Document ID: chunk:federal_register_of_legislation:F2021L01011:reg:20:p1
Version: federal_register_of_legislation:F2021L01011
Segment Type: reg
Provision Reference: reg 20 (pt 1/3)
Character Range: 25004–27924

20  Circumstances when repayment obligation does not apply
 (1) For subsection 51(1) of the Act, this section prescribes circumstances in which the obligation to repay under subsection 50(1) of the Act does not apply.
Note: A person may also apply under subsection 41(2) of the Act to terminate their commitment period which would avoid the application of repayment obligations. If the circumstances in this section are met, the Minister can approve that termination under paragraph 10(4)(a). Decisions on applications to vary or terminate a commitment period are reviewable decisions under Division 2 of Part 5 of the Act.
Force majeure
 (2) Repayment under subsection 50(1) does not apply if the Minister is satisfied that:
 (a) the refinery is operationally unviable or commercially unviable as the result of a force majeure event that the refinery operator:
 (i) could not have reasonably prevented; or
 (ii) cannot reasonably limit the effect of;
   notwithstanding the refinery operator having taken appropriate steps which a prudent, experienced and reasonable person in the circumstances of the refinery operator would have taken; and
 (b) related refinery entities have not unreasonably stopped, or impeded the ability for, the refinery operator taking appropriate steps under paragraph (a); and
 (c) relevant independent analysis is provided by the person subject to the repayment to the Minister to evidence paragraph (2)(a).
 (3) For paragraph (2)(a), a force majeure event is one of the following events:
 (a) fire, flood, earthquake, weather events or acts of God;
 (b) war or other state of armed hostilities, act of terrorism, act of sabotage, national emergency, embargo, closure of federal, state or other administrative borders, or actions by customs;
 (c) extended unavailability of essential services such as electricity, gas or water;
 (d) curtailment or failure of the supplies of feedstocks, blendstocks or raw materials from any of the refiner's, or any of its suppliers', sources of supply;
 (e) equipment or mechanical breakdown, such as those leading to an unplanned shutdown;
 (f) a restraint, restriction, direction or request by any government agency, body or department, court, tribunal, administrative authority or stock exchange;
 (g) a strike, lockout, boycott, work ban or other industrial action (whether or not the refiner is party to it or would be able to influence or procure its settlement);
 (h) an epidemic, pandemic or similar public health concern;
 (i) any other event or circumstance impacting the operation of the refinery that is beyond the reasonable control of the refinery operator and related refinery entities.
Material adverse change
 (4) Repayment under subsection 50(1) of the Act does not apply if the Minister is satisfied that:
 (a) a material adverse change has occurred; and
 (b) if the material adverse change is covered by paragraph (5)(a), (b) or (d)—the