anywhere within the territorial limits of New Zealand, the exclusive economic zone, or in, on, or above the continental shelf is not to be treated as importing the natural gas mined from that activity for the purposes of this Act.
73: New section 208 substituted
Section 208
208: Purchase of coal or natural gas from certain related companies of Part 3 of Schedule 3 participant
1: For the purposes of the activities listed in Part 4 of Schedule 4, the reference to a participant who mines coal or natural gas includes the following persons:
a: a wholly owned subsidiary of a participant who mines coal or natural gas:
b: a holding company of which a participant who mines coal or natural gas is a wholly owned subsidiary:
c: another wholly owned subsidiary of a holding company of which a participant who mines coal or natural gas is the wholly owned subsidiary.
2: In subsection (1) subsidiary holding company
74: Effect of registration by purchasers of coal or natural gas
Section 212 comply with section 62, report in an emissions return, or surrender units, surrender units
75: Subpart 4 of Part 5 substituted
Subpart 4
4: Agriculture
213: Participant in respect of subpart 4 of Part 5 of Schedule 3
1: If an activity listed in subpart 4 of Part 5 of Schedule 3 is carried out, the landowner of the land on which it is carried out is to be treated as the person carrying out the activity unless the chief executive is satisfied that there is a written agreement in place between the landowner and a third party that—
a: allows access by the third party to the land on which the activity listed in subpart 4 of Part 5 of Schedule 3 is being carried out and the third party is carrying out the activity listed in subpart 4 of Part 5 of Schedule 3 on the land; and
b: was entered into—
i: on or after the date appointed in the Order in Council under section 2A(9) that applies the activity listed in subpart 4 of Part 5 of Schedule 3 to the person carrying out the activity, and is for a term of at least 3 years; or
ii: before the date appointed in the Order in Council under section 2A(9) that applies the activity listed in subpart 4 of Part 5 of Schedule 3 to the person carrying out the activity, and had at least 3 years until expiry at the date appointed in the Order in Council.
2: If the chief executive is satisfied that the criteria specified in subsection (1)(a) and (b)
3: To avoid doubt, for the purposes of this Act, no person, other than a landowner or, in the circumstances specified in subsection (2)
214: Units not required to be surrendered for fertilisers embedded in products
A participant who carries out the activity listed in subpart 1 of Part 5 of Schedule 3 of importing or manufacturing synthetic fertilisers containing nitrogen is not required to surrender units in respect of any synthetic fertiliser containing nitrogen that—
a: is permanently embedded in a product as part of a manufacturing process; and
b: does not result in any emissions.
76: Transitional provision for penalties
Section 217
1: This section applies to a participant who submits an annual emissions return in respect of an activity listed in—
a: Part 1 of Schedule 3 that relates to the period 1 January 2008 to 31 December 2009; or
b: Part 2, Part 3, or subpart 1 of Part 4 of Schedule 3 or Part 3 or 4 of Schedule 4 that relates to the period 1 January 2010 to 31 December 2010; or
c: subpart 2 of Part 4 or Part 6 of Schedule 3 that relates to the period 1 January 2013 to 31 December 2013; or
d: subpart 1 or 3 of Part 5 of Schedule 3 that relates to the period 1 January 2015 to 31 December 2015; or
e: subpart 2 or 4 of Part 5 of Schedule 3 that relates to the first year in respect of which the participant is required to surrender units for emissions from the activity.
77: Transitional provision for voluntary reporting
1: Section 218(1)(a)(ii) Part 5 subpart 1 or 3 of Part 5
2: Section 218(1)(a)(iii) 2011; or 2011:
iv: subpart 2 or 4 of Part 5 of Schedule 3 in the year commencing on a date appointed by Order in Council made under section 2A(8) or (9) (to the extent the order applies to persons carrying out an activity listed in those subparts) on and after which the relevant subpart applies to the person; or .
3: Section 218(1)(b)(iii)
4: Section 218(2)(a) subsection (1)(a) subsection (1)(a)(i) to (iii)
5: Section 218(2)
ab: must, if the person carries out an activity specified in subsection (1)(a)(iv) .
6: Section 218(2)
d: is not required to comply, except as provided in paragraph (ab) .
78: Transitional provision for mandatory reporting by certain participants
1: Section 219(1)(a)
i: Part 2, Part 3, or subpart 1 of Part 4 of Schedule 3 in the period 1 January 2010 to 30 June 2010: .
2: Section 219(1)(a)
ii: subpart 1 or 3 of Part 5 of Schedule 3 in the period 1 January 2012 to 31 December 2014: .
3: Section 219(1)(a)(iii) Schedule 3 and Schedule 3 or
4: Section 219(1)(a) 2012; or 2012:
iv: subpart 2 or 4 of Part 5 of Schedule 3 in the year following the year commencing on a date appointed by Order in Council made under section 2A(8) or (9) (to the extent the order applies to persons carrying out an activity listed in those subparts) on and after which the relevant subpart applies to the person; or .
5: Section 219(1)
b: a person who is a participant in relation to an activity listed in Part 3 or 4 of Schedule 4 in the period 1 January 2010 to 30 June 2010.
6: Section 219
3: In addition to the requirements specified in section 65, a person to whom subsection (1)(a)(i) or (b)
4: For the purposes of calculating emissions for the period 1 July 2010 to 31 December 2010 under subsection (3)
a: references to a year in the Climate Change (Liquid Fossil Fuels) Regulations 2008 and the Climate Change (Stationary Energy and Industrial Processes) Regulations 2009 must be treated as references to the period 1 July 2010 to 31 December 2010; and
b: the provisions of the regulations specified in paragraph (a) subsection (3)
5: Subsections (3) and (4) subsection (1)(a)(i) or (b)
79: New section 220 substituted
Section 220
220: Transitional provision relating to unit entitlements for subpart 1 or 3 of Part 2 of Schedule 4 participants
Despite anything in this Act,—
a: a person who is a participant in respect of an activity listed in subpart 1 of Part 2 of Schedule 4 and submits an annual emissions return for the period 1 January 2010 to 31 December 2010, or any other emissions return that relates to dates within the period 1 January 2010 to 30 June 2010, is not entitled to be transferred units under section 64 in relation to any removals from the activity reported in any return in respect of the period 1 January 2010 to 30 June 2010; and
b: a person who is a participant in relation to an activity listed in subpart 3 of Part 2 of Schedule 4 and submits an annual emissions return for the period 1 January 2012 to 31 December 2012, or any other emissions return that relates to dates within that period, is not entitled to be transferred units under section 64 in relation to any removals from the activity reported in that return; and
c: in addition to satisfying the requirements in section 65, a person to whom paragraph (a)
i: 1 July 2010 to 31 December 2010, in the person's annual emissions return for the period 1 January 2010 to 31 December 2010; and
ii: 1 July 2010 to 31 December 2010, in any emissions return submitted under section 66 that covers the dates within that period; and
iii: 1 July 2010 to 30 September 2010, in any emissions return submitted under section 66 that covers dates within that period.
80: Additional transitional provision for Part 3 of Schedule 4 participants
Section 221
2: Despite section 198(2)(b), the registration of a person who registers as a participant in respect of an activity listed in Part 3 of Schedule 4—
a: before 1 January 2010, takes effect on 1 July 2010; and
b: on or after 1 January 2010 and before 1 July 2010, takes effect on the date that is 5 months after the date of entry of the person’s name as a participant in the register under section 57.
81: New sections 222A to 222H inserted
The following sections are inserted after section 222
222A: Transitional provision for liability to surrender units to cover emissions from activities relating to liquid fossil fuels, stationary energy, and industrial processes
1: This section applies to a person who—
a: carries out an activity listed in Part 2, Part 3, or subpart 1 of Part 4 of Schedule 3 in the period 1 July 2010 to 31 December 2012; or
b: is a participant in relation to an activity listed in Part 3 or 4 of Schedule 4 in the period 1 July 2010 to 31 December 2012.
2: Despite anything in this Act, a person to whom this section applies is only liable to surrender, and may only surrender, 1 unit for each 2 whole tonnes of emissions from the activity in respect of the period referred to in subsection (1)
222B: Transitional provision for entitlement to receive New Zealand units for removal activities
1: This section applies to a person who is—
a: a participant in respect of an activity listed in Part 2 of Schedule 4 in the period 1 July 2010 to 31 December 2012; and
b: entitled to receive units under section 64 in respect of that period.
2: Despite section 64, a participant to whom this section applies is entitled to receive only 1 New Zealand unit for each 2 whole tonnes of removals from the activity in respect of the period referred to in subsection (1)
222C: Transitional provision permitting payment of money instead of surrender of units to cover emissions
1: This section applies if—
a: a person is required to surrender or repay units—
i: under section 65(4), 118(5), 189(8), or 193
ii: under section 65(4) or 118(5) for emissions from any other activity in respect of any part of the period 1 July 2010 to 31 December 2012; or
iii: under section 187 or 191
b: the chief executive is required under section 123(4) or 189(7)(d) to arrange for the reimbursement of units because a person has surrendered too many units—
i: for emissions from an activity listed in Part 1 of Schedule 3 or Part 1 of Schedule 4 in respect of any part of the period 1 January 2008 to 31 December 2012; or
ii: for emissions from any other activity in respect of any part of the period 1 July 2010 to 31 December 2012; or
iii: under section 187 or 191
2: Despite anything in this Act, if this section applies, a person may satisfy the person's obligation to surrender, repay, or reimburse units by,—
a: in the case of a person other than the chief executive,—
i: surrendering or repaying the units in accordance with section 65(4), 118(5), 187, 189(8), 191, or 193
ii: paying a sum of $25 for each unit that the person is liable to surrender or repay, into a Crown bank account, by the date or within the period by which the units are required to be surrendered or repaid; or
iii: a combination of—
A: surrendering or repaying units in accordance with section 65(4), 118(5), 187, 189(8), 191, or 193
B: paying a sum of $25 for each unit that the person is liable to surrender or repay, but has not surrendered or repaid or will not surrender or repay in accordance with subsubparagraph (A)
b: in the case of the chief executive,—
i: reimbursing a person with units in accordance with the procedure specified in section 124
ii: paying a sum of $25 for each unit into a bank account designated by the person; or
iii: a combination of—
A: reimbursing a person with units in accordance with the procedure specified in section 124
B: paying the sum of $25 for each unit not so reimbursed into a bank account designated by the person.
3: For the purposes of subsection (2)(a)(ii) and (iii)(B)
4: For the purposes of subsection (3) section 222D(1)
222D: Issuing New Zealand units to meet surrender obligation
1: If, in accordance with section 222C(2)(a)(ii) or (iii)(B)
a: issue a number of New Zealand units into a Crown holding account equal to the number of units in respect of which the person has paid a sum of $25; and
b: transfer the New Zealand units into the person’s holding account held for the purpose of section 61(1)
c: immediately following the transfer under paragraph (b)
2: The Registrar may, for the purposes of subsection (1)(a) section 222C(2)(a)(ii) or (iii)(B)
3: If the chief executive is required to reimburse a person units under section 123(4) or 189(7)(d) and has satisfied his or her obligation to do so by paying to the person a sum of $25 for the units in accordance with section 222C(2)(b)(ii) or (iii)(B)
a: transfer from the appropriate surrender account to the person’s holding account held for the purpose of section 61(1)
b: immediately following the transfer under paragraph (a)
4: For the avoidance of doubt, section 68
5: If subsection (1)
6: Despite anything in section 18CA(4) subsection (1)(c) subsection (3)(a)
222E: Transitional provisions relating to reporting
1: In the period beginning on the date this section comes into force and ending with the close of 31 January 2014, the information that can be obtained by a search of the unit register in accordance with section 27(2)(c) must include—
a: the total quantity of New Zealand units issued during the relevant year; and
b: the total quantity of New Zealand units issued under section 68
c: the total quantity of New Zealand units issued under section 222D
2: In the period from the date this section comes into force until 30 June 2013, the chief executive must publish, in accordance with section 89(2),—
a: the total sum of money paid to a Crown bank account in accordance with section 222C(2)(a)(ii) or (iii)(B)
b: the total sum of money paid by the chief executive in accordance with section 222C(2)(b)(ii) or (iii)(B)
222F: Transitional provision for allocation to industry
1: Despite anything in this Act,—
a: a person who carries out an eligible industrial activity in the period 1 July 2010 to 31 December 2010 may apply for a provisional allocation or a final allocation in respect of that period under section 86
i: the regulation prescribing the eligible industrial activity is notified in the Gazette
ii: an application for—
A: a provisional allocation in respect of the period is made in the period commencing on the date the regulation comes into force and ends on a date that is 3 months later than the date on which the regulation comes into force; or
B: a final allocation in respect of the period is made by the date that is the later of the final date for such an application under section 86 or the date that is 3 months later than the date on which the regulation comes into force; and
b: sections 81 and 83
i: as if the variable PDCT in section 81
ii: as if the variable PDCT in section 83
iii: with any other necessary modifications as if the period 1 July 2010 to 31 December 2010 was the year in respect of which the application for a provisional allocation or a final allocation (as relevant) is made; and
c: an eligible person who carries out an eligible industrial activity in 2011 or 2012 is entitled to be allocated or provisionally allocated, in respect of any application made under section 86 ections 81 to 84
2: Despite anything in this Act, a person who carries out an eligible industrial activity in the period 1 January 2011 to 31 December 2011 or 1 January 2012 to 31 December 2012 may apply for a provisional allocation or a final allocation under section 86
a: the regulation prescribing an eligible industrial activity is notified in the Gazette
b: an application for a provisional allocation or a final allocation in respect of the period is made by the date that is the later of—
i: the final date for such an application under section 86
ii: the date that is 3 months after the date on which the regulation comes into force.
222G: Transitional provision regarding prohibition on ability to export New Zealand units
1: Despite anything in this Act, during the period 1 July 2010 to 31 May 2013,—
a: an account holder may not apply to the Registrar under section 30E(1)(a) to convert a New Zealand unit held by that person into a designated assigned amount unit for the purposes of transferring that assigned amount unit to an account in an overseas registry; and
b: the Registrar must not transfer to an account in an overseas registry under section 18C—
i: New Zealand units; or
ii: designated assigned amount units that have been converted from New Zealand units under section 30E(3) before the commencement of this section.
2: This section does not apply to New Zealand units—
a: transferred for removals from an activity listed in Part 1 of Schedule 4; or
b: transferred in accordance with a determination of the Minister under section 77 or 78
222H: Transitional provision for unincorporated bodies
1: This section applies to 3 or more joint owners of land, leaseholders, forestry right holders, or parties to a Crown conservation contract who registered together as a participant ( joint participants section 157
2: If this section applies, then—
a: the joint participants are, on and after the commencement of this section, to be treated as members of an unincorporated body that is a participant, but the unincorporated body is not required to—
i: notify the chief executive that it is a participant as specified in section 157(2)(c)(ii)(A)
ii: apply to be registered as a participant as specified in section 157(2)(c)(ii)(B)
b: the chief executive must notify the joint participants that they are—
i: now members of an unincorporated body for the purposes of this Act:
ii: required to provide the details specified in section 157(2)(c)(ii)(C) and (2)(d)
c: the chief executive must, after receiving the information specified in paragraph (b)(ii)
3: Failure to provide the information specified in section 157(2)(d)(i) subsection (2)(b)
4: If the joint participants fail to provide the information specified in a notice given under subsection (2)(b)
a: choose a name for the unincorporated body and update any records relating to the joint participants as specified in subsection (2)(c)
b: nominate 1 of the members of the unincorporated body as the person to whom notices are to be given.
5: If the chief executive updates any records relating to joint participants in accordance with subsection (2)(c) or (4)
6: Despite subsection (2)
a: until the chief executive updates any records in relation to any joint participants, the joint participants together remain registered as a participant, and are jointly and severally liable for all obligations, and jointly and severally entitled to all benefits, arising from their status as a participant; and
b: the joint participants whose names have been removed from a register and the unincorporated body whose name has been substituted on that register are to be treated for the purposes of this Act as the same participant.
82: Section 223 repealed
Section 223
83: Gazetting of targets
Section 224
2A: Before the Minister sets, amends, or revokes a target, the Minister must consult, or be satisfied that the chief executive has consulted, persons (or their representatives) that appear to the Minister or the chief executive likely to have an interest in the target.
84: New section 225 inserted
The following section is inserted after section 224
225: Regulations relating to targets
1: The Governor-General may, by Order in Council made on the recommendation of the Minister responsible for the administration of this Act, make regulations setting a target.
2: Before recommending the making of an Order in Council under subsection (1)
3: The Minister responsible for the administration of this Act—
a: must review the target following publication of any Intergovernmental Panel on Climate Change Assessment Report or report of a successor agency; and
b: may at any time recommend to the Governor-General the setting of a target, or amendment or revocation of a target, having regard to the following matters:
i: any Intergovernmental Panel on Climate Change Assessment Report or report of a successor agency:
ii: any other matters the Minister considers relevant.
4: To avoid doubt, any number of targets may be set using the process under this section.
85: Schedule 3 amended
1: The Schedule 3 s 2A .
2: Part 4 Producing cable using a nitrogen cure process.
3: The item relating to purchasing, other than for on-selling, synthetic fertiliser containing nitrogen in subpart 2 for application to land
4: Subpart 3 Exporting from New Zealand live cattle, sheep, or pigs in accordance with an animal welfare export certificate. Producing eggs by a person who is the operator of a risk management programme registered under the Animal Products Act 1999.
86: Schedule 4 amended
1: The Schedule 4 s 2A .
2: Part 5
2: Consequential amendments
87: Amendments to Maori Fisheries Act 2004
1: This section amends the Maori Fisheries Act 2004
2: Section 5 settlement assets settlement assets
a: the assets transferred to Te Ohu Kai Moana Trustee Limited under section 194(1)(c) (including Aotearoa Fisheries Limited and all its assets); and
b: any further quota shares allocated to Te Ohu Kai Moana Trustee Limited under section 44 of the Fisheries Act 1996; and
c: any New Zealand units allocated to Te Ohu Kai Moana Trustee Limited under the fishing allocation plan issued under the Climate Change Response Act 2002 .
3: Section 129(1) money and any surplus funds money, any surplus funds, and any New Zealand units allocated to Te Ohu Kai Moana Trustee Limited under the fishing allocation plan issued under the Climate Change Response Act 2002
4: The following section is inserted after section 138
138A: Allocation and transfer of New Zealand units
1: In this section— New Zealand units unallocated quota
2: When Te Ohu Kai Moana Trustee Limited allocates and transfers unallocated quota to an iwi or a mandated iwi organisation in accordance with section 130(1), 135, or 151 of this Act, Te Ohu Kai Moana Trustee Limited must, at the same time, allocate and transfer New Zealand units associated with that quota to that iwi or mandated iwi organisation in accordance with those provisions.
3: Te Ohu Kai Moana Trustee Limited must notify the Minister responsible for the administration of the Climate Change Response Act 2002 of the details of any allocation and transfer of unallocated quota and New Zealand units associated with that quota under subsection (2) 2009-12-08 Maori Fisheries Act 2004
88: Consequential amendments
1: Section 67Y(3A) section 80, or in regulations made under section 168(1)(k) of the Climate Change Response Act 2002 or section 90 of the Climate Change Response Act 2002, or in regulations made under section 168(1)(k) of that Act, or 2009-12-08 Forests Act 1949
2: The regulations set out in the Schedule 2009-12-08 Climate Change (Forestry Sector) Regulations 2008 Climate Change (Stationary Energy and Industrial Processes) Regulations 2009 Climate Change (Unit Register) Regulations 2008