Ozone Layer Protection (Amendment) Act 2014

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Ozone Layer Protection (Amendment) Act 2014


Act 2 of 2014





C
T

OZONE LAYER PROTECTION

(AMENDMENT) ACT 2014





Ozone Layer Protection (Amendment) Act 2014 Arrangement of Sections





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Act 2 of 2014 Page 3




C
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OZONE LAYER PROTECTION (AMENDMENT) ACT

2014

Arrangement of Sections

Section

1 Short Title .............................................................................................................. 5
2 Section 2 amended ................................................................................................. 5
3 General amendment ............................................................................................... 6
4 Section 4(2) amended ............................................................................................ 6
5 Section 6 amended ................................................................................................. 6
6 Section 10 amended ............................................................................................... 7
7 Section 11 repealed and replaced ........................................................................... 8
8 New sections 11A and 11B inserted ...................................................................... 8
9 New section 12A .................................................................................................... 8
10 Section 16 amended ............................................................................................. 10
11 Section 18 repealed and new Part IIIA inserted ................................................... 10
12 New section 19A inserted .................................................................................... 15
13 Section 20 amended ............................................................................................. 15
14 Section 22 amended ............................................................................................. 15
15 Section 23 amended ............................................................................................. 15
16 Section 24 repealed and new Parts V and VI inserted ......................................... 15




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C
T

OZONE LAYER PROTECTION (AMENDMENT) ACT

2014

Act 2 of 2014

AN ACT TO AMEND THE OZONE LAYER PROTECTION ACT 2010

I assent,

TUPOU VI,

19
th
June 2014.

BE IT ENACTED by the King and Legislative Assembly of Tonga in the

Legislature of the Kingdom as follows:

1 Short Title

(1) This Act may be cited as the Ozone Layer Protection (Amendment) Act 2014.

(2) The Ozone Layer Protection Act 2010, as amended, is in this Act referred to

as the Principal Act.

2 Section 2 amended

Section 2 of the Principal Act is amended –

(a) in the definition of ―aerosol spray‖, by deleting the word ―packed‖ and

replacing it with ―packaged‖;

(b) by deleting the term and definition of ―non-complying country‖ and replacing

it with the following –

―non-party‖ means any country that is not a party to the Montreal Protocol;

(c) inserting the following new words and their definitions where appropriate -

Section 3 Ozone Layer Protection (Amendment) Act 2014





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――Customs laws‖ means the Customs Act 2007, Excise Tax Act 2007

and Customs and Excise Management Act 2007;

―Customs officer‖ means any person employed as a customs officer to

discharge any duty connected with the administration of customs laws;

―employee‖ means all persons employed by the Ministry, including

salaried, contract, daily paid and casual employees;

―good practice training‖ means training programs —

(a) approved by the Minister; and

(b) incorporating modules on —

(i) good practices in refrigeration;

(ii) the storage and handling of controlled substances;

(iii) the environmental effects of controlled substances.

―handle‖ in relation to any controlled substance means doing anything

with a controlled substance, or goods containing a controlled substance,

that involves a risk of a controlled substance being emitted, including -

(a) decanting, recycling and capturing a controlled substance;

(b) installing, commissioning, servicing and maintaining goods

containing a controlled substance; and

(c) decommissioning goods containing a controlled substance.‖

3 General amendment

The Principal Act is amended throughout by deleting the words ―non-complying

country‖ wherever it appears and replacing it with ―non-party‖.

4 Section 4(2) amended

Section 4(2) of the Principal Act is amended by deleting paragraph (k) and replacing

it with the following –

―(k) representative of persons or organisations importing or using, or

representing those who import or use, controlled substances.‖.

5 Section 6 amended

(1) Section 6(1) of the Principal Act is amended by inserting a new paragraph (f)

immediately after paragraph (e) as follows –

―(f) any other goods containing controlled substances (other than

HCFCs).‖.

(2) Section 6 of the Principal Act is amended by inserting immediately after

subsection (1) the following new subsection (1A) –

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―(1A) Subject to section 7, the import of the following goods, whether

new or second-hand shall be prohibited from 1 January 2016 —

(a) dehumidifiers, refrigerators, freezers, air-conditioners,

supermarket display cases, heat pumps and water coolers

that contain any HCFCs;

(b) air-conditioning or refrigeration units whether fitted to a

vehicle or as mechanical components intended for use in

or on a vehicle and which contain HCFCs at the time they

are imported into the Kingdom; and

(c) any other goods containing HCFCs.‖.

(3) Section 6(2) is amended by inserting a new paragraph (j) immediately after

paragraph (i) as follows –

―(j) any other goods containing controlled substances (other than

HCFCs or methyl bromide).‖.

(4) Section 6 of the Principal Act is amended by inserting immediately after

subsection (2) the following new subsection (2A) –

―(2A) The import from a non-party of any of the following goods

containing any HCFCs shall be prohibited from 1 January 2016 –

(a) refrigerators and freezers;

(b) dehumidifiers and domestic and commercial refrigeration,

air conditioning and heat pump equipment;

(c) air conditioning and heat pump units;

(d) automobile and truck air conditioning units (whether

incorporated in vehicles or not);

(e) ice machines and water coolers;

(f) aerosol products (other than medical aerosols);

(g) portable fire extinguishers;

(h) insulation boards, panels and pipe covers;

(i) pre-polymers (a reactive mixture of isocyanate and polyoll

to which chlorofluorocarbons are added to make rigid

plastic foams); and

(j) any other goods containing HCFCs.‖.

6 Section 10 amended

Section 10 of the Principal Act is amended by deleting subsection (2) and replacing

it with the following –

―(2) No person shall sell any bulk controlled substance to any person or

organisation that does not hold a permit issued under Part III of this

Act.‖.

Section 7 Ozone Layer Protection (Amendment) Act 2014





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7 Section 11 repealed and replaced

Section 11 of the Principal Act is repealed and replaced with the following –

―11 Exemption in relation to sale

Nothing in section 10 shall make it unlawful for any person to sell –

(a) any second hand goods that contain or are designed to use any

controlled substance; or

(b) any goods in respect of which a permit granted under Part III of

this Act applies.

8 New sections 11A and 11B inserted

The Principal Act is amended by inserting the following new sections 11A and 11B

immediately after section 11 -



―11A Prohibition on handling

Subject to section 11B, no person shall handle any controlled

substance.

11B Exemption in relation to handling

(1) Nothing in section 11A shall make it unlawful for any person to

handle controlled substances in accordance with a handling

permit issued under Part III of this Act.

(2) Nothing in section 11A shall make it unlawful for an

environment officer or customs officer to handle controlled

substances in exercise of their duties under this Act, provided

that the officer has attended and completed good practice

training.‖.

9 New section 12A

The Principal Act is amended by inserting the following new section 12A

immediately after section 12 –

―12A General provisions in relation to permits

(1) An application for a permit under this Act shall be –

(a) made to the Minister on the form prescribed by

regulations;

(b) provide any information required by the Minister; and

(c) accompanied by any fees prescribed by regulations.

Provided that no fee shall be imposed where an application is

made by a Government ministry or department.

(2) Upon receipt of an application for a permit under this Act, the

Minister may request —

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(a) an inspection to be carried out by an environment officer

of the primary premises from which the activity the subject

of the application is proposed to be conducted;

(b) the provision of written advice by the environment officer

regarding the inspection; and

(c) the applicant to provide additional information about the

application.

(3) Before granting a permit the Minister shall be satisfied that the

person or organisation has —

(a) not been convicted of any offence against this Act or any

other offence involving controlled substances;

(b) not provided any false or misleading information in

relation to the application;

(c) adequate knowledge of the environmental implications of

controlled substances on the ozone layer;

(d) adequate knowledge of the Act, Regulations and any

relevant codes of practice; and

(e) the necessary skills and equipment to minimise emissions

of the controlled substance.

(4) In order to be satisfied that a person meets the requirements of

subsection (3)(c) to (e) the Minister may require the person to

undertake and complete good practice training.

(5) No permit issued under this Act shall be transferable.

(6) The permit holder shall submit a report to the Minister by the

30
th

January of each year specifying the amount of any

controlled substance imported or consumed in the previous year,

the uses to which the controlled substance was put, and any other

matter that the Minister may require to be included in the report.

(7) Any permit shall be subject to such conditions as may be

imposed by the Minister, including any condition requiring

compliance with any approval, permission, licence or

accreditation available in another country relating to any

controlled substance, any equipment used in relation to a

controlled substance, or the manner in which a controlled

substance may be used.

(8) The Minister may revoke any permit if he is satisfied that the

permit holder –

(a) has contravened a condition of the permit;

(b) has been convicted of any offence against this Act or any

other offence involving ozone depleting substances; or

(c) provided any false or misleading information in relation to

the application for the permit.

Section 10 Ozone Layer Protection (Amendment) Act 2014





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(9) Subject to section 16(1), a permit issued under this Act shall be

valid for one calendar year and may be renewed for periods not

exceeding 12 months.

(10) The Minister shall keep a register of permit holders, and make it

available at the premises of the Ministry or through any other

way he considers appropriate.‖.

10 Section 16 amended

Section 16 of the Principal Act is amended –

(a) in subsection (1) by deleting paragraph (b) and replacing it with –

―(b) not be renewed;‖;

(b) by inserting a new subsection (3) as follows –

―(3) A permit granted under this section for the import of HCFCs is

subject to the following conditions —

(a) the permit holder shall not import HCFCs unless the

permit holder has been allocated a quota for the calendar

year of the permit; and

(b) the permit holder shall ensure that the total quantity of

HCFCs imported in the calendar year of the permit is not

more than the allocated quota.‖.

11 Section 18 repealed and new Part IIIA inserted

Section 18 of the Principal Act is repealed and replaced with the following –



―PART IIIA – HCFC QUOTAS

18 Interpretation for Part IIIA

In this Part, unless the context otherwise requires —

―cut-off date‖ in relation to a quota application is the thirty-first day of

October in the year preceding the quota period to which the application

relates;

―first quota period‖ means the quota period starting on the first day of

January 2015;

―importer‖ means the holder of a permit;

―ODP tonnes‖ of a HCFC means —

(a) for a substance containing one HCFC— the quantity that results

from multiplying the HCFCs mass in tonnes by its ozone

depleting potential; and

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(b) for a substance that is or contains a mixture of 2 or more

HCFCs— the quantity that results from adding together the

quantities of each HCFC, expressed in ODP tonnes;

―ozone depleting potential‖ means the steady-state ozone reduction

for each unit mass of gas emitted into the atmosphere relative to that for

a unit mass emission of HCFC as specified in the Schedule;

―permit‖ means a base-year permit allowing the import of HCFCs;

―quota‖ allocated to an importer is the maximum amount of HCFCs,

expressed in ODP tonnes, that the importer is allowed to import during

the quota period. A quota does not include a reserve quota;

―quota period‖ means the period from and including the first day of

January to and including the thirty-first day of December next

following;

―second quota period‖ means the quota period starting on the first

day of January 2016; and

―subsequent quota period‖ means any quota period other than the

first or second quota period.

18A Quota limits

(1) The quota limit for a quota period specified in column 1 is the quantity

of HCFCs specified in the corresponding column 2.



























(2) The sum of quotas allocated in a quota period shall not exceed the

corresponding quota limit.





18B Allocation of quota — first quota period

Column 1
Quota period

Column 2
Quota limit (ODP

tonnes)

Column 3
Quota limit (metric

tonnes)

2015 0.081 1.473

2016 0.077 1.391

2017 0.072 1.309

2018 0.068 1.227

2019 0.063 1.145

2020 0.059 1.064

2021 0.054 0.982

2022 0.045 0.818

2023 0.036 0.655

2024 0.027 0.491

2025 0.018 0.327

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(1) Within10 working days of the commencement of this section the

Minister shall allocate quotas for the first quota period.

(2) A quota shall only be allocated to a person who has -

(a) imported HCFCs during the period 2009 to 2013; and

(b) prior to the commencement of this section, reported details of the

type and amount of HCFCs imported in 2009, 2010, 2011, 2012

and 2013 to the Ministry.

(3) The size of a quota allocated to a person shall be the average of the

persons HCFC imports in 2009, 2010, 2011, 2012 and 2013.

(4) A quota shall be allocated by written notice given to the person that

satisfies the requirements of subsection (2).

18C Allocation of quota — second and subsequent quota periods

(1) An application for a quota may only be made by an importer.

(2) Nothing in subsection (1) shall preclude a prospective importer from

applying for a permit and a quota at the same time.

(3) An application for a quota shall —

(a) be made in the form prescribed by regulations;

(b) be accompanied by any fees prescribed by regulations;

(c) provide any information required by the Minister; and

(d) be made to the Minister by the cut-off date.

Provided that no fee shall be imposed where an application is made by

a Government ministry or department.

(4) The Minister shall not consider an application for a quota received after

the cut-off date.

(5) The Minister shall determine —

(a) the size of the quota in accordance with sections 18D and 18E;

(b) all quota applications by the thirtieth day of November in the

year preceding the quota period to which the application relates.

(6) A quota shall be allocated by written notice given to the applicant.

(7) If the Minister refuses to allocate a quota the Minister shall notify the

applicant, in writing, of the refusal and the reasons for it.

18D Quota size — second quota period

The size of a quota allocated to an importer for the second quota period is —

(a) if the importer was allocated a quota in the first quota period in

accordance with section 18B and has not transferred their allocated

quota, or part of their allocated quota to another importer—the quota

allocated in section 18B;

(b) if the importer was allocated a quota in the first quota period in

accordance with section 18B and has transferred their allocated quota,

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or part of their allocated quota to another importer in accordance with

section 18F—the un-transferred part of the quota allocated in section

18B; and

(c) if the importer was allocated a quota in the first quota period by virtue

of a transfer in accordance with section 18F—the transferred quota, or

part of a quota, allocated to the transferee in accordance with section

18F.

18E Quota size — subsequent quota period

(1) The size of a quota allocated to an importer for a subsequent quota

period is to be calculated using the formula —



Importer amount

————————— x quota limit

Industry amount



(2) For the purposes of subsection (1) —

―importer amount‖ means the sum of the quantities of HCFCs,

expressed in ODP tonnes, imported under the permit during the base

year by the importer;

―industry amount‖ means the sum of the quantities of HCFCs,

expressed in ODP tonnes, imported by all importers during the base

year; and

―base year‖ in relation to an allocation for a quota period means the

penultimate quota period before the start of that quota period.

18F Transfer of quota

(1) An importer may, without transferring their permit, transfer their

allocated quota, or part of their allocated quota, to another importer.

(2) A transfer has no effect until the transferor notifies the Minister of the

transfer.

(3) A notice shall —

(a) state the transferee’s name, address and permit number; and

(b) specify the amount of quota transferred.

(4) After a transfer takes effect—

(a) the transferred quota, or part of a quota, is taken to have been

allocated to the transferee; and

(b) if part of a quota is transferred—the transferor is taken to have

been allocated the un-transferred part of the quota.

(5) A transfer only has effect to the extent to which it relates to a quota that

has not been used, or to an unused part of a quota.

18G Reserve quota limit

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(1) The reserve quota for a quota period specified in column 1 is the

quantity of HCFCs specified in the corresponding column 2.



























(2) The sum of reserve quotas allocated in a quota period shall not exceed

the corresponding reserve quota limit.

18H Allocation of reserve quota

(1) An application for a reserve quota may only be made by an importer.

(2) Nothing in subsection (1) shall preclude a prospective importer from

applying for a permit and a reserve quota at the same time.

(3) An application for a reserve quota shall—

(a) be made in the form prescribed by regulations;

(b) be accompanied by any fees prescribed by regulations; and

(c) provide any information required by the Minister.

Provided that no fee shall be imposed where an application is made by

a Government ministry or department.

(4) The Minister shall not allocate a reserve quota unless satisfied that

exceptional circumstances exist.

(5) For the purposes of subsection (3), exceptional circumstances exist if,

and only if—

(a) the use of the relevant HCFC is essential for medical, veterinary,

defence or public safety purposes;

(b) there is no practicable alternative to that use; and

(c) without the allocation, the HCFC will not be available, in the

quantities required for that use, within a reasonable period.

(6) A reserve quota is allocated by written notice given to the applicant.

Column 1
Quota period

Column 2
Reserve quota limit

(ODP tonnes)

Column 3
Quota limit (metric

tonnes)

2015 0.009 0.164

2016 0.009 0.155

2017 0.008 0.145

2018 0.008 0.136

2019 0.007 0.127

2020 0.007 0.118

2021 0.006 0.109

2022 0.005 0.091

2023 0.004 0.073

2024 0.003 0.055

2025 0.002 0.036

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(7) If the Minister refuses to allocate a reserve quota the Minister shall

notify the applicant in writing of the refusal and of the reasons for

it.

(8) No reserve quota issued under this Act shall be transferable.‖.

12 New section 19A inserted

The Principal Act is amended by inserting the following new section 19A

immediately after section 19 –

―19A Power of customs officers

For the purpose of enforcing this Act, customs officers shall have the

same powers specified for environment officers in the Environment

Management Act.‖.

13 Section 20 amended

Section 20 of the Principal Act is amended –

(a) in subsection (1) by inserting the words ―or customs officer‖ after the phrase

―environment officer‖; and

(b) in subsections (2)(a) and (b), by deleting the words ―Commissioner of

Revenue‖ and replacing it with ―Government chief executive officer

responsible for revenue and customs‖.

14 Section 22 amended

Section 22(4) of the Principal Act is amended by inserting the words ―or customs

officer‖ after the words ―environment officer‖ wherever it appears.

15 Section 23 amended

Section 23 of the Principal Act is amended by deleting the words ―Commissioner of

Revenue‖ and replacing it with ―Government chief executive officer responsible for

revenue and customs‖.

16 Section 24 repealed and new Parts V and VI inserted

Section 24 of the Principal Act is repealed and replaced with the following –







―PART V — MISCELLANEOUS

24 Regulations

Section 16 Ozone Layer Protection (Amendment) Act 2014





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The Minister may, with the consent of Cabinet, make Regulations for the

purposes of implementing the provisions of this Act including regulations —

(a) prescribing forms;

(b) prescribing fees;

(c) prescribing the requirements for the permitting and training of persons

required to hold a permit under this Act; and

(d) specifying the requirements for the labelling of containers and

equipment containing controlled substances.

25 Delegation

The Minister may, in writing, delegate all or any of this powers and functions

under this Act or Regulations to —

(a) the Chief Executive Officer; or

(b) any other appropriately qualified employee.



PART VI – TRANSITIONAL

26 Import permits for HCFCs

(1) A person who is allocated a quota for the first quota period is taken to

hold an import permit for the HCFC to which the quota relates.

(2) Import permits granted under this section expire on 31 December 2015

and shall not be renewed.‖







Passed by the Legislative Assembly on this 24
th
day of March 2014.

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