Part 3Liable entities

## Part 1—Preliminary #### 1.1 Name of Regulations These Regulations are the Clean Energy Regulations 2011. #### 1.2 Commencement These Regulations commence on commencement of sections 3 to 303 of the Clean Energy Act 2011. #### 1.3 Definitions—general In these Regulations: > Act means the Clean Energy Act 2011. > ANREU Act means the Australian National Registry of Emissions Units Act 2011. > ANREU Regulations means the Australian National Registry of Emissions Units Regulations 2011. > CNG means compressed natural gas. > CO2‑e means carbon dioxide equivalence. > contact details, for a person, means the person’s: (a) name; and (b) phone number; and (c) email address; and (d) postal address. > designated opt‑in person, for the Opt‑in Scheme, has the meaning given in regulation 3.30. > fugitive emissions: see regulation 1.5. > identifying details, for a person, means: (a) the person’s ABN; or (b) if the person does not have an ABN—the person’s ACN; or (c) if the person does not have an ABN or ACN—the person’s ARBN; or (d) if the person does not have an ABN, ACN or ARBN—the person’s trading name and street address. > identifying information, for a facility, means the information required under paragraphs 4.04A(2)(a) to (h) of the NGER Regulations. > identifying information, for a person, means the following information: (a) the person’s name and trading name (if any); (b) the person’s identifying details; (c) a statement about whether the person is an individual, a body corporate, a trust, a corporation sole, a body politic or a local governing body; (d) if the person is an individual—the following: (i) the person’s telephone number, email address and residential address; (ii) if the person’s postal address is different from the person’s residential address—the person’s postal address; (e) if the person is not an individual—the following: (i) the postal address of the head office of the person; (ii) the name, position, telephone number, email address and postal address of a contact person for the person; (f) if the person is a body corporate that is not a foreign person—details of at least one executive officer (or equivalent) of the body corporate, including the officer’s name, telephone number, email address and postal address; (g) if the person is a body corporate that is a foreign person—the details mentioned in paragraph (f) for the body corporate and the name of any Australian agent through which the person conducts business; (h) if the person is a trust—the name, telephone number, email address and postal address of each trustee; (i) if the person is a corporation sole—the name and address of the individual who makes up the corporation sole; (j) if the person is a body politic or local governing body—the name, telephone number, email address and postal address of at least one officeholder of the body politic or local governing body; (k) if the person is a body established under a law of the Commonwealth, a State or Territory (other than a general law allowing incorporation as a company or body corporate)—the following: (i) the name of the legislation establishing the body; (ii) the day the body was established; (iii) whether the body is a Commonwealth, State or Territory body. > liquefied natural gas, or LNG, has the same meaning as liquefied natural gas in regulation 1.03 of the NGER Regulations. > liquefied petroleum gas, or LPG, has the same meaning as liquefied petroleum gas in regulation 1.03 of the NGER Regulations. > NGER Act means the National Greenhouse and Energy Reporting Act 2007. > NGER Regulations means the National Greenhouse and Energy Reporting Regulations 2008. > 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  Climate Change Convention  controlling corporation  covered emission  declared designated joint venture  designated joint venture  eligible financial year  eligible international emissions unit  executive officer  facility  financial control  foreign person  free carbon unit  fuel tax credit  GST group  GST joint venture  Information Database  Jobs and Competitiveness Program  liability transfer certificate  liability transfer certificate  liable entity  liquid petroleum fuel  mandatory designated joint venture  non‑group entity  obligation transfer number or OTN  operational control.  participating percentage  person  registered holder  Registry account  Regulator  relevant operator  surrender  taxable fuel  unit shortfall charge #### 1.4 Definition—applicable identification procedure For the definition of applicable identification procedure in section 5 of the Act, the following procedure is the applicable identification procedure the Regulator must use in identifying a person: (a) the Regulator must review the person’s identifying information; and (b) the Regulator must be satisfied that the Regulator has complete and correct identifying information for the person. #### 1.5 Definition—fugitive emissions (1) For the definition of fugitive emissions in section 5 of the Act, fugitive emissions means greenhouse gas emissions that are released in connection with, or as a consequence of, the extraction, processing, storage or delivery of fossil fuel. (2) However, fugitive emissions do not include emissions released from the combustion of fuel for the production of useable heat or electricity. #### 1.8 Definition—natural gas supply pipelines (1) For the definition of natural gas supply pipeline in section 5 of the Act, the kinds of pipelines mentioned in subregulation (2) are specified as pipelines that are not natural gas supply pipelines. (2) The pipelines are: (a) anything upstream of a connection point or (if there is no connection point) an exit flange on a pipeline conveying natural gas from a gas processing plant mentioned in column 1 of the table in Schedule 2; or (b) a gathering system operated as part of an upstream producing operation; or (c) anything downstream of a point on a pipeline from which a person takes natural gas for use. (3) In this regulation: > connection point, for a pipeline conveying natural gas from a gas processing plant, means a point mentioned in column 2 of the table in Schedule 2. > exit flange, for a pipeline conveying natural gas from a gas processing plant, means a flange mentioned in column 2 of the table in Schedule 2. #### 1.9 Definition—withdrawal (1) For the definition of withdrawal, in relation to natural gas, in section 5 of the Act, a withdrawal of natural gas occurs when: (a) the natural gas exits from a point on a pipeline in relation to which: (i) the natural gas supplier that supplies that gas; or (ii) an agent of that natural gas supplier; or (iii) a person otherwise acting in accordance with an agreement entered into with that natural gas supplier; will ascertain the amount of that natural gas supplied to a person wholly or partly for use; or (b) the natural gas is combusted in machinery or equipment used to heat or compress natural gas within a natural gas supply pipeline. (1A) However, if the natural gas exits from a point on a pipeline in the circumstances in paragraph (1)(a), or is combusted in the circumstances in paragraph (1)(b), during the period between 1 July 2012 and 31 August 2012, a withdrawal of natural gas is taken to have occurred on 1 September 2012. (1B) There is no withdrawal of natural gas from a natural gas supply pipeline if the gas: (a) is supplied by a person who is the owner or operator of the pipeline; and (b) the supply is made under an agreement for the provision of a pipeline service. (2) To avoid doubt, natural gas is not withdrawn from a natural gas supply pipeline if the natural gas: (a) goes from the pipeline to an underground storage reservoir; or (b) goes between two natural gas supply pipelines; or (c) goes from a natural gas supply pipeline directly into the atmosphere. (3) In subregulation (1B), pipeline service means: (a) a service provided by means of a natural gas supply pipeline, including: (i) a haulage service (such as conveyance or reticulation of natural gas); and (ii) a service providing for, or facilitating, the interconnection of pipelines; and (b) a service ancillary to the provision of a service referred to in paragraph (a); but does not include the production, sale or purchase of natural gas. #### 1.10 When supply of natural gas occurs For paragraph 6(a) of the Act, the supply of natural gas occurs at the time at which the gas is withdrawn from a natural gas supply pipeline. #### 1.11 Electronic notice transmitted to the Regulator (1) For subsection 7(2) of the Act, an electronic notice must be transmitted: (a) using the Regulator’s website; and (b) as an instruction in relation to a Registry account. (2) The electronic notice must be transmitted by either: (a) an individual who is a registered holder of the Registry account to which the notice relates; or (b) an authorised representative of the registered holder who has been given access to the Registry account under subregulation 31(2) of the ANREU Regulations. #### 1.12 Requirements for documents If these Regulations require a person to provide a document, any document provided must be current at the time it is provided. #### 1.13 English translation of documents (1) This regulation applies if: (a) a person is required by these Regulations to provide a document; and (b) the document is not in English. (2) The person must provide an English translation of the document, which has been prepared and certified by an authorised translation service as a true copy of the original document. (3) In this regulation: > authorised translation service means a translation service accredited by the National Accreditation Authority for Translators and Interpreters Ltd. #### 1.14 When documents need not be given If these Regulations require a person to provide a document, the person does not need to provide the document if: (a) the person has previously provided the document to the Regulator under: (i) the Act or these Regulations; or (ii) the NGER Act or NGER Regulations; or (iii) the ANREU Act or the ANREU Regulations; and (b) the document previously provided is current at the time it is required to be provided. ## Part 3—Liable entities ### Division 1—Direct emitters of greenhouse gases #### 3.1 Prescribed class of waste For subparagraphs 23(10)(a)(i), 24(9)(a)(i) and 25(8)(a)(i) of the Act, the prescribed class of waste is any waste. #### 3.2 Prescribed distance for landfill facilities (1) For subparagraphs 23(10)(a)(ii), 24(9)(a)(ii) and 25(8)(a)(ii) of the Act, the prescribed distance is zero metres. (2) For subregulation (1), if the site of one landfill facility shares a boundary with the site of another landfill facility, the distance between the 2 landfill facilities is taken to be more than the prescribed distance. #### 3.3 Adjustment of provisional emissions number—Joint Petroleum Development Area and Greater Sunrise unit area For the definition of prescribed percentage in subsections 26(2), 27(2) and 28(2) of the Act, 0% is specified in relation to the facility for the eligible financial years commencing on 1 July 2012, 1 July 2013 and 1 July 2014. ### Division 3—Natural gas #### 3.5 Netted‑out numbers for OTN holders—transfer of gases between storage areas For subsection 35(9) of the Act, if: (a) the OTN holder quotes the OTN holder’s OTN in relation to a supply to the OTN holder of an amount of natural gas; and (b) during an eligible financial year, the OTN holder uses the whole or a part (which whole or part is in this regulation called the relevant portion) of the amount mentioned in paragraph (a) to manufacture: (i) compressed natural gas; or (ii) liquefied natural gas; or (iii) liquefied petroleum gas; and (c) the compressed natural gas, liquefied natural gas or liquefied petroleum gas is transferred from storage at one place to storage at another place by the authority of: (i) a written permission for the movement of the gas under paragraph 39K(6)(c) of the Excise Act 1901; or (ii) a written permission for the removal of the gas under section 61A of the Excise Act 1901; and (d) subsection 35(7) of the Act does not apply to the compressed natural gas, liquefied natural gas or liquefied petroleum gas; and (e) the potential greenhouse gas emissions embodied in the relevant portion have a CO2‑e of a particular number of tonnes; the number mentioned in paragraph (e) is a netted‑out number of the OTN holder for the eligible financial year. #### 3.5A Netted‑out numbers for OTN holders—use of natural gas without combustion For subsection 35(9) of the Act, if: (a) the OTN holder quotes the OTN holder’s OTN in relation to a supply to the OTN holder of an amount of natural gas; and (b) during an eligible financial year, an amount of covered emissions from the operation of a facility was attributable to the use, without combustion, of the whole or a part (which whole or part is in this regulation called the relevant portion) of the amount mentioned in paragraph (a); and (c) the covered emissions mentioned in paragraph (b) count for the purposes of subsection 20(1), 21(1), 22(1), 23(1), 24(1) or 25(1) of the Act; and (d) subsections 35(2) and 35(6) of the Act do not apply to the covered emissions mentioned in paragraph (b); and (e) the potential greenhouse gas emissions embodied in the relevant portion have a carbon dioxide equivalence of a particular number of tonnes; the number mentioned in paragraph (e) is a netted‑out number of the OTN holder for the eligible financial year. #### 3.5C Application of natural gas to own use For subsection 35B(1) of the Act, if: (a) during: (i) the financial year commencing on 1 July 2013; or (ii) a later eligible financial year; a person applies an amount of natural gas to the person’s own use; and (b) greenhouse gas is released into the atmosphere as a direct result of the application of the amount of natural gas to the person’s own use; and (c) no preliminary emissions number under section 33 or 35 of the Act is wholly or partly attributable to any supply of the natural gas; and (d) no provisional emissions number under section 35A of the Act is wholly or partly attributable to any supply of the natural gas; and (e) no provisional emissions number under section 20, 21, 22, 23, 24 or 25 of the Act is wholly or partly attributable to covered emissions from the use of the natural gas; and (f) the potential greenhouse gas emissions embodied in the amount mentioned in paragraph (a) have a CO2‑e of at least 10,000 tonnes; then, for the purposes of the Act: (g) the number of emissions (in CO2‑e tonnes) is a provisional emissions number of the person for the eligible financial year; and (h) the person is a liable entity for the eligible financial year. ### Division 3A—Liquefied petroleum gas, and liquefied natural gas, for non‑transport use #### 3.5F Amount exempt from preliminary emissions number (1) For paragraphs 36B(1)(f) and 36C(1)(f) of the Act, the following amounts are exempt from the calculation of a preliminary emissions number: (a) an amount of LPG that is packaged in a non‑refillable container that holds no more than 1 kilogram of LPG; (b) an amount of LPG, packaged in a container that holds no more than 10 kilograms of LPG, that: (i) indicates the gas is for use as a refrigerant; and (ii) does not indicate the gas is for combustion; (c) an amount of LPG: (i) that is supplied, by a person mentioned in paragraph 36B(1)(d) or 36C(1)(d) of the Act (the supplier), to another person (the recipient); and (ii) for which the recipient provides a statutory declaration to the supplier in accordance with subregulation (2). (2) For paragraph (1)(c), the statutory declaration must be provided by the recipient to the supplier before the amount of LPG is supplied, stating that: (a) the LPG is for incorporation into a product packaged in a container mentioned in paragraph (1)(a) or (b); or (b) the LPG is for packaging into a container mentioned in paragraph (1)(a) or (b). #### 3.5G Netted‑out numbers—import of LPG or LNG for non‑transport use (1) For subsection 36B(4) of the Act, a number ascertained in accordance with subregulation (2) or (3) is a netted‑out number of a person for an eligible financial year. LPG or LNG used as feedstock or without greenhouse gas emissions (2) If: (a) a person has, under subsection 36B(1) of the Act, a preliminary emissions number for an eligible financial year; and (b) the preliminary emissions number is attributable to the import of an amount of LPG or LNG; and (c) during an eligible financial year, the person uses the whole or part of the amount mentioned in paragraph (b) (the relevant portion): (i) as feedstock; or (ii) in such a way as to not emit any greenhouse gases; and (d) the potential greenhouse gas emissions embodied in the relevant portion have a CO2‑e of a particular number of tonnes; the number mentioned in paragraph (d) is the netted‑out number of the person for the eligible financial year. LPG or LNG counted under Division 2 of Part 3 of Act (3) If: (a) a person has, under subsection 36B(1) of the Act, a preliminary emissions number for an eligible financial year; and (b) the preliminary emissions number is attributable to the import of an amount of LPG or LNG for which, apart from any remission of customs duty, customs duty is or was payable by a person; and (c) during an eligible financial year, an amount of covered emissions from the operation of a facility under the operational control of the person was attributable to the non‑transport combustion of the whole or part of the amount mentioned in paragraph (b) (the relevant portion); and (d) the covered emissions mentioned in paragraph (c) count for the purposes of subsection 20(1), 21(1), 22(1), 23(1), 24(1) or 25(1) of the Act; and (e) the potential greenhouse gas emissions embodied in the relevant portion have a CO2‑e of a particular number of tonnes; the number mentioned in paragraph (e) is the netted‑out number of the person for the eligible financial year. #### 3.5H Netted‑out numbers—manufacture or production of LPG or LNG for non‑transport use (1) For subsection 36C(4) of the Act, a number ascertained in accordance with subregulation (2) or (3) is a netted‑out number of a person for an eligible financial year. LPG or LNG used as feedstock or without greenhouse gas emissions (2) If: (a) a person has, under subsection 36C(1) of the Act, a preliminary emissions number for an eligible financial year; and (b) the preliminary emissions number is attributable to the manufacture or production of an amount of LPG or LNG; and (c) during an eligible financial year, the person uses the whole or part of the amount mentioned in paragraph (b) (the relevant portion): (i) as feedstock; or (ii) in such a way as to not emit any greenhouse gases; and (d) the potential greenhouse gas emissions embodied in the relevant portion have a CO2‑e of a particular number of tonnes; the number mentioned in paragraph (d) is the netted‑out number of the person for the eligible financial year. LPG or LNG counted under Division 2 of Part 3 of Act (3) If: (a) a person has, under subsection 36C(1) of the Act, a preliminary emissions number for an eligible financial year; and (b) the preliminary emissions number is attributable to the manufacture or production of an amount of LPG or LNG for which, apart from any remission of excise duty, excise duty is or was payable by a person; and (c) during an eligible financial year, an amount of covered emissions from the operation of a facility under the operational control of the person was attributable to the non‑transport combustion of the whole or part of the amount mentioned in paragraph (b) (the relevant portion); and (d) the covered emissions mentioned in paragraph (c) count for the purposes of subsection 20(1), 21(1), 22(1), 23(1), 24(1) or 25(1) of the Act; and (e) the potential greenhouse gas emissions embodied in the relevant portion have a CO2‑e of a particular number of tonnes; the number mentioned in paragraph (e) is the netted‑out number of the person for the eligible financial year. #### 3.5J Netted‑out numbers—supply of LPG or LNG to a person who quotes the person’s OTN (1) For subsection 36D(5) of the Act, a number ascertained in accordance with this regulation is a netted‑out number of a person for an eligible financial year. LPG or LNG used as feedstock or without greenhouse gas emissions (2) If: (a) the OTN holder quotes the OTN holder’s OTN in relation to the supply to the OTN holder of an amount of LPG or LNG; and (b) during an eligible financial year, the whole or part of the amount mentioned in paragraph (a) (the relevant portion) is used: (i) as feedstock; or (ii) in such a way as to not emit any greenhouse gases; and (c) the potential greenhouse gas emissions embodied in the relevant portion have a CO2‑e of a particular number of tonnes; the number mentioned in paragraph (c) is the netted‑out number of the OTN holder for the eligible financial year. ### Division 4—Obligation Transfer Numbers #### Subdivision 4.1—Requirements for application for OTN #### 3.6 Application for OTN (1) This regulation is made for paragraph 38(2)(c) of the Act. (2) An application must be accompanied by the following information and documents: (a) the identifying information for the applicant; (b) a statement indicating which of sections 55B, 56, 57, 58, 58AA and 58AB of the Act is likely to require or permit the applicant to quote an OTN. (3) An application must also be accompanied by the following information: (a) if the applicant states that section 55B of the Act is likely to require the applicant to quote an OTN—the information and documents mentioned in regulation 3.7; (b) if the applicant states that section 56 of the Act is likely to permit the applicant to quote an OTN—the information and documents mentioned in regulation 3.19; (c) if the applicant states that section 57 of the Act is likely to permit the applicant to quote an OTN—the information and documents mentioned in regulation 3.8; (d) if the applicant states that section 58 of the Act is likely to permit the applicant to quote an OTN—the information and documents mentioned in regulation 3.9; (e) if the applicant states that section 58AA of the Act is likely to require the applicant to quote an OTN—the information and documents mentioned in regulation 3.10A; (f) if the applicant states that section 58AB of the Act is likely to permit the applicant to quote an OTN—the information and documents mentioned in regulation 3.10B. (4) If more than one of the paragraphs in subregulation (3) applies to the applicant, the application need only be accompanied by the information and documents mentioned in one of the paragraphs applying to the applicant. #### 3.7 Eligibility information for large gas consuming facility (1) This regulation applies to an application for an OTN on the basis that the applicant is likely to be required to quote an OTN to a natural gas supplier for natural gas which it is reasonably expected will be used in operating a large gas consuming facility. (2) The application must be accompanied by the following information and documents: (a) the identifying information for the facility; (b) either: (i) for a facility of a mandatory designated joint venture—the name of the person taken to have operational control of the facility throughout the period under subsection 11B(15) of the NGER Act; or (ii) for any other facility—the name of the person who has operational control of the facility; (c) if the applicant is not the person with operational control of the facility: (i) the contact details of the person mentioned in subparagraph (b)(i) or (ii) for the facility; (ii) a statement describing the applicant’s relationship to that person; and (iii) a statement describing the applicant’s relationship to the facility; (d) for the application, the financial year in which the facility passes the threshold test set out in subsection 55A (3) of the Act; (e) either: (i) a statement confirming the amount of covered emissions (in tonnes of CO2‑e) from the operation of the facility that were attributable to the combustion of natural gas during the financial year mentioned in paragraph (d); or (ii) a statement confirming the amount of natural gas combusted at the facility during that year; (f) the day from which the applicant expects to be required to quote an OTN in relation to the facility; (g) a statement that it is likely that the applicant will be supplied with natural gas by a natural gas supplier in the 12 month period commencing on the later of the following days: (i) 1 July 2012; and (ii) the day on which the application is made; (h) either: (i) a statement that it is likely that the applicant will use the natural gas mentioned in paragraph (g) in the operation of the facility; or (ii) a statement that it is likely that the applicant will provide the natural gas mentioned in paragraph (g) to another person (the user) for use in the operation of the facility, and the provision of the natural gas will not involve a supply of the natural gas; (i) if the application includes a statement mentioned in subparagraph (h)(ii): (i) the user’s name and contact details; (ii) a statement describing the applicant’s relationship to the user; (j) one of the following statements: (i) a statement that the applicant is currently supplied natural gas for use at the facility; (ii) a statement that the applicant is not currently supplied natural gas for use at the facility and the reason why the applicant expects to start being supplied natural gas for use at the facility in the period mentioned in subparagraph (g)(i) or (ii); (k) either: (i) documents that verify the information given to the Regulator under subparagraph (j)(i) or (ii); or (ii) with the consent of the Regulator—a statutory declaration that verifies that information. (3) The information required by paragraph (2)(d), and the statement mentioned in paragraph (2)(e), must be given to the Regulator in the form of statutory declarations if requested by the Regulator. #### 3.8 Eligibility information for feedstock (1) This regulation applies to an application for an OTN on the basis that the applicant is likely to be permitted to quote an OTN to a natural gas supplier for natural gas which it is reasonably expected will be used as a feedstock at a facility, business premises or other location. (2) The application must be accompanied by the following information and documents: (a) a description of the chemical process in which natural gas will be used as a feedstock, including: (i) the inputs to the process and the relative amount of each input; and (ii) the outputs of the process and the relative amount of each output; (b) the day from which the person expects to be permitted to quote an OTN in relation to the natural gas that will be used as a feedstock at the facility, business premises or other location; (c) a statement that it is likely that the applicant will be supplied natural gas by a natural gas supplier in the 12 month period commencing on the later of the following days: (i) 1 July 2012; (ii) the day on which the application is made; (d) one of the following: (i) a statement that it is likely that all or part of the natural gas mentioned in paragraph (c) will be for use by the applicant as a feedstock at the facility, business premises or other location; (ii) a statement that it is likely that the applicant will provide the natural gas to another person (the user) who will use all or part of the natural gas as a feedstock at the facility, business premises or other location, and the provision of the natural gas will not involve a supply of the natural gas; (e) if the application includes a statement mentioned in subparagraph (d)(ii): (i) the user’s name and contact details; (ii) a statement describing the applicant’s relationship to the user; (f) one of the following statements: (i) a statement that the applicant is currently supplied natural gas for use as a feedstock at the facility, business premises or other location; (ii) a statement that the applicant is not currently supplied natural gas for use at the facility, business premises or other location, and the reason why the applicant expects to start being supplied natural gas for use at the facility, business premises or other location in the period mentioned in subparagraph (c)(i) or (ii); (g) the information mentioned in regulation 3.10 for the facility, business premises or other location; (h) either: (i) documents that provide evidence of the statement given to the Regulator under subparagraph (f)(i) or (ii) or (ii) with the consent of the Regulator—a statutory declaration that verifies the statement. #### 3.9 Eligibility information for manufacture of CNG, LNG or LPG (1) This regulation applies to an application for an OTN on the basis that the applicant is likely to be permitted to quote an OTN to a natural gas supplier for natural gas to be used, in the course of carrying on a business, to manufacture CNG, LNG or LPG. (2) The application must be accompanied by the following information and documents: (a) the day from which the applicant expects to be permitted to quote an OTN in relation to the natural gas that is to be used to manufacture CNG, LNG or LPG at a facility, business premises or other location; (b) a statement that it is likely that the applicant will be supplied natural gas by a natural gas supplier in the 12 month period commencing on the later of the following days: (i) 1 July 2012; and (ii) the day on which the application is made; (c) one of the following: (i) a statement that it is likely that the applicant will use all or part of the natural gas mentioned in paragraph (b) to manufacture CNG, LNG or LPG at the facility, business premises or other location; (ii) a statement that it is likely that the applicant will provide the natural gas to another person (the user) who will use all or part of the natural gas to manufacture CNG, LNG or LPG at the facility, business premises or other location, and the provision of the natural gas will not involve a supply of the natural gas; (d) if the application includes a statement mentioned in subparagraph (c)(ii): (i) the user’s name and contact details; (ii) a statement describing the applicant’s relationship to the user; (e) one of the following statements: (i) a statement that the applicant is currently supplied natural gas for use in the manufacture of CNG, LNG or LPG at the facility, business premises or other location; (ii) a statement that the applicant is not currently supplied natural gas for use in the manufacture of CNG, LNG or LPG at the facility, business premises or other location, and the reason why the applicant expects to start being supplied natural gas for use at the facility, business premises or other location in the period mentioned in subparagraph (b)(i) or (ii); (f) the information mentioned in regulation 3.10 for the facility, business premises or other location; (g) either: (i) documents that provide evidence of the statement given to the Regulator under subparagraph (e)(i) or (ii); or (ii) with the consent of the Regulator—a statutory declaration that verifies the statement. #### 3.10 Eligibility information for location where natural gas to be used (1A) This regulation applies to an application to which regulation 3.8 or 3.9 applies. (1) If the natural gas will be used at a facility that is in existence at the time of the application, the application must also be accompanied by the following additional information: (a) the identifying information for the facility; (b) either: (i) for a facility of a mandatory designated joint venture—the name of the person taken to have operational control of the facility throughout the period under subsection 11B(15) of the NGER Act; or (ii) for any other facility—the name of the person who has operational control of the facility; (c) if the applicant is not the person with operational control of the facility: (i) the contact details of the person mentioned in subparagraph (b)(i) or (ii) for the facility; (ii) a statement describing the applicant’s relationship to that person; and (iii) a statement describing the applicant’s relationship to the facility. (2) If the natural gas will be used at a facility that is not in existence at the time of the application, the application must also be accompanied by the following additional information about the proposed facility: (a) the identifying information for the proposed facility; (b) either: (i) for a proposed facility of a mandatory designated joint venture—the name of the person likely to be taken to have operational control of the facility throughout the period under subsection 11B(15) of the NGER Act; or (ii) for any other proposed facility—the name of the person likely to have operational control of the facility; (c) if the applicant is not the person with operational control of the proposed facility: (i) the contact details of the person mentioned in paragraph (b) for the proposed facility; (ii) a statement describing the applicant’s relationship to that person; and (iii) a statement describing the applicant’s relationship to the proposed facility. (3) If the natural gas will be used at a business premises or other location that is not a facility or proposed facility, the application must also be accompanied by the following additional information: (a) either: (i) the name of the business premises or location, if any; or (ii) if the premises or location does not have a name—a description of the premises or location; (b) the street address of the business premises or location, if any; (c) the latitude and longitude of the business premises or location. #### 3.10A Eligibility information for mandatory quotation of OTN for supply of LPG or LNG (1) This regulation applies to an application for an OTN on the basis that the applicant is likely to be required to quote an OTN under subsection 58AA(1) of the Act to a gaseous fuel supplier for LPG or LNG. (2) The application must be accompanied by the following information and documents: (a) the identifying information for the facility; (b) either: (i) for a facility of a mandatory designated joint venture—the name of the person taken to have operational control of the facility throughout the period under subsection 11B(15) of the NGER Act; or (ii) for any other facility—the name of the person who has operational control of the facility; (c) if the applicant is not the person with operational control of the facility: (i) the contact details of the person mentioned in subparagraph (b)(i) or (ii) for the facility; and (ii) a statement describing the applicant’s relationship to that person; and (iii) a statement describing the applicant’s relationship to the facility; (d) for the application, the financial year in which the facility passes the threshold test mentioned in subregulation 3.19A(4); (e) either: (i) a statement confirming the amount of covered emissions (in tonnes of CO2‑e) from the operation of the facility that were attributable to the combustion of LPG or LNG during the financial year mentioned in paragraph (d); or (ii) a statement confirming the amount of LPG or LNG combusted at the facility during that year; (f) the day from which the applicant expects to be required to quote an OTN in relation to the facility; (g) a statement that it is likely that the applicant will be supplied with LPG or LNG in the 12 month period commencing on the later of the following days: (i) 1 July 2013; (ii) the day on which the application is made; (h) one of the following statements: (i) a statement that the applicant is currently supplied LPG or LNG for use at the facility; (ii) a statement that the applicant is not currently supplied LPG or LNG for use at the facility and the reason why the applicant expects to start being supplied LPG or LNG for use at the facility in the period mentioned in subparagraph (g)(i) or (ii); (i) a statement that it is likely that the LPG or LNG mentioned in paragraph (h) will be used in the operation of the facility; (j) documents that verify the information given to the Regulator under subparagraph (g)(i) or (ii). #### 3.10B Eligibility information for voluntary quotation of OTN for supply of LPG or LNG (1) This regulation applies to an application for an OTN on the basis that the applicant is likely to be permitted to quote an OTN under subsection 58AB(1) of the Act. (2) The application must be accompanied by the following information and documents: (a) if the applicant is likely to be permitted to quote an OTN because the applicant is likely to use some or all of the amount of LPG as feedstock—the information and documents mentioned in subregulations (3) and (5); (b) if the applicant is likely to be permitted to quote an OTN because the applicant is likely to use some or all of the amount of LPG in such a way as to not emit any greenhouse gases—the information and documents mentioned in subregulations (4) and (5); (c) in any other case—information and documents mentioned in subregulation 3.19G(2). (3) For an applicant mentioned in paragraph (2)(a), the application must be accompanied by a description of the chemical process in which LPG or LNG will be used as feedstock, including: (a) the inputs to the process and the relative amount of each input; and (b) the outputs of the process and the relative amount of each output. (4) For an applicant mentioned in paragraph (2)(b), the application must be accompanied by a description of the process by which the LPG or LNG will be used without combustion of the LPG or LNG. (5) For an applicant mentioned in paragraph (2)(a) or (b), the application must also be accompanied by the following information and documents: (a) the day from which the person expects to be permitted to quote an OTN in relation to the LPG or LNG that will be used at the facility, business premises or other location: (i) as feedstock; or (ii) in such a way as to not emit any greenhouse gases; (b) a statement that it is likely that the applicant will be supplied LPG or LNG in the 12 month period commencing on the later of the following days: (i) 1 July 2013; (ii) the day on which the application is made; (c) a statement that it is likely that all or part of the LPG or LNG mentioned in paragraph (b) will be for a use mentioned in subparagraph (a)(i) or (ii) at the facility, business premises or other location; (d) if the applicant is currently supplied LPG or LNG at the facility, business premises or other location for a use mentioned in subparagraph (a)(i) or (ii)—a statement to this effect; (e) if the applicant is not currently supplied LPG or LNG at the facility, business premises or other location—the reason why the applicant expects to start being supplied LPG or LNG for a use mentioned in subparagraph (a)(i) or (ii) at the facility, business premises or other location in the period mentioned in subparagraph (b)(i) or (ii); (f) documents that verify the information given to the Regulator under paragraph (d) or (e); (g) if the LPG or LNG will be used at a facility (whether or not the facility is in existence at the time of application): (i) the identifying information for the facility; and (ii) if the facility belongs to a mandatory designated joint venture—the name of the person taken to have operational control of the facility throughout the period under subsection 11B(15) of the NGER Act; and (iii) if the facility does not belong to a mandatory designated joint venture—the name of the person who has operational control of the facility; and (iv) if the applicant is not the person with operational control of the facility—the contact details of the person mentioned in subparagraph (ii) or (iii) and a description of the applicant’s relationship to that person and to the facility; (h) if the LPG or LNG will be used at a business premises or other location that is not a facility or proposed facility mentioned in paragraph (g): (i) the name of the business premises or location, or a description of the premises or location if there is no name for the business premises; and (ii) the street address of the business premises or location, if any; and (iii) the latitude and longitude of the business premises or location. #### Subdivision 4.2—Large gas consuming facilities #### 3.11 Conditions for ceasing to be large gas consuming facility For subsection 55A(2) of the Act, a facility is taken to cease to be a large gas consuming facility if: (a) an application is made under subregulation 3.12(2) or 3.14(1) in relation to the facility; and (b) the Regulator decides under regulation 3.13(2) or 3.16(2) that the facility should cease to be treated as a large gas consuming facility. #### 3.12 One‑off year—application (1) This regulation applies to a facility that will become a large gas consuming facility on the basis it has passed the threshold test in a financial year (the one‑off year). (2) The operator of the facility may apply to the Regulator for a decision that the facility should, immediately after becoming a large gas consuming facility, cease to be a large gas consuming facility, on the basis that the facility: (a) did not pass the threshold test in the 2 financial years preceding the one‑off year; and (b) is unlikely to pass the test in the 2 financial years following the one‑off year. (3) The application must be made by: (a) at least 90 days before the day on which the facility will become a large gas consuming facility; or (b) if the Regulator is satisfied that it is justified in the circumstances—a day decided by the Regulator that is less than 90 days before the day on which the facility will become a large gas consuming facility. (4) The application must be accompanied by identifying information for the applicant. (5) The application must also be accompanied by the following information and documents about the facility: (a) the identifying information for the facility; (b) the start and end dates of the one‑off year; (c) either: (i) a statement confirming the amount of covered emissions (in tonnes of CO2‑e) from the operation of the facility that were attributable to the combustion of natural gas in the one‑off year and each of the 2 financial years preceding the one‑off year; or (ii) a statement confirming the amount of natural gas combusted at the facility for the one‑off year and each of the 2 financial years preceding the one‑off year; (d) a statement of the amount of natural gas supplied for use at the facility in the one‑off year and each of the 2 financial years preceding the one‑off year; (e) a statement of the reason why the emissions from the facility that are attributable to the combustion of natural gas are likely to be less than 25 000 tonnes of CO2‑e in the 2 financial years after the one‑off year; (f) either: (i) documents that verify the information given to the Regulator under paragraphs (d) and (e); or (ii) with the consent of the Regulator—a statutory declaration that verifies that information. #### 3.13 One‑off year—Regulator’s decision (1) This regulation applies if an application is made under regulation 3.12 in relation to a facility. (2) The Regulator may decide that the facility should, immediately after becoming a large gas consuming facility, cease to be treated as a large gas consuming facility, if the Regulator is satisfied that: (a) the application contains the information and documents required by regulation 3.12; and (b) the information contained in the application is correct; and (c) greenhouse gas emissions from the operation of the facility attributable to the combustion of natural gas: (i) were less than 25 000 tonnes of CO2‑e in the 2 financial years preceding the one‑off year; and (ii) are likely to be less than 25 000 tonnes of CO2‑e in the 2 financial years following the one‑off year. (3) Without limiting the matters the Regulator may take into account when making a decision under subregulation (2), the Regulator may take into account any previous applications made in relation to the facility under regulation 3.12. (4) If the Regulator is not satisfied of the matters mentioned in paragraphs (2)(a), (b) and (c), the Regulator must refuse the application. (5) 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 or documents under regulation 3.17 in relation to the application—within 90 days after the applicant gave the Regulator the information or documents; or (b) in any other case—within 90 days after the application was made. (6) The Regulator must tell the applicant, in writing, of the Regulator’s decision on the application. #### 3.14 Diminishing emissions—application (1) The operator of a large gas consuming facility may apply to the Regulator for a decision that the facility should cease to be a large gas consuming facility on the basis that: (a) greenhouse emissions from the operation of the facility attributable to the combustion of natural gas, for the financial year immediately preceding the financial year in which the application is made, were less than 25 000 tonnes of CO2‑e; and (b) it is likely that greenhouse emissions from the operation of the facility attributable to the combustion of natural gas will be less than 25 000 tonnes of CO2‑e in the financial year in which the application is made and the following financial year. (2) The application must be accompanied by identifying information for the applicant. (3) The application must also be accompanied by the following information and documents about the facility: (a) the identifying information for the facility; (b) if regulation 3.15 applies to the application—the name and contact details of the other person mentioned in that regulation; (c) either: (i) a statement, for each of the previous 3 financial years, confirming the amount of covered emissions (in tonnes of CO2‑e) from the operation of the facility that were attributable to the combustion of natural gas in the year; or (ii) a statement, for each of the previous 3 financial years, confirming the amount of natural gas combusted at the facility in the year; (d) a statement, for each of the previous 3 financial years, stating the amount of natural gas supplied for use at the facility in the year; (e) the reason why the emissions from the facility attributable to the combustion of natural gas are likely to be less than 25 000 tonnes of CO2‑e in the current financial year and the following financial year; (f) either: (i) documents that verify the information given to the Regulator under paragraphs (d) and (e); or (ii) with the consent of the Regulator—a statutory declaration that verifies that information. #### 3.15 Diminishing emissions—notification of OTN holder (1) This regulation applies to an application made under regulation 3.14 in relation to a facility if a person other than the applicant (the other person) would have a provisional emissions number under subsection 35(3) of the Act in relation to gas used at the facility because the facility ceased to be a large gas consuming facility, on the basis that the other person: (a) on or before the day of the application, quoted an OTN under subsection 55B(1) of the Act for the supply of natural gas for use at the facility; or (b) within 90 days after the application, is likely to be required to quote an OTN under subsection 55B(1) of the Act in relation to the supply of natural gas for use at the facility. (2) The applicant must tell the other person, in writing, about the application. #### 3.16 Diminishing emissions—Regulator’s decision (1) This section applies if an application is made under regulation 3.14 in relation to a facility. (2) The Regulator may decide that the facility should cease to be treated as a large gas consuming facility if the Regulator is satisfied that: (a) the application contains the information and documents required by subregulations 3.14(2) and (3); and (b) the information contained in the application is correct; and (c) greenhouse gas emissions from the operation of the facility attributable to the combustion of natural gas: (i) were less than 25 000 tonnes of CO2‑e in the previous financial year; and (ii) are likely to be less than 25 000 tonnes of CO2‑e in the current financial year and the following financial year. (3) If the Regulator is not satisfied of the matters mentioned in paragraphs (2)(a), (b) and (c), the Regulator must refuse the application. (4) 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 or documents under regulation 3.17 in relation to the application—within 90 days after the applicant gave the Regulator the information; or (b) in any other case—within 90 days after the application was made. (5) The Regulator must tell the applicant, in writing, of the Regulator’s decision on the application. (6) If regulation 3.15 applies to the application, the Regulator must also tell the other person mentioned in that regulation, in writing, of the Regulator’s decision on the application. #### 3.17 Request for further information or documents (1) When considering an application under regulation 3.12 or 3.14, 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 or documents in connection with the application. (2) If the applicant fails to provide the information or documents, the Regulator may, by written notice given to the applicant: (a) refuse to consider the application; or (b) refuse to take any action, or any further action, in relation to the application. #### 3.18 When facility taken to cease to be large gas consuming facility (1) If the Regulator makes a decision under subregulation 3.13(2) in relation to a facility, the facility ceases to be a large gas consuming facility immediately after the facility becomes a large gas consuming facility. (2) If the Regulator makes a decision under subregulation 3.16(2) in relation to a facility, the facility ceases to be a large gas consuming facility on: (a) if regulation 3.15 applies to the application—the later of the following days: (i) 30 June in the financial year in which the application is made; (ii) 28 days after the Regulator notifies the OTN holder; (b) in any other case—30 June in the financial year in which the application is made. #### Subdivision 4.3—Large user of natural gas—application to be an approved person #### 3.19 Information and documents required with application (1) For subsection 56(3) of the Act, an application by a person to be an approved person must be accompanied by identifying information for the applicant. (2) For paragraph 56(3)(d) of the Act, the application must also be accompanied by the following information and documents: (a) a statement indicating the eligible financial year to which the application applies; (b) the identifying information for the facility; (c) one of the following statements in relation to the facility: (i) a statement that it is likely that the following conditions will be satisfied in the specified eligible financial year: (A) the facility will be under the operational control of the applicant; (B) the applicant will be supplied natural gas by a natural gas supplier; (C) the natural gas will be for use in the operation of the facility; (D) emissions from the combustion of natural gas at the facility will be at least 25 000 tonnes CO2‑e in the specified eligible financial year; (ii) a statement that it is likely that the following conditions will be satisfied in the specified eligible financial year: (A) the facility will be under the operational control of another person (the user); (B) the applicant will be supplied natural gas by a natural gas supplier; (C) the applicant will provide the whole or a part of the natural gas to the user for use in the operation of the facility; (D) the provision of the natural gas by the applicant will not involve a supply of the natural gas; (E) emissions from the combustion of natural gas at the facility will be at least 25 000 tonnes CO2‑e in the specified eligible financial year; (d) if the application is accompanied by a statement mentioned in subparagraph (c)(ii): (i) the user’s name and contact details; (ii) a statement describing the applicant’s relationship to the user; (e) a statement of the reason why the emissions from the facility attributable to the combustion of natural gas are likely to be at least 25 000 tonnes of CO2‑e in the specified eligible financial year; (f) one of the following statements: (i) a statement that the applicant is currently supplied natural gas for use at the facility; (ii) a statement that the applicant is not currently supplied natural gas for use at the facility, and the reason why the applicant expects to start being supplied natural gas for use at the facility in the 12 month period commencing on the later of the following days: (A) 1 July 2012; (B) the day on which the application is made. (g) either: (i) documents that provide evidence of the statements given to the Regulator under paragraphs (e) and (f); or (ii) with the consent of the Regulator—a statutory declaration that verifies the statements. #### Subdivision 4.4—Conditions for OTN quotation and acceptance of OTN quotation: supply of LPG or LNG #### 3.19A Condition for mandatory quotation of OTN—large LPG or LNG consuming facility (1) For paragraph 58AA(1)(c) of the Act, the condition is that the supply is for use in the operation of a large LPG or LNG consuming facility. (2) If: (a) a facility passes the threshold test set out in subregulation (4) for a financial year; and (b) the financial year began on or after 1 July 2011; then, at all times after the start of the second 1 July that occurs after the end of the financial year, the facility is a large LPG or LNG consuming facility. (3) However, a facility is not a large LPG or LNG consuming facility in a particular financial year if, the Regulator decides that: (a) the facility is taken not to be a large LPG or LNG consuming facility in accordance with regulation 3.19C; or (b) the facility ceases to be a large LPG or LNG consuming facility in accordance with regulation 3.19E. (4) For subregulation (1), a facility passes the threshold test for a financial year if so much of the total amount of covered emissions from the operation of the facility during the financial year as is attributable to the combustion of LPG or LNG has a CO2‑e of 25,000 tonnes or more. #### 3.19B Application to be taken not to be large LPG or LNG consuming facility—one‑off year (1) This regulation applies to a facility that will become a large LPG or LNG consuming facility on the basis it has passed the threshold test mentioned in subregulation 3.19A(4) in a financial year (the one‑off year). (2) An operator of a large LPG or LNG consuming facility may apply to the Regulator, in a form approved by the Regulator for this subregulation, to have a facility taken not to be a large LPG or LNG consuming facility, on the basis that the facility: (a) did not pass the threshold test in the 2 financial years preceding the one‑off year; and (b) is unlikely to pass the test in the 2 financial years following the one‑off year. (3) The application must be made by: (a) at least 90 days before the day on which the facility will become a large LPG or LNG consuming facility; or (b) if the Regulator is satisfied that it is justified in the circumstances—a day decided by the Regulator that is less than 90 days before the day on which the facility will become a large LPG or LNG consuming facility. (4) The application must be accompanied by the following information and documents: (a) the identifying information for the applicant; (b) the identifying information for the facility; (c) the start day and end day of the one‑off year; (d) either: (i) a statement confirming the amount of covered emissions (in tonnes of CO2‑e) from the operation of the facility that were attributable to the combustion of LPG or LNG in the one‑off year and each of the 2 financial years preceding the one‑off year; or (ii) a statement confirming the amount of LPG or LNG combusted at the facility for the one‑off year and each of the 2 financial years preceding the one‑off year; (e) a statement of the amount of LPG or LNG supplied for use at the facility in the one‑off year and each of the 2 financial years preceding the one‑off year; (f) a statement of the reason why the emissions from the facility that are attributable to the combustion of LPG or LNG are likely to be less than 25,000 tonnes of CO2‑e in the 2 financial years after the one‑off year; (g) documents that verify the information given to the Regulator under paragraphs (e) and (f). #### 3.19C Decision on application made under regulation 3.19B (1) The Regulator may decide that the facility is taken not to be a large LPG or LNG consuming facility, if the Regulator is satisfied that: (a) the application was made by a person mentioned in subregulation 3.19B(2); and (b) the application contains the information and documents required by subregulation 3.19B(4); and (c) covered emissions from the operation of the facility attributable to the combustion of LPG or LNG: (i) were less than 25,000 tonnes of CO2‑e in the 2 financial years preceding the one‑off year; and (ii) are likely to be less than 25,000 tonnes of CO2‑e in the 2 financial years following the one‑off year. (2) Without limiting the matters the Regulator may take into account when making a decision under subregulation (1), the Regulator may take into account any previous applications made in relation to the facility under regulation 3.19B. (3) If the Regulator is not satisfied of the matters mentioned in paragraphs (1)(a), (b) and (c), the Regulator must refuse the application. (4) 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 or documents under regulation 3.19H in relation to the application—within 90 days after the applicant gave the Regulator the information or documents; or (b) in any other case—within 90 days after the application was made. (5) If the Regulator makes a decision under subregulation (1), that the facility is taken not to be a large LPG or LNG consuming facility, the decision is effective on the 1 July that the facility would have been a large LPG or LNG consuming facility in accordance with subregulation 3.19A(2). (6) The Regulator must notify the applicant, in writing, of the Regulator’s decision on the application. #### 3.19D Application to cease being large LPG or LNG consuming facility—diminishing emissions (1) An application to cease being a large LPG or LNG consuming facility must be: (a) in a form approved by the Regulator for this paragraph; and (b) made by a person who had a preliminary emissions number in relation to the LPG or LNG used in the operation of a large LPG or LNG consuming facility in the financial year before the application is made. (2) An application under subregulation (1) must be accompanied by the following information and documents: (a) the identifying information: (i) for the applicant; and (ii) for the facility; (b) information detailing either of the following amounts for each of the previous 3 financial years: (i) the total amount of covered emissions (in tonnes of CO2‑e) from the operation of the facility that were attributable to the combustion of LPG or LNG during each financial year; (ii) the amount of LPG or LNG combusted at the facility; (c) a statement confirming the amount of LPG or LNG supplied for use at the facility during each of the preceding 3 financial years; (d) the reason why the emissions from the facility attributable to the combustion of LPG or LNG are likely to be less than 25,000 tonnes of CO2‑e in the current financial year and the following financial year. #### 3.19E Decision on application made under regulation 3.19D (1) The Regulator may decide that a facility is taken to cease being a large LPG or LNG consuming facility if the Regulator is satisfied that: (a) the application was made by a person mentioned in paragraph 3.19D(1)(b); and (b) the application contains the information and documents required by subregulation 3.19D(2); and (c) the covered emissions from the operation of the facility attributable to the combustion of LPG or LNG: (i) had a CO2‑e of less than 25,000 tonnes in the previous financial year; and (ii) are likely to have a CO2‑e of less than 25,000 tonnes in the current financial year and the following financial year. (2) If the Regulator is not satisfied of the matters mentioned in paragraphs (1)(a), (b) and (c), the Regulator must refuse the application. (3) 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 or documents under regulation 3.19H in relation to the application—within 90 days after the applicant gave the Regulator the information; or (b) in any other case—within 90 days after the application was made. (4) If the Regulator makes a decision under subregulation (1), that the facility is taken to cease being a large LPG or LNG consuming facility, the decision is effective on 30 June in the financial year in which the application is made. (5) The Regulator must notify the applicant, in writing, of the Regulator’s decision on the application. #### 3.19F Conditions for voluntary quotation of OTN For paragraph 58AB(1)(c) of the Act, the conditions are: (a) the recipient is likely to use some or all of the amount of LPG or LNG: (i) as feedstock; or (ii) in such a way as to not emit any greenhouse gases; or (b) the recipient is a person to whom an amount of LPG or LNG is supplied by a gaseous fuel supplier: (i) during an eligible financial year that begins on or after 1 July 2013; and (ii) for use in the operation of a large LPG or LNG consuming facility mentioned in regulation 3.19A; or (c) the recipient is an approved recipient mentioned in regulation 3.19G for the financial year. #### 3.19G Approved recipient for voluntary quotation of OTN (1) A person may apply to the Regulator, to be an approved recipient to quote the recipient’s OTN in relation to a supply, in a form approved by the Regulator for this subregulation. > Note: For approved recipient, see subregulation (3). (2) An application under subregulation (1) must be accompanied by the following information and documents: (a) the identifying information: (i) for the applicant; and (ii) for the facility for which the application is made; (b) if the applicant is not the person with operational control of the facility: (i) the contact details of the person with operational control of the facility for which the application is made; and (ii) a statement describing the applicant’s relationship to that person; and (iii) a statement describing the applicant’s relationship to the facility; (c) the financial year to which the application relates; (d) a statement that: (i) the facility for which the application is made will be under the operational control of the applicant or the person with operational control of the facility in the financial year to which the application relates; and (ii) the total amount of covered emissions from the combustion of LPG or LNG attributable to the facility during the financial year is likely to have a CO2‑e of 25,000 tonnes or more; (e) if the applicant is currently supplied LPG or LNG for use at the facility—a statement to that effect; (f) if the applicant is not currently supplied LPG or LNG for use at the facility—a statement to that effect and the reason why the applicant expects to start being supplied LPG or LNG for use at a facility within 12 months commencing on the later of: (i) 1 July 2013; and (ii) the day on which the application is made; (g) documents that verify the information given to the Regulator under paragraph (e) or (f). (3) The Regulator may decide that the applicant is an approved recipient for the purposes of paragraph 3.19F(c), for a financial year specified in the application, if the Regulator is satisfied that: (a) the facility is likely to be under the operational control of the applicant or the person mentioned in subparagraph (2)(b)(i) in the financial year; and (b) the applicant is currently supplied LPG or LNG by one or more gaseous fuel suppliers or is likely to be supplied the LPG or LNG by one or more suppliers in the period mentioned in paragraph (2)(f); and (c) it is likely that the total amount of covered emissions from the operation of the facility of the applicant during the financial year attributable to the combustion of LPG or LNG will have a CO2‑e of 25,000 tonnes or more. (4) 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 or documents under regulation 3.19H in relation to the application—within 90 days after the applicant gave the Regulator the information or documents; or (b) in any other case—within 90 days after the application was made. (5) The Regulator must notify the applicant, in writing, of the Regulator’s decision on the application. #### 3.19H Request for further information (1) In considering an application under regulation 3.19C, 3.19E or 3.19G, the Regulator may, by written notice, require the applicant to give the Regulator, within the period specified in the notice, further information or documents in connection with the application. (2) If the applicant fails to provide the information or documents, the Regulator may, by written notice given to the applicant: (a) refuse to consider the application; or (b) refuse to take any action, or any further action, in relation to the application. #### 3.19J Conditions for acceptance of quotation of OTN in relation to supply of LPG or LNG For paragraphs 59(3A)(b) and 60(3A)(b) of the Act, the condition is that the OTN holder, by written notice given to the gaseous fuel supplier, declares that the quotation is a quotation under section 58AB for an amount of LPG or LNG the OTN holder will use: (a) as feedstock; or (b) in such a way as to not emit any greenhouse gases. ### Division 5—Designated joint ventures #### 3.20 Application for declaration (1) This regulation is made for subparagraphs 68(4)(c)(ii) and (iii) of the Act. (2) An application must be accompanied by the following: (a) the identifying information for: (i) each applicant; and (ii) the person who has operational control over the facility (the operator) of the facility; (b) the identifying information for the facility; (c) a statement that: (i) the joint venture has the facility; and (ii) the applicants are parties to an agreement that deals with the facility; and (iii) the operator operates the facility exclusively for the joint venture; and (iv) none of the applicants is an individual; and (v) the joint venture is not a mandatory designated joint venture; (d) a statement that the applicants have, and are likely to continue to have, the capacity, access to information and financial resources necessary for the applicants to comply with their obligations under the Act and the associated provisions if the declaration is made; (e) a statement as to whether any of the applicants has previously been subject to obligations under the Act or the associated provisions and, if so, whether the applicant: (i) has been convicted of an offence against the Act or the associated provisions; or (ii) has previously been liable, or is currently liable, to pay an amount of late payment penalty and, if so, the amount of the penalty and the financial year when the penalty became payable; (f) a statement that the joint venture is an unincorporated enterprise carried on by 2 or more persons in common otherwise than in partnership; (g) if the applicants want the declaration to start on a different day from the day when the declaration is made: (i) a statement by the applicants specifying the start day of the declaration; and (ii) the written consent of the operator for the declaration to start on that day. (3) Also, the application must be accompanied by: (a) documents that verify the information given to the Regulator under paragraphs (2)(c) to (f); or (b) with the consent of the Regulator—a statutory declaration that verifies that information. #### 3.21 Making of declaration (1) This regulation is made for paragraph 70(3)(d) of the Act. (2) The Regulator must not make a declaration of a designated joint venture if a liability transfer certificate exists in relation to the facility. #### 3.22 Application for participating percentage determination (1) This regulation is made for paragraph 74(3)(c) of the Act. (2) An application must be accompanied by the following: (a) the participating percentage that is proposed for each of the applicants, or the proposed way of calculating the participating percentage for each of the applicants; (b) a statement as to whether the joint venture is to operate using: (i) a share of goods basis; or (ii) a share of services basis; or (iii) another basis stated in the document; (c) if a share of goods basis, or share of services basis, is to be used: (i) how the goods or services are to be shared between the applicants; and (ii) if the goods or services are not of the same type (e.g. one applicant is to take oil and another applicant is to take gas)—the monetary value of the goods or services, and how the value is calculated; (d) if another basis is to be used—the way in which the economic benefits from the facility are to be shared among the applicants; (e) if the application relates to a mandatory designated joint venture: (i) the identifying information for each applicant; and (ii) the identifying information for the facility; and (iii) a statement that the joint venture has the facility; and (iv) a statement that the applicants are parties to an agreement that deals with the facility; and (v) a statement that the joint venture is an unincorporated enterprise carried on by 2 or more persons in common otherwise than in partnership; and (vi) a statement that 2 or more persons in the joint venture are able to satisfy paragraph 11(1)(a) of the NGER Act; and (vii) a statement that no particular person in the joint venture has the greatest authority to introduce and implement the policies mentioned in subparagraph 11(1)(a)(i) or (iii) of the NGER Act in relation to the facility; and (viii) a statement that no declaration under section 55 or 55A of the NGER Act applies in relation to the facility. (3) Also, the application must be accompanied by: (a) documents that verify the information given to the Regulator under subregulation (2); or (b) with the consent of the Regulator—a statutory declaration that verifies that information. (4) For paragraph (2)(a), the document may state a distribution that varies from time to time. (5) In this regulation: > share of goods basis means the basis that each applicant has a share of the goods extracted, produced or manufactured in relation to the operation of the facility. > share of services basis means the basis that each applicant has a share of access to services in relation to the operation of the facility. ### Division 6—Liability transfer certificates #### 3.23 Application for liability transfer certificate—transfer of liability to another member of a corporate group (1) This regulation is made for subparagraphs 81(4)(c)(iv) and (v) of the Act. (2) An application must be accompanied by the following: (a) the identifying information for: (i) the applicant; and (ii) the person who has operational control over the facility (the operator); and (iii) the controlling corporation of the corporate group; (b) the identifying information for the facility; (c) a statement confirming that: (i) the applicant is a company that is a member of the controlling corporation’s group of which the operator is a member; and (ii) the applicant is a company that is registered under Part 2A.2 of the Corporations Act 2001; and (d) a statement, signed by the operator, confirming that the facility is under the operational control of the operator; (e) a statement that the applicant has, and is likely to continue to have, the capacity, access to information and financial resources necessary for the applicant to comply with their obligations under the Act and the associated provisions if the liability transfer certificate is issued; (f) if the applicant wants the declaration to start on a different day from the day when the declaration is made: (i) a statement by the applicant specifying the start day of the certificate; and (ii) the written consent of the operator for the certificate to start on that day; (g) the written consent of the operator to the applicant making the application; (h) the written acknowledgement by the operator of the operator’s guarantee under section 138 of the Act. (3) Also, the application must be accompanied by: (a) documents that verify the information given to the Regulator under paragraphs (2)(c) to (e); or (b) with the consent of the Regulator—a statutory declaration that verifies that information. #### 3.24 Application for liability transfer certificate—transfer of liability to a person who has financial control of a facility (1) This regulation is made for subparagraphs 85(5)(c)(iv) and (v) of the Act. (2) An application must be accompanied by the following: (a) the identifying information for: (i) the applicant; and (ii) the person who has operational control over the facility (the operator); and (iii) if the operator is a member of a corporate group and is not the controlling corporation of the group—the controlling corporation of the corporate group; (iv) if the applicant is a member of a corporate group and is not the controlling corporation of the group—the controlling corporation of the corporate group; (b) the identifying information for the facility; (c) a statement that: (i) the facility is under the operational control of the operator; and (ii) the applicant has financial control over the facility, and which paragraph of subsection 92(1) of the Act describes the reason why the applicant has financial control; and (iii) the applicant is not an individual; and (iv) the applicant is not a foreign person; and (v) if the applicant is a member of a controlling corporation’s group—the operator is not a member of the group; (d) a statement that the applicant has, and is likely to continue to have, the capacity, access to information and financial resources necessary for the applicant to comply with their obligations under the Act and the associated provisions if the liability transfer certificate is issued; (e) if the applicant wants the declaration to start on a different day from the day when the declaration is made: (i) a statement by the applicant specifying the start day of the certificate; and (ii) the written consent for the certificate to start on that day from the persons mentioned in subparagraphs 88(2)(b)(iii), (iv) and (v) of the Act; (f) if applicable: (i) the written consent of the person required under subsection 85(3) of the Act to the applicant making the application; (ii) the written consent of the person required under subsection 85(4) of the Act to the applicant making the application; (iii) the written acknowledgement by the controlling corporation of the controlling corporation’s guarantee under section 138 of the Act. (3) Also, the application must be accompanied by: (a) documents that verify the information given to the Regulator under paragraphs (2)(c) to (d); or (b) with the consent of the Regulator—a statutory declaration that verifies that information. #### 3.25 Issue of liability transfer certificate (1) This regulation is made for paragraphs 83(3)(c) and 87(3)(c) of the Act. (2) The Regulator must not issue a liability transfer certificate if either of the following exists in relation to the facility: (a) a mandatory designated joint venture; (b) a declared designated joint venture. ### Division 7—Opt‑in Scheme #### Subdivision 7.1—Preliminary #### 3.29 Opt‑in Scheme (1) This is the Opt‑in Scheme for Division 7 of Part 3 of the Act. (2) The Scheme provides when a designated opt‑in person will be a liable entity in relation to the acquisition, manufacture or importation of specified taxable fuel. #### 3.30 Definitions For this Division: > designated opt‑in person is a person declared by the Regulator under regulation 3.37 as the person who is taken to be the designated opt‑in person in relation to an opt‑in amount. > eligibility test means the test specified in regulation 3.32. > enterprise has the same meaning as in the Fuel Tax Act 2006. > entity has the same meaning as in the Fuel Tax Act 2006. > Note: See also regulation 3.31 (when an entity is entitled to a fuel tax credit). > GST Act means the A New Tax System (Goods and Services Tax) Act 1999. > joint venture operator, of a GST joint venture, has the same meaning as in the Fuel Tax Act 2006. > opt‑in amount, in relation to a designated opt‑in person, means: (a) the amount of specified taxable fuel for a financial year declared by the Regulator in relation to the person under regulation 3.37; or (b) if a variation is in effect in relation to the person under regulation 3.42 for a particular financial year—the amount of specified taxable fuel mentioned in the variation for the financial year. > participant, in a GST joint venture, has the same meaning as in the Fuel Tax Act 2006. > provisional emissions number means the number specified in subregulation 3.43(2). > representative member, of a GST group, has the meaning given by section 195‑1 of the GST Act. > specified taxable fuel means taxable fuel of a kind specified for the Opt‑in Scheme under regulation 3.33. > threshold test means the test specified in regulation 3.34. #### 3.31 When an entity is entitled to a fuel tax credit For the purposes of this Division, in determining whether an entity is entitled to a fuel tax credit in respect of an acquisition, manufacture or import of an amount of taxable fuel, disregard section 41‑30 of the Fuel Tax Act 2006. #### 3.32 Eligibility test (1) A person passes the eligibility test in relation to an acquisition, manufacture or import of specified taxable fuel during a financial year if: (a) in a case where: (i) the designated opt‑in person was a member of a GST group at the start of the financial year; and (ii) if it were assumed that the fuel had been acquired, manufactured or imported at the start of the financial year—the entity that would have been entitled to a fuel tax credit in relation to that acquisition, manufacture or import would have consisted of the members of the GST group; the fuel was acquired, manufactured or imported by a person who was a member of the GST group as at the start of the financial year; or (b) in a case where: (i) the designated opt‑in person was a participant in a GST joint venture, or the joint venture operator of a GST joint venture, at the start of the financial year; and (ii) if it were assumed that the fuel had been acquired, manufactured or imported at the start of the financial year—the entity that would have been entitled to a fuel tax credit in relation to that acquisition, manufacture or import would have consisted of the participants in the GST joint venture or the joint venture operator of a GST joint venture; the fuel was acquired, manufactured or imported by a person who was a participant in the GST joint venture, or the joint venture operator of a GST joint venture, as at the start of the financial year; or (c) in any other case—the designated opt‑in person is the entity that was entitled to a fuel tax credit in relation to that acquisition, manufacture or import. (2) For the purposes of subparagraphs (1)(a)(ii) and (b)(ii), in determining the entity that would have been entitled to a fuel tax credit in relation to an acquisition, manufacture or import of specified taxable fuel, disregard: (a) so much of subsection 70‑5(2) of the Fuel Tax Act 2006 as does not consist of the table; and (b) column 2 of the table in that subsection. #### 3.33 Specified taxable fuel Taxable fuel specified for the Opt‑in Scheme is liquid petroleum fuel. #### 3.34 Threshold test (1) An applicant passes the threshold test if: (a) the requirements in subregulation (2) are met by: (i) if the applicant is applying to be a designated opt‑in person on behalf of a GST group—the GST group; or (ii) if the applicant is applying to be designated opt‑in person on behalf of a GST joint venture—the GST joint venture; or (iii) in any other case—the applicant; or (b) the applicant: (i) is a liable entity on the Information Database on 30 June of the financial year before an application is given to the Regulator; or (ii) is a liable entity on the Information Database on the day the application is given to the Regulator; or (iii) is likely to have operational control over a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect; or (iv) is likely to be a participant in a designated joint venture that has a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect; or (v) holds a liability transfer certificate for a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect. (2) For paragraph (1)(a), the requirements are: (a) the fuel user has used an amount of eligible threshold fuel that has the potential greenhouse gas emissions embodied in the fuel having a CO2‑e of 25,000 tonnes or more in either of the two previous financial years before the applicant requests the declaration under regulation 3.37 to have effect; or (b) the fuel user is likely to use an amount of eligible threshold fuel that has the potential greenhouse gas emissions embodied in the fuel having a CO2‑e of 25,000 tonnes or more in the financial year in which the applicant requests the declaration under regulation 3.37 to have effect. (3) In this regulation: > eligible threshold fuel means specified taxable fuel that: (a) if not covered by this Scheme, would be subject to a carbon reduction that is more than zero under section 43‑8 of the Fuel Tax Act 2006; or (b) is subject to a carbon component rate under section 6FA or 6FB of the Excise Tariff Act 1921. > Note: The reference to sections 6FA and 6FB of the Excise Tariff Act 1921 includes a reference to those sections as they have effect in relation to rates of duties of custom because of section 19A of the Customs Tariff Act 1995. > fuel user means the GST group, GST joint venture or applicant mentioned in subparagraph (1)(a)(i), (ii) or (iii). #### Subdivision 7.2—Application for designated opt‑in person #### 3.35 Who may apply to be designated opt‑in person A person may apply to the Regulator for a declaration to be taken to be a designated opt‑in person in relation to an amount of specified taxable fuel if: (a) the person: (i) is not an individual; and (ii) is not a foreign person; and (b) for an application in relation to fuel acquired, manufactured or imported by members of a GST group—the person is the representative member of the GST group; and (c) for an application in relation to fuel acquired, manufactured or imported by participants in a GST joint venture—the person is the joint venture operator of the GST joint venture; and (d) for an application in relation to fuel acquired, manufactured or imported by the person—the person is: (i) the entity that was entitled to a fuel tax credit in relation to the fuel; or (ii) a member of a GST group that is entitled to a fuel tax credit in relation to the fuel. #### 3.36 Application for designated opt‑in person (1) An application to be a designated opt‑in person must be: (a) in a form approved by the Regulator for this paragraph; and (b) for a financial year that begins on or after 1 July 2013; and (c) given to the Regulator on or before 31 March of the financial year before the financial year in which the declaration is to have effect. (2) The application must include the following information: (a) evidence that the applicant: (i) is not an individual; and (ii) is not a foreign person; (b) the identifying information for: (i) the applicant; and (ii) if the application is in relation to fuel acquired, manufactured or imported by members of a GST group or by participants in a GST joint venture—each member of the applicant’s GST group or participant in the applicant’s GST joint venture; and (iii) if the application is in relation to fuel acquired, manufactured or imported by the person—the entity that is entitled to a fuel tax credit in relation to that acquisition, manufacture or import; (c) evidence that the applicant is likely to pass the eligibility test in the financial year in which the applicant requests the declaration to have effect; (d) evidence that the applicant passes the threshold test; (e) the financial year from which the applicant requests the declaration is to have effect. (3) The application must also include consent in accordance with regulation 3.47, if the applicant is: (a) the representative member of a GST group; or (b) the joint venture operator of a GST joint venture; or (c) a person who acquires, manufactures or imports the fuel and is a member of a GST group that is entitled to a fuel tax credit in relation to that fuel. #### Subdivision 7.3—Declaration of designated opt‑in person #### 3.37 Declared person is designated opt‑in person (1) The Regulator must declare that a person is taken to be a designated opt‑in person in relation to the opt‑in amount mentioned in subregulation (2), with effect from the financial year after the declaration is made, if the Regulator is satisfied that: (a) the person is a person who may apply to be a designated opt‑in person under regulation 3.35; and (b) the application meets the requirements mentioned in regulation 3.36; and (c) if consent is required under subregulation 3.36(3)—the person has obtained that consent; and (ca) if the applicant provided consent in accordance with subparagraph 3.47(1)(a)(ii): (i) the application includes consent for each member of the GST group required by subparagraph 3.47(1)(a)(ii) to provide consent; and (ii) the members of the GST group mentioned in the application would be able to make any payment guaranteed under subregulation 3.47(3) if required to do so; and (d) the person passes the threshold test mentioned in subregulation 3.34(1); and (e) the person is likely to pass the eligibility test for the financial year the person has requested the declaration to have effect; and (f) the amount, or part of the amount, of specified taxable fuel to be declared to be the opt‑in amount for the person has not been declared to be an opt‑in amount for another person for that financial year. (2) The opt‑in amount for a designated opt‑in person is the amount set out in the table. | Item | If the person met the requirements mentioned in regulation 3.35 as ... | the opt‑in amount for each financial year is ... | | ---- | ---------------------------------------------------------------------- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | 1 | a representative member of a GST group | the amount of specified taxable fuel acquired, manufactured or imported during the financial year by each person that is a member of the representative member’s GST group at the start of the financial year that is:(a) for the use of any members who are in the GST group at any time during the financial year; and(b) for the purposes of the GST group or the enterprise of any of those members | | 2 | a joint venture operator of a GST joint venture | the amount of specified taxable fuel acquired, manufactured or imported during the financial year by the joint venture operator and each person that is a participant of the joint venture operator’s GST joint venture at the start of the financial year that is:(a) for the use of the participants in the GST joint venture; and(b) for the purposes of the GST joint venture | | 3 | a person who acquired, manufactured or imported the fuel | the amount of specified taxable fuel acquired, manufactured or imported during the financial year by the person that is:(a) for the use of the person; and(b) for the purposes of the person’s enterprise | (3) A declaration under subregulation (1) remains in effect until the Regulator decides the person is no longer a designated opt‑in person in accordance with regulation 3.45. (4) However, the opt‑in amount in relation to which a person is declared a designated opt‑in person may be varied under regulation 3.42 for a particular financial year. (5) If the Regulator makes a declaration under subregulation (1), within 14 days of making the declaration, the Regulator must give a copy of the declaration to: (a) the person who is declared to be a designated opt‑in person; and (b) the persons mentioned in subparagraphs 3.36(2)(b)(ii) and (iii); and (c) the Commissioner for Taxation; and (d) the Chief Executive Officer of Customs. #### 3.38 Applications not considered (1) If an applicant does not satisfy regulation 3.35, the Regulator must: (a) refuse to consider the application; or (b) refuse to take any action, or any further action, in relation to the application. (2) The Regulator must give written notice to the applicant within 14 days of making the decision that the applicant does not satisfy regulation 3.35. #### 3.39 Request for further information or documents (1) In considering an application under regulation 3.36 or 3.41, the Regulator may, by written notice to an applicant, require the applicant to give the Regulator further information or documents in connection with the application within 14 days after the day the notice is given. (2) If the applicant fails to provide the information or documents, the Regulator may make a decision on the basis of the information that is available to the Regulator. #### 3.40 Timeframes for declaration to be made The Regulator must take all reasonable steps to ensure that a decision is made on an application given to the Regulator under regulation 3.36: (a) if the Regulator requires the applicant to give further information or documents under regulation 3.39 in relation to the application—within 90 days after the applicant gave the Regulator the information; or (b) in any other case—within 90 days after the application was given to the Regulator. #### Subdivision 7.4—Variation to declaration of designated opt‑in person #### 3.41 Application to vary declaration in relation to opt‑in amount (1) A designated opt‑in person who is a representative member of a GST group may apply to the Regulator to have the opt‑in amount for the person varied in relation to an amount of fuel acquired, manufactured or imported by a member of the person’s GST group (the member). (2) An application for a variation must: (a) be given to the Regulator: (i) in a form approved by the Regulator for this subparagraph; and (ii) within 28 days of the member no longer satisfying the membership requirement mentioned in paragraph 48‑10(1)(b) of the GST Act; and (b) include the following information and documents for the member the application relates to: (i) identifying information for the member; (ii) evidence that the member no longer satisfies the membership requirement mentioned in paragraph 48‑10(1)(b) of the GST Act; (iii) the day on which the member ceased to satisfy the membership requirement. #### 3.42 Variation to declaration (1) The Regulator may vary the declaration in relation to a designated opt‑in person, by excluding an amount mentioned in subregulation (2) from the person’s opt‑in amount, if the Regulator is satisfied that: (a) the fuel of the member was included in the designated opt‑in person’s opt‑in amount for the financial year in which the application for the variation is given to the Regulator; and (b) the member no longer satisfies the membership requirement mentioned in paragraph 48‑10(1)(b) of the GST Act. (2) The amount a Regulator may exclude from an opt‑in amount is the amount of any specified taxable fuel acquired, manufactured or imported by the member of the GST group on and after the day mentioned in the variation. (3) If the Regulator decides to vary a declaration under subregulation (1), the opt‑in amount for the designated opt‑in person is varied from the day mentioned in the variation until the end of the financial year in which the application for variation is given to the Regulator. (4) The day mentioned in the variation may be a day before the variation is made by the Regulator. (5) Within 14 days of making a variation the Regulator must give a copy of the variation to: (a) the designated opt‑in person; and (b) the member; and (c) the Commissioner for Taxation; and (d) the Chief Executive Officer of Customs. #### Subdivision 7.5—Designated opt‑in person as liable entity #### 3.43 Liability for emissions (1) The designated opt‑in person’s preliminary emissions number, for the purposes of the Scheme, for a financial year is the potential greenhouse gas emissions embodied in the opt‑in amount (in CO2‑e tonnes) for the designated opt‑in person if all of the following conditions are met: (a) during an eligible financial year, a person acquires, manufactures or imports an amount of specified taxable fuel; (b) an entity is entitled to a fuel tax credit in relation to that acquisition, manufacture or import; (c) a person is declared to be a designated opt‑in person in relation to some or all of the amount of specified taxable fuel mentioned in paragraph (a); (d) the designated opt‑in person passes the eligibility test. (2) If a designated opt‑in person has one or more preliminary emissions numbers for an eligible financial year then, for the purposes of the Act: (a) the sum of those preliminary emissions numbers is a provisional emissions number of the designated opt‑in person for the eligible financial year; and (b) the designated opt‑in person is a liable entity for the eligible financial year. #### 3.44 Reduction of provisional emissions number (1) If a person: (a) is a designated opt‑in person; and (b) under the scheme, the person has a provisional emissions number for an eligible financial year; that provisional emissions number is to be reduced (but not below zero) by the number mentioned in subregulation (2). (2) The number is the potential greenhouse gas emissions, in CO2‑e tonnes, embodied in the amount of specified taxable fuel: (a) that is covered by a carbon reduction of zero under paragraph 43‑8(4)(b), (c) or (d) of the Fuel Tax Act 2006; or (b) for which a carbon component rate under section 6FA or 6FB of the Excise Tariff Act 1921 does not apply. > Note: The reference to sections 6FA and 6FB of the Excise Tariff Act 1921 includes a reference to those sections as they have effect in relation to rates of duties of custom because of section 19A of the Customs Tariff Act 1995. #### 3.45 Opting out of Scheme (1) The Regulator may decide that a person is no longer a designated opt‑in person if: (a) the person notifies the Regulator that the person wants to opt‑out of the Scheme, in a form approved by the Regulator for this paragraph, on or before the 31 May preceding the financial year the person requests the decision to have effect; or (b) the person does not lodge a report in accordance with regulation 3.48; or (c) the Regulator is not satisfied for the financial year the decision is to have effect that: (i) the person meets the requirements of regulation 3.35; or (ii) the person passes the eligibility test; or (iii) if the person passed the threshold test under paragraph 3.34(1)(a)—the person, the person’s GST group or the person’s GST joint venture are likely to use an amount of specified taxable fuel with the potential greenhouse gas emissions embodied in the fuel having a CO2‑e of 25,000 tonnes or more; or (iv) if the person passed the threshold test under subparagraph 3.34(1)(b)(i), (ii), (iv) or (v)—the person is likely to be a liable entity on the Information Database other than as a designated opt‑in person; or (v) if the person passed the threshold test under subparagraph 3.34(1)(b)(iii)—the person is likely to have operational control over a facility that is likely to meet one of the threshold tests mentioned in Division 2 of Part 3 of the Act; or (d) an amount of unit shortfall charge the designated opt‑in person is liable for remains unpaid for more than 30 days after it becomes due for payment; or (e) the designated opt‑in person has become an externally‑administered body corporate within the meaning of the Corporations Act 2001; or (f) the designated opt‑in person has not provided the consent required in accordance with subregulation 3.47(2) or (2A); or (g) if, under subparagraph 3.47(1)(a)(ii), consent was provided by a member of a GST group with more than 20 members—any member who provided consent has become an externally‑administered body corporate within the meaning of the Corporations Act 2001. (2) If the Regulator makes a decision under paragraph (1)(a), the decision: (a) must be made on or before the 30 June of the financial year before the decision is to have effect; and (b) is taken to have effect from 1 July of the following financial year. (3) If the Regulator makes a decision under paragraph (1)(b), (c), (d), (e) or (f) the decision has effect from the day specified in the notice of the decision. (4) Within 14 days of making a decision, the Regulator must give a copy of the decision to: (a) the person that is no longer a designated opt‑in person; and (b) the persons mentioned in subparagraphs 3.36(2)(b)(ii) and (iii); and (c) the Commissioner for Taxation; and (d) the Chief Executive Officer of Customs. #### 3.46 Request for further information or documents for decision to opt‑out of Scheme (1) Before making a decision under paragraph 3.45(1)(c), the Regulator may, by written notice to an applicant, require a designated opt‑in person to give the Regulator further information or documents, in relation to the matters mentioned in the paragraph, within 14 days after the day the notice is given. (2) If the designated opt‑in person fails to provide the information or documents within 14 days after the day the notice is given, the Regulator may make a decision under subregulation 3.45 (1) that the person is no longer a designated opt‑in person. #### 3.47 Consent to be liable entity (1) The following persons must provide consent for an applicant to be a designated opt‑in person, in a form approved by the Regulator for this regulation: (a) if the applicant is the representative member of a GST group—either: (i) each member of the GST group of which the applicant is a member; or (ii) if the applicant is a representative member of a GST group with more than 20 members—each member of the GST group that acquires, manufactures or imports fuel that will be included in the designated opt‑in person’s opt‑in amount; (b) if the applicant is the joint venture operator of a GST joint venture—each participant of the GST joint venture of which the applicant is an operator; (c) if the applicant is a member of a GST group that is entitled to a fuel tax credit—the representative member of the GST group. (2) If: (a) a declaration has been made under regulation 3.37; and (b) during a financial year: (i) for a designated opt‑in person who provided consent in accordance with paragraph (1)(a) or (b)—a member or participant joins the person’s GST group or GST joint venture; and (ii) for a designated opt‑in person who provided consent in accordance with paragraph (1)(c)—the representative member of the person’s GST group changes; and (c) the member, participant or representative member (the consenter) has not provided consent for the person to be the designated opt‑in person for the GST group or GST joint venture; the designated opt‑in person must, in the form approved by the Regulator, provide the consent of the consenter to the Regulator before the end of the financial year in which the consenter joined the designated opt‑in person’s GST group or GST joint venture. (2A) If: (a) a declaration has been made under regulation 3.37 for a representative member of a GST group that has more than 20 members; and (b) during a financial year a member of the GST group at the time of the declaration begins to acquire, manufacture or import fuel that will be included in the person’s opt‑in amount; and (c) the member has not provided consent for the representative member to be the designated opt‑in person for the GST group; the designated opt‑in person must, in the form approved by the Regulator, provide the consent of the member to the Regulator within 28 days of becoming aware that the member’s fuel will be included in the person’s opt‑in amount. (3) The consenter who provides consent for the designated opt‑in person to be the designated opt‑in person for the GST group, GST joint venture or GST group member is taken to have guaranteed the payment the designated opt‑in person may become liable for in relation to: (a) an amount of unit shortfall charge calculated from a designated opt‑in person’s provisional emissions number; and (b) an amount payable under section 135 of the Act because of the late payment of an amount covered by paragraph (a). (3A) The guarantee mentioned in subregulation (3) is taken to apply: (a) if the applicant provided consent in accordance with paragraph 3.47(1)(c)—for any financial year the consenter is the representative member of the designated opt‑in person’s GST group; and (b) in any other case—for any financial year the consenter’s fuel is included in the designated opt‑in person’s opt‑in amount. (4) If the designated opt‑in person does not pay the amounts mentioned in paragraph (3)(a) or (b), each consenter who is taken to have guaranteed the payment is jointly and severally liable to pay the amounts. (5) To avoid doubt, the provision of consent by particular members of a GST group under subparagraph (1)(a)(ii) does not affect the application of any other provision in this Division to any other member of the GST group who has not provided consent. #### Subdivision 7.6—Notification, reporting and record keeping requirements #### 3.48 Reporting requirement (1) A designated opt‑in person must give a report to the Regulator for each financial year after the person is declared to be a designated opt‑in person by 14 July of each year in a form approved by the Regulator for this subregulation. (2) The report must provide the following information in relation to the current financial year for which the designated opt‑in person is a liable entity: (a) evidence that the person: (i) meets the requirements of regulation 3.35; and (ii) passes the eligibility test for the financial year; (b) the name of the entity that is entitled to a fuel tax credit in relation to the person’s opt‑in amount for the financial year; (c) if the designated opt‑in person applied as a representative member or joint venture operator—the identifying information for the members of the GST group or the participants in the GST joint venture, at the start of the financial year for which the designated opt‑in person is liable. (3) However, a report is not required to be provided to the Regulator for the first financial year the person is declared to be a designated opt‑in person. #### 3.49 Record keeping requirement A designated opt‑in person must keep records of any information or documents that are provided to the Regulator for the purposes of this Scheme for 5 years after the record is given to the Regulator. #### 3.50 Notification of changes requirement A designated opt‑in person must notify the Regulator within 14 days of the person becoming aware that: (a) if the person applied in relation to fuel acquired, manufactured or imported by the person: (i) the entity that is entitled to a fuel tax credit in relation to the opt‑in amount for the person has changed; or (ii) if the person is a member of a GST group—the representative member of the person’s GST group has changed; and (b) if the person applied as a representative member of a GST group or joint venture operator of a GST joint venture—the person is no longer a representative member of the GST group or the GST joint venture operator; and (c) the person becomes an externally‑administered body corporate within the meaning of the Corporations Act 2001; and (d) the identifying information for the designated opt‑in person that was given to the Regulator has changed; and (e) if the person applied as a representative member of a GST group with more than 20 members—a member that provided consent for the designated opt‑in person: (i) no longer acquires, manufactures or imports fuel included in the designated opt‑in person’s opt‑in amount; or (ii) has changed the member’s identifying information; or (iii) has become an externally‑administered body corporate within the meaning of the Corporations Act 2001; or (iv) no longer satisfies the membership requirement mentioned in paragraph 48‑10(1)(b) of the GST Act; and (f) if the person applied as a representative member of a GST group with more than 20 members—a member of the person’s GST group: (i) who was a member of the person’s GST group at the time of declaration under regulation 3.37; and (ii) who has not provided consent for the person to be the designated opt‑in person for the GST group; begins to acquire, manufacture or import fuel that will be included in the person’s opt‑in amount. ## Part 4—Carbon units ### Division 3—Property in, and transfer of, carbon units #### 4.5 Transmission of carbon units by operation of law etc. (1) This regulation is made for paragraph 106(3)(b) and subsection 106(4) of the Act. (2) A declaration of transmission of carbon units must: (a) be made in writing; and (b) be signed by the transferee; and (c) state the identification numbers of the carbon units; and (d) state a brief description of the circumstances that resulted in the transmission; and (e) state the names and addresses of the transferor and transferee; and (f) state the account number of the transferor’s Registry account; and (g) if the transferee has a Registry account—state the account number of the transferee’s Registry account. > Note: If the transferee does not already have a Registry account, see subsection 106(5) of the Act about the request to open a Registry account that must accompany the declaration. (3) The declaration must also be accompanied by a certified copy of a document that shows that the title of the carbon unit has been transferred to the transferee (e.g. a certified copy of a court order), as evidence of the transmission. (4) For subregulation (3), a certified copy of a document is a copy of a document that has been certified as a true copy by: (a) a person mentioned in Schedule 2 to the Statutory Declarations Regulations 1993; or (b) an Australian embassy, Australian high commission or Australian consulate (other than a consulate headed by an honorary consul); or (c) a competent authority under the Convention Abolishing the Requirement of Legalisation for Foreign Public Documents, done at The Hague on 5 October 1961. > Note 1: Information about competent authorities under this convention can be found on the Hague Conference on Private International Law’s website at www.hcch.net. > Note 2: The text of this convention is set out in Australian Treaty Series 1995 No. 11 (\[1995\] ATS 11). ### Division 5—Special provisions relating to free carbon units #### 4.10 Buy‑back of certain free carbon units—specified factor (1) If a request mentioned in subsection 116(2) of the Act is received by the Regulator during a period set out in an item of the table in subregulation (3), this provision applies to the buy‑back of free carbon units in a vintage year for the item. (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. (3) For subregulation (1), the table is the following. | Item | Period | Vintage year of carbon unit starting on: | | ---- | -------------------------------- | ---------------------------------------- | | 1 | 1 September 2012 to 14 June 2013 | 1 July 2012 | | 2 | 1 September 2013 to 14 June 2014 | 1 July 2013 | | 3 | 1 September 2014 to 14 June 2015 | 1 July 2014 | (4) 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 | #### 4.11 Buy‑back of certain free carbon units—day for cancellation and entry removal For paragraph 116(3)(a) of the Act, the day for cancelling a unit and removing the entry from the person’s Registry account is the earlier of: (a) the day on which the Regulator is satisfied that the request is made in accordance with subsection 116(2) of the Act and is one to which subsection 116(1) of the Act applies; and (b) the day that is 5 working days after the day the Regulator receives the request. ## Part 6—Surrender of eligible emissions units #### 6.1A How eligible international emissions units are surrendered (1) For paragraph 122(11)(a) of the Act, if an Australian‑issued international unit is surrendered, the Regulator must: (a) transfer the unit to the Australian‑issued international units—surrendered units account and then cancel the unit; and (b) as soon as practicable after the surrender, tell the European Union Transaction Log that the unit has been surrendered; and (c) within 6 months after the day for surrender of the unit, arrange for a European allowance unit in the Commonwealth foreign registry account in the Union Registry to be transferred to the Union allowance deletion account. (2) In this regulation: > Commonwealth foreign registry account has the same meaning as in the ANREU Act. > day for surrender of the unit is the last day on which the unit may be surrendered to avoid liability for unit shortfall charge in the financial year in relation to which the unit is surrendered. > European Union Transaction Log has the same meaning as in the ANREU Regulations. > Union allowance deletion account has the same meaning as in the ANREU Regulations. > Union Registry has the same meaning as in the ANREU Regulations. #### 6.1 Surrender restrictions (1) This regulation: (a) is made for subsection 123(1) of the Act; and (b) applies to the following eligible international emissions units: (i) a certified emission reduction (other than a temporary certified emission reduction or a long‑term certified emission reduction); (ii) an emission reduction unit. > Note: These eligible international emissions units are defined in the ANREU Act. (2) The surrender of either of those eligible international emissions units is prohibited if the emissions unit is attributable to: (a) the destruction of: (i) trifluoromethane (also known as HFC 23); or (ii) nitrous oxide that is created as a result of producing adipic acid; or (b) a project that includes the production of: (i) nuclear energy; or (ii) hydropower that has a generating capacity of more than 20 MW unless an independent validating entity, using the EU compliance report, has assessed that the project respects the international criteria. (3) In this regulation: > Common understanding means the document titled ‘Guidelines on a common understanding of Article 11b(6) of Directive 2003/87/EC as amended by Directive 2004/101/EC’, published by the European Commission. > Note: At the commencement of this regulation the Guidelines are available at http://ec.europa.eu/clima/policies/ets/linking/ji‑cdm/docs/ > art11b6\_guide\_en.pdf. > EU compliance report means the report in: (a) Annex 1 to the Common understanding; or (b) ‘Australia’s National Guidelines and Procedures for Approving Participation in Clean Development Mechanism Projects’, published by the Australian National Authority for the CDM and JI; or (c) ‘Australia’s National Guidelines and Procedures for Approving Participation in Joint Implementation Projects’, published by the Australian National Authority for the CDM and JI. > Note: At the commencement of this regulation: (a) the report mentioned in paragraph (a) is available at http://ec.europa.eu/clima/policies/ets/linking/ji‑cdm/docs/ art11b6\_comp\_temp\_en.pdf; and (b) the reports mentioned in paragraphs (b) and (c) are available at www.climatechange.gov.au. > independent validating entity means an entity that is accredited as: (a) a designated operational entity by the Clean Development Mechanism Executive Board established under the Climate Change Convention; or (b) an accredited independent entity by the Joint Implementation Supervisory Committee. > international criteria means the criteria set out in Annex 1 to the Common understanding. > Joint Implementation Supervisory Committee means the committee established by Article 3 of Decision 9/CMP.1 of the Conference of the Parties serving as the meeting of the Parties to the Kyoto Protocol. ## 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. ## Part 8—Coal‑fired electricity generation ### Division 1—Introduction #### 8.1 Definitions for Part 8 In this Part: > appropriate energy market means: (a) the National Electricity Market within the meaning of the National Electricity Law; or (b) the Wholesale Electricity Market provided for by Part 9 of the Electricity Industry Act 2004 (WA). > emissions intensity has the meaning given by section 168 of the Act. > historical energy has the meaning given by section 167 of the Act. > National Electricity Law means the National Electricity Law set out in the Schedule to the National Electricity (South Australia) Act 1996 (SA). > registered auditor means: (a) a company that is an authorised audit company under section 1299C of the Corporations Act 2001; or (b) a person who is a registered auditor under section 1280 of the Corporations Act 2011; or (c) a registered greenhouse and energy auditor, within the meaning of the National Greenhouse and Energy Reporting Act 2007, who is registered in Category 2 or 3 under the National Greenhouse and Energy Reporting Regulations 2008. ### Division 2—Certificate of eligibility for coal‑fired generation assistance #### Subdivision 2.1—Information that must accompany application for certificate of eligibility for coal‑fired generation assistance #### 8.2 Information to accompany applications This subdivision is made for paragraph 163(1)(c) of the Act. #### 8.3 Information for all applications (1) This regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation complex. > Note 1: The application is made under section 162 of the Act. > Note 2: Other information specified in this Subdivision may also be required for specific applications. (2) The information is: (a) the applicant’s name, address and contact details; and (b) the applicant’s ABN or ACN; and (c) information showing that the applicant owns, controls or operates the generation complex; and (d) information relating to the registration of the generation complex in the appropriate energy market; and (e) the name and specifications of each generation unit that makes up the generation complex; and (f) the location of the generation complex; and (g) information showing whether the generation complex passes the generation complex assistance eligibility test set out in subsection 166(2) of the Act; and (h) the factor that the applicant believes should be specified under section 167 of the Act as the annual assistance factor in respect of the generation complex; and (i) the number that the applicant believes is the historical energy of the generation complex, and the basis on which the applicant has worked out the number, including an explanation of the method of measurement that was applied for the purpose of working out the number; and (j) if the number provided under paragraph (i) is different to the number for the electricity production (within the meaning in subregulation (6)) for the facility which corresponds to the generation complex—an explanation for the difference in the numbers; and (k) the number that the applicant believes is the emissions intensity of the generation complex, and the basis on which the applicant has worked out the number, including: (i) an explanation of any calculations relevant to the number; and (ii) an explanation of the method of measurement that was applied for the purpose of working out the number; and (iii) the assumptions that were made for the purpose of working out the number; and (iv) the reasons for the choice of the methods and assumptions; and (l) if the number provided under paragraph (k) is different to the NGER emissions intensity number worked out in accordance with subregulation (4) for the facility that corresponds to the generation complex—an explanation for the difference in the numbers; and (m) a statement identifying any other information or document that: (i) is, or was, in the possession, or under the control, of the applicant or another person (for example, a coal supplier or an appropriate energy market operator); and (ii) is of significant relevance in verifying, or in helping to verify, the historical energy and emissions intensity of the generation complex. (3) Paragraphs (2)(j) and (l) do not apply if: (a) the explanation for the difference in the numbers is that the numbers were worked out using different units of measurement; and (b) the numbers would be the same if the same unit of measurement was used for both numbers. (4) For paragraph (2)(l), the NGER emissions intensity number for a facility is:  where: > emissions number is worked out in accordance with subregulation (5). > electricity production has the meaning given in subregulation (6). (5) For subregulation (4), the emissions number for a facility is worked out as follows. | Step 1 | Work out the emissions (Eij), in CO2‑e tonnes, of each greenhouse gas (j) released by the operation of the facility during the relevant period from the combustion of each fuel (i) consumed by the facility for the purpose of producing electricity, as follows: | | ------ | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | | | where: | | | Qi is the quantity of the fuel (i) consumed by the facility for the purpose of producing electricity as reported for the facility under subparagraph 4.22 (1)(a)(i) of the NGER regulations for the relevant period. | | | ECi is the energy content factor of the fuel (i) as reported for the facility under paragraph 4.07 (2)(a) or 3 (b) of the NGER regulations for the relevant period. | | | EFij is the emissions factor determined as follows:(a) if Method 2, 3 or 4 was used for reporting the fuel (i) and gas (j) in relation to the facility under the NGER Act for the relevant period—the factor reported for the facility under paragraph 4.07 (3)(a) of the NGER regulations for the relevant period; | | | (b) in any other case—the factor specified in Schedule 1 to the National Greenhouse and Energy Reporting (Measurement) Determination 2008 for the relevant period. | | Step 2 | Add together the Eij amounts worked out for the facility under step 1. | (6) In this regulation: > electricity production for a facility means the sum of the amounts of electricity produced as reported for the facility under paragraphs 4.20(2)(a), (b) and (c) of the NGER Regulations for the relevant period. > relevant period means the period from 1 July 2008 to 30 June 2010. #### 8.4 Additional information—registered generation complex (1) In addition to regulation 8.3, this regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation complex. > Note 1: The application is made under section 162 of the Act. > Note 2: Other information specified in this Subdivision may also be required for specific applications. (2) The information is the name, and nameplate rating, of the generation complex as published by the appropriate energy market operator as at 1 July 2010. #### 8.5 Additional information—National Greenhouse and Energy Reporting Scheme (1) In addition to regulation 8.3, this regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation complex if: (a) the applicant has provided information (previous information) about the generation complex to the Commonwealth for the purposes of estimating emissions from the generation complex under the National Greenhouse and Energy Reporting Act 2007; and (b) the information relates to the emissions of the generation complex in the period starting on 1 July 2008 and ending on 30 June 2010; and (c) the information is in the applicant’s possession, or under the applicant’s control. > Note 1: The application is made under section 162 of the Act. > Note 2: Other information specified in this Subdivision may also be required for specific applications. (2) The information is: (a) the previous information; and (b) an explanation of how the previous information relates to the emissions intensity of the generation complex. (3) However, information mentioned in subregulation (2) does not need to be provided under this regulation if the information is contained in a document provided under regulation 8.9. #### 8.6 Additional information—result of audit report (1) In addition to regulation 8.3, this regulation sets out information that must accompany an application for the Regulator to issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation complex if the report of an audit of the application conducted by a registered auditor includes: (a) a qualified reasonable assurance conclusion, in the terms of paragraph 3.17(1)(b) of the National Greenhouse and Energy Reporting (Audit) Determination 2009; or (b) an adverse conclusion, in the terms of paragraph 3.17(1)(c) of that Determination; or (c) a conclusion that the registered auditor is unable to form an opinion about the matter being audited, in the terms of paragraph 3.17(1)(d) of that Determination. > Note: The report must accompany the application: see regulation 8.10. (2) The information is the applicant’s comments on the registered auditor’s conclusion. #### Subdivision 2.2—Documents that must accompany application for certificate of eligibility for coal‑fired generation assistance #### 8.7 Documents that must accompany applications This subdivision is made for paragraph 163(1)(d) of the Act. #### 8.8 Documents for all applications (1) This regulation sets out the documents that must accompany an application for the Regulator to issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation complex. > Note 1: The application is made under section 162 of the Act. > Note 2: Other documents specified in this Subdivision may also be required for specific applications. (2) The documents are: (a) a map showing: (i) the location of the generation complex (including the location or position of each generation unit that makes up the generation complex); and (ii) how the generation complex was connected to a grid as described in paragraph 166(2)(a)(iv) of the Act; and (b) any other document that is in the applicant’s possession, or under the applicant’s control, that has been used in the application to calculate: (i) the historical energy of the generation complex; or (ii) the emissions intensity of the generation complex. #### 8.9 Additional documents—National Greenhouse and Energy Reporting Scheme (1) In addition to regulation 8.8, this regulation identifies a document that must accompany an application for the Regulator to issue a certificate of eligibility for coal‑fired generation assistance in respect of a generation complex if: (a) the applicant has provided a document about the generation complex to the Commonwealth for the purposes of estimating emissions from the generation complex under the National Greenhouse and Energy Reporting Act 2007; and (b) the document relates to the emissions of the generation complex in the period starting on 1 July 2008 and ending on 30 June 2010; and (c) the document, or a copy of the document, is in the applicant’s possession or under the applicant’s control. > Note 1: The application is made under section 162 of the Act. > Note 2: Other documents specified in this Subdivision may also be required for specific applications. (2) The document or copy must accompany the application. (3) The document or copy must be accompanied by an explanation of how the document relates to the emissions intensity of the generation complex. #### Subdivision 2.3—Reports that must accompany application for certificate of eligibility for coal‑fired generation assistance #### 8.10 Audit report for all applications (1) For paragraph 163(1)(e) of the Act, a prescribed report is a report by an independent registered auditor of an audit of an application setting out the auditor’s opinion as to whether: (a) the application properly presents, in all material respects, the historical energy of the generation complex; and (b) the application properly presents, in all material respects, the emissions intensity of the generation complex; and (c) the application discloses, in all material respects, the basis on which the historical energy and emissions intensity have been estimated; and (d) the generation complex passes the generation complex assistance eligibility test set out in subsection 166(2) of the Act. (2) For subregulation (1): > audit means an audit conducted in accordance with the relevant requirements for reasonable assurance engagements under the National Greenhouse and Energy Reporting (Audit) Determination 2009. > independent registered auditor means a registered auditor who is independent of the applicant or applicants to the extent that a conflict of interest situation (within the meaning of the National Greenhouse and Energy Reporting Regulations 2008) does not arise in relation to the auditing of the application. (3) For the definition of audit, 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. ## Part 14—Record‑keeping requirements #### 14.1 Record keeping—applications (1) For subsection 227(1) of the Act, this regulation applies if a person: (a) makes an application to the Regulator under any of the following provisions of the Act: (i) subsection 38(1) (obligation transfer number); (ii) subsection 56(2) (approved person); (iii) subsection 68(2) (declaration of a joint venture); (iv) subsection 74(2) (participating percentage determination); (v) subsection 81(2) (liability transfer certificate—corporate group); (vi) subsection 85(2) (liability transfer certificate—financial control); (vii) section 92A (Opt‑in Scheme); or (b) in connection with the application, gives further information to the Regulator under subregulation 3.17(1) or subsection 39(1), 69(1), 75(1), 82(1), or 86(1) of the Act. (2) When the person makes the application, or gives the further information, the person must make a record of every source document. > Note: Example: A scanned copy of the source document. (3) For subregulation (2), a source document is: (a) a document that verifies the information given to the Regulator in, or in connection with, the application; and (b) the original of a document that is copied and given to the Regulator with, or in connection with, the application. (4) The person must keep each record for 5 years after the application is made, or the further information is given. > Note: See section 227 of the Act for the penalty that applies to a person who contravenes this regulation. #### 14.1A Record keeping—notice of intention to quote OTN (1) This regulation applies if a person gives written notice of an intention to quote the person’s OTN to a gaseous fuel supplier in accordance with paragraph 55B(2)(a), 57(2)(a), 58(2)(a), 58AA(2)(a) or 58AB(2)(a) of the Act. (2) When the written notice is given, each of the persons mentioned in subregulation (1) must make a record of the following: (a) the notice; (b) the day on which the notice is given; (c) the number of days between the day on which the notice is given and the day on which the OTN is to be first quoted. > Note: Example: For paragraph (a), a scanned copy of the notice. (3) Each of the persons must keep the record for 5 years after the record is made. > Note: See section 227 of the Act for the penalty that applies to a person who contravenes this regulation. #### 14.2 Record keeping—withdrawal of quotation of OTN (1) This regulation applies if a person withdraws the quotation of an OTN that was made to another person, in relation to a supply of natural gas, by giving the other person a written notice under subsection 51(1) or (2) or 52(1) or (2) of the Act. (2) When the written notice is given, each of the persons mentioned in subregulation (1) must make a record of the following: (a) the day on which the notice is given; (b) the reason for withdrawing the quotation; (c) if the notice is given under subsection 52(1) or (2) of the Act—the terms of the agreement to withdraw the quotation; (d) the amount of natural gas supplied in relation to the quotation of the OTN before the notice is given. > Note: Example: For paragraph (c), a scanned copy of the written agreement. (3) Each of the persons must keep the record for 5 years after the record is made. > Note: See section 227 of the Act for the penalty that applies to a person who contravenes this regulation. #### 14.3 Record keeping—acceptance of quotation of OTN (1) This regulation applies if a person accepts another person’s quotation of an OTN, in relation to a supply of natural gas, LPG or LNG, by giving the other person a written notice under section 59 or 60 of the Act. (2) When the written notice is given, each of the persons mentioned in subregulation (1) must make a record of the following: (a) the notice; (b) the day on which the notice is given. > Note: Example: For paragraph (a), a scanned copy of the notice. (3) When natural gas, LPG or LNG, is supplied in relation to the quotation of the OTN, each of the persons must make a record of the following: (a) the day on which the natural gas, LPG or LNG, is supplied; (b) the amount of natural gas, LPG or LNG, supplied. (4) Each of the persons must keep each record for 5 years after the record is made. > Note: See section 227 of the Act for the penalty that applies to a person who contravenes this regulation. #### 14.4 Record keeping—statutory declaration for exempt supply (1) This regulation applies if a person provides another person a statutory declaration in accordance with subparagraph 3.5F(c)(ii). (2) The importer or producer of the LPG and the recipient of the LPG must retain a copy of the statutory declaration for 5 years after the making of the declaration. ## Part 21—Review of decisions #### 21.1A Reviewable decisions—Opt‑in Scheme For item 14 of the table in section 281 of the Act, the decisions of the Regulator under the Opt‑in Scheme in Division 7 of Part 3, set out in the following table, are prescribed. | Item | Decision under the Opt‑in Scheme | | ---- | ----------------------------------------------------------------------------------------------------------------------- | | 1 | A decision under regulation 3.37 not to declare that a person is a designated opt‑in person | | 2 | A decision under regulation 3.38 to refuse to consider an application | | 3 | A decision under regulation 3.42 to refuse to vary a declaration under regulation 3.37 in relation to the opt‑in amount | | 4 | A decision under regulation 3.45 that a person is no longer a designated opt‑in person | #### 21.1B Reviewable decisions—auctioning of carbon units For item 17 of the table in section 281 of the Act, a decision of the Regulator under a subsection 113(1) determination to disqualify a person from participating in an auction of carbon units is prescribed. #### 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 | | 7A | A decision under clause 915 of the program to determine a final LNG emissions number for a LNG project | | 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 | ## Part 23—Miscellaneous #### 23.1 Set‑off For subparagraphs 137(1)(b)(ii) and 215(b)(ii) of the Act, the following amounts are specified: (a) an amount payable under section 116 of the Act (buy‑back amount for free carbon units); (b) an amount payable under section 140 of the Act (refund of overpayments of unit shortfall charge or late payment penalty); (c) an amount payable under section 216 of the Act (refund of overpayments of relinquishment penalty or late payment penalty); (d) an amount payable under subsection 268(4) of the Act (refund of penalty if infringement notice withdrawn).