27Declaration of eligible offsets project

#### 27 Declaration of eligible offsets project Scope (1) This section applies if an application under section 22 has been made for a declaration of an offsets project as an eligible offsets project. Declaration (2) After considering the application, the Regulator may, by writing, declare that the offsets project is an eligible offsets project for the purposes of this Act. (3) A declaration under subsection (2) must: (a) identify the name of the project; and (b) if the project is an area‑based offsets project—identify, in accordance with the regulations or the legislative rules, the project area or project areas; and (c) identify the project proponent for the project; and (ca) identify the applicable methodology determination for the project; and (cb) identify the crediting period or periods for the project; and (d) identify such attributes of the project as are specified in the regulations or the legislative rules; and (e) if: (i) the project is a sequestration offsets project; and (ii) the application included a request that the project be treated as a 100‑year permanence period project; declare that the project is a 100‑year permanence period project; and (f) if: (i) the project is a sequestration offsets project; and (ii) the application included a request that the project be treated as a 25‑year permanence period project; declare that the project is a 25‑year permanence period project. Criteria for declaration (4) The Regulator must not declare that the offsets project is an eligible offsets project unless the Regulator is satisfied that: (a) the project is, or is to be, carried on in Australia; and (b) the project is covered by a methodology determination; and (c) the project meets such requirements as are set out in the methodology determination in accordance with paragraph 106(1)(b); and (d) the project meets the additionality requirements set out in subsection (4A) of this section; and (e) the applicant is the project proponent for the project; and (f) the applicant passes the fit and proper person test; and (g) if the project is a sequestration offsets project—the project area, or each project area, meets the requirements set out in subsection (5) of this section; and (l) the project meets the eligibility requirements (if any) specified in the regulations or the legislative rules; and (m) the project is not an excluded offsets project. > Note 1: Methodology determinations are made under section 106. > Note 2: For the fit and proper person test, see section 60. > Note 3: For excluded offsets project, see section 56. (4A) The additionality requirements mentioned in paragraph (4)(d) are: (a) either: (i) the requirement (the newness requirement) that the project has not begun to be implemented; or (ii) if the methodology determination that covers the project specifies, for the purposes of this subparagraph, one or more requirements that are expressed to be in lieu of the newness requirement—those requirements; and (b) either: (i) the requirement (the regulatory additionality requirement) that the project is not required to be carried out by or under a law of the Commonwealth, a State or a Territory; or (ii) if the methodology determination that covers the project specifies, for the purposes of this subparagraph, one or more requirements that are expressed to be in lieu of the regulatory additionality requirement—those requirements; and (c) either: (i) the requirement (the government program requirement) that the project would be unlikely to be carried out under another Commonwealth, State or Territory government program or scheme in the absence of a declaration of the project as an eligible offsets project; or (ii) if the legislative rules specify, for the purposes of this subparagraph, one or more requirements that are expressed to be in lieu of the government program requirement—those requirements. (4B) For the purposes of subparagraph (4A)(a)(i), in determining whether the project has begun to be implemented, disregard any of the following activities that have been, or are being, undertaken in relation to the project: (a) conducting a feasibility study for the project; (b) planning or designing the project; (c) obtaining regulatory approvals for the project; (d) obtaining consents relating to the project; (e) obtaining advice relating to the project; (f) conducting negotiations relating to the project; (g) sampling to establish a baseline for the project; (h) an activity specified in the legislative rules; (i) an activity that is ancillary or incidental to any of the above activities. (4C) For the purposes of subparagraph (4A)(a)(i), the following are examples of when a project has begun to be implemented: (a) making a final investment decision in relation to the project; (b) acquiring or leasing a tangible asset (other than land) that is for use wholly or mainly for the purposes of the project; (c) commencing construction work for the purposes of the project; (d) in the case of a sequestration offsets project—preparing soil for seeding or planting that is for the purposes of the project; (e) in the case of a sequestration offsets project—seeding, planting or fertilising plants that are for the purposes of the project; (f) in the case of a sequestration offsets project—installing an irrigation or drainage system for the purposes of the project. (4D) For the purposes of paragraph (4C)(a), final investment decision has the meaning generally accepted within the corporate finance community. (4E) For the purposes of paragraph (4C)(b), disregard an asset that is a minor asset. (5) The requirements mentioned in paragraph (4)(g) are: (a) the project area is Torrens system land or Crown land; and (b) the project area is not specified in the regulations or the legislative rules. > Note: For specification by class, see subsection 13(3) of the Legislation Act 2003. (10) The Regulator must not make a declaration under subsection (2) if: (a) the project is an area‑based offsets project; and (b) the project area is, or any of the project areas are, to any extent subject to a carbon maintenance obligation. (11) The Regulator must not make a declaration under subsection (2) in relation to a project (the new project) if: (a) a notice was given under section 88, 89, 90 or 91 in relation to a project (the prior project) that is or was: (i) an eligible offsets project; and (ii) a sequestration offsets project; and (aa) the new project is an area‑based offsets project; and (b) the project area, or any of the project areas, for the new project was or were identified in the relevant section 27 declaration as the project area or project areas for the prior project; and (c) the notice required a person to relinquish a particular number of Australian carbon credit units; and (d) the person did not comply with the requirement within 90 days after the notice was given; and (e) the penalty payable under section 179 in respect of the non‑compliance with the requirement (including any late payment penalty payable under section 180 in relation to the section 179 penalty) has not been paid in full. Timing (14) The Regulator must take all reasonable steps to ensure that a decision is made on the application: (a) if the Regulator requires the applicant to give further information under subsection 24(1) in relation to the application—within 90 days after the applicant gave the Regulator the information; or (c) otherwise—within 90 days after the application was made. When a declaration takes effect (15) A declaration under subsection (2) takes effect when it is made. Notification of declaration (17) As soon as practicable after making a declaration under subsection (2), the Regulator must give a copy of the declaration to: (a) the applicant; and (b) if the declaration relates to a sequestration offsets project—the relevant land registration official. Refusal (18) If the Regulator decides to refuse to declare the offsets project as an eligible offsets project, the Regulator must give written notice of the decision to the applicant. Declaration is not legislative instrument (20) A declaration made under subsection (2) is not a legislative instrument.