Clean Energy Amendment Regulation 2012 (No. 1)1
Select Legislative Instrument 2012 No. 12
I, QUENTIN BRYCE, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Clean Energy Act 2011.
Dated 22 February 2012
QUENTIN BRYCE
Governor-General
By Her Excellency’s Command
GREG COMBET
Minister for Climate Change and Energy Efficiency
1 Name of regulation
This regulation is the Clean Energy Amendment Regulation 2012 (No. 1).
2 Commencement
This regulation commences on the commencement of sections 3 to 303 of the Clean Energy Act 2011.
3 Amendment of Clean Energy Regulations 2011
Schedule 1 amends the Clean Energy Regulations 2011.
Schedule 1 Amendments
(section 3)
[1] Regulation 1.3, after definition of NGER Regulations
insert
Note Section 5 of the Act contains definitions for the purposes of the Act that also apply in these Regulations, including:
· benchmark average auction charge
· carbon unit
· controlling corporation
· covered emission
· designated joint venture
· eligible financial year
· executive officer
· facility
· free carbon unit
· Jobs and Competitiveness Program
· liability transfer certificate
· non-group entity
· operational control.
[2] After Part 3
insert
Part 4 Carbon units
Division 5 Special provisions relating to free carbon units
4.1 Buy-back of certain free carbon units — specified factor
(1) For a request mentioned in subsection 116 (2) of the Act that is received by the Regulator during a period mentioned in the table in subregulation (2), the factor specified for the formula in subsection 116 (2) of the Act is:
where:
r is the per annum yield (expressed as a percentage) for BBB rated corporate bonds with 1 to 5 years maturity, as published by the Reserve Bank of Australia, that is the latest daily rate published prior to the day the request to the Regulator was received.
n is the number of days before 15 June in the fixed charge year that the request to the Regulator was received.
(2) For subregulation (1), the table is the following.
Item
Period
1
1 September 2012 to 14 June 2013
2
1 September 2013 to 14 June 2014
3
1 September 2014 to 14 June 2015
(3) For a request mentioned in subsection 116 (2) of the Act that is received by the Regulator during a period mentioned in the following table, the factor specified for the formula in subsection 116 (2) of the Act is one.
Item
Period
1
15 June 2013 to 1 February 2014
2
15 June 2014 to 1 February 2015
3
15 June 2015 to 1 February 2016
[3] Before Part 8
insert
Part 7 Jobs and Competitiveness Program
Division 2 Formulation of the Jobs and Competitiveness Program
7.1 Jobs and Competitiveness Program
For subsection 145 (1) of the Act, the Jobs and Competitiveness Program is set out in Schedule 1.
[4] After Part 8
insert
Part 21 Review of decisions
21.1 Reviewable decisions — Jobs and Competitiveness Program
For item 30 of the table in section 281 of the Act, the decisions of the Regulator under the Jobs and Competitiveness Program, set out in the following table, are prescribed.
Note The Jobs and Competitiveness Program is set out in Schedule 1.
Item
Decision under the Jobs and Competitiveness Program in Schedule 1
1
A decision under paragraph 803 (2) (b) of the program to refuse an application
2
A decision under paragraph 803 (8) (a) of the program to consider an application on the basis of substituting an amount or volume
3
A decision under paragraph 803 (8) (c) of the program to refuse to consider an application
4
A decision under paragraph 804 (1) (b) of the program to refuse an application for the issue of free carbon units
5
A decision under subclause 902 (7) of the program to reduce the number of free carbon units to be issued by the number of carbon units that would be likely to be required to be relinquished in accordance with Part 13 of the program
6
A decision under subclause 910 (1) of the program to amend a large user certificate
7
A decision under clause 911 of the program to reduce the number of carbon units allocated
8
A decision under subclause 1304 (4) of the program to issue a relinquishment notice
9
A decision under subclause 1306 (4) of the program to issue a relinquishment notice
Schedule 1 Jobs and Competitiveness Program
(section 7.1)
Part 1 Preliminary
Part 2 Definitions and related concepts
Division 1 Definitions
Division 2 Meaning of saleable quality
Division 3 Meaning of significant expansion
Division 4 Meaning of closed
Division 5 Meaning of new facility and series of new facilities
Part 3 Emissions‑intensive trade‑exposed activities
Division 1 General
Division 2 Production of glass containers
Division 3 Production of bulk flat glass
Division 4 Production of methanol
Division 5 Production of carbon black
Division 6 Production of white titanium dioxide (TiO2) pigment
Division 7 Production of silicon
Division 8 Smelting zinc
Division 9 Integrated production of lead and zinc
Division 10 Aluminium smelting
Division 11 Alumina refining
Division 12 Production of high purity ethanol
Division 13 Production of magnesia
Division 14 Manufacture of newsprint
Division 15 Dry pulp manufacturing
Division 16 Cartonboard manufacturing
Division 17 Packaging and industrial paper manufacturing
Division 18 Printing and writing paper manufacturing
Division 19 Tissue paper manufacturing
Division 20 Integrated iron and steel manufacturing
Division 21 Manufacture of carbon steel from cold ferrous feed
Division 22 Petroleum refining
Division 23 Production of ethene (ethylene)
Division 24 Production of polyethylene
Division 25 Production of synthetic rutile
Division 26 Production of manganese
Division 27 Production of clinker
Division 28 Production of lime
Division 29 Production of fused alumina
Division 30 Production of copper
Division 31 Production of carbamide (urea)
Division 32 Production of sodium carbonate (soda ash) and sodium bicarbonate
Division 33 Production of ammonium nitrate
Division 34 Production of ammonia
Division 35 Production of iron ore pellets
Division 36 Production of liquefied natural gas
Division 37 Production of magnetite concentrate
Part 4 Allocative baselines
Part 5 Eligibility to apply for free carbon units
Division 1 General
Division 2 Personal eligibility — existing activity in previous financial year
Division 3 Personal eligibility — no existing activity in previous financial year
Part 6 Approval of application form for free carbon units
Part 7 Application for free carbon units
Division 1 General
Division 2 Shared eligibility
Division 3 Special arrangements for facility without continuous emissions-intensive trade-exposed activity
Division 4 Special arrangements for significant expansion
Division 5 Special arrangements for new facilities
Division 6 Special arrangements for sub-threshold facilities
Division 7 Measuring emissions in applications
Part 8 Consideration of application for free carbon units
Division 1 Further information about application
Division 2 Revision of application — inadequate information about relevant product
Division 3 Decision on application for free carbon units
Division 4 Notification of proposed refusal
Division 5 Notification of decision
Division 6 Correction of inaccurate allocation of free carbon units
Division 7 Revision of application where outstanding debt
Part 9 Method of calculating the number of free carbon units to be issued to a person
Division 1 General
Division 2 Special arrangements for facility without continuous emissions-intensive trade-exposed activity
Division 3 Special arrangements for significant expansion
Division 4 Formula
Division 5 Modification of formula in Division 4 — large user electricity contracts
Division 6 Maximum number of units to be allocated to new facilities
Division 7 Sub-threshold emissions adjustments
Division 8 Adjustments relating to Joint Petroleum Development Area and Greater Sunrise unit area
Part 10 Year to which units apply
Division 1 Application in first year of the program
Division 2 Application in second year of the program
Division 3 Application in third year of the program
Division 4 Application in subsequent years
Part 11 Keeping records and materials
Part 12 Reporting requirements
Part 13 Relinquishment of carbon units
Division 1 General
Division 2 Closure of equipment
Division 3 Negative allocation
Division 4 Inaccurate allocation of free carbon units
Part 14 Incidental provisions
Part 1 Preliminary
101 This is the Jobs and Competitiveness Program.
102 (1) This program deals with the issue of free carbon units in respect of activities that, under the program, are taken to be emissions‑intensive trade‑exposed activities.
(2) Free carbon units must not be issued to a person in accordance with this program unless the person:
(a) meets the requirements specified in this program; and
(b) has a Registry account.
103 The activities must be carried on in Australia during any of the following eligible financial years:
(a) the eligible financial year starting on 1 July 2012;
(b) any subsequent eligible financial year.
104 The extraction of coal is not an activity under this program that is taken to be an emissions‑intensive trade‑exposed activity.
Part 2 Definitions and related concepts
Division 1 Definitions
201 (1) In this program:
applicant means a person who makes an application for free carbon units in the capacity of an eligible person.
Note An applicant will deal with the Regulator through one or more contact persons who will be nominated in the application.
ASTM followed by a number (for example, ASTM D6347/D6347M-99) means a standard of that number issued by ASTM International and, if a date is included, of that date.
Note ASTM means the American Society for Testing and Materials.
carbon steel means material which:
(a) contains by mass more iron (Fe) than any other single element; and
(b) has a carbon (C) concentration less than 2%.
closed, in relation to equipment: see clause 204.
condensate has the same meaning as in the Excise Act 1901.
eligible person: see Part 5.
eligible petroleum feedstocks means any one or more of the following that were not produced through the conduct of an emissions-intensive trade-exposed activity carried on in Australia:
(a) catalytic cracker feedstocks that are processed in the catalytic cracker in carrying on the emissions-intensive trade-exposed activity and have a density of 0.84 to 0.98 kg/L at 15 °C and 1 atmosphere;
(b) hydro-cracker unit feedstocks that are processed in the hydro-cracking unit in carrying on the emissions-intensive trade-exposed activity and have a density of 0.84 to 0.98 kg/L at 15 °C and 1 atmosphere;
(c) reformer unit feedstocks that are used to produce reformate in carrying on the emissions-intensive trade‑exposed activity and have a density of 0.6 to 0.80 kg/L at 15 °C and 1 atmosphere;
(d) alkylation unit feedstocks that are used to produce alkylate in carrying on the emissions-intensive trade‑exposed activity and have a density of 0.55 to 0.62 kg/L at 15 °C and 1 atmosphere;
(e) bitumen feedstocks that are used to produce bitumen in carrying on the emissions-intensive trade-exposed activity and have a density of at least 0.95 kg/L at 15 °C and 1 atmosphere;
(f) lubricant base stock feedstocks that are used to produce lubricant base stocks in carrying on the emissions‑intensive trade-exposed activity and have a density of 0.84 to 0.98 kg/L at 15 °C and 1 atmosphere.
equipment means equipment that is used, or is to be used, to carry on an emissions-intensive trade-exposed activity, including the following:
(a) an apparatus;
(b) an appliance;
(c) a boiler;
(d) a chimney;
(e) a crane;
(f) a device;
(g) a dredge;
(h) a dryer;
(i) an electrolytic cell;
(j) an engine;
(k) a furnace;
(l) a generator;
(m) an incinerator;
(n) an instrument;
(o) a kiln;
(p) a machine;
(q) an oven;
(r) plant;
(s) a retort;
(t) a structure;
(u) a tool.
expected production, or expected additional production, means:
(a) for an application to which subclause 705 (1) or (2) applies — the amount or volume of the relevant product that is reasonably likely to be produced in the financial year for which free carbon units are to be provided; and
(b) for an application to which subclause 706 (1) applies — the amount or volume of the relevant product that is reasonably likely to be produced for the facilities that are taken to have undergone a significant expansion in the financial year for which free carbon units are to be provided above the amount of the production of that relevant product in the previous financial year.
highly emissions-intensive, in relation to an emissions‑intensive trade-exposed activity, means that the base rate of assistance for the activity is explained in subclause 907 (4).
moderately emissions-intensive, in relation to an emissions-intensive trade-exposed activity, means that the base rate of assistance for the activity is explained in subclause 907 (4).
new facility: see clause 205.
NGER Measurement Determination means the National Greenhouse and Energy Reporting (Measurement) Determination 2008 or any other determination for the measurement of emissions issued by the Minister under subsection 10 (3) of the NGER Act.
output means the product or products mentioned in the description of an emissions-intensive trade-exposed activity that result from the carrying on of that activity (whether or not the product or products are the basis for the issue of free carbon units for the activity under Part 3).
product means a product that is specified in Part 3 as the basis for the issue of free carbon units in relation to the carrying on of an emissions-intensive trade-exposed activity.
r is the per annum yield (expressed as a percentage) for BBB rated corporate bonds with 1 to 5 years maturity, as published by the Reserve Bank of Australia, that is the latest daily rate published prior to the day an application is approved by the Regulator.
relevant product means:
(a) in relation to an application for the issue of free carbon units — a product that is identified in the application as meeting the requirements specified in Part 3 for the basis for the issue of those free carbon units; and
(b) in relation to free carbon units that have been issued — the product that meets the requirements specified in Part 3 as the basis for the issue of those free carbon units.
saleable quality: see clause 202.
series of new facilities: see clause 205.
significant expansion: see clause 203.
stabilised crude petroleum oil has the meaning given in the Australian Taxation Office Interpretative Decision, ATO ID 2008/154, published on 28 November 2008.
unleaded petrol means all grades of unleaded petrol meeting Australian or international standards, including standard unleaded petrol, premium unleaded petrol and other proprietary forms of unleaded petrol.
(2) In this program, unless the contrary intention appears:
(a) a concentration of a substance that is expressed as a percentage is a percentage with respect to mass; and
(b) a reference to the moisture content of a substance expressed as a percentage is a percentage with respect to mass.
(3) In this program, unless the contrary intention appears, an emissions-intensive trade-exposed activity is carried on at a facility if the activity, or series of activities, that constitute the facility includes some or all of the transformations specified in Part 3 as being required for carrying on an emissions-intensive trade-exposed activity.
Note Subsection 9 (1) of the NGER Act explains how an activity or series of activities constitutes a facility.
Division 2 Meaning of saleable quality
202 (1) In this program, saleable quality is intended to have its ordinary meaning as understood by participants in the relevant market, subject to subclauses (2) to (5).
(2) A product is taken to be of saleable quality if it is produced to a level at which it would ordinarily be considered by participants in the relevant market:
(a) to be an output of a process carried on as part of an emissions-intensive trade-exposed activity; and
(b) to have a commercial value as that output.
(3) A sub-standard product that is discarded is taken not to be of saleable quality.
(4) A product that is recycled back into the same emissions‑intensive trade-exposed activity to produce a new output may be taken to be of saleable quality only once.
Examples
1 Metal that is re-melted in the same equipment in which it was produced.
2 Paper that is re-inputted into a paper making process.
(5) Material that is scrapped or lost before it is packaged as a product that is of saleable quality:
(a) is taken not to be of saleable quality; and
(b) is taken not to be included in an amount of product that is of saleable quality that is to be counted for the basis for allocation.
Division 3 Meaning of significant expansion
203 (1) In this program, a facility to which an application for the issue of free carbon units relates is taken to have undergone significant expansion only if:
(a) an emissions-intensive trade-exposed activity was carried on at the facility in the financial year before the financial year to which the application relates; and
(b) equipment has been installed, or is to be installed, to carry on the activity; and
(c) the equipment has not previously been taken into account under this program in relation to the significant expansion of a facility; and
(d) for equipment that has been installed — the equipment was first fully installed at the facility not more than 4 years before the start of the financial year to which the application relates; and
(e) for equipment that is to be installed — the equipment is expected to be installed, or substantially installed, within 1 year after the end of the financial year to which the application relates; and
(f) after the equipment is commissioned, and any existing equipment that is to be decommissioned has been decommissioned, the maximum productive capacity of the equipment used to produce the relevant product will be more than 20% greater than the maximum productive capacity of the equipment that existed before the installation.
(2) In paragraph (1) (f), in working out the maximum productive capacity of the equipment that existed before the installation, decommissioned equipment that exists at the site is not to be included if it:
(a) has not been used since the equipment has been installed to carry on the activity; and
(b) is not proposed to be used for at least 12 months after the financial year to which the application relates.
Division 4 Meaning of closed
204 (1) In this program, equipment is taken to have been closed only in a circumstance set out in subclause (2) or (3).
(2) Equipment is taken to have been closed if:
(a) one or more items of equipment have been used to carry out an emissions-intensive trade-exposed activity at one or more facilities; and
(b) the production of all relevant products at the facility or facilities has ceased; and
(c) it is, or becomes, unlikely that the relevant products will be produced again at the facility or facilities within 1 year after the production ceased.
(3) Equipment is taken to have been closed in relation to the production of a relevant product if:
(a) one or more items of equipment have been used to carry out an emissions-intensive trade-exposed activity at one or more facilities; and
(b) the equipment has been producing 2 or more relevant products as a result of the same emissions-intensive trade‑exposed activity; and
(c) all production of one or more of those relevant products at the facility or facilities has ceased; and
(d) the equipment is still producing at least one other relevant product; and
(e) it is, or becomes, unlikely that production of one or more of the relevant products mentioned in paragraph (c) will resume at the facility or facilities within 1 year after the production of that relevant product ceased.
Division 5 Meaning of new facility and series of new facilities
205 (1) In this program, a facility to which an application for the issue of free carbon units relates is a new facility only in the circumstances set out in subclause (2).
(2) A facility is a new facility if all of the following apply:
(a) either:
(i) no relevant product was produced at the site of the facility before 1 July 2011; or
(ii) relevant product was produced at the site of the facility before 1 July 2011 but the principal equipment used in the previous financial year at the site of the facility to carry on the emissions-intensive trade-exposed activity was not used to produce relevant product at that site before 10 July 2011;
(b) the earlier of the following occurred on or after 10 July 2011:
(i) a final investment decision was published in relation to a project to construct and commission at the site of the facility equipment that is to be used to carry on the emissions-intensive trade-exposed activity;
(ii) construction commenced on a project at the site of the facility in relation to equipment that is to be used to carry on the emissions-intensive trade-exposed activity;
(c) if it is part of a series of new facilities — the series of new facilities does not include one or more facilities that are not new facilities.
(3) For subparagraph (2) (b) (i), in considering whether the decision that was published was a final investment decision in relation to the project on or after 10 July 2011, the Regulator must have regard to the following matters:
(a) the content of any published statement by the project proponent showing a commitment to proceed with the construction of the project;
(b) the project proponent’s rights to land for the construction of the project;
(c) whether contracts for the supply and construction of the project’s major equipment (including contract provisions for project cancellations) were executed;
(d) the status of all planning and construction approvals and licences necessary for the commencement of construction of the project (including completed and approved environmental impact statements);
(e) the level of commitment to financing arrangements for the project;
(f) whether, as at the start of 10 July 2011, a firm date had been set for project construction to commence;
(g) any other matter that the Regulator considers relevant.
(4) A series of new facilities is 2 or more new facilities that carry on activities that are an emissions-intensive trade-exposed activity only if the activities at all of those facilities are considered.
Part 3 Emissions‑intensive trade‑exposed activities
Division 1 General
301 (1) This Part identifies emissions‑intensive trade‑exposed activities.
(2) A reference in this Part to an emissions‑intensive trade‑exposed activity includes the following information:
(a) a general name for the activity;
(b) the description of the activity;
(c) whether the activity is:
(i) highly emissions-intensive; or
(ii) moderately emissions-intensive;
(d) a summary of each basis for the issue of free carbon units in respect of the activity.
(3) Each allocative baseline for the activity is set out in Part 4.
Division 2 Production of glass containers
302 (1) The production of glass containers is the physical and chemical transformation of silica (silicon dioxide (SiO2)) and other raw and recycled materials (such as cullet) to produce blown or pressed glass containers, by controlled melting and forming in a contiguous process.
(2) The production of glass containers is specified as an emissions‑intensive trade-exposed activity.
(3) The production of glass containers is a moderately emissions‑intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a tonne of blown and pressed glass containers that is:
(a) produced by carrying on the emissions-intensive trade‑exposed activity; and
(b) of saleable quality.
Note Saleable quality is explained in Part 2.
Division 3 Production of bulk flat glass
303 (1) The production of bulk flat glass is the physical and chemical transformation of silica (silicon dioxide (SiO2)) and other raw and recycled materials (such as cullet) to produce bulk flat glass products, including wired glass and patterned glass, by controlled melting and forming in a contiguous process.
(2) The production of bulk flat glass is specified as an emissions‑intensive trade-exposed activity.
(3) The production of bulk flat glass is a highly emissions‑intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a tonne of bulk flat glass that is:
(a) produced by carrying on the emissions-intensive trade‑exposed activity; and
(b) of saleable quality.
Note Saleable quality is explained in Part 2.
Division 4 Production of methanol
304 (1) The production of methanol is the chemical transformation of one or more of the following:
(a) hydrocarbons;
(b) hydrogen feedstocks;
(c) carbon feedstocks;
(d) oxygen feedstocks;
to produce liquid methanol (CH3OH) in which the concentration of methanol is at least 98%.
(2) The production of methanol is specified as an emissions‑intensive trade‑exposed activity.
(3) The production of methanol is a highly emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a tonne of 100% equivalent methanol (CH3OH) that is produced by carrying on the emissions-intensive trade-exposed activity.
Division 5 Production of carbon black
305 (1) The production of carbon black is the chemical transformation of gaseous or liquid hydrocarbons to produce a colloidal carbon material (known as carbon black) in the form of spheres or of fused aggregates of the spheres.
(2) The particle size of the colloidal carbon must be below 1 000 nm in at least one dimension.
(3) The production of carbon black is specified as an emissions-intensive trade‑exposed activity.
(4) The production of carbon black is a highly emissions‑intensive activity.
Note See Part 4.
(5) The basis for the issue of free carbon units is by a tonne, on a dry weight basis, of pelletised carbon black that is:
(a) produced by carrying on the emissions-intensive trade‑exposed activity; and
(b) of saleable quality.
Note Saleable quality is explained in Part 2.
Division 6 Production of white titanium dioxide (TiO2) pigment
306 (1) The production of white titanium dioxide (TiO2) pigment is the chemical transformation of one or more of the following:
(a) rutile (TiO2);
(b) synthetic rutile (TiO2);
(c) ilmenite (FeTiO3);
(d) leucoxene;
(e) titanium slag that has an iron (Fe) concentration of at least 7%;
to produce white titanium dioxide (TiO2) pigment.
(2) The white titanium dioxide (TiO2) pigment must:
(a) conform with ASTM classification D476-00; and
(b) have an iron (Fe) concentration of no more than 0.5%.
(3) The production of white titanium dioxide (TiO2) pigment is specified as an emissions-intensive trade-exposed activity.
(4) The production of white titanium dioxide (TiO2) pigment is a moderately emissions-intensive activity.
Note See Part 4.
(5) The basis for the issue of free carbon units is by a tonne of white titanium dioxide (TiO2) pigment that:
(a) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(b) conforms with ASTM classification D476-00; and
(c) has an iron (Fe) concentration of no more than 0.5%; and
(d) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 7 Production of silicon
307 (1) The production of silicon is the chemical transformation of silica (silicon dioxide (SiO2)) to produce silicon (Si) with a concentration of silicon of at least 98.0%, conducted in accordance with the following overall chemical equation:
SiO2(s) + 2C(s) →Si(s) + 2CO(g)
(2) The production of silicon is specified as an emissions-intensive trade‑exposed activity.
(3) The production of silicon is a highly emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a tonne of silicon that:
(a) has a concentration of silicon of at least 98.0%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 8 Smelting zinc
308 (1) Smelting zinc is the chemical transformation of either or both of:
(a) concentrated mineralised zinc compounds; and
(b) zinc-bearing secondary materials;
to produce zinc metal (Zn) with a concentration of zinc of at least 99.95%.
(2) Smelting zinc is specified as an emissions-intensive trade‑exposed activity.
(3) Smelting zinc is a highly emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a tonne of zinc that:
(a) has a concentration of zinc of at least 99.95%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 9 Integrated production of lead and zinc
309 (1) The integrated production of lead and zinc is the chemical transformation of either or both of:
(a) concentrated mineralised lead compounds with or without additional lead bearing secondary materials; and
(b) concentrated mineralised zinc compounds with or without additional zinc bearing secondary materials;
to produce the products mentioned in subclause (2).
(2) For subclause (1), the products are:
(a) lead metal (Pb) with a concentration of lead of at least 99.97%; and
(b) zinc in fume (Zn) with a concentration of zinc of at least 60%.
(3) The integrated production of lead and zinc is specified as an emissions‑intensive trade-exposed activity.
(4) The integrated production of lead and zinc is a moderately emissions-intensive activity.
Note See Part 4.
(5) For the production of lead metal, the basis for the issue of free carbon units is by a tonne of lead metal (Pb) that:
(a) has a concentration of lead of at least 99.97%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is of saleable quality.
Note Saleable quality is explained in Part 2.
(6) For the production of zinc in fume, the basis for the issue of free carbon units is by a tonne of 100% equivalent zinc contained within the zinc in fume (Zn) that:
(a) has a concentration of zinc of at least 60%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity.
Division 10 Aluminium smelting
310 (1) Aluminium smelting is the physical and chemical transformation of alumina (aluminium oxide (Al2O3)) into aluminium metal (Al) of saleable quality.
(2) Aluminium smelting is specified as an emissions-intensive trade-exposed activity.
(3) Aluminium smelting is a highly emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a tonne of primary aluminium that:
(a) has a concentration of aluminium of at least 98%; and
(b) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(c) is weighed after electrolysis but before casting.
Division 11 Alumina refining
311 (1) Alumina refining is the physical and chemical transformation of bauxite (which is an ore containing mineralised aluminium compounds) into alumina (aluminium oxide (Al2O3)) with a concentration of aluminium oxide of at least 95%.
(2) Alumina refining is specified as an emissions-intensive trade‑exposed activity.
(3) Alumina refining is a highly emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a tonne of alumina (aluminium oxide (Al2O3)) that:
(a) has a concentration of aluminium oxide of at least 95%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 12 Production of high purity ethanol
312 (1) The production of high purity ethanol is the chemical transformation of fermentable sugars (such as C6H12O6, C5H10O5, C12H22O11 or C18H32O16) to ethanol (C2H5OH) and subsequent purification process to obtain a solution of high purity ethanol where the concentration of ethanol (C2H5OH) is at least 95% with respect to volume.
(2) The production of high purity ethanol is specified as an emissions-intensive trade-exposed activity.
(3) The production of high purity ethanol is a moderately emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units is by a kilolitre of 100% equivalent ethanol (C2H5OH) at 20 °C that is produced by carrying on the emissions-intensive trade-exposed activity, assuming a density of ethanol (C2H5OH) of 789.24 kg/m3 at 20 °C.
Division 13 Production of magnesia
313 (1) The production of magnesia is the chemical and physical transformation of magnesite (magnesium carbonate (MgCO3)) into one or more of the following magnesia products:
(a) caustic calcined magnesia that:
(i) has a concentration of magnesium oxide (MgO) of at least 75%; and
(ii) is burned between 650 °C and 1 200 °C;
(b) deadburned magnesia that:
(i) has a concentration of magnesium oxide (MgO) of at least 85%; and
(ii) has grain density of 2.85 g/cm3 to 3.45 g/cm3; and
(iii) is burned between 1 300 °C and 2 200 °C;
(c) electrofused magnesia that:
(i) has a concentration of magnesium oxide (MgO) of at least 90%; and
(ii) has grain density of greater than 3.45 g/cm3; and
(iii) is fused at temperatures higher than 2 750 °C.
(2) The production of magnesia is specified as an emissions‑intensive trade‑exposed activity.
(3) The production of magnesia is a highly emissions-intensive activity.
Note See Part 4.
(4) For the production of caustic calcined magnesia, the basis for the issue of free carbon units is by a tonne of caustic calcined magnesia on a dry weight basis that:
(a) has a concentration of magnesium oxide (MgO) of at least 75%; and
(b) is produced by, or as part of, carrying on the emissions‑intensive trade-exposed activity; and
(c) is of saleable quality;
whether or not it is later transformed into deadburned magnesia or electrofused magnesia.
Note Saleable quality is explained in Part 2.
(5) For the production of deadburned magnesia, the basis for the issue of free carbon units is by a tonne of deadburned magnesia on a dry weight basis that:
(a) has a concentration of magnesium oxide (MgO) of at least 85%; and
(b) has grain density of 2.85 g/cm3 to 3.45 g/cm3; and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is of saleable quality.
Note Saleable quality is explained in Part 2.
(6) For the production of electrofused magnesia, the basis for the issue of free carbon units is by a tonne of electrofused magnesia on a dry weight basis that:
(a) has a concentration of magnesium oxide (MgO) of at least 90%; and
(b) has grain density of greater than 3.45 g/cm3; and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 14 Manufacture of newsprint
314 (1) The manufacture of newsprint is the physical or chemical transformation, through an integrated process, of any or all of woodchips, sawdust, wood pulp and recovered paper into rolls of uncoated newsprint that:
(a) has a grammage range of 30 g/m2 to 80 g/m2; and
(b) has a moisture content in the range of 6% to 11%; and
(c) is generally usable for newspaper products.
(2) The manufacture of newsprint is specified as an emissions‑intensive trade‑exposed activity.
(3) The manufacture of newsprint is a highly emissions-intensive activity.
Note See Part 4.
(4) For the manufacture of uncoated newsprint that:
(a) has a grammage range of 30 g/m2 to 80 g/m2; and
(b) has a moisture content in the range of 6% to 11%; and
(c) is generally usable for newspaper products;
the basis for the issue of free carbon units is the total air dried tonnes of rolls of uncoated newsprint of saleable quality produced by carrying on the emissions-intensive trade-exposed activity.
Note Saleable quality is explained in Part 2.
(5) For the production of pulp from either or both of woodchips and sawdust, the basis for the issue of free carbon units is by a tonne of bone dried equivalent pulp that is:
(a) used in the integrated process of manufacturing newsprint; and
(b) produced as part of carrying on the emissions-intensive trade-exposed activity.
(6) For the production of pulp from recovered paper, the basis for the issue of free carbon units is by a tonne of bone dried equivalent pulp that is:
(a) used in the integrated process of manufacturing newsprint; and
(b) produced as part of carrying on the emissions-intensive trade-exposed activity.
(7) For this Part, an amount of pulp or paper that is used as a basis for the issue of free carbon units for one of the following emissions-intensive trade-exposed activities:
(a) the manufacture of newsprint;
(b) dry pulp manufacturing;
(c) cartonboard manufacturing;
(d) packaging and industrial paper manufacturing;
(e) printing and writing paper manufacturing;
(f) tissue paper manufacturing;
does not count for the purposes of the basis for allocation of another of those emissions-intensive trade-exposed activities.
Division 15 Dry pulp manufacturing
315 (1) Dry pulp manufacturing is the physical or chemical transformation of any or all of wood chips, sawdust, wood pulp and recovered paper into either or both of rolls and bales of dry pulp that:
(a) has a moisture content in the range of 4% to 14%; and
(b) is generally useable in either or both of:
(i) paper manufacturing; and
(ii) the production of sanitary products (such as a fluff pulp layer in sanitary products).
(2) Dry pulp manufacturing is specified as an emissions-intensive trade‑exposed activity.
(3) Dry pulp manufacturing is a highly emissions-intensive activity.
Note See Part 4.
(4) For dry pulp manufacturing, the basis for the issue of free carbon units is by a tonne of either or both of rolls and bales of dry pulp that:
(a) has a moisture content in the range of 4% to 14%; and
(b) is generally useable in either or both of:
(i) paper manufacturing; and
(ii) the production of sanitary products (such as a fluff pulp layer in sanitary products); and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is of saleable quality.
Note Saleable quality is explained in Part 2.
(5) For the production of pulp from either or both of woodchips and sawdust as part of dry pulp manufacturing, the basis for the issue of free carbon units is by an air dried tonne (applying a 10% moisture content) of equivalent pulp that is:
(a) produced from either or both of woodchips and sawdust; and
(b) used in the process of manufacturing dry pulp; and
(c) produced as part of carrying on the emissions-intensive trade-exposed activity.
(6) For this Part, an amount of pulp or paper that is used as a basis for the issue of free carbon units for one of the following emissions-intensive trade-exposed activities:
(a) the manufacture of newsprint;
(b) dry pulp manufacturing;
(c) cartonboard manufacturing;
(d) packaging and industrial paper manufacturing;
(e) printing and writing paper manufacturing;
(f) tissue paper manufacturing;
does not count for the purposes of the basis for allocation of another of those emissions-intensive trade-exposed activities.
Division 16 Cartonboard manufacturing
316 (1) Cartonboard manufacturing is the physical or chemical transformation of any or all of wood chips, sawdust, wood pulp and recovered paper into rolls of cartonboard that:
(a) has a grammage range of 150 g/m2 to 500 g/m2; and
(b) has a moisture content in the range of 4% to 11%; and
(c) is coated; and
(d) is generally useable as cartonboard product such as coated kraft liner, coated multiply and other coated paperboard.
(2) Cartonboard manufacturing is specified as an emissions‑intensive trade‑exposed activity.
(3) Cartonboard manufacturing is a highly emissions-intensive activity.
Note See Part 4.
(4) For cartonboard manufacturing, the basis for the issue of free carbon units is by a tonne of rolls of cartonboard that:
(a) has a grammage range of 150 g/m2 to 500 g/m2; and
(b) has a moisture content in the range of 4% to 11%; and
(c) is coated; and
(d) is generally useable as cartonboard product such as coated kraft liner, coated multiply and other coated paperboard; and
(e) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(f) is of saleable quality.
Note Saleable quality is explained in Part 2.
(5) For the production of pulp from either or both of woodchips and sawdust as part of cartonboard manufacturing, the basis for the issue of free carbon units is by an air dried tonne (applying a 10% moisture content) of equivalent pulp that is:
(a) produced from either or both of woodchips and sawdust; and
(b) used in the process of cartonboard manufacturing; and
(c) produced as part of carrying on the emissions-intensive trade-exposed activity.
(6) For this Part, an amount of pulp or paper that is used as a basis for the issue of free carbon units for one of the following emissions-intensive trade-exposed activities:
(a) the manufacture of newsprint;
(b) dry pulp manufacturing;
(c) cartonboard manufacturing;
(d) packaging and industrial paper manufacturing;
(e) printing and writing paper manufacturing;
(f) tissue paper manufacturing;
does not count for the purposes of the basis for allocation of another of those emissions-intensive trade-exposed activities.
Division 17 Packaging and industrial paper manufacturing
317 (1) Packaging and industrial paper manufacturing is the physical or chemical transformation of any or all of wood chips, sawdust, wood pulp and recovered paper into rolls of packaging and industrial paper that:
(a) is produced from wholly or partially unbleached input fibre; and
(b) has a grammage range of 30 g/m2 to 500 g/m2; and
(c) has a moisture content in the range of 4% to 11%; and
(d) is uncoated; and
(e) is generally useable as a packaging or industrial paper, including products such as kraft liner, recycled or multiply liner, medium, sack and bag paper, wrapping paper, plasterboard liner, horticultural paper and building paper.
(2) Packaging and industrial paper manufacturing is specified as an emissions‑intensive trade-exposed activity.
(3) Packaging and industrial paper manufacturing is a highly emissions-intensive activity.
Note See Part 4.
(4) For packaging and industrial paper manufacturing, the basis for the issue of free carbon units is by a tonne of rolls of packaging and industrial paper that:
(a) is produced from wholly or partially unbleached input fibre; and
(b) has a grammage range of 30 g/m2 to 500 g/m2; and
(c) has a moisture content in the range of 4% to 11%; and
(d) is uncoated; and
(e) is generally useable as a packaging or industrial paper product, including products such as kraft liner, recycled or multiply liner, medium, sack and bag paper, wrapping paper, plasterboard liner, horticultural paper and building paper; and
(f) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(g) is of saleable quality.
Note Saleable quality is explained in Part 2.
(5) For the production of pulp from either or both of woodchips and sawdust as part of packaging and industrial paper manufacturing, the basis for the issue of free carbon units is by an air dried tonne (assuming a 10% moisture content) of equivalent pulp that is:
(a) produced from either or both of woodchips and sawdust; and
(b) used in the process of manufacturing packaging and industrial paper; and
(c) produced as part of carrying on the emissions-intensive trade-exposed activity.
(6) For this Part, an amount of pulp or paper that is used as a basis for the issue of free carbon units for one of the following emissions-intensive trade-exposed activities:
(a) the manufacture of newsprint;
(b) dry pulp manufacturing;
(c) cartonboard manufacturing;
(d) packaging and industrial paper manufacturing;
(e) printing and writing paper manufacturing;
(f) tissue paper manufacturing;
does not count for the purposes of the basis for allocation of another of those emissions-intensive trade-exposed activities.
Division 18 Printing and writing paper manufacturing
318 (1) Printing and writing paper manufacturing is the physical or chemical transformation of any or all of wood chips, sawdust, wood pulp and recovered paper into rolls of coated or uncoated printing and writing paper that:
(a) is produced from 100% bleached or brightened input fibre; and
(b) has a grammage range of 42 g/m2 to 350 g/m2; and
(c) has a moisture content in the range of 4% to 11%; and
(d) is generally useable as a printing and writing paper product, including products such as offset paper, copy paper, laser printing paper, magazine paper, filing card paper, manilla, book printing paper, envelope paper, forms paper, scholastic paper, cheque paper and security paper.
(2) Printing and writing paper manufacturing is specified as an emissions‑intensive trade-exposed activity.
(3) Printing and writing paper manufacturing is a highly emissions-intensive activity.
Note See Part 4.
(4) For printing and writing paper manufacturing, the basis for the issue of free carbon units is by a tonne of rolls of coated or uncoated printing and writing paper that:
(a) is produced from 100% bleached or brightened input fibre; and
(b) has a grammage range of 42 g/m2 to 350 g/m2; and
(c) has a moisture content in the range of 4% to 11%; and
(d) is generally useable as a printing and writing paper product, including products such as offset paper, copy paper, laser printing paper, magazine paper, filing card paper, manilla, book printing paper, envelope paper, forms paper, scholastic paper, cheque paper and security paper; and
(e) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(f) is of saleable quality.
Note Saleable quality is explained in Part 2.
(5) For the production of pulp from either or both of woodchips and sawdust as part of printing and writing paper manufacturing, the basis for the issue of free carbon units is by an air dried tonne (assuming a 10% moisture content) of equivalent pulp that is:
(a) produced from either or both of woodchips and sawdust; and
(b) used in the process of manufacturing printing and writing paper; and
(c) produced as part of carrying on the emissions-intensive trade-exposed activity.
(6) For this Part, an amount of pulp or paper that is used as a basis for the issue of free carbon units for one of the following emissions-intensive trade-exposed activities:
(a) the manufacture of newsprint;
(b) dry pulp manufacturing;
(c) cartonboard manufacturing;
(d) packaging and industrial paper manufacturing;
(e) printing and writing paper manufacturing;
(f) tissue paper manufacturing;
does not count for the purposes of the basis for allocation of another of those emissions-intensive trade-exposed activities.
Division 19 Tissue paper manufacturing
319 (1) Tissue paper manufacturing is the physical or chemical transformation of any or all of wood chips, sawdust, wood pulp and recovered paper into rolls of uncoated tissue paper that:
(a) has a grammage range of 13 g/m2 to 75g/m2; and
(b) has a moisture content in the range of 4% to 11%; and
(c) is generally useable in sanitary products such as facial tissue, paper towel, bathroom tissue and napkins.
(2) Tissue paper manufacturing is specified as an emissions‑intensive trade‑exposed activity.
(3) Tissue paper manufacturing is a moderately emissions‑intensive activity.
Note See Part 4.
(4) For tissue paper manufacturing, the basis for the issue of free carbon units is by a tonne of rolls of uncoated tissue paper that:
(a) has a grammage range of 13 g/m2 to 75g/m2; and
(b) has a moisture content in the range of 4% to 11%; and
(c) is generally useable in sanitary products such as facial tissue, paper towel, bathroom tissue and napkins; and
(d) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(e) is of saleable quality.
Note Saleable quality is explained in Part 2.
(5) For the production of pulp from either or both of woodchips and sawdust as part of tissue paper manufacturing, the basis for the issue of free carbon units is by an air dried tonne (assuming a 10% moisture content) of equivalent pulp that is:
(a) produced from either or both of woodchips and sawdust; and
(b) used in the process of manufacturing tissue paper; and
(c) produced as part of carrying on the emissions-intensive trade-exposed activity.
(6) For this Part, an amount of pulp or paper that is used as a basis for the issue of free carbon units for one of the following emissions-intensive trade-exposed activities:
(a) the manufacture of newsprint;
(b) dry pulp manufacturing;
(c) cartonboard manufacturing;
(d) packaging and industrial paper manufacturing;
(e) printing and writing paper manufacturing;
(f) tissue paper manufacturing;
does not count for the purposes of the basis for allocation of another of those emissions-intensive trade-exposed activities.
Division 20 Integrated iron and steel manufacturing
Note Carbon steel, relevant product and saleable quality are explained in Part 2.
320 (1) Integrated iron and steel manufacturing is the chemical and physical transformation of iron ore into crude carbon steel products and hot-rolled carbon steel products involving all of the following processes:
(a) the chemical and physical transformation of iron ore into agglomerated iron ore, such as iron ore sinter or iron ore pellets;
(b) the carbonisation of coal (principally coking coal) into coke oven coke;
(c) the chemical and physical transformation of either or both of limestone and dolomite, into lime (including burnt lime and burnt dolomite);
(d) the chemical and physical transformation of iron ore feed, including agglomerated iron ore, into molten iron which includes the reduction of oxides of iron using carbon as the predominant reducing agent;
(e) subject to subclause (3), the chemical and physical transformation of molten iron and cold ferrous feed, such as pig iron, flat iron and ferrous scrap, into one or more of the following:
(i) continuously cast carbon steel products;
(ii) ingots of carbon steel;
(iii) hot-rolled carbon steel products, which commenced hot-rolling at a temperature higher than 800 °C.
(2) Integrated iron and steel manufacturing may also include the physical transformation of continuously cast carbon steel products into hot-rolled carbon steel products which commence hot-rolling at a temperature higher than 800 °C if the continuously cast carbon steel products are produced at any other facility that conducts:
(a) the activity of integrated iron and steel manufacturing; or
(b) the activity of manufacture of carbon steel from cold ferrous feed.
(3) For paragraph (1) (e), the maximum percentage of cold ferrous feed transformed into one or more of the items in subparagraphs (1) (e) (i) to (iii) as a proportion of molten iron and cold ferrous feed, must not:
(a) for a facility that does not meet the criteria in subclause 705 (1) or (2) — be greater than 30% over the previous financial year for the facility; or
(b) for a facility that does meet the criteria in subclause 705 (1) or (2) — be likely to be greater than 30% over the financial year to which the application relates for the facility.
(4) Integrated iron and steel manufacturing is specified as an emissions-intensive trade-exposed activity.
(5) Integrated iron and steel manufacturing is a highly emissions‑intensive activity.
Note See Part 4.
(6) For the production of iron ore sinter, the basis for the issue of free carbon units is by a tonne of iron ore sinter on a dry weight basis that:
(a) meets the necessary requirements for use in the integrated iron and steel manufacturing process; and
(b) is produced as part of carrying on the emissions-intensive trade-exposed activity.
(7) For the production of iron ore pellets, the basis for the issue of free carbon units is by a tonne of iron ore pellets on a dry weight basis that:
(a) meets the necessary requirements for use in the integrated iron and steel manufacturing process; and
(b) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(c) is not a relevant product for the emissions-intensive trade‑exposed activity of production of iron ore pellets mentioned in Division 35.
(8) For the production of coke oven coke, the basis for the issue of free carbon units is by a tonne of coke oven coke on a dry weight basis that is produced as part of carrying on the emissions‑intensive trade-exposed activity.
(9) For the production of lime, the basis for the issue of free carbon units is by a tonne of lime on a dry weight basis that:
(a) meets the necessary requirements for use in the integrated iron and steel manufacturing process; and
(b) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(c) is not a relevant product for the emissions-intensive trade‑exposed activity of production of lime mentioned in Division 28.
(10) For the production of either or both of continuously cast carbon steel products and ingots of carbon steel, the basis for the issue of free carbon units is by a tonne of either or both of continuously cast carbon steel products and ingots of carbon steel that:
(a) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(b) is not a relevant product for the emissions-intensive trade‑exposed activity of the manufacture of carbon steel from cold ferrous feed; and
(c) is of a saleable quality.
(11) For the production of hot-rolled carbon steel products that are long products, the basis for the issue of free carbon units is by a tonne of long products of hot-rolled carbon steel that:
(a) is in coils or straight lengths; and
(b) is generally produced in rod, bar and structural (section) mills; and
(c) generally has a cross sectional shape such as I, T, Y, U, V, H, C, L, square, rectangular, round, flat, hexagonal, angle, channel, structural beam profile or rail profile; and
(d) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(e) is produced from continuously cast carbon steel products that satisfy the requirements mentioned in subclause (13); and
(f) is counted as a relevant product only once in relation to the carrying on of the emissions-intensive trade‑exposed activity of integrated iron and steel manufacturing; and
(g) is not a relevant product for the emissions-intensive trade‑exposed activity of the manufacture of carbon steel from cold ferrous feed; and
(h) is of saleable quality.
(12) For the production of hot-rolled carbon steel products that are flat products, the basis for the issue of free carbon units is by a tonne of flat products of hot-rolled carbon steel that:
(a) is flat in profile, such as plate and hot rolled coil; and
(b) is generally produced in hot strip mills and plate mills; and
(c) is generally at least 600 mm wide; and
(d) is generally no thicker than 150 mm; and
(e) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(f) is produced from continuously cast carbon steel products that satisfy the requirements mentioned in subclause (13); and
(g) is counted as a relevant product only once in relation to the carrying on of the emissions-intensive trade‑exposed activity of integrated iron and steel manufacturing; and
(h) is not a relevant product for the emissions-intensive trade‑exposed activity of the manufacture of carbon steel from cold ferrous feed; and
(i) is of saleable quality.
(13) For paragraphs (11) (e) and (12) (f), the continuously cast carbon steel products must be produced as part of carrying on:
(a) the emissions-intensive trade-exposed activity of integrated iron and steel manufacturing; or
(b) the emissions-intensive trade-exposed activity of manufacture of carbon steel from cold ferrous feed.
(14) For this Division:
coke oven coke means the solid product obtained from the carbonisation of coal (principally coking coal) at a high temperature and includes coke breeze and foundry coke.
Division 21 Manufacture of carbon steel from cold ferrous feed
Note Carbon steel, relevant product and saleable quality are explained in Part 2.
321 (1) The manufacture of carbon steel from cold ferrous feed is the physical and chemical transformation of cold ferrous feed (such as ferrous scrap, pig iron and flat iron) by heating and melting into liquid steel and the subsequent casting of the liquid steel to produce one or more of the following:
(a) continuously cast carbon steel products;
(b) ingots of carbon steel;
(c) hot-rolled carbon steel products, which commenced hot‑rolling at a temperature higher than 800 °C.
(2) The manufacture of carbon steel from cold ferrous feed may also include the physical transformation of continuously cast carbon steel products into hot-rolled carbon steel products which commenced hot-rolling at a temperature higher than 800 °C where the continuously cast carbon steel products are produced at any other facility that conducts:
(a) the activity of integrated iron and steel manufacturing; or
(b) the activity of manufacture of carbon steel from cold ferrous feed.
(3) The manufacture of carbon steel from cold ferrous feed is specified as an emissions-intensive trade-exposed activity.
(4) The manufacture of carbon steel from cold ferrous feed is a highly emissions-intensive activity.
Note See Part 4.
(5) For the production of either or both of continuously cast carbon steel products and ingots of carbon steel, the basis for the issue of free carbon units is by a tonne of either or both continuously cast carbon steel products and ingots of carbon steel that:
(a) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(b) is not a relevant product for the emissions-intensive trade‑exposed activity of integrated iron and steel manufacturing; and
(c) is of a saleable quality.
(6) For the production of hot-rolled carbon steel products that are long products, the basis for the issue of free carbon units is by a tonne of long products of hot-rolled carbon steel that:
(a) is in coils or straight lengths; and
(b) is generally produced in rod, bar and structural (section) mills; and
(c) generally have a cross sectional shape such as I, T, Y, U, V, H, C, L, square, rectangular, round, flat, hexagonal, angle, channel, structural beam profile or rail profile; and
(d) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(e) is produced from continuously cast carbon steel products that satisfy the requirements mentioned in subclause (8); and
(f) is counted as a relevant product only once in relation to the carrying on of the emissions-intensive trade‑exposed activity of manufacture of carbon steel from cold ferrous feed; and
(g) is not a relevant product for the emissions-intensive trade‑exposed activity of integrated iron and steel manufacturing; and
(h) is of saleable quality.
(7) For the production of hot-rolled carbon steel products which are flat products, the basis for the issue of free carbon units is by a tonne of flat products of hot-rolled carbon steel that:
(a) is flat in profile, such as plate and hot rolled coil; and
(b) is generally produced in hot strip and plate mills; and
(c) is generally at least 600 mm wide; and
(d) is generally no thicker than 150 mm; and
(e) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(f) is produced from continuously cast carbon steel products that satisfy the requirements mentioned in subclause (8); and
(g) is counted as a relevant product only once in relation to the carrying on of the emissions-intensive trade‑exposed activity of manufacture of carbon steel from cold ferrous feed; and
(h) is not a relevant product for the emissions-intensive trade‑exposed activity of integrated iron and steel manufacturing; and
(i) is of saleable quality.
(8) For paragraphs (6) (e) and (7) (f), the continuously cast carbon steel products must be produced as part of carrying on:
(a) the emissions-intensive trade-exposed activity of integrated iron and steel manufacturing; or
(b) the emissions-intensive trade-exposed activity of manufacture of carbon steel from cold ferrous feed.
Division 22 Petroleum refining
Note Condensate, eligible petroleum feedstocks, stabilised crude petroleum oil and unleaded petrol are explained in Part 2.
322 (1) Petroleum refining is the chemical and physical transformation of stabilised crude petroleum oil, which may be supplemented with one or more of condensate, tallow, vegetable oil, eligible petroleum feedstocks or other petroleum feedstocks, to produce a range of refined petroleum products through the following processes:
(a) the distillation of stabilised crude petroleum oil, condensate, tallow, vegetable oil and other petroleum feedstocks;
(b) the adjustment of the molecular weight and structure of hydrocarbons (such as that which occurs through catalytic or hydro-cracking, steam or catalytic reforming, polymerisation, isomerisation or alkylation);
(c) the blending of products from distillation and adjustment of molecular weight and structure to produce Australian and international standard diesel, jet fuel and unleaded petrol;
(d) the production of 2 or more of the following refinery products saleable in Australian or international markets:
(i) hydrogen;
(ii) ethane;
(iii) propane;
(iv) refinery grade propylene;
(v) polymer grade propylene;
(vi) liquefied petroleum gas;
(vii) butane;
(viii) naphtha;
(ix) aviation gasoline;
(x) before oxygenate blend;
(xi) kerosene;
(xii) heating oil;
(xiii) solvents;
(xiv) lubricant base stocks;
(xv) leaded petrol;
(xvi) waxes;
(xvii) bitumen.
(2) Subject to subclause (3), the activity of petroleum refining will only take place in the financial year to which the application relates if both of the following apply:
(a) each of the processes mentioned in paragraphs (1) (a) to (d) are conducted within the financial year to which the application relates for the facility;
(b) the combined volume of diesel, jet fuel, unleaded petrol, lubricant base stocks and bitumen at 15 °C and 1 atmosphere produced from stabilised crude petroleum oil, condensate, tallow, vegetable oil and eligible petroleum feedstocks is:
(i) for a facility that does not meet the criteria in subclause 705 (1) or (2) — at least 75% of the total kilolitres of stabilised crude petroleum oil, condensate, tallow, vegetable oil and eligible petroleum feedstocks used within the previous financial year for the facility; or
(ii) for a facility that does meet the criteria specified in subclause 705 (1) or (2) — is likely to be at least 75% of the total kilolitres of stabilised crude petroleum oil, condensate, tallow, vegetable oil and eligible petroleum feedstocks likely to be used within the financial year to which the application relates for the facility.
(3) The processes mentioned in paragraphs (1) (a) to (d) are not required to be conducted for every product mentioned in paragraphs (1) (c) and (d) for the activity of petroleum refining to occur in the application year.
(4) Petroleum refining is specified as an emissions-intensive trade‑exposed activity.
(5) Petroleum refining is a highly emissions-intensive activity.
Note See Part 4.
(6) Subject to subclause (7), the basis for the issue of free carbon units for petroleum refining is by a kilolitre of:
(a) stabilised crude petroleum oil at 15 °C and 1 atmosphere; and
(b) condensate at 15 °C and 1 atmosphere; and
(c) tallow at 15 °C and 1 atmosphere; and
(d) vegetable oil at 15 °C and 1 atmosphere; and
(e) eligible petroleum feedstocks at 15 °C and 1 atmosphere.
(7) A substance mentioned in paragraphs (6) (a) to (e) may be used as the basis for working out the issue of free carbon units for subclause (6) if the substance is, or is to be, refined:
(a) by one or both of the processes mentioned in paragraphs (1) (a) and (b); and
(b) into either of the following:
(i) one or more petroleum products mentioned in paragraphs (1) (c) and (d);
(ii) other by-products which result from carrying on the emissions-intensive trade-exposed activity; and
(c) in the financial year:
(i) that applies, for the purpose of subclause 907 (7), to the application made under clause 701; and
(ii) in which the combined volume of diesel, jet fuel, unleaded petrol, lubricant base stocks and bitumen, at 15 °C and 1 atmosphere, produced from substances mentioned in paragraphs (6) (a) to (e) is:
(A) for new or expected additional production — likely to be at least 75% of the total kilolitres of those substances likely to be used in the financial year to which the application relates; or
(B) for production that is not new or expected additional production — at least 75% of the total kilolitres of those substances used in the previous financial year.
Division 23 Production of ethene (ethylene)
323 (1) The production of ethene (ethylene) is the chemical transformation of hydrocarbons to produce ethene (ethylene (C2H4)) that has a concentration of ethene (ethylene (C2H4)) of at least 99%.
(2) The production of ethene (ethylene) is specified as an emissions-intensive trade-exposed activity.
(3) The production of ethene (ethylene) is a highly emissions‑intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of ethene (ethylene) is by a tonne of 100% equivalent ethene (ethylene (C2H4)) that is contained within ethene that:
(a) has a concentration of ethene (ethylene (C2H4)) of at least 99%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 24 Production of polyethylene
324 (1) The production of polyethylene is the chemical transformation of ethene (ethylene (C2H4)) to produce polyethylene with a standard density of at least 0.910 g/cm3.
(2) The production of polyethylene is specified as an emissions‑intensive trade-exposed activity.
(3) The production of polyethylene is a moderately emissions‑intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of polyethylene is by a tonne of pelletised polyethylene that:
(a) has a standard density of at least 0.910 g/cm3; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is of saleable quality.
Note Saleable quality is explained in Part 2.
(5) For this Division:
standard density, for polyethylene, means the density of polyethylene moulded to a thickness of 1.9 mm using Procedure C of Annex A1 to ASTM D4703 Standard Practice for Compressions Moulding Thermoplastic Materials into Test Specimens, Plaques or Sheets, as in force from time to time.
Division 25 Production of synthetic rutile
325 (1) The production of synthetic rutile is the chemical transformation of ilmenite ore (ore containing FeTiO3) through the reduction of iron oxides in order to increase the titanium dioxide (TiO2) concentration to produce synthetic rutile that:
(a) has a titanium dioxide (TiO2) concentration of at least 88% but less than 95.5%; and
(b) has an iron (Fe) concentration greater than 0.5%.
(2) The production of synthetic rutile is specified as an emissions‑intensive trade-exposed activity.
(3) The production of synthetic rutile is a highly emissions‑intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of synthetic rutile is by a tonne of synthetic rutile that:
(a) has a titanium dioxide (TiO2) concentration of at least 88% but less than 95.5%; and
(b) has an iron (Fe) concentration greater than 0.5%; and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is not a relevant product for the emissions-intensive trade‑exposed activity of production of white titanium dioxide (TiO2) pigment; and
(e) is of saleable quality.
Note Relevant product and saleable quality are explained in Part 2.
Division 26 Production of manganese
Note Saleable quality is explained in Part 2.
326 (1) The production of manganese is any of the following:
(a) the physical and chemical transformation of manganese (Mn) ore into manganese sinter (Mn3O4) that has a concentration of manganese of at least 40%;
(b) the physical and chemical transformation of either or both of manganese ore and manganese sinter into either or both of the following:
(i) ferromanganese alloy that has a concentration of manganese of at least 67%;
(ii) silicomanganese alloy that has a concentration of:
(A) manganese of at least 60%; and
(B) silicon (Si) of at least 12%.
(2) The production of manganese is specified as an emissions‑intensive trade-exposed activity.
(3) The production of manganese is a highly emissions-intensive activity.
Note See Part 4.
(4) For the production of manganese sinter, the basis for the issue of free carbon units is by a tonne of manganese sinter that:
(a) has a concentration of manganese of at least 40%; and
(b) is produced by, or as part of, carrying on the emissions‑intensive trade-exposed activity; and
(c) is of saleable quality.
(5) For the production of ferromanganese alloy, the basis for the issue of free carbon units is by a tonne of ferromanganese alloy that:
(a) has a concentration of manganese of at least 67%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is of saleable quality.
(6) For the production of silicomanganese alloy, the basis for the issue of free carbon units is by a tonne of silicomanganese alloy that:
(a) has a concentration of manganese of at least 60%; and
(b) has a concentration of silicon (Si) of at least 12%; and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is of saleable quality.
Division 27 Production of clinker
327 (1) The production of clinker is the physical and chemical transformation of:
(a) either or both of calcium carbonate compounds (limestone (CaCO3)) and other calcium carbonate (CaCO3) feedstocks; and
(b) any of the following:
(i) clay;
(ii) clay mixed with one or more feedstocks that contain one or more of the following:
(A) silicon dioxide (SiO2);
(B) iron (Fe);
(C) aluminium oxide (alumina (Al2O3));
(iii) one or more feedstocks that, when combined, contain all of the following:
(A) silicon dioxide (SiO2);
(B) iron (Fe);
(C) aluminium oxide (alumina (Al2O3));
that are fused together at a temperature higher than 1 000 °C into Portland cement clinker.
(2) The Portland cement clinker must:
(a) have a concentration of calcium silicates of at least 60%; and
(b) have a concentration of magnesium oxide (MgO) of not more than 4.5%; and
(c) be useable in the making of Portland cement.
(3) The production of clinker is specified as an emissions-intensive trade-exposed activity.
(4) The production of clinker is a highly emissions-intensive activity.
Note See Part 4.
(5) The basis for the issue of free carbon units for the production of clinker is by a tonne of Portland cement clinker on a dry weight basis that:
(a) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(b) has a concentration of calcium silicates of at least 60%; and
(c) has a concentration of magnesium oxide (MgO) of not more than 4.5%; and
(d) is useable in the making of Portland cement; and
(e) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 28 Production of lime
328 (1) The production of lime is the physical and chemical transformation, through the calcining process, of calcium and magnesium sources (such as calcium carbonate (CaCO3) and magnesium carbonate (MgCO3)) into lime that has a concentration of either or both of calcium oxide (CaO) and magnesium oxide (MgO) of at least 60%.
(2) The production of lime is specified as an emissions-intensive trade-exposed activity.
(3) The production of lime is a highly emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of lime is by a tonne of lime on a dry weight basis that:
(a) has a concentration of either or both of calcium oxide (CaO) and magnesium oxide (MgO) of at least 60%; and
(b) is not a relevant product for the emissions-intensive trade‑exposed activity of integrated iron and steel manufacturing; and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is of saleable quality.
Note Relevant product and saleable quality are explained in Part 2.
Division 29 Production of fused alumina
329 (1) The production of fused alumina is the physical transformation of alumina (aluminium oxide (Al2O3)) by heating it to its fusion point to produce fused alumina that:
(a) has an alpha alumina crystalline structure; and
(b) has a concentration of aluminium oxide of at least 99.0%.
(2) The production of fused alumina is specified as an emissions‑intensive trade‑exposed activity.
(3) The production of fused alumina is a highly emissions‑intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of fused alumina is by a tonne of fused alumina (aluminium oxide (Al2O3)) that:
(a) has an alpha alumina crystalline structure; and
(b) has a concentration of aluminium oxide of at least 99.0%; and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 30 Production of copper
Note Saleable quality is explained in Part 2.
330 (1) The production of copper is either or both of the following:
(a) the physical and chemical transformation of concentrated mineralised copper compounds into either or both of the following:
(i) copper cathode that has a concentration of copper greater than 99.90%;
(ii) copper anode that has a concentration of copper:
(A) of at least 99.00%; and
(B) of not more than 99.90%;
(b) the physical and chemical transformation of copper anode into copper cathode that has a concentration of copper greater than 99.90% where the copper anode:
(i) has a concentration of copper:
(A) of at least 99.00%; and
(B) of not more than 99.90%; and
(ii) was not produced as part of the transformation in subparagraph (a) (i).
(2) For subclause (1), concentrated mineralised copper compounds include:
(a) copper sulphide concentrates; and
(b) copper electrolyte solution.
(3) The production of copper is specified as an emissions-intensive trade‑exposed activity.
(4) The production of copper is a highly emissions-intensive activity.
Note See Part 4.
(5) For the production of copper cathode from concentrated mineralised copper compounds, the basis for the issue of free carbon units is by a tonne of copper cathode that:
(a) has a concentration of copper greater than 99.90%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is not transformed into copper cathode as part of the transformation mentioned in paragraph (1) (b); and
(d) is of saleable quality.
(6) For the production of copper anode from concentrated mineralised copper compounds, the basis for the issue of free carbon units is by a tonne of copper anode that:
(a) has a concentration of copper:
(i) of at least 99.00%; and
(ii) of not more than 99.90%; and
(b) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) is not subsequently transformed into copper cathode as part of the transformation mentioned in subparagraph (1) (a) (i); and
(d) is of saleable quality.
(7) For the production of copper cathode from copper anode, the basis for the issue of free carbon units is by a tonne of copper cathode that:
(a) has a concentration of copper of at least 99.90%; and
(b) is produced from copper anode that was not produced as part of the transformation mentioned in subparagraph (1) (a) (i); and
(c) is produced by carrying on the emissions-intensive trade‑exposed activity; and
(d) is of saleable quality.
Division 31 Production of carbamide (urea)
331 (1) The production of carbamide (urea (CO(NH2)2)) is the chemical transformation of carbon dioxide (CO2) and anhydrous ammonia (NH3) to produce carbamide solution (urea (CO(NH2)2(aq))) that:
(a) has a concentration of carbamide (urea (CO(NH2)2)) of at least 80%; and
(b) is subsequently used to produce either or both of:
(i) carbamide solutions (urea (CO(NH2) 2(aq))); and
(ii) granulated, prilled or other solid forms of carbamide (urea (CO(NH2) 2(s))) of saleable quality;
conducted in accordance with the following overall chemical equations:
2NH3(l) + CO2(g) → H2NCOONH4(aq)
H2NCOONH4(aq) → H2NCONH2(aq) + H2O(l)
(2) The production of carbamide (urea) is specified as an emissions-intensive trade-exposed activity.
(3) The production of carbamide (urea) is a moderately emissions‑intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of carbamide (urea) is by a tonne of 100% equivalent carbamide (urea (CO(NH2)2)) on a dry weight basis that is:
(a) contained within either of the following products:
(i) carbamide solutions (urea (CO(NH2)2(aq)));
(ii) granulated, prilled or other solid forms of carbamide (urea (CO(NH2)2(s))) of saleable quality; and
(b) produced by carrying on the emissions-intensive trade‑exposed activity; and
(c) of saleable quality.
Note Saleable quality is explained in Part 2.
Division 32 Production of sodium carbonate (soda ash) and sodium bicarbonate
332 (1) The production of sodium carbonate (soda ash) and sodium bicarbonate is the chemical and physical transformation of calcium carbonate (CaCO3), sodium chloride (salt (NaCl)), ammonia (NH3) and carbon bearing materials (such as coke) into one or more of the following:
(a) light sodium carbonate (light soda ash (Na2CO3)) which has a concentration of sodium carbonate (soda ash (Na2CO3)) of at least 98.0%;
(b) dense sodium carbonate (dense soda ash (Na2CO3)) which has a concentration of sodium carbonate (soda ash (Na2CO3)) of at least 97.5%;
(c) refined sodium bicarbonate (NaHCO3) which has a concentration of sodium bicarbonate (NaHCO3) of at least 95.0%.
(2) The production of sodium carbonate (soda ash) and sodium bicarbonate is specified as an emissions-intensive trade‑exposed activity.
(3) The production of sodium carbonate (soda ash) and sodium bicarbonate is a highly emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of sodium carbonate (soda ash) and sodium bicarbonate is by a tonne of one or more of the following:
(a) light sodium carbonate (light soda ash (Na2CO3)) that:
(i) has a concentration of sodium carbonate (soda ash (Na2CO3)) of at least 98.0%; and
(ii) is produced by carrying on the emissions-intensive trade-exposed activity; and
(iii) is of saleable quality;
(b) dense sodium carbonate (dense soda ash (Na2CO3)) that:
(i) has a concentration of sodium carbonate (soda ash (Na2CO3)) of at least 97.5%; and
(ii) is produced by carrying on the emissions-intensive trade-exposed activity; and
(iii) is of saleable quality;
(c) refined sodium bicarbonate (NaHCO3) that:
(i) has a concentration of sodium bicarbonate (NaHCO3) of at least 95.0%; and
(ii) is produced by carrying on the emissions-intensive trade-exposed activity; and
(iii) is of saleable quality.
Note Saleable quality is explained in Part 2.
Division 33 Production of ammonium nitrate
333 (1) The production of ammonium nitrate is the chemical transformation of anhydrous ammonia (NH3) to ammonium nitrate solution (NH4NO3(aq)) that has a concentration of ammonium nitrate (NH4NO3) of 60% or more.
(2) The production of ammonium nitrate is specified as an emissions-intensive trade-exposed activity.
(3) The production of ammonium nitrate is a highly emissions‑intensive activity.
Note See Part 4.
(4) For the production of ammonium nitrate, the basis for the issue of free carbon units is by a tonne of 100% equivalent ammonium nitrate that is:
(a) produced as part of carrying on the emissions-intensive trade-exposed activity; and
(b) of saleable quality.
Note Saleable quality is explained in Part 2.
Division 34 Production of ammonia
334 (1) The production of ammonia is the chemical transformation of hydrocarbons (or other hydrogen feedstock) to hydrogen (H2) that is subsequently reacted with nitrogen (N2) to produce anhydrous ammonia (NH3) that has a concentration of ammonia (NH3) of at least 98%.
(2) The production of ammonia is specified as an emissions‑intensive trade-exposed activity.
(3) The production of ammonia is a highly emissions-intensive activity.
Note See Part 4.
(4) For the production of ammonia, the basis for the issue of free carbon units is by a tonne of 100% equivalent anhydrous ammonia that is:
(a) produced as part of carrying on the emissions-intensive trade-exposed activity; and
(b) of saleable quality.
Note Saleable quality is explained in Part 2.
Division 35 Production of iron ore pellets
335 (1) The production of iron ore pellets is the physical and chemical transformation of iron ore to produce iron ore pellets that are for the production of steel and that have:
(a) a concentration of iron (Fe) of at least 63%; and
(b) a concentration of alumina (aluminium oxide (Al2O3)) of no more than 2%; and
(c) a concentration of silicon dioxide (silica (SiO2)) of no more than 7%; and
(d) an average diameter of between 9 and 16 millimetres.
(2) The production of iron ore pellets is specified as an emissions‑intensive trade-exposed activity.
(3) The production of iron ore pellets is a moderately emissions‑intensive activity.
Note See Part 4.
(4) For the production of iron ore pellets, the basis for the issue of free carbon units is by a tonne of iron ore pellets, on a dry weight basis, that:
(a) has a concentration of iron (Fe) of at least 63%; and
(b) has a concentration of alumina (aluminium oxide (Al2O3)) of no more than 2%; and
(c) has a concentration of silicon dioxide (silica (SiO2)) of no more than 7%; and
(d) has an average diameter of between 9 and 16 millimetres; and
(e) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(f) is not a relevant product for the emissions-intensive trade‑exposed activity of integrated iron and steel manufacturing; and
(g) is of saleable quality.
Note Relevant product and saleable quality are explained in Part 2.
(5) For this Division:
iron ore means any form of iron ore product that has not been:
(a) semi-processed into iron ore balls; or
(b) exposed to a hardening process by the application of heat or pressure; and
includes magnetite ore that has been concentrated and hematite ore that has been crushed to varying extents.
Division 36 Production of liquefied natural gas
336 (1) The production of liquefied natural gas is the physical transformation of natural gas (in a gaseous state) into liquefied natural gas (in a liquid state) that has a concentration of methane (CH4) of at least 70%.
(2) The production of liquefied natural gas is specified as an emissions-intensive trade-exposed activity.
(3) The production of liquefied natural gas is a moderately emissions-intensive activity.
Note See Part 4.
(4) For the production of liquefied natural gas, the basis for the issue of free carbon units is by a tonne of liquefied natural gas, that:
(a) has a concentration of methane (CH4) of at least 70%; and
(b) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(c) is transported, as a gas or liquid, from the facility where the natural gas was liquefied and is not taken back to that facility.
Division 37 Production of magnetite concentrate
337 (1) The production of magnetite concentrate is the physical transformation of magnetite ore (ore containing Fe3O4 that has a key property of ferrimagnetism) to produce saleable magnetite (Fe3O4) concentrate that:
(a) has a concentration of iron (Fe) of at least 60% on a dry weight basis; and
(b) has a particle size of less than 75 microns for at least 80% of the concentrate.
Note Ferrimagnetism is ions of iron (Fe2+ and Fe3+) spontaneously aligning in the sublattice of a crystalline solid to produce a net magnetic moment that is observed as permanent magnetisation of the solid at normal room temperature.
(2) The production of magnetite concentrate is specified as an emissions-intensive trade-exposed activity.
(3) The production of magnetite concentrate is a moderately emissions-intensive activity.
Note See Part 4.
(4) The basis for the issue of free carbon units for the production of magnetite concentrate is by a tonne of 100% equivalent iron (Fe) contained in saleable magnetite (Fe3O4) concentrate that:
(a) has a concentration of iron (Fe) of at least 60% on a dry weight basis; and
(b) has a particle size of less than 75 microns for at least 80% of the concentrate; and
(c) is produced as part of carrying on the emissions-intensive trade-exposed activity; and
(d) is of saleable quality.
Note Saleable quality is explained in Part 2.
Part 4 Allocative baselines
401 (1) The allocative baselines for emissions-intensive trade-exposed activities are set out in the following table and subclause (2).
Note The baselines are relevant to the formula in clause 906 for the issue of free carbon units.
Item
Activity
Basis for issue of free carbon units (tonne or kilolitre1)
Baselines
EIa
(tCO2-e/ basis)
EPa
(MWh/basis)
NGPa
(TJ/basis)
1 Highly emission-intensive activities
1.1
Production of bulk flat glass
Bulk flat glass of saleable quality
0.841
0.276
n/a
1.2
Production of methanol
100% equivalent methanol
0.389
0.490
0.0268
1.3
Production of carbon black
Dry pelletised carbon black of saleable quality
2.66
0.514
n/a
1.4
Production of silicon
Silicon of saleable quality
1.42
11.7
n/a
1.5
Smelting zinc
Zinc of saleable quality
0.120
4.25
n/a
1.6
Manufacture of newsprint
Air dried uncoated newsprint of saleable quality
0.496
0.697
n/a
Bone dried equivalent pulp from either or both of woodchips and sawdust
0.0595
2.48
n/a
Bone dried equivalent pulp from recovered paper
0.0404
0.431
n/a
1.7
Aluminium smelting
Primary aluminium (Al)
2.00
15.0
n/a
1.8
Production of magnesia
Dry caustic calcined magnesia of saleable quality
1.44
0.0757
n/a
Dry deadburned magnesia of saleable quality
0.103
0.202
n/a
Dry electrofused magnesia of saleable quality
0.0751
2.45
n/a
1.9
Dry pulp manufacturing
Dry pulp of saleable quality
0.873
0.404
n/a
Air dried equivalent pulp
0.130
0.448
n/a
1.10
Cartonboard manufacturing
Cartonboard of saleable quality
0.866
0.774
n/a
Air dried equivalent pulp from either or both of woodchips and sawdust
0.130
0.448
n/a
1.11
Packaging and industrial paper manufacturing
Packaging and industrial paper of saleable quality
0.338
0.554
n/a
Air dried equivalent pulp from either or both of woodchips and sawdust
0.130
0.448
n/a
1.12
Printing and writing paper manufacturing
Printing and writing paper of saleable quality
0.617
0.880
n/a
Air dried equivalent pulp from either or both of woodchips and sawdust
0.130
0.448
n/a
1.13
Alumina refining
Alumina of saleable quality
0.630
0.228
n/a
1.14
Manufacture of carbon steel from cold ferrous feed
Continuously cast carbon steel products and ingots of carbon steel of saleable quality
Note Subclause (2) applies different baselines from 1 July 2016
0.0836
0.532
n/a
Long products of hot-rolled carbon steel of saleable quality
0.0756
0.133
n/a
Flat products of hot-rolled carbon steel of saleable quality
0.0317
0.116
n/a
1.15
Production of clinker
Dry Portland cement clinker of saleable quality
0.886
0.0709
n/a
1.16
Production of copper
Copper cathode produced from copper compounds of saleable quality
0.480
1.69
n/a
Copper anode produced from copper compounds of saleable quality
0.422
1.31
n/a
Copper cathode produced from brought in copper anode of saleable quality
0.0573
0.387
n/a
1.17
Production of ethene (ethylene)
100% equivalent ethene (ethylene) of saleable quality
1.83
0.275
0.0617
1.18
Production of fused alumina
Fused alumina of saleable quality
0.0138
2.03
n/a
1.19
Integrated iron and steel manufacturing
Dry iron ore sinter
0.227
0.0397
n/a
Dry iron ore pellets
0.114
0.0742
n/a
Dry coke oven coke
0.462
0.0397
n/a
Dry lime
0.825
0.0405
n/a
Continuously cast carbon steel products and ingots of carbon steel of saleable quality
Note Subclause (2) applies different baselines from 1 July 2016
1.56
0.145
n/a
Long products of hot-rolled carbon steel of saleable quality
0.0756
0.133
n/a
Flat products of hot-rolled carbon steel of saleable quality
0.0317
0.116
n/a
1.20
Production of lime
Dry lime of saleable quality
1.21
0.0476
n/a
1.21
Production of manganese
Manganese sinter of saleable quality
0.264
0.0300
n/a
Ferromanganese alloy of saleable quality
1.42
2.61
n/a
Silicomanganese alloy of saleable quality
1.85
4.31
n/a
1.22
Petroleum refining
Combined stabilised crude petroleum oil, condensate, tallow, vegetable oil and eligible petroleum feedstocks
0.160
0.0421
n/a
1.23
Production of sodium carbonate (soda ash) and sodium bicarbonate
Combined light sodium carbonate, dense sodium carbonate and refined sodium bicarbonate of saleable quality
0.828
0.130
n/a
1.24
Production of synthetic rutile
Synthetic rutile of saleable quality
1.57
0.304
n/a
1.25
Production of ammonium nitrate
100% equivalent ammonium nitrate of saleable quality
2.10
0.114
n/a
1.26
Production of ammonia
100% equivalent anhydrous ammonia of saleable quality
1.79
0.224
n/a
2 Moderately emissions-intensive activities
2.1
Production of glass containers
Blown and pressed glass containers of saleable quality
0.495
0.308
n/a
2.2
Production of white titanium dioxide pigment
White titanium dioxide pigment of saleable quality
1.62
0.986
n/a
2.3
Integrated production of lead and zinc
Lead metal of saleable quality
1.12
0.355
n/a
100% equivalent zinc in fume
3.07
0.820
n/a
2.4
Production of high purity ethanol
100% equivalent ethanol
0.728
0.168
n/a
2.5
Tissue paper manufacturing
Uncoated tissue paper of saleable quality
0.646
1.67
n/a
Air dried equivalent pulp from either or both of woodchips and sawdust
0.130
0.448
n/a
2.6
Production of carbamide (urea)
100% equivalent carbamide of saleable quality
0.315
0.285
n/a
2.7
Production of polyethylene
Pelletised polyethylene of saleable quality
0.129
0.646
n/a
2.8
Production of iron ore pellets
Dry weight iron ore pellets of saleable quality
0.0745
0.0498
n/a
2.9
Production of liquefied natural gas
Liquefied natural gas
0.378
0.0640
n/a
2.10
Production of magnetite concentrate
100% equivalent iron contained in saleable magnetite concentrate
0.000323
0.0826
n/a
Note 1 Activities in items 1.22 and 2.4 are measured by the kilolitre. All other activities are measured by the tonne.
Note 2 For item 1.19, coke oven coke is defined in subclause 320 (14).
Increased crude steel baselines from 1 July 2016
(2) The following allocative baselines apply for the financial year starting on 1 July 2016 and each subsequent financial year:
(a) production of carbon steel from cold ferrous feed that results in continuously cast carbon steel products and ingots of carbon steel — EIa 0.0920 and EPa 0.585;
(b) integrated iron and steel manufacturing to produce continuously cast carbon steel products and ingots of carbon steel — EIa 1.72 and EPa 0.160.
Part 5 Eligibility to apply for free carbon units
Division 1 General
501 A person is an eligible person, and may apply for free carbon units, if the person is eligible in accordance with each requirement set out in this Part that relates to the person.
502 For this Part, if a facility (the first facility) is used for the purpose of contributing to another facility carrying on an emissions-intensive trade-exposed activity, the first facility is not, by that contribution alone, to be treated as carrying on an emissions-intensive trade-exposed activity.
Example
The production of utility gases to contribute to an emissions-intensive trade‑exposed activity could be contracted to a third party that is co-located at the site of the activity.
The gas producer would not be treated as carrying on the primary activity solely because gas is being produced — even though the production of gas is integral to the process and the producer is co-located at the site.
Division 2 Personal eligibility — existing activity in previous financial year
503 This Division applies if an emissions-intensive trade-exposed activity was carried on wholly or partly at a facility in the financial year (the previous financial year) before the financial year to which the application relates.
504 A person is eligible if both of the following apply:
(a) on 30 June of the previous financial year, the person had operational control over the facility;
(b) no liability transfer certificate was in force in relation to the facility on 30 June of the previous financial year.
505 A person is eligible if both of the following apply:
(a) on 30 June of the previous financial year, the person was a participant in a designated joint venture in relation to the facility;
(b) the person has a participating percentage determined by the Regulator in relation to that facility that is greater than zero.
Note A participating percentage is determined under section 76 or 77 of the Act.
506 If clauses 504 and 505 do not apply, a person is eligible if the person is the holder of a liability transfer certificate that was in force on 30 June of the previous financial year in relation to the facility.
Note If this Division does not apply to a person: see Division 3.
Division 3 Personal eligibility — no existing activity in previous financial year
507 This Division applies if no emissions-intensive trade-exposed activity was carried on wholly or partly at a facility in the financial year (the previous financial year) before the financial year to which the application relates.
508 A person is eligible if the Regulator is satisfied that, when the facility first starts to carry on an emissions-intensive trade‑exposed activity in the financial year to which the application relates, the person will be the holder of a liability transfer certificate that is in force.
509 A person is eligible if:
(a) no liability transfer certificate will be in force in relation to the facility when the facility first starts to carry on an emissions-intensive trade-exposed activity in the financial year to which the application relates; and
(b) the Regulator is satisfied that, when the facility first starts to carry on an emissions-intensive trade-exposed activity in the financial year to which the application relates, the person will have operational control over the facility.
510 A person is eligible if:
(a) no liability transfer certificate will be in force in relation to the facility when the facility first starts to carry on an emissions-intensive trade-exposed activity in the financial year to which the application relates; and
(b) the Regulator is satisfied that, when the facility first starts to carry on an emissions-intensive trade-exposed activity in the financial year to which the application relates, the person will be a participant in a designated joint venture in relation to the facility; and
(c) the person has a participating percentage determined by the Regulator in relation to the facility that is greater than zero.
511 The carrying on of an emissions-intensive trade-exposed activity at a facility for the purpose only of testing before the facility is commissioned or recommissioned is to be disregarded for this Division if the person carrying on the activity will not have operational control over the facility when the facility is commissioned or recommissioned.
Part 6 Approval of application form for free carbon units
601 The Regulator may approve one or more forms for making an application for free carbon units.
Note The application forms will be available on the Regulator’s website.
602 The application form must require the person completing it, if there is more than one applicant, to set out a formula or other arrangement to apportion free carbon units between applicants.
603 (1) The application form must require the person completing it to give the Regulator:
(a) a statutory declaration in accordance with subclause (2); and
(b) the audit report by an audit company or auditor mentioned in subclause 604 (3); and
(c) any other document in relation to a matter identified by the form as requiring the giving of the document.
(2) For paragraph (1) (a), the statutory declaration must:
(a) be verified for each applicant by one of the following:
(i) a director of the applicant;
(ii) the applicant’s chief executive officer;
(iii) the applicant’s chief financial officer;
(iv) the applicant’s company secretary; and
(b) state that, based on all reasonable steps having been taken to verify the information in the application, the application is accurate and complete as far as the person verifying knows.
604 (1) The application form must require an audit to be conducted in accordance with this clause.
(2) An applicant must:
(a) appoint an auditor who meets the requirements of subclauses (3) and (4); and
(b) include the auditor’s report with the applicant’s application.
(3) The audit must be conducted by an auditor that is:
(a) an authorised audit company under section 1299C of the Corporations Act 2001; or
(b) a registered company auditor under section 1280 of the Corporations Act 2001; or
(c) a registered greenhouse and energy auditor, within the meaning of the NGER Act, who is registered in Category 2 or 3 under the NGER Regulations.
(4) The auditor must be independent of the applicant or applicants to the extent that a conflict of interest situation (within the meaning of the NGER Regulations) does not arise in relation to the auditing of the application.
(5) The auditor preparing the applicant’s audit report must:
(a) ensure that subclause (4) is complied with; and
(b) conduct the audit in accordance with subclauses (6) and (7).
(6) The audit must be conducted in accordance with the relevant requirements for assurance engagements under:
(a) if reporting on emissions and energy consumption — the National Greenhouse and Energy Reporting (Audit) Determination 2009; and
(b) if reporting on production or expected production — ASAE 3000 Assurance Engagements Other than Audits or Reviews of Historical Financial Information and any other relevant standards issued by the Australian Auditing and Assurance Standards Board (AUASB).
(7) The auditor must set out in the audit report, under a separate heading from any limited assurance conclusions provided, the auditor’s reasonable assurance opinion as to whether:
(a) the activities set out in the application that are claimed to be an emissions-intensive trade-exposed activity comply, in all material respects, with each of the requirements in the description of the activity set out in Part 3; and
(b) the application presents fairly, in all material respects, the amount or volume of the relevant product produced in each previous financial year that is relevant to the application in accordance with:
(i) the requirements for that amount or volume set out in Part 3; and
(ii) the measurement policies adopted and disclosed by the applicant in the application; and
(c) for an application to which clause 911 applies — the application presents fairly, in all material respects, the amount that is worked out under subclause 911 (2) in accordance with:
(i) the requirements for that amount set out in clause 911; and
(ii) the measurement policies adopted and disclosed by the applicant in the application.
(8) For an application to which clause 705 or 706 applies, the auditor must set out in the audit report, under a separate heading from any reasonable assurance opinions provided, the auditor’s limited assurance conclusion as to whether, based on the audit procedures performed, anything causes it to believe that:
(a) the applicant’s assumptions do not provide a reasonable basis for the preparation of the expected production amount or volume of the relevant product; and
(b) the expected production is not properly prepared, in all material respects, on the basis of the assumptions described in the application; and
(c) the expected production is not presented fairly, in all material respects, in accordance with the measurement policies adopted and disclosed by the applicant in the application.
(9) For paragraph (6) (a), a reference in the definition of misstatement in the National Greenhouse and Energy Reporting (Audit) Determination 2009 to ‘the Act’ or ‘the Regulations’ is to be read as a reference to the Clean Energy Act 2011 and these Regulations.
(10) For this clause:
limited assurance conclusion has the meaning given by subsection 3.18 (2) of the National Greenhouse and Energy Reporting (Audit) Determination 2009.
reasonable assurance conclusion has the meaning given by subsection 3.17 (2) of the National Greenhouse and Energy Reporting (Audit) Determination 2009.
Part 7 Application for free carbon units
Division 1 General
701 An eligible person may apply for free carbon units for an eligible financial year.
702 (1) The application must:
(a) be made by completing an approved application form that relates to the emissions-intensive trade-exposed activity; and
(b) include the matters set out in paragraphs 603 (1) (a) to (c) that are required by the application form; and
(c) be given to the Regulator not later than 31 October in the financial year.
(2) Despite paragraph (1) (c):
(a) an eligible person may, before 31 October in the financial year, apply in writing to the Regulator to allow the eligible person to give the application to the Regulator by 31 December in the financial year; and
(b) the Regulator must, as soon as practicable, decide whether to allow the eligible person to give the application to the Regulator by 31 December, having regard to:
(i) the reasons for the extension set out in the application; and
(ii) the other circumstances of the request; and
(iii) any other matter the Regulator considers relevant; and
(c) the Regulator must notify the eligible person of its decision as soon as practicable after making it.
(3) If:
(a) an eligible person does not apply in writing to the Regulator in accordance with paragraph (2) (a) to allow the eligible person to give an application to the Regulator by 31 December in a financial year; and
(b) the eligible person attempts to give an application to the Regulator in relation to the financial year later than 31 October in the financial year;
the application has no effect.
(4) If:
(a) an eligible person has applied in accordance with paragraph (2) (a) to allow the eligible person to give an application to the Regulator by 31 December in a financial year; and
(b) the Regulator has refused the application under paragraph (2) (b); and
(c) the eligible person attempts to give an application to the Regulator in relation to the financial year later than 31 October in the financial year;
the application mentioned in paragraph (c) has no effect.
(5) An eligible person to whom subclause (3) or (4) applies is not permitted to apply again for free carbon units in the financial year.
Division 2 Shared eligibility
703 (1) If:
(a) an emissions-intensive trade-exposed activity is carried on at a facility; and
(b) more than one person is an eligible person in relation to the facility in accordance with Divisions 2 and 3 of Part 5;
the eligible persons must make a combined application for the issue of free carbon units.
(2) If:
(a) activities are carried on at 2 or more facilities; and
(b) the activities are an emissions-intensive trade-exposed activity only if the activities at all of those facilities are considered; and
(c) more than one person is an eligible person in relation to the facilities, considered together, in accordance with Divisions 2 and 3 of Part 5;
the eligible persons must make a combined application for the issue of free carbon units.
(3) If:
(a) an emissions-intensive trade-exposed activity is carried on at 2 or more facilities; and
(b) 2 or more persons wish to have the emissions-intensive trade-exposed activity at those facilities considered together for the purpose of applying for the issue of free carbon units; and
(c) more than one person is an eligible person in relation to the facilities in accordance with Divisions 2 and 3 of Part 5;
the eligible persons must make a combined application for the issue of free carbon units.
704 A combined application for the issue of free carbon units must include the details of all eligible persons in relation to an emissions-intensive trade-exposed activity at the facility, or facilities, covered by the application.
Division 3 Special arrangements for facility without continuous emissions-intensive trade-exposed activity
705 (1) This clause applies if:
(a) an application relates to the carrying on of an emissions‑intensive trade-exposed activity at a particular facility or series of facilities; and
(b) the emissions-intensive trade-exposed activity was not carried on at that facility or series of facilities in the financial year before the financial year to which the application relates.
(2) This clause also applies if:
(a) the application relates to the carrying on of an emissions‑intensive trade-exposed activity at a particular facility or series of facilities; and
(b) the emissions-intensive trade-exposed activity was carried on at that facility or series of facilities in the financial year (the previous financial year) before the financial year to which the application relates:
(i) for the first time; or
(ii) after a period of more than 12 months during which the activity was not carried out at that facility or series of facilities; and
(c) no application for the issue of free carbon units was made in relation to the carrying on of the emissions-intensive trade-exposed activity at that facility or series of facilities in the previous financial year.
(3) The application must include an assessment of the amount or volume of the relevant product that is reasonably likely to be produced in the financial year to which the application relates.
Note The assessment is the basis on which factor EAPiat is identified for the purposes of the allocation formula in Division 4 of Part 9 for calculating the number of free carbon units to be issued to a person.
(4) The application must also include:
(a) information about whether any contracts or other arrangements have been entered into to buy the facility’s output; and
Note The information need not include the price of the output.
(b) information about the construction, commissioning or recommissioning of the principal equipment that is to carry on the emissions-intensive trade-exposed activity, including a reasonable estimate of when and a description of how the equipment will be constructed, commissioned or recommissioned; and
(c) general information about the arrangements that are in place to finance the installation of any equipment at the facility; and
(d) a statement of any factors of which the applicant is aware that may reasonably be expected to stop or delay the carrying out of the emissions‑intensive trade-exposed activity or the installation of any equipment at the facility.
(5) The information mentioned in subclause (4) is not required to be included in the application if the inclusion is prohibited by or under:
(a) a law of the Commonwealth, or of a State or Territory; or
(b) a contract; or
(c) any other legally binding obligation.
Division 4 Special arrangements for significant expansion
706 (1) This clause applies if:
(a) one or more facilities to which an application relates is taken to have undergone a significant expansion; and
(b) the applicant wishes to apply for free carbon units for expected production in respect of the expansion.
Note Significant expansion is explained in clause 203.
(2) The application must:
(a) describe any relevant equipment that has been, or will be, installed or recommissioned and explain how the relevant equipment will increase the production of the relevant product in the financial year to which the application relates; and
(b) identify any relevant product the production of which is expected to increase in the financial year to which the application relates; and
(c) set out the amount or volume of the relevant product produced in facilities that are taken to have undergone a significant expansion during the financial year before the financial year to which the application relates; and
(d) set out the amount or volume of the relevant product that is reasonably likely to be produced in facilities that are taken to have undergone a significant expansion during the financial year to which the application relates; and
(e) state whether any other equipment is to be decommissioned or operated at a lower rate after the new equipment is installed or relevant existing equipment is recommissioned; and
(f) state the maximum productive capacity of the equipment that:
(i) is at the facility before the installation of the equipment mentioned in clause 203; and
(ii) may be used to produce the relevant product; and
(g) state the maximum productive capacity of all of the equipment that is to be used to produce the relevant product after:
(i) the commissioning of the equipment that is to be installed; and
(ii) any existing equipment that is to be decommissioned has been decommissioned; and
(h) identify any contracts or other arrangements that have been entered into to buy the output of the facility; and
Note The information need not include the price of the output.
(i) for new equipment that is being installed at the time of the application — give information about the commissioning of the principal equipment that is to be used to carry on the emissions-intensive trade-exposed activity, including a reasonable estimate of when and a description of how the equipment will be commissioned; and
(j) include general information about the arrangements that are in place to finance the installation of any equipment at the facility; and
(k) include a statement of any factors of which the applicant is aware that may reasonably be expected to stop or delay the carrying out of the emissions-intensive trade-exposed activity or the installation of any equipment at the facility.
Note The difference between paragraphs (c) and (d) is the basis on which factor EAPiat is identified for the purposes of the allocation formula in Division 4 of Part 9 for calculating the number of free carbon units to be issued to a person.
(3) However, if the facility produces more than one relevant product, the information in subclause (2) must relate only to each relevant product the expected production of which is directly affected by the use of the equipment.
(4) The information mentioned in subclause (2) is not required to be included in the application if the inclusion is prohibited by or under:
(a) a law of the Commonwealth, or of a State or Territory; or
(b) a contract; or
(c) any other legally binding obligation.
Division 5 Special arrangements for new facilities
707 (1) This clause applies if an application relates to the carrying on of an emissions-intensive trade-exposed activity at a new facility or series of new facilities.
(2) The application must only cover:
(a) for a new facility — an emissions-intensive trade-exposed activity at that new facility; and
(b) for a series of new facilities — an emissions-intensive trade‑exposed activity at that series of new facilities.
Note New facility and series of new facilities are explained in clause 205.
(3) The person completing the application form must give the Regulator a report, in a manner and form approved by the Regulator, containing the calculations relating to amounts mentioned in paragraphs 911 (2) (c), (d) and (e) for the financial year to which the application relates.
Division 6 Special arrangements for sub-threshold facilities
708 (1) This clause applies if:
(a) an application relates to the carrying on of an emissions‑intensive trade-exposed activity at a facility; and
(b) there is no requirement under the NGER Act to report emissions from the facility; and
(c) an application was approved in relation to the carrying on of the same emissions-intensive trade-exposed activity carried out at the facility for the financial year before the financial year to which the current application relates (the relevant previous financial year); and
(d) no event mentioned in subclause 1305 (2) occurred in relation to the carrying on of the same emissions-intensive trade-exposed activity carried out at the facility in the financial year before the financial year to which the current application relates (the relevant previous financial year);
(e) the applicant chooses to use Method 1 in clause 912 to work out the sub-threshold emissions adjustment.
(2) The person completing the application form must give the Regulator a report, in a manner and form approved by the Regulator, setting out the scope 1 emissions, by source, from the operation of the facility for the relevant previous financial year.
Note Under Division 8 of the NGER Measurement Determination in force at the time the emissions occur must be used to work out scope 1 emissions, by source, from the operation of the facility.
Division 7 Measuring emissions in applications
709 (1) This clause applies if:
(a) an applicant is required to estimate emissions from a facility under subclause 909 (9), subclause 911 (2) or clause 912; and
(b) in the previous financial year the emissions from the facility were required to be reported under section 19, 22A, 22E, 22G or 22X of the NGER Act.
(2) For any covered emissions from a facility, the method used to estimate the emissions by source from the operation of the facility must be the same method that is used to estimate the emissions by source from the operation of the facility for the report made under section 22A of the NGER Act.
(3) For:
(a) emissions from fuels mentioned in subsection 30 (2) of the Act; and
(b) emissions mentioned in paragraphs 30 (11) (a) to (c) of the Act, other than emissions attributable to aluminium production;
that are consumed at a facility, the method used to estimate the emissions by source from the operation of the facility must be the same method that is used to estimate the emissions by source from the operation of the facility for the report made under section 19, 22E, 22G or 22X of the NGER Act.
(4) In this clause:
method means a method set out in the NGER Measurement Determination for estimating emissions from the operation of the facility in relation to the source of the emissions.
Part 8 Consideration of application for free carbon units
Division 1 Further information about application
801 (1) The Regulator may, by written notice given to an applicant, require the applicant to give the Regulator, within the period specified in the notice, further information in connection with the application.
(2) The Regulator:
(a) must ensure that the further information is relevant to the application; and
(b) must ensure that the power to require the further information is exercised in a reasonable way.
(3) If the applicant fails to comply with the requirement:
(a) the Regulator may:
(i) refuse to consider the application; or
(ii) refuse to take any action, or any further action, in relation to the application; and
(b) the Regulator must inform the applicant, in writing, of its decision as soon as practicable after making it.
(4) Despite subclause (3), if an applicant that has failed to comply with the requirement gives the Regulator the further information before the Regulator has made a decision on the application under clause 804:
(a) the Regulator may decide to consider the application, using the information that has been provided; and
(b) in considering whether to consider the application, the Regulator must have regard to:
(i) whether the time period specified in the notice mentioned in subclause (1) was reasonable; and
(ii) the reasons why the applicant breached the requirement; and
(iii) any other relevant matter; and
(c) the Regulator must inform the applicant, in writing, of its decision as soon as practicable after making it.
802 (1) If the Regulator believes that it may be necessary for it to act under subclause 902 (7) in relation to the application, the Regulator must:
(a) notify the applicant, in writing, as soon as practicable; and
(b) invite the applicant to give the Regulator further information or advice about the matter within 30 days after the date of the invitation; and
(c) inform the applicant that, if the applicant gives the Regulator any further information or advice after the 30 days, the Regulator is not required to consider it.
(2) The invitation is not an undertaking or guarantee that the Regulator will make a particular decision on the application.
(3) The Regulator:
(a) must take the further information or advice into account if the applicant gives it to the Regulator within the 30 days; and
(b) may take the further information or advice into account if the applicant gives it to the Regulator after the 30 days.
Division 2 Revision of application — inadequate information about relevant product
803 (1) This clause applies if the Regulator:
(a) is not satisfied that an amount or volume of the relevant product that is relevant to the application of Division 4 of Part 9 is:
(i) accurate; or
(ii) the best estimate of the relevant amount or volume possible in the circumstances; or
(b) is not satisfied that the amount or volume of the relevant product has been measured, or will be measured, correctly, having regard to the following:
(i) any requirements mentioned in Part 3 in relation to the product;
(ii) any relevant requirements imposed by or under the National Measurement Act 1960;
(iii) the way in which the relevant product is measured by the industry;
(iv) accredited industry test methods;
(v) any guidelines issued by the Regulator;
(vi) the administrative costs in implementing more accurate testing methods at the facility;
(vii) the frequency of the measurement;
(viii) any other relevant matter; or
(c) is not satisfied that the manner in which the qualities of the relevant product were measured, or are to be measured, is reasonable, having regard to:
(i) the matters mentioned in subparagraphs (b) (i) to (viii); and
(ii) the risk of the product of a facility not satisfying the relevant qualities; or
(d) is not satisfied, in accordance with clause 903 or 904, as to an amount or volume of relevant product, relating to expected production, that is provided by the applicant under clause 705 or 706.
(2) The Regulator must consider whether it should:
(a) consider the application on the basis of substituting a different amount or volume that it considers to be:
(i) more accurate; or
(ii) a better estimate; or
(b) refuse the application on the basis that the applicant has not provided sufficient information for the Regulator to make a reasonable estimate of the amount or volume of the relevant product for Division 4 of Part 9.
(3) If the Regulator proposes to consider the application on the basis of substituting an amount or volume, the Regulator must:
(a) make reasonable inquiries to ascertain the more accurate amount or volume, or the better estimate of the amount or volume; and
(b) notify the applicant, in writing, of:
(i) the reasons why it is not satisfied under subclause (1); and
(ii) the Regulator’s specific concerns about the adequacy of the information provided by the applicant for the purpose of making an estimate of the amount or volume of the relevant product for Division 4 of Part 9; and
(iii) the proposal to substitute its own amount or volume; and
(iv) any proposed amount or volume that the Regulator is considering; and
(c) invite the applicant to give the Regulator further information or advice about the appropriate amount or volume of the relevant product; and
(d) inform the applicant that, if the applicant gives the Regulator any further information or advice after the period set in the notice, the Regulator is not required to consider it; and
(e) inform the applicant that, if there is insufficient information for the Regulator to make a reasonable estimate of the amount or volume of the relevant product for Division 4 of Part 9, the Regulator will refuse the application.
(4) The Regulator must take all reasonable steps to notify the applicant under paragraph (3) (b) within 60 days after the Regulator received the application.
(5) The Regulator must set a reasonable period in the notice within which the applicant must give the Regulator any further information or advice.
(6) The invitation in paragraph (3) (c) is not an undertaking or guarantee that the Regulator will make a particular decision on the application.
(7) The Regulator:
(a) must take the further information or advice into account if the applicant gives it to the Regulator within the period set in the notice; and
(b) may take the further information or advice into account if the applicant gives it to the Regulator after the period set in the notice.
(8) After the earlier of the applicant giving the Regulator further information or advice and the end of the period specified in the notice, the Regulator must decide:
(a) to consider the application on the basis of substituting the amount or volume; or
(b) to accept the amount or volume of the relevant product provided by the applicant in the application; or
(c) to refuse to consider the application on the basis that the applicant has not provided sufficient information for the Regulator to make a reasonable estimate of the amount or volume of the relevant product for Division 4 of Part 9.
Division 3 Decision on application for free carbon units
804 (1) The Regulator must:
(a) approve an application, or
(b) refuse the application.
(2) The Regulator must take all reasonable steps to make a decision under subsection (1):
(a) within 60 days after receiving the application; or
(b) if further information is requested or a revised application is invited in a notice under subclause 801 (1), 802 (1), 803 (3) or 805 (3) — within 45 days after:
(i) the end of the period specified in the notice; or
(ii) receiving the further information or revised application.
(3) The Regulator must approve an application if:
(a) the Regulator is satisfied that:
(i) the applicant is an eligible person, and no other person is an eligible person in relation to the facility or facilities to which the application relates; or
(ii) each applicant is an eligible person, and no other person is an eligible person in relation to the facility or facilities to which the application relates; and
(b) the Regulator is satisfied that each activity to which the application relates meets the relevant requirements and conditions set out in Part 3; and
(c) the Regulator is satisfied that each emissions-intensive trade-exposed activity will be carried out at the facility or facilities specified in the application during the financial year to which the application relates; and
(d) the applicant has provided the documents required by clause 603; and
(e) the Regulator has not made a decision under paragraph 803 (2) (b) or (8) (c) to refuse the application; and
(f) the Regulator is satisfied that the number of free carbon units to which the applicant or applicants is entitled if the application were approved is greater than zero.
(4) For a combined application made by the same applicants for the same activity conducted at the same facility or facilities as an application in the previous financial year, the Regulator must approve the application if the criteria in subclause (3) have been met and:
(a) no applicant covered by the application has an outstanding debt mentioned in subclause 808 (1); or
(b) if an applicant covered by the application has an outstanding debt mentioned in subclause 808 (1) — the formula or other arrangement to apportion free carbon units between applicants has not been varied from the previous financial year to reduce the share of units of the applicant with the outstanding debt.
(5) The Regulator must refuse the application in any other circumstances.
Division 4 Notification of proposed refusal
805 (1) If the Regulator proposes to refuse an application, the Regulator must not make a decision until the Regulator has consulted the applicant in accordance with this clause.
(2) However, the Regulator is not required to consult the applicant if the Regulator:
(a) has already consulted the applicant in accordance with this clause about the same matter in relation to the same application; or
(b) has made a decision under paragraph 803 (8) (c).
(3) The Regulator must:
(a) notify the applicant, in writing, that it proposes to refuse the application; and
(b) invite the applicant:
(i) to revise the application within 30 days after the date of the invitation; or
(ii) to give the Regulator further information or advice about the application within 30 days after the date of the invitation; and
(c) inform the applicant that, if the applicant gives the Regulator any further information or advice after the 30 days, the Regulator is not required to consider it.
(4) The invitation in paragraph (3) (b) is not an undertaking or guarantee that the Regulator will change the proposed refusal.
(5) The Regulator:
(a) must take the further information or advice into account if the applicant gives it to the Regulator within the 30 days; and
(b) may take the further information or advice into account if the applicant gives it to the Regulator after the 30 days.
(6) After the earlier of the applicant giving the Regulator further information or advice and the end of the 30 days, the Regulator must decide:
(a) to approve the application under paragraph 804 (1) (a); or
(b) to refuse the application under paragraph 804 (1) (b).
Division 5 Notification of decision
806 (1) If the Regulator approves an application, the Regulator must notify the applicant, in writing, as soon as practicable after making the decision.
(2) If the Regulator refuses an application after having consulted the applicant in accordance with Division 4, the Regulator must notify the applicant, in writing, as soon as practicable after making the decision.
(3) A decision takes effect when it is made.
Division 6 Correction of inaccurate allocation of free carbon units
807 (1) If:
(a) the Regulator becomes aware that the allocation of free carbon units was incorrect; and
(b) the Regulator becomes aware during the year to which the application relates;
then the Regulator may make a correction in accordance with this Division.
(2) Before making the correction, the Regulator must tell the applicant, in writing, about the proposed correction.
(3) If the correction requires the Regulator to allocate additional free carbon units to an applicant, the additional units must be issued in accordance with subclause 902 (4).
(4) If the incorrect allocation has resulted in an applicant being allocated too many free carbon units, the Regulator must issue a notice to the applicant in accordance with clause 1307 to relinquish a specified number of those units.
Division 7 Revision of application where outstanding debt
808 (1) This Division applies if the Regulator is satisfied that:
(a) an amount of unit shortfall charge payable by an applicant remains unpaid at the time of the application; or
(b) an amount of late payment penalty payable under section 135 of the Act may remain unpaid at the time of the application.
(2) The Regulator must notify in writing:
(a) if there is one applicant — the applicant; or
(b) if the application is a combined application — all the eligible persons covered by the application;
that it proposes to reduce the allocation of free carbon units to the applicant with the outstanding debt (the debtor) mentioned in subclause (1), by the amount of the debt.
(3) The notice must:
(a) invite the debtor to reduce that debt to zero; and
(b) ask the debtor to tell the Regulator, within 30 days after receiving the notice, whether the debt has been paid in full.
(4) If the debtor has not reduced the outstanding debt to zero within 30 days after being given the notice under subclause (2), the Regulator must reduce the debtor’s allocation of free carbon units in accordance with subclause (5).
(5) The debtor’s allocation is to be reduced by the amount worked out as the debtor’s outstanding debt, divided by:
(a) for applications for the financial years starting on 1 July 2012, 1 July 2013 or 1 July 2014 — the fixed charge for the vintage year set out in subsection 100 (1) of the Act; or
(b) for applications for any other financial year — the benchmark average auction charge for the previous financial year.
Part 9 Method of calculating the number of free carbon units to be issued to a person
Division 1 General
901 This Part explains how many free carbon units are to be issued to an applicant whose application is approved.
902 (1) The Regulator must issue the number of units determined in accordance with this Part to the applicant’s Registry account.
(2) For applications made in relation to a financial year that is a fixed charge year, the issue of free carbon units must include the following:
(a) as soon as practicable after approving the application:
(i) 100% of units worked out in relation to:
(A) the EPa and NGPa allocations mentioned in clause 906; and
(B) previous year adjustments mentioned in clause 906; and
(C) maximum cap adjustments mentioned in clause 911; and
(D) sub-threshold emissions adjustments mentioned in clause 912; and
(E) adjustments mentioned in clause 913; and
(ii) 75% of units worked out in relation to the EIa allocations mentioned in clause 906;
(b) as soon as practicable after the start of the financial year following the vintage year of the carbon units — the remaining 25% of units worked out in relation to the EIa allocations.
(3) For applications made in relation to a financial year that is a flexible charge year, 100% of free carbon units must be allocated, as soon as practicable after approving the application, worked out in relation to:
(a) the EIa, EPa and NGPa allocations mentioned in clause 906; and
(b) previous year adjustments mentioned in clause 906; and
(c) maximum cap adjustments mentioned in clause 911; and
(d) sub-threshold emissions adjustments mentioned in clause 912; and
(e) adjustments mentioned in clause 913.
(4) If, under clause 807, the Regulator is required to issue additional free carbon units to an applicant because the initial allocation was incorrect, the additional free carbon units must be issued in accordance with subclause (2) or (3) as soon as practicable after the Regulator becomes aware of the incorrect allocation.
(5) If the application is a combined application mentioned in clause 703, the Regulator must issue the units according to the formula, or other arrangement, to apportion units set out in the application.
(6) If:
(a) either:
(i) an applicant has an outstanding debt mentioned in subclause 808 (1); or
(ii) the application is a combined application and one of the applicants has an outstanding debt mentioned in subclause 808 (1); and
(b) the applicant’s outstanding debt is greater than the allocation worked out using the formula or other arrangement mentioned in clause 602;
the applicant’s allocation is zero.
(7) If the Regulator considers that the requirements for the closure of equipment will be met during the financial year to which the application relates in relation to the emissions‑intensive trade‑exposed activity, the Regulator must reduce the number of free carbon units by the number of carbon units that would be likely to be required to be relinquished in accordance with Division 2 of Part 13.
(8) If the number of free carbon units worked out under this clause is not a whole number:
(a) round up the number to the next whole number if the first decimal place is 0.5 or more; and
(b) round down the number to the next whole number if the first decimal place is less than 0.5.
Division 2 Special arrangements for facility without continuous emissions-intensive trade-exposed activity
903 (1) This clause applies:
(a) for an application in relation to an emissions-intensive trade-exposed activity to which Division 3 of Part 7 applies; and
(b) if the Regulator is satisfied that the applicant has met the requirement in subclause 705 (1) or (2).
(2) The Regulator must be satisfied that the assessment of the amount or volume of the relevant product provided under subclause 705 (3), or the amount or volume substituted by the Regulator under subclause 803 (8), is the best estimate of the amount or volume of the relevant product that is reasonably likely to be produced in the financial year to which the application relates, having regard to:
(a) any arrangements that have been entered into to buy the facility’s output; and
(b) the likelihood that the equipment that is to be used to carry on the emissions-intensive trade-exposed activity:
(i) will be commissioned as described in the application; and
(ii) is likely to be ready to produce the product mentioned in the application; and
(iii) will produce the amount or volume of the relevant product claimed by the applicant; and
(c) any other matter that the Regulator considers relevant.
Division 3 Special arrangements for significant expansion
904 (1) This Division applies:
(a) for an application in relation to an emissions-intensive trade-exposed activity to which Division 4 of Part 7 applies; and
(b) if the Regulator is satisfied that the applicant has met the requirement in subclause 706 (1).
(2) The Regulator must be satisfied that, in respect of the relevant facilities, the amount or volume of the relevant product that:
(a) the applicant has set out as reasonably likely to be produced in the financial year to which the application relates above the level of production of the previous financial year; or
(b) the Regulator has substituted under paragraph 803 (8) (a) as reasonably likely to be produced in the financial year to which the application relates above the level of production of the previous financial year;
is the best estimate of the amount or volume of the relevant product that is reasonably likely to be produced.
905 For subclause 904 (2), the Regulator must have regard to:
(a) any arrangements that have been entered into to buy the facility’s output; and
(b) the likelihood that the equipment that is to be used to carry on the emissions-intensive trade-exposed activity:
(i) if new equipment is to be commissioned — will be commissioned as described in the application; and
(ii) is likely to be ready to produce the product mentioned in the application; and
(iii) will produce the amount or volume of the relevant product claimed by the applicant; and
(c) the likelihood that the new or recommissioned equipment that forms the basis of the application will be installed or recommissioned as described in the application; and
(d) the likelihood that any other equipment is to be decommissioned or operated at a lower rate after the new equipment is installed or relevant old equipment recommissioned; and
(e) any other matter that the Regulator considers relevant.
Division 4 Formula
906 (1) The formula for working out the total number of free carbon units (the baseline allocation) to be issued to an applicant in respect of an emissions-intensive trade-exposed activity carried on during a specified period is:
EIa allocationst + EPa allocationst + NGPa allocationst + previous year adjustmentst
where:
EIa allocationst is kat (EIat APiat).
EPa allocationst is kat (EPat EAFit APiat).
NGPa allocationst is kat (NGPat NGAFit APiat).
previous year adjustmentst is Tiat.
Note Clause 902 explains how to work out the final number of units to be allocated.
(2) If there is more than one kind of relevant product in respect of an emissions-intensive trade-exposed activity, the formula in subclause (1) must be applied for each kind of product and the result for each kind of product added together to work out the baseline allocation to be issued for the activity.
907 (1) This clause explains the symbols that are used in the formula and elsewhere in this Part.
(2) In the formula:
a represents the emissions-intensive trade-exposed activity.
i represents the applicant.
t represents the financial period during which the emissions‑intensive trade-exposed activity is carried out or is to be carried out.
kat
(3) katis the assistance rate for:
(a) the emissions-intensive trade-exposed activity; and
(b) the period during which the emissions-intensive trade‑exposed activity is carried out.
(4) katis worked out as follows:
(a) for the financial year starting on 1 July 2012 (the ka1) — 66.0% for a moderately emissions-intensive activity and 94.5% for a highly emissions-intensive activity;
(b) for each subsequent financial year — ka1 Í (1–0.013)t-1 rounded to the nearest 3 significant figures.
Example If ka1 is 94.5%:
For 2013–14, kat will be 94.5% Í (1–0.013)2-1 = 93.3%.
For 2014–15, kat will be 94.5% Í (1–0.013)3-1 = 92.1%.
EIat
(5) EIat is the baseline level (in Part 4) of direct emissions per unit for the production of the relevant product, including emissions associated with the use of steam.
Note 1 This is also known as the direct emissions-intensity baseline for the activity.
Note 2 An applicant may choose for this to be taken to be zero under clause 912.
APiat
(6) APiat is the adjusted production, that is the volume or amount of the relevant product, adjusted in accordance with clause 803, to be the volume or amount used to issue carbon units for a given financial year for:
(a) the applicant; and
(b) the period during which the emissions-intensive trade‑exposed activity is carried out.
(7) APiat is worked out using the formula:
Piat–1 + EAPiat
where:
Piat–1 is the amount or volume of the relevant product produced in the financial year before the financial year to which the application relates.
EAPiat is the expected additional production for:
(a) the applicant; and
(b) the facilities to which the criteria in subclause 705 (1) or (2) or 706 (1) relate; and
(c) the period during which the emissions-intensive trade‑exposed activity is carried out.
EPat
(8) EPat is the baseline level (in Part 4) of electricity per unit for the production of the relevant product.
EAFit
(9) EAFit is the electricity allocation factor, which relates to the effect of the carbon price on the price of electricity.
(10) EAFit is:
(a) 1; or
(b) the factor as modified in accordance with Division 5.
NGPat
(11) NGPat is the baseline level (in Part 4) of natural gas (or its components) feedstock used per unit for the production of the relevant product.
Note This is also known as the natural gas (or components) feedstock intensity baseline for indirect natural gas emissions for the activity.
NGAFit
(12) NGAFit is the natural gas feedstock (or its components) allocation factor, which relates to the effect of the carbon cost on the cost of natural gas.
(13) NGAFit is explained in the following table.
Item
For product produced, or to be produced, in …
factor NGAFitis (in tonnes of CO2–e per TJ) …
metropolitan
non-metropolitan
1
New South Wales
14.2
15.0
2
Victoria
4.0
4.0
3
Queensland
8.6
7.8
4
South Australia
10.4
10.2
5
Western Australia
4.0
3.9
6
Tasmania
n/a
F
7
the Australian Capital Territory
14.2
15.0
8
the Northern Territory
n/a
F
9
the offshore area
n/a
F
10
an external territory
n/a
F
11
the Joint Petroleum Development Area
n/a
F
(14) In subclause (13):
metropolitan means:
(a) the area that is on, or east of, the Great Dividing Range in New South Wales, and includes Queanbeyan; and
(b) Canberra, Melbourne, Brisbane, Adelaide and Perth.
F means value to be determined in the future.
Tiat
(15) Tiat is the adjustment for the previous financial year’s production for the activity being conducted at the same facility or series of facilities for that year, which is:
(a) zero if:
(i) the application relates to the financial year starting on 1 July 2012; or
(ii) the application relates only to a facility or facilities to which the criteria in subclause 705 (1) or (2) relate; or
(iii) the relevant product relates only to facilities for which a requirement under Division 2 of Part 13 took effect in the financial year before the financial year to which the application relates; or
(iv) no application was approved for free carbon units in relation to the carrying on of the emissions-intensive trade-exposed activity at the same facilities or series of facilities in the previous financial year; or
(b) worked out using subclause (16) if the application relates to the financial year starting on 1 July 2013 or 1 July 2014; or
(c) worked out using subclause (17) if the application relates to the financial year starting on 1 July 2015; or
(d) worked out using subclause (18) if the application relates to a flexible charge year other than the financial year starting on 1 July 2015.
(16) For paragraph (15) (b), Tiat is worked out using the formula:
CPt-1/CPtÍ (1+r) Í [kat-1Í (Piat-1Í (EIat-1 + EPat-1Í EAFit-1 + NGPat-1Í NGAFit-1)) – (baseline allocationt-1 – Tiat-1)]
where:
CPtis the fixed charge for the vintage year as set out in the table in subsection 100 (1) of the Act.
baseline allocationt-1means the total number of free carbon units worked out under clause 906 for the previous period.
Note r is explained in Part 2.
(17) For paragraph (15) (c), Tiat is worked out using the formula:
CPt-1/BAACtÍ [kat-1Í (Piat-1Í (EIat-1 + EPat-1Í EAFit-1 + NGPat-1Í NGAFit-1)) – (baseline allocationt-1 – Tiat-1)]
where:
BAACt is the benchmark average auction charge for the financial year starting on 1 July 2014.
(18) For paragraph (15) (d), Tiat is worked out using the following formula.
kat-1Í (Piat-1Í (EIat-1 + EPat-1Í EAFit-1 + NGPat-1Í NGAFit-1)) – (baseline allocationt-1 – Tiat-1)
Division 5 Modification of formula in Division 4 — large user electricity contracts
908 (1) This Division applies in relation to an application that includes a single facility that consumed more than 2 000 gigawatt-hours of electricity at the facility in the financial year starting on 1 July 2008.
(2) For this Division:
contract in relation to the supply of electricity to a facility means a contract that is either or both of the following:
(a) a contract for the physical supply of electricity to a facility;
(b) a contract (including a contract for differences or a derivative) under which the price paid for the supply of electricity to a facility is hedged.
eligible large user of electricity, in relation to a facility, means any of the following:
(a) the person who had operational control of the facility on 1 July 2012;
(b) the holder of a liability transfer certificate that was in force in relation to the facility on 1 July 2012;
(c) a person who is a party to a contract in relation to the supply of electricity to the facility, as the purchaser of electricity, on 1 July 2012;
(d) a person who is a participant in a designated joint venture in relation to the facility on 1 July 2012.
price, for electricity, means any monetary amount or other consideration to be provided under a contract in relation to the supply of electricity to a facility.
purchaser, of electricity, means a person:
(a) who is a party to a contract in relation to the supply of electricity to a facility; and
(b) who:
(i) in relation to a contract for the physical supply of electricity to a facility — is supplied electricity for the facility either wholly or partly under the contract; or
(ii) in relation to a contract under which the price paid for the supply of electricity to a facility is hedged — purchases electricity for the facility.
relevant pre-existing contract means a contract in relation to the supply of electricity to a facility:
(a) that was entered into before 3 June 2007 and was still in force on 1 May 2012; and
(b) that is expected to be in force on 1 July 2012.
(3) For this Division, a contract in relation to the supply of electricity to a facility is taken not to be a relevant pre-existing contract if:
(a) the contract was entered into before 3 June 2007; and
(b) after 3 June 2007, either or both of the following occur:
(i) one or more terms of the contract are varied;
(ii) other agreements or arrangements are made by the parties to the contract; and
(c) the Regulator is given a written statement by each party to the contract that under:
(i) the contract; and
(ii) any other agreements or arrangements, made by the parties, that are in force at the time of giving the statement;
the average cost for the purchaser of electricity as a result of the commencement of the Act and associated provisions is reasonably expected to be greater than the equivalent of 0.7 carbon units per MWh from 1 July 2012 until the end of the contract or 30 June 2021, whichever is the earlier.
(4) For paragraph (3) (c):
(a) the cost for the purchaser of electricity includes a cost which is conditional on the receipt of free carbon units under this program; and
(b) the number of free carbon units mentioned in paragraph (a) is to be worked out as if the electricity allocation factor were 1; and
(c) the value of the benefit of those free carbon units is not to be deducted from the cost when working out the cost for the purchaser of electricity.
909 (1) An eligible large user of electricity may apply to the Regulator, before 1 August 2012, for the Regulator to issue a certificate (a large user electricity certificate) modifying the formula in Division 4 for:
(a) the facility specified in the certificate; and
(b) relevant products produced, or to be produced, by the emissions-intensive trade-exposed activity carried on at the facility.
(2) If there is a relevant pre-existing contract in relation to the facility, the application must be accompanied by:
(a) a copy of each relevant pre-existing contract; and
(b) a copy of any other document or contract that is relevant to the operation of any provision of the relevant pre‑existing contracts that increases or decreases the price paid for electricity; and
(c) a statement of whether there is any information in the control or possession of a third party relevant to the increase or decrease in prices under the relevant pre‑existing contracts; and
(d) an explanation of how the commencement of the Act and associated provisions will change the price that is paid for electricity under the relevant pre-existing contracts relative to the price that would have been charged if the Act and associated provisions had not commenced; and
(e) a statement of the measures that the eligible large user of electricity, and other persons involved in the supply of electricity, are able to take, as cost-effective measures, to reduce the increase in the price for electricity under the relevant pre‑existing contract as a result of the commencement of the Act and associated provisions; and
(f) an opinion by a Queens Counsel or Senior Counsel as to how the provisions of the relevant pre-existing contracts that deal with increases in price because of the commencement of the Act and associated provisions will operate; and
(g) evidence that the eligible large user of electricity has shown its explanation of how the price will increase to the other parties to each relevant pre-existing contract; and
(h) any opinion of another party to a relevant pre-existing contract, about the explanation mentioned in paragraph (g), that:
(i) was given to the eligible large user of electricity, in writing, before the application was made; and
(ii) was intended by the other party to be disclosed to the Regulator or could reasonably be regarded as having been given by the other party without reservations about being disclosed to the Regulator; and
(i) a statement of the date (the end date) for each relevant pre-existing contract that is the earliest of the following:
(i) the date specified in the contract, as in force on 3 June 2007, as the date on which the contract ends;
(ii) the date specified in the contract, as in force on 1 May 2012, as the date on which the contract ends;
(iii) the first date after 1 May 2012 (or the first likely date after 1 May 2012) on which the obligation to pay the price for electricity under the relevant pre‑existing contract could be ended without material adverse consequences to the purchaser of electricity under that contract; and
(j) the portion of electricity that is likely to be used in each financial year by the facility that is attributable to arrangements other than the relevant pre-existing contracts until the last end date for the last of those relevant pre‑existing contracts; and
(k) a statement of what the new electricity allocation factor should be in relation to each eligible financial year before the end date for the relevant pre-existing contracts; and
(l) a statement of the emissions intensity of any coal-fired electricity generators that are relevant for the purposes of paragraph (8) (c); and
(m) whether the eligible large user of electricity is unable to disclose any information relevant to the application because of a requirement to keep a matter confidential.
(3) If there is no relevant pre-existing contract in relation to the facility, the application must be accompanied by:
(a) a statement that there is no relevant pre-existing contract in force; and
(b) if:
(i) a contract in relation to the supply of electricity to the facility was entered into before 3 June 2007; and
(ii) the contract would ordinarily have been in force on 1 May 2012; and
(iii) the contract ceased to be in force before 1 May 2012;
a description of the parties to the contract and the date on which the contract ceased to be in force.
(4) The Regulator must:
(a) prepare a draft large user electricity certificate that sets out:
(i) a new electricity allocation factor for each eligible financial year until the end date for the last of the relevant pre-existing contracts; or
(ii) if there are no relevant pre-existing contracts — a statement that the electricity allocation factor is not to be modified in relation to an emissions-intensive trade‑exposed activity carried on at the facility; and
(b) give a copy of the draft certificate to:
(i) the eligible large user of electricity; and
(ii) each other party to a relevant pre-existing contract; and
(c) notify the eligible large user of electricity and each other party, in writing, of the reasons why it has prepared the draft certificate; and
(d) invite the eligible large user of electricity and each other party to give the Regulator comments about the draft certificate within 30 days after the date of the invitation.
(5) The invitation is not an undertaking or guarantee that the Regulator will make a particular decision on the application.
(6) If, after considering any comments about the draft certificate received in accordance with the invitation in subclause (4), the Regulator is satisfied that it has sufficient information to be able to issue a certificate, the Regulator must issue a large user electricity certificate that sets out:
(a) a new electricity allocation factor for each eligible financial year until the end date for the last of the relevant pre-existing contracts; or
(b) if there are no relevant pre-existing contracts — a statement that the electricity allocation factor is not to be modified in relation to an emissions-intensive trade‑exposed activity carried on at the facility.
(7) For each eligible financial year, the new electricity allocation factor must be worked out as follows:
(1 Í non-contract portion) + (X Í contract portion)
where:
non-contract portion means the portion of electricity that is not included in the contract portion for that eligible financial year (expressed as a percentage).
X means the Regulator’s reasonable estimate of the number of carbon units issued on 31 October of that eligible financial year that would represent the difference in price for the supply of 1 MWh of electricity on that day between:
(a) the price that would have been paid for electricity under the relevant pre-existing contracts that have not reached their end dates if the Act and associated provisions had not commenced; and
(b) the likely price for electricity under those contracts as a result of the commencement of the Act and associated provisions.
contract portion means the portion of electricity that is reasonably likely to be attributable, for that eligible financial year, to a relevant pre-existing contract that has not reached its end date (expressed as a percentage).
(8) For subclause (7):
(a) factor X may be:
(i) an actual number for a financial year; or
(ii) the product of a formula, or another suitable procedure, that may use updated information relating to electricity market prices or the price of carbon units; and
(b) factor X must not be less than 0; and
(c) factor X must not be more than:
(i) if the price increase for electricity for any of the relevant pre-existing contracts that have not reached their end date relates to the costs that are imposed on one or more coal‑fired electricity generators because of the commencement of the Act and associated provisions — the weighted average emissions‑intensity of those generators in respect of the financial year starting on 1 July 2008, worked out in accordance with subclause (9); or
(ii) in any other case — 1; and
(d) if the price for the supply of electricity on 31 October of the relevant financial year is not reflective of the weighted average price increase for the supply of electricity on a typical day during the relevant financial year, the Regulator must use:
(i) a more appropriate day in the relevant financial year; or
(ii) the weighted average price increase.
(9) For subparagraph (8) (c) (i), the weighted average emissions‑intensity of the generators is to be worked out by dividing the emissions of the generator’s facilities reported under the NGER Act by the sent out generation of the generator in the financial year starting on 1 July 2008.
(10) If an application is not made under subclause (1) before 1 August 2012, the Regulator must use an electricity allocation factor of zero in respect of any emissions-intensive trade‑exposed activity carried on at the facility in the first 10 eligible financial years of the application of the Act and associated provisions.
Note The first 10 eligible financial years of the application of the Act and associated provisions start on 1 July 2012, 1 July 2013, 1 July 2014, 1 July 2015, 1 July 2016, 1 July 2017, 1 July 2018, 1 July 2019, 1 July 2020 and 1 July 2021.
910 (1) The Regulator must amend a large user electricity certificate issued under clause 909 in any of the following circumstances:
(a) a relevant pre-existing contract on the basis of which the certificate was issued is terminated as a result of circumstances beyond the control of the purchaser of electricity under the relevant pre-existing contract;
(b) the Regulator’s interpretation of a relevant pre-existing contract on the basis of which the certificate was issued differs substantially from:
(i) a binding decision of a State or Territory Supreme Court, the Federal Court or the High Court on the relevant pre-existing contract; or
(ii) a binding decision of an independent arbitrator or independent expert on the relevant pre-existing contract;
(iii) a binding decision of a Court mentioned in subparagraph (i) on a contract in which the provisions relating to the price paid for electricity by the purchaser are, in all material respects, the same as the equivalent provisions in, or relating to, the relevant pre-existing contract;
(c) the Regulator believes it is appropriate to amend the certificate to correct a minor error in the certificate.
(2) Before amending the large user electricity certificate, the Regulator must consult with the person who is the eligible person in respect of any relevant activity conducted at the relevant facility when the circumstance mentioned in subclause (1) occurs.
(3) If paragraph (1) (a) applies:
(a) the end date of the relevant pre‑existing contract is taken to be the day on which the relevant pre-existing contract is terminated; and
(b) the Regulator must amend the large user electricity certificate by amending the electricity allocation factor for each remaining eligible financial year until the end date for the last of the relevant pre-existing contracts, in accordance with subclause 909 (7).
(4) If paragraph (1) (b) applies, the Regulator must amend the large user electricity certificate by amending the electricity allocation factor for each remaining eligible financial year until the end date for the last of the relevant pre-existing contracts, in accordance with the relevant decision of the Court, independent arbitrator or independent expert.
Division 6 Maximum number of units to be allocated to new facilities
Note New facility and series of new facilities are explained in clause 205.
911 (1) This Division applies if:
(a) an application (the current application) is made for the issue of free carbon units in a financial year in relation to the carrying on of an emissions-intensive trade-exposed activity at a new facility or series of new facilities; and
(b) either:
(i) an application was approved for the issue of free carbon units in relation to the carrying on of the emissions-intensive trade-exposed activity for the financial year before the financial year to which the current application relates (the relevant previous financial year); or
(ii) an event mentioned in subclause 1305 (2) occurred in relation to the carrying on of the emissions‑intensive trade-exposed activity in the financial year before the financial year to which the current application relates (the relevant previous financial year); and
(c) before a decision is made on the current application, the number of free carbon units that would be worked out for the current application using the formula (the starting formula):
kat-1Í (EIat-1 + EPat-1) Í (Piat-1)
is:
(i) for the second year in which an application is made under the program and the following 4 financial years — greater than 120% of the number that is worked out under subsection (2); and
(ii) for each subsequent financial year — greater than the number that is worked out under subsection (2).
(2) For paragraph (1) (c), add together the following amounts for the relevant previous financial year:
(a) the amount of any covered emissions attributable to the operation of the new facility or series of new facilities;
(b) the amount of total emissions attributable to the combustion of fuels mentioned in subsection 30 (2) of the Act that are attributable to the operation of the new facility or series of new facilities;
(c) any amount of electricity (measured in MWh) that is:
(i) consumed in the operation of the new facility or series of new facilities that is the subject of the application; and
(ii) supplied by electricity generators that are:
(A) co-located with one or more of the new facilities, or directly connected to the new facilities by a dedicated line; and
(B) not part of the new facility or series of new facilities;
multiplied by the total amount of emissions of the electricity generators and then divided by the total amount of electricity (measured in MWh) generated by those electricity generators as measured at all the generator terminals;
(d) the amount of electricity, measured in MWh, attributable to the operation of the new facility or series of new facilities, worked out using the formula:
(I – X) Í a
where:
I is the amount of electricity purchased from an electricity grid and consumed in the operation of the facilities;
X is the amount of electricity produced by electricity generators that are part of the facilities which was not consumed by those facilities and was exported to an electricity grid or to another facility;
a is:
(i) EAFit (as defined in subclause 907 (10)); or
(ii) if A is less than B — the total amount of emissions associated with electricity produced by electricity generators that are part of the facilities divided by the total amount of electricity generated by those electricity generators (measured at all the generator terminals);
where:
A is the amount of electricity consumed from the operation of the facilities other than any electricity to which paragraph (c) applies; and
B is the amount of electricity produced by electricity generators that are part of the facilities;
(e) any emissions associated with the production of steam imported from another facility for the operation of the new facility or series of new facilities.
(3) The number of carbon units that are required to be issued in accordance with this Part in respect of the current application is reduced (the maximum cap adjustment) by the difference identified in paragraph (1) (c).
(4) The number of carbon units worked out under subclause (3) is to be adjusted by:
(a) for the financial year starting on 1 July 2013 — multiplying the number by $23.00, dividing the result by $24.15 and multiplying that number by (1+r); and
(b) for the financial year starting on 1 July 2014 — multiplying the number by $24.15, dividing the result by $25.40 and multiplying that number by (1+r); and
(c) for the financial year starting on 1 July 2015 — multiplying the number by $25.40 and dividing the result by the benchmark average auction charge for the financial year starting on 1 July 2014.
Note r is explained in Part 2.
(5) To avoid doubt, an allocation of free carbon units made in respect of the current application must take into account any other allocation of units approved, or for which an event mentioned in subclause 1305 (2) occurred, in the application year for an emissions-intensive trade-exposed activity conducted at the new facility or series of new facilities.
Division 7 Sub-threshold emissions adjustments
912 (1) The sub-threshold emissions adjustment is the adjustment made to allocations of free carbon units as a result of a facility not passing the threshold test in sections 20 to 25 of the Act.
(2) If subclause (3) applies, an applicant may choose to use method 1 (set out in subclauses (4) to (7)) to work out the sub‑threshold emissions adjustment or may choose to apply method 2 (set out in subclause (8)).
(3) For a facility:
(a) method 1 applies if:
(i) a facility involves carrying on one or more activities identified in Part 3; and
(ii) either:
(A) an application was approved for free carbon units in relation to the carrying on of the same activities at the same facilities or series of facilities in the financial year before the financial year to which the current application relates; or
(B) an event mentioned in subclause 1305 (2) occurred in relation to the carrying on of the same activities at the same facilities or series of facilities in the financial year before the financial year to which the current application relates; and
(iii) the facility does not pass the threshold test under sections 20 to 25 of the Act; and
(iv) the person mentioned in those sections in relation to the facility does not have a provisional emissions number; and
(b) method 2 applies if:
(i) a facility involves carrying on one or more activities identified in Part 3; and
(ii) the facility does not pass the threshold test under sections 20 to 25 of the Act; and
(iii) the person mentioned in those sections in relation to the facility does not have a provisional emissions number.
Method 1
(4) For each of the facilities mentioned in subclause (3), work out the result using the formula:
CEat-1 – NGat-1
where:
CEat is the total covered emissions from the operation of the facility in the financial year to which the application relates.
NGat is the emissions from the combustion of natural gas from the facility in the financial year to which the application relates.
Note An applicant may be required to report emissions under clause 708.
(5) The number of carbon units that are required to be issued in accordance with method 1 in relation to the current application is reduced by the sub-threshold emissions adjustment worked out by adding together the result for each facility under subclause (4) that relates to the application.
(6) The number of carbon units worked out under subclause (5) is to be adjusted by:
(a) for the financial year starting on 1 July 2013 — multiplying the number by $23.00, dividing the result by $24.15 and multiplying that number by (1+r); and
(b) for the financial year starting on 1 July 2014 — multiplying the number by $24.15, dividing the result by $25.40 and multiplying that number by (1+r); and
(c) for the financial year starting on 1 July 2015 — multiplying the number by $25.40 and dividing the result by the benchmark average auction charge for the financial year starting on 1 July 2014.
Note r is explained in Part 2.
(7) However, if:
(a) an application is made in relation to a facility for a financial year; and
(b) the number of units allocated in relation to the application is adjusted in accordance with this clause; and
(c) another application (the subsequent application) is made in relation to the facility for the financial year;
the sub-threshold emissions adjustment is taken to be zero for the subsequent application.
Method 2
(8) For an application:
(a) EIat, mentioned in subclause 907 (5), is taken to be zero; and
(b) the sub-threshold emissions adjustment is zero.
If not a facility mentioned in subclause (3)
(9) If the facility is not a facility mentioned in subclause (3), the sub-threshold emissions adjustment is zero.
Division 8 Adjustments relating to Joint Petroleum Development Area and Greater Sunrise unit area
913 (1) This Division applies if an emissions-intensive trade-exposed activity was carried on wholly or partly at a facility in the financial year before the financial year to which the application relates (the previous financial year) and, during a period that is included in, or consists of, the previous financial year, the facility is located in:
(a) the Joint Petroleum Development Area; or
(b) the Greater Sunrise unit area.
(2) The Regulator must reduce the baseline allocation worked out under clause 906 by the amount of emissions from carrying out the emissions-intensive trade-exposed activity that are not included in the facility’s provisional emissions number under section 26, 27 or 28 of the Act.
Part 10 Year to which units apply
Division 1 Application in first year of the program
1001 (1) If:
(a) an application is made before the end of 31 October 2012 (or a later time in accordance with clause 702) in relation to the financial year starting on 1 July 2012; and
(b) the Regulator is required to issue free carbon units;
the free carbon units have a vintage year of that financial year.
(2) However, if the Regulator does not, before 31 January 2014, issue free carbon units in relation to an application in respect of the financial year starting on 1 July 2012, the free carbon units have a vintage year of the financial year in which they are issued.
(3) If subclause (2) applies, the free carbon units amount is to be adjusted by multiplying the amount by $23.00, dividing the result by $24.15 and multiplying that number by (1+r).
Note r is explained in Part 2.
Division 2 Application in second year of the program
1002 (1) If:
(a) an application is made before the end of 31 October 2013 (or a later time in accordance with clause 702) in relation to the financial year starting on 1 July 2013; and
(b) the Regulator is required to issue free carbon units;
the free carbon units have a vintage year of that financial year.
(2) However, if the Regulator does not, before 31 January 2015, issue free carbon units in relation to an application in respect of the financial year starting on 1 July 2013, the free carbon units have a vintage year of the financial year in which they are issued.
(3) If subclause (2) applies, the free carbon units amount is to be adjusted by multiplying the number by $24.15, dividing the result by $25.40 and multiplying that number by (1+r).
Note r is explained in Part 2.
Division 3 Application in third year of the program
1003 (1) If:
(a) an application is made before the end of 31 October 2014 (or a later time in accordance with clause 702) in relation to the financial year starting on 1 July 2014; and
(b) the Regulator is required to issue free carbon units;
the free carbon units have a vintage year of that financial year.
(2) However, if the Regulator does not, before 31 January 2016, issue free carbon units in relation to an application in respect of the financial year starting on 1 July 2014, the free carbon units have a vintage year of the financial year in which they are issued.
(3) If subclause (2) applies, the free carbon units amount is to be adjusted by:
(a) multiplying the amount by $25.40; and
(b) dividing the result by the benchmark average auction charge for the financial year starting on 1 July 2014.
Division 4 Application in subsequent years
1004 (1) If:
(a) an application is made before the end of 31 October (or a later time in accordance with clause 702) in relation to a financial year (the application year) that is a flexible charge year; and
(b) the Regulator is required to issue free carbon units;
the free carbon units that are issued have a vintage year of the application year.
(2) However, if the Regulator does not, before 1 December in the financial year after the application year, issue free carbon units, the free carbon units have a vintage year of the financial year in which they are issued.
Part 11 Keeping records and materials
1101 (1) A person issued free carbon units must keep the following records for 5 years from when the record is made:
(a) a copy of each application the person made to the Regulator for the issue of those free carbon units;
(b) the documents and materials relied on by the person to prepare the application;
(c) the testing and measurement results relied on by the person to ensure that the requirements for the relevant product were satisfied;
(d) records showing the production of the amount or volume of the relevant product in each financial year for which the free carbon units were issued.
(2) The documents and materials:
(a) must not be reproductions of any original documents; and
(b) must be kept in hard copy; and
(c) must be materials that were relied on by the applicant.
(3) However, if a person tells the Regulator that a record has been lost or destroyed during the period records must be kept, the Regulator may treat a complete copy of the record as the original from the time of the loss or destruction.
(4) This clause does not apply if:
(a) the Regulator has notified the person that the retention of the records is not required; or
(b) the person is a company that has gone into liquidation and been finally dissolved.
Part 12 Reporting requirements
1201 If free carbon units have been issued in relation to an emissions-intensive trade-exposed activity at a facility or series of facilities, the person to which the free carbon units were issued (the recipient) must give the Regulator the reports set out in this Part.
1202 If an executive officer of the recipient (or, if the recipient is not a body corporate, a person with an equivalent function) becomes aware that the recipient will no longer be an eligible person in relation to one or more facilities that carry on an emissions-intensive trade-exposed activity on the next 30 June, the recipient must give the Regulator a report stating who is likely to be an eligible person in relation to the facilities on that date.
1203 If an executive officer of the recipient (or, if the recipient is not a body corporate, a person with an equivalent function) becomes aware that:
(a) a decision has been taken to stop the production of one or more relevant products at a facility or series of facilities, indefinitely or for more than 12 months, while the Regulator is considering an application in relation to the production of those relevant products; and
(b) a requirement relating to the closure of equipment is reasonably likely to occur within 6 months;
the recipient must give the Regulator a report of when the requirement is likely to occur.
1204 If an executive officer of the recipient (or, if the recipient is not a body corporate, a person with an equivalent function) becomes aware that a requirement relating to the closure of equipment has occurred, the recipient must give the Regulator a report of when the requirement occurred.
1205 If an executive officer of the recipient (or, if the recipient is not a body corporate, a person with an equivalent function) becomes aware that a circumstance mentioned in clause 910 exists, the recipient must give the Regulator a report of when the circumstance came into existence.
1206 (1) If:
(a) an executive officer of the recipient (or, if the recipient is not a body corporate, a person with an equivalent function) becomes aware, during:
(i) the financial year for which the free carbon units have been issued (the first financial year); or
(ii) the following financial year;
that no application for free carbon units will be made in respect of the facility for the following financial year; and
(b) the requirement under clause 1304 for the recipient to relinquish carbon units has not been imposed in the first financial year;
the recipient must give the Regulator a report containing the information in subclause (3).
(2) If:
(a) an executive officer of the recipient (or, if the recipient is not a body corporate, a person with an equivalent function) becomes aware, during:
(i) the financial year for which the free carbon units have been issued (the first financial year); or
(ii) the following financial year;
that an application by the recipient for the issue of free carbon units would, if it were made, be refused because the Regulator would not be satisfied as to the matter mentioned in paragraph 804 (3) (f); and
(b) the requirement under clause 1304 for the recipient to relinquish carbon units has not been imposed in the first financial year;
the recipient must give the Regulator a report containing the information in subclause (3).
(3) The recipient’s report must contain the following:
(a) the amount of production of all relevant products for the facility during the first financial year; and
(b) the information required to be given to the Regulator under subclause 603 (1); and
(c) for a new facility or series of new facilities — the calculations relating to the amounts mentioned in paragraphs 911 (2) (c), (d) and (e) for the first financial year; and
(d) for a sub-threshold facility to which clause 708 applies — the scope 1 emissions, by source, from the operation of the facility for the first financial year.
1207 (1) The recipient must give the report under clauses 1202, 1204 and 1205 within 30 days after the executive officer or other person becomes aware of the matter.
(2) The recipient must give the report under clause 1203 within the later of:
(a) 30 days after the executive officer or other person becomes aware of the matter; and
(b) 5 months before the requirement relating to the closure of equipment is reasonably likely to occur.
(3) The recipient must give the report under clause 1206 within:
(a) if equipment is taken to have been closed — 90 days after the closure occurred; and
(b) in any other case — 90 days after the end of the first financial year.
Part 13 Relinquishment of carbon units
Division 1 General
1301 A person is required to relinquish a number of carbon units if:
(a) a number of free carbon units have been issued to the person for a financial year in accordance with this program; and
(b) either:
(i) an event described in this Part occurs during that financial year; or
(ii) a circumstance described in this Part comes into existence during that financial year.
Division 2 Closure of equipment
Subdivision 1 Closure
1302 An event is that equipment used to carry on an emissions‑intensive trade-exposed activity is closed.
1303 (1) If the equipment mentioned in clause 1302 is closed and the requirement to relinquish carbon units under clause 1304 has taken effect, the number of free carbon units that must be relinquished is worked out in accordance with this clause.
(2) Identify the total of:
(a) the amount or volume of the relevant product that was:
(i) produced using the equipment in the financial year (the first financial year) before the financial year in which the requirement to relinquish carbon units under clause 1304 took effect; and
(ii) used in respect of an application for the issue of free carbon units under this program for the financial year in which the requirement to relinquish carbon units under clause 1304 took effect; and
(b) the amount or volume of the relevant product that was:
(i) treated as expected additional production in accordance with subclause 907 (7); and
(ii) to be produced using the equipment in the financial year in which the requirement to relinquish carbon units under clause 1304 took effect.
(3) For each relevant product mentioned in subclause (2), identify the amount or volume of the relevant product that was, or is likely to be, produced using the equipment in the financial year in which the requirement to relinquish carbon units under clause 1304 took effect.
(4) Work out the difference between the 2 amounts worked out under subclause (2) and (3) (the unused balance).
(5) Work out the number of free carbon units that would have been issued for the current financial year on the basis of the unused balance and then subtract the number of carbon units that were not issued to a person in respect of the equipment because of subclause 902 (8).
(6) The result is the number of carbon units that must be relinquished.
(7) However, if the number mentioned in subclause (6) is greater than the total number of units issued to the person for the activity in the financial year in which the requirement to relinquish carbon units under clause 1304 took effect, the number of carbon units that must be relinquished is the total number of units.
Subdivision 2 Procedure for relinquishment on closure
1304 (1) If:
(a) equipment is closed; and
(b) at that time, the person carrying out the activity considered that it was unlikely that the equipment would be used again to produce the relevant product within 1 year after the equipment was closed;
the person’s requirement to relinquish the relevant number of carbon units takes effect from that time.
(2) If:
(a) equipment is closed; and
(b) at that time, it was not possible for the person carrying out the activity to determine whether the equipment would be used again to produce the relevant product that is identified in Part 3 as the basis for the issue of free carbon units within 1 year after the equipment was closed; and
(c) the person carrying out the activity determined, within 1 year after the equipment was closed, that it was unlikely that the equipment would be used again to produce the relevant product within that period of 1 year;
the person’s requirement to relinquish the relevant number of carbon units takes effect from the time of the determination in paragraph (c).
(3) If:
(a) equipment is closed; and
(b) at that time, it was not possible for the person carrying out the activity to determine whether the equipment would be used again to produce the relevant product that is identified in Part 3 as the basis for the issue of free carbon units within 1 year after the equipment was closed; and
(c) the equipment was not used again to produce the relevant product within that period of 1 year;
the person’s requirement to relinquish the relevant number of carbon units takes effect from the end of that period of 1 year.
(4) If the Regulator is satisfied that the person is required to relinquish carbon units, it must issue a notice to the person setting out:
(a) the basis on which it is satisfied; and
(b) the number of carbon units that it considers must be relinquished in accordance with clause 1303.
(5) However, the Regulator must not issue a notice more than 3 years after the requirement to relinquish the relevant number of carbon units took effect.
(6) The person must relinquish the relevant number of carbon units not more than 90 days after the day on which the Regulator gives the notice.
Division 3 Negative allocation
1305 (1) An event is that:
(a) a person has given the Regulator a report mentioned in subclause 1206 (1); and
(b) clause 1304 does not apply to the person in a financial year for which free carbon units have been issued in respect of an emissions-intensive trade-exposed activity at a facility; and
(c) if the person made an application for the issue of free carbon units in respect of the facility, the sum of:
(i) the previous year adjustment under subclause 907 (15); and
(ii) the maximum cap adjustment under clause 911; and
(iii) the sub-threshold adjustment under clause 912;
would result in a negative number of carbon units being issued to the person.
(2) An event is that:
(a) a person has given the Regulator a report mentioned in subclause 1206 (2); and
(b) clause 1304 does not apply to the person in a financial year for which free carbon units have been issued in respect of an emissions-intensive trade-exposed activity at a facility; and
(c) if the person made an application for the issue of free carbon units in respect of the facility, the application would be refused because the Regulator would not be satisfied as to the matter mentioned in paragraph 804 (3) (f); and
(d) the application of the formula in Part 9 would result in a negative number of carbon units being issued to the person.
(3) An event is that:
(a) a person has not given the Regulator a report mentioned in subclause 1206 (1) or (2); and
(b) clause 1304 does not apply to the person in a financial year for which free carbon units have been issued in respect of an emissions-intensive trade-exposed activity at a facility; and
(c) the person applied for the issue of free carbon units in respect of an emissions-intensive trade-exposed activity at a facility; and
(d) the application is refused because the Regulator is not satisfied that the application complies with paragraph 804 (3) (f); and
(e) the application of the formula in Part 9 would result in a negative number of carbon units being issued to the person.
1306 (1) If subclause 1305 (1) applies, the number of free carbon units that must be relinquished is the negative number mentioned in paragraph 1305 (1) (c).
(2) If subclause 1305 (2) applies, the number of free carbon units that must be relinquished is the negative number mentioned in paragraph 1305 (2) (d).
(3) If subclause 1305 (3) applies, the number of free carbon units that must be relinquished is the negative number mentioned in paragraph 1305 (3) (e).
(4) If the Regulator is satisfied that the person is required to relinquish carbon units, it must issue a notice to the person setting out:
(a) the basis on which it is satisfied; and
(b) the number of carbon units that it considers must be relinquished in accordance with subclause 1305 (1), (2) or (3).
(5) However, the Regulator must not issue a notice more than 3 years after the requirement to relinquish the relevant number of carbon units took effect.
(6) The person must relinquish the relevant number of carbon units not more than 90 days after the day on which the Regulator gives the notice.
Division 4 Inaccurate allocation of free carbon units
1307 (1) If, under clause 807, the Regulator is required to issue a notice to a person to relinquish a specified number of free carbon units because the initial allocation to the person was incorrect, the Regulator must issue the notice in accordance with this clause.
(2) The Regulator must issue a notice to the person setting out:
(a) the basis on which the Regulator is satisfied that the units are to be relinquished; and
(b) the number of carbon units that the Regulator considers must be relinquished in accordance with clause 807.
(3) The person must relinquish the relevant number of carbon units not more than 90 days after the day on which the Regulator gives the notice.
Part 14 Incidental provisions
1401 (1) The Regulator may, in writing, issue guidelines about any of the following matters:
(a) the way in which the production of the relevant product may be measured;
(b) an appropriate frequency of testing or sampling of the product;
(c) the considerations that the Regulator will take into account in determining whether or not the production of the product has met one or more requirements of this program.
(2) A guideline is not binding on an applicant.
(3) The Regulator must have regard to the following matters for the purpose of making the guidelines:
(a) any relevant requirements imposed by or under the National Measurement Act 1960;
(b) the way in which the relevant product is measured in the industry;
(c) any way in which:
(i) the product was measured for the purpose of determining the content of this program; and
(ii) the measurements were reported to the Department in 2009 for that purpose;
(d) whether the frequency of measuring the amount or volume of relevant product enables the production of representative and unbiased data;
(e) any accredited industry test methods for the product;
(f) the risk that production by the facility will not satisfy the relevant qualities of the relevant product;
(g) the administrative costs of implementing more accurate testing methods at a facility.
(4) The Regulator must consult as it considers appropriate before making or amending the guidelines.
(5) The Regulator must publish proposed guidelines, and proposed amendments of the guidelines:
(a) on the Regulator’s website; and
(b) in any other place the Regulator considers appropriate.
Note
1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.comlaw.gov.au.
