Subdivision Subdivision C - Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019 - Evaluations of introductions of industrial chemicals other than introductions that are authorised by an assessment certificate | Zoe
Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019
Subdivision CEvaluations of introductions of industrial chemicals other than introductions that are authorised by an assessment certificate
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This instrument is the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019.
3 Authority
This instrument is made under the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Act 2019.
4 Definitions
In this instrument:
assessment report means a written report prepared by the Executive Director under section 11 or 62 (including such a report as varied under either of those sections) that relates to an assessment of an industrial chemical and includes the following information:
(a) the chemical name for the industrial chemical;
(b) the end use for the industrial chemical;
(c) a summary of any human health and environment matters relating to the introduction and use of the industrial chemical that were considered in the course of conducting the assessment;
(d) the means for managing any risks identified in the course of conducting the assessment, including any recommendations relating to the introduction or use of the industrial chemical;
(e) any conditions relating to the introduction or use of the industrial chemical;
(f) any specific requirements to provide information to the Executive Director in relation to the introduction;
(g) any other information relating to the safe introduction and use of the industrial chemical that the Executive Director considers relevant.
chemical name, for a chemical, has the same meaning as in the old law.
evaluation report means a written report prepared by the Executive Director under section 66 (including such a report as varied under that section) that relates to an assessment of an industrial chemical and includes the following information (other than any protected information):
(a) either:
(i) the chemical name for the industrial chemical; or
(ii) if the chemical name is protected information—the name by which the chemical is known to the public;
(b) the end use for the industrial chemical;
(c) a summary of any human health and environment matters relating to the introduction and use of the industrial chemical that were considered in the course of conducting the assessment;
(d) the means for managing any risks identified in the course of conducting the assessment, including any recommendations relating to the introduction or use of the industrial chemical;
(e) any specific requirements to provide information to the Executive Director in relation to the introduction;
(f) any other information relating to the safe introduction and use of the industrial chemical that the Executive Director considers relevant.
old regulations means the Industrial Chemicals (Notification and Assessment) Regulations 1990, as in force immediately before 1 July 2020.
public report means a written report prepared by the Executive Director under section 11 or 62 (including such a report as varied under either of those sections) that:
(a) relates to an assessment report for an industrial chemical; and
(b) includes the contents of the assessment report for the industrial chemical (other than any protected information).
Note: Information that was treated as exempt information under the old law is taken to be protected information under the new law: see item 38 of Schedule 2 to the transitional Act.
transitional Act means the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Act 2019.
Part 2—Assessment certificates under new law
Division 1—Pending applications for assessment certificates
5 Application of Division
For the purposes of subitem 13(2) of Schedule 2 to the transitional Act, this Division prescribes modifications of the new law in relation to:
(a) a pending application for an assessment certificate for an industrial chemical that is made under the old law; and
(b) an assessment certificate for an industrial chemical that is issued under the new law following such an application.
6 Pending applications for variation of requirements of section 23 of old law
If:
(a) an application is made for waiver or substitution of a requirement to include a matter in a notification statement about an industrial chemical under section 24 of the old law (the variation application); and
(b) the variation application is made at the same time as an application for an assessment certificate for the industrial chemical under section 23 of the old law (the certificate application); and
(c) both applications are pending immediately before 1 July 2020;
item 13 of Schedule 2 to the transitional Act is taken to apply to the certificate application.
7 Period within which decision must be made on application for assessment certificate
(1) Paragraph 32(2)(a) of the new law applies in relation to the application as if the reference in that paragraph to 70 working days were instead a reference to 80 working days.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
(2) If:
(a) the applicant for the assessment certificate also applied under section 30A of the old law for a permit to introduce the industrial chemical before the assessment report under section 31 of the old law is complete; and
(b) the Director requested further information to be given by the applicant under subsection 30A(6) of the old law;
the period beginning on the day of that request and ending on the day the further information is received is excluded in determining the period of 80 days referred to in subsection (1).
8 Matters Executive Director must have regard to in considering application
Paragraph 32(3)(f) of the new law applies in relation to the application as if the reference to submissions made in accordance with section 36 of the new law were instead a reference to submissions made in accordance with section 11 of this instrument.
9 Requests for further information under old law
(1) This section applies in relation to a notice given before 1 July 2020 under section 27 of the old law requiring the applicant to give information to the Director.
(2) For the purposes of the new law, on and after 1 July 2020, the notice has effect as if it were a request for further information given by the Executive Director under section 33 of the new law.
10 Draft assessment statement not to be provided
Section 36 of the new law does not apply in relation to the application.
11 Executive Director must prepare draft assessment report and public report
(1) The Executive Director must, by written notice, provide each applicant with:
(a) a draft assessment report for the industrial chemical; and
(b) a draft public report for the industrial chemical.
(2) An applicant may apply to the Executive Director to vary the draft assessment report.
(3) An application under subsection (2) must be made within 10 working days after the day the notice is given.
(4) After considering the application, the Executive Director must:
(a) decide to:
(i) vary the draft assessment report; or
(ii) not vary the draft assessment report; and
(b) do so within 10 working days (the consideration period) after the day the application is made.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
(5) The Executive Director must vary the draft assessment report if the Executive Director is satisfied that the draft assessment report as varied would be correct.
(6) If the decision is to vary the draft assessment report, the Executive Director must also:
(a) make any corresponding changes to the public report; and
(b) give each applicant the assessment report as varied.
(7) Section 167 of the new law applies in relation to the application as if the application were an application made under the new law.
Note: Section 167 of the new law deals with general requirements relating to applications.
12 Issue of assessment certificate and assessment report
Section 37 of the new law applies in relation to the assessment certificate as if:
(a) paragraph (1)(b) does not apply; and
(b) subsections (2) and (3) do not apply; and
(c) the requirement in subsection (5) to give the assessment statement were instead a requirement to give the assessment report and the public report.
Note: Subsection 37(7) of the new law also does not apply in relation to the assessment certificate: see item 16 of Schedule 2 to the transitional Act.
13 Publication of public report
(1) The Executive Director must publish the public report for the industrial chemical on the AICIS website:
(a) if the applicant gives the Executive Director consent, in writing, to the publication of the public report—as soon as practicable after the consent is given; or
(b) otherwise—no earlier than 20 working days after the day the assessment report is given to the applicant.
(2) Despite subsection (1), if a person withdraws the application before the public report is published, the Executive Director must not publish the public report.
(3) Despite subsection (1), if a person has made an application for information in the assessment report to be treated as exempt information or confidential business information, the Executive Director must not publish the report unless:
(a) the application has been decided; and
(b) the reconsideration and review rights under section 102 of the old law, or section 166 of the new law (as the case requires), in relation to the decision have been exhausted or have expired.
Note: The operation of section 102 of the old law is preserved in relation to decisions made before 1 July 2020: see item 5 of Schedule 2 to the transitional Act.
(4) Despite subsection (1), if a person has made an application for variation of the assessment report, the Executive Director must not publish the report unless:
(a) the application has been decided; and
(b) the reconsideration and review rights under section 102 of the old law, or section 166 of the new law (as the case requires), in relation to the decision have been exhausted or have expired.
Note: The operation of section 102 of the old law is preserved in relation to decisions made before 1 July 2020: see item 5 of Schedule 2 to the transitional Act.
14 Content of assessment certificate
Subsection 38(1) of the new law applies in relation to the assessment certificate subject to the following modifications:
(a) paragraph (1)(a) applies as if the reference to the proper name for the industrial chemical were instead a reference to the name for the industrial chemical as published in the public report;
(b) paragraph (1)(b) does not apply.
Note: Subsection 38(2) of the new law also does not apply in relation to the assessment certificate: see item 15 of Schedule 2 to the transitional Act.
15 General requirements for applications
Section 167 of the new law applies in relation to the application as if:
(a) the application were an application made under the new law; and
(b) the reference in subsection 167(5) to a decision being made on the application were instead a reference to the public report being published under section 13 of this instrument.
Division 2—Pending applications for variation of assessment report
16 Pending applications for variation of assessment report
(1) This section applies in relation to an application, if:
(a) the application is under subsection 37(1) of the old law for variation of an assessment report about an industrial chemical given under subsection 36(1) of the old law; and
(b) the application is pending immediately before 1 July 2020.
(2) The application has effect, on and after 1 July 2020, as if it were an application made under section 11 of this instrument.
17 Reconsideration and review of decision
Section 166 of the new law applies as if the table in subsection (1) of that section included the following item at the end of the table (after the item inserted by item 47 of Schedule 2 to the transitional Act):
22
A decision to not vary a draft assessment report
Subparagraph 11(4)(a)(ii) of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019
Division 3—Pending applications for extension of assessment certificate
18 Pending applications under section 40A of old law—no significant variations
(1) This section applies in relation to an application, if:
(a) the application is for extension of an assessment certificate for an industrial chemical to cover another importer or manufacturer under section 40A of the old law; and
(b) subparagraph 40A(5)(a)(i) of the old law does not apply in relation to the application; and
(c) the application is pending immediately before 1 July 2020.
(2) For the purposes of the new law, the application has effect, on and after 1 July 2020, as if it were an application made under subsection 40(1) of the new law.
19 Pending applications under section 40A of old law—significant variations
(1) This section applies in relation to an application, if:
(a) the application is for extension of an assessment certificate for an industrial chemical to cover another importer or manufacturer under section 40A of the old law; and
(b) subparagraph 40A(5)(a)(i) of the old law does apply in relation to the application; and
(c) the application is pending immediately before 1 July 2020.
(2) For the purposes of the new law:
(a) the application has effect, on and after 1 July 2020, as if it were an application made under subsection 43(1) of the new law to vary a term of the assessment certificate; and
(b) Subdivision C of Division 3 of Part 3 of the new law applies as if the terms of the assessment certificate included who the assessment certificate covers.
Division 4—Transitioned assessment certificates
20 Varying or cancelling an assessment certificate
(1) This section applies in relation to an assessment certificate for an industrial chemical that:
(a) is taken to have been issued under the new law in accordance with item 11 of Schedule 2 to the transitional Act; or
(b) is issued under the new law in accordance with item 13 of that Schedule (a transitioned application certificate).
(2) For the purposes of subitems 11(2) and 13(2) of Schedule 2 to the transitional Act, the new law applies in relation to the following assessment statements for the assessment certificate as if the reference in paragraph (a) of the definition of assessment statement in section 9 of the new law to the proper name for the industrial chemical were instead a reference to the name for the industrial chemical as published in the report of the assessment prepared under section 34 of the old law:
(a) a draft assessment statement that is given to an applicant under subsection 48(1) of the new law;
(b) an assessment statement that is given to an applicant under subsection 49(4) of the new law;
(c) if the assessment certificate is a transitioned application certificate—an assessment statement that is published on the AICIS website under subsection 49(6) of the new law;
(d) an assessment statement that is given to the holder of the assessment certificate under subsection 50(6) of the new law;
(e) if the assessment certificate is a transitioned application certificate—an assessment statement that is published on the AICIS website under subsection 50(8) of the new law;
(f) an assessment statement that is given to the holder of the assessment certificate under subsection 52(6) of the new law;
(g) if the assessment certificate is a transitioned application certificate—an assessment statement that is published on the AICIS website under subsection 52(7) of the new law.
Note 1: Subsections 49(6), 50(8) and 52(7) of the new law do not apply in relation to an assessment certificate that is taken to be issued under the new law in accordance with item 11 of Schedule 2 to the transitional Act: see item 12 of that Schedule.
Note 2: For assessment certificates that are taken to be issued under the new law in accordance with item 11 of Schedule 2 to the transitional Act, or are issued under the new law in accordance with item 13 of that Schedule, an assessment report is given with the assessment certificate and a public report is published instead of an assessment statement, see sections 11, 12 and 13 of this instrument.
20A··Listing on Inventory of conditions on transitioned assessment certificates
(1) This section applies in relation to an industrial chemical for which an assessment certificate:
(a) was taken to have been issued under the new law in accordance with item 11 of Schedule 2 to the transitional Act; or
(b) was issued under the new law in accordance with item 13 of Schedule 2 to the transitional Act.
(2) Subsection 81(2) of the new law does not apply in relation to the listing of the industrial chemical on the Inventory under section 82 or 83 of the new law.
Part 3—Commercial evaluation permits under new law
Division 1—Pending applications for commercial evaluation permits
21 Application of Division
For the purposes of subitem 18(2) of Schedule 2 to the transitional Act, this Division prescribes modifications of the new law in relation to:
(a) a pending application for a commercial evaluation permit relating to an industrial chemical that is made under the old law; and
(b) a commercial evaluation authorisation for an industrial chemical that is issued under the new law following such an application.
22 Consideration of application
Section 54 of the new law applies in relation to the application as if:
(a) the reference in subsection 54(2) to the day the application is made were instead a reference to 1 July 2020; and
(b) the reference in paragraph 54(3)(d) to paragraphs 53(1)(a) and (b) were instead a reference only to paragraph 53(1)(a).
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
23 Requests for further information under old law
(1) This section applies in relation to a notice given before 1 July 2020 under section 21F of the old law requiring the applicant to give information to the Director.
(2) For the purposes of the new law, on and after 1 July 2020, the notice has effect as if it were a request for further information given by the Executive Director under section 55 of the new law.
24 Content of authorisation
Section 59 of the new law applies in relation to the commercial evaluation authorisation as if the references in paragraphs 59(1)(a) and (2)(a) to the proper name for the industrial chemical were instead references to the trade name of the industrial chemical or the chemical name for the industrial chemical.
25 Applying for protection of end use
Section 105 of the new law applies in relation to an application that is taken to have been made under the new law in accordance with item 18 of Schedule 2 to the transitional Act as if:
(a) subsection 105(4) were expressly confined to dealing with applications under subsection 105(1); and
(b) section 105 included a requirement that an application under subsection 105(2) be given to the Executive Director within 10 working days after 1 July 2020.
Division 2—Pending applications for renewal of commercial evaluation permits
26 Pending applications for renewal to be treated as variation applications under new law
(1) This section applies in relation to an application, if:
(a) the application is for renewal of a commercial evaluation permit relating to an industrial chemical under subsection 21B(2) of the old law; and
(b) the application is pending immediately before 1 July 2020.
(2) For the purposes of the new law:
(a) the application has effect, on and after 1 July 2020, as if it were an application to vary a term of a commercial evaluation authorisation under section 62 of the new law; and
(b) if a decision is not made on the application before the end of the remaining period for which the commercial evaluation permit would have been in force under section 21K of the old law—the period for which the authorisation is in force under the new law is taken to continue until a decision is made on the application.
Note: Commercial evaluation permits that were in force under the old law immediately before 1 July 2020 are taken to be commercial evaluation authorisations under the new law: see item 17 of Schedule 2 to the transitional Act.
27 Requests for further information under old law
(1) This section applies in relation to a notice given before 1 July 2020 under section 21F of the old law requiring the applicant to give information to the Director.
(2) For the purposes of the new law, on and after 1 July 2020:
(a) the notice continues to have effect as if it were a request for further information given by the Executive Director under the new law; and
(b) paragraph 63(3)(b) of the new law applies as if that paragraph also included a reference to further information provided in accordance with paragraph (a) of this subsection.
28 Consideration of application
Section 63 of the new law applies in relation to the application as if the reference in subsection 63(2) to the day the application is made were instead a reference to 1 July 2020.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
(1) This section applies in relation to a commercial evaluation authorisation that is taken to have been issued under the new law in accordance with item 17 of Schedule 2 to the transitional Act.
(2) For the purposes of subitem 17(2) of Schedule 2 to the transitional Act, paragraph 59(1)(b) of the new law applies in relation to the authorisation as if the reference in that paragraph to 4 years were expressly confined to a reference to 4 years beginning on the day the permit was issued under the old law.
30 Application to vary term of transitioned permit—further information
(1) This section applies in relation to an application under section 62 of the Industrial Chemicals Act 2019 to vary a term of a commercial evaluation authorisation that is taken to have been issued under the new law in accordance with item 17 of Schedule 2 to the transitional Act.
(2) The Executive Director may, by written notice given to an applicant, request further information to be provided for the purposes of considering the application.
(3) The information must be given within the period specified in the notice, which must not be less than 10 working days after the day the notice is given.
(4) If the requested information is not provided within the period mentioned in subsection (3), the Executive Director may take the application to be withdrawn.
Part 4—Low volume permits under new law
Division 1—Pending applications for low volume permits
31 Application of Division
For the purposes of subitem 21(2) of Schedule 2 to the transitional Act, this Division prescribes modifications of the new law in relation to:
(a) a pending application for a low volume permit in respect of an industrial chemical that is made under the old law; and
(b) an assessment certificate for an industrial chemical that is issued under the new law following such an application.
32 Period within which decision must be made on application
Paragraph 32(2)(a) of the new law applies in relation to the application as if the reference in that paragraph to 70 working days were instead a reference to 20 working days.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
33 Draft assessment statements not required
Paragraph 32(3)(f) and section 36 of the new law do not apply in relation to the application.
34 Requests for further information under old law
(1) This section applies in relation to a notice given before 1 July 2020 under section 21SA of the old law requiring the applicant to give further information to the Director.
(2) For the purposes of the new law, on and after 1 July 2020, the notice has effect as if it were a request for further information given by the Executive Director under section 33 of the new law.
35 Issue of assessment certificate
(1) Section 37 of the new law applies in relation to the assessment certificate as if:
(a) subsections 37(2) and (3) do not apply and were instead a requirement for the Executive Director to be satisfied in accordance with subsection (2) of this section; and
(b) subsection 37(5) were limited to a requirement to give written notice of the decision; and
(c) section 37 included a requirement for the Executive Director to publish written notice of the issue of the assessment certificate in accordance with subsection (3) of this section.
Note: Subsection 37(7) of the new law also does not apply in relation to the assessment certificate: see item 24 of Schedule 2 to the transitional Act.
Matters of which the Executive Director must be satisfied
(2) For the purposes of paragraph (1)(a), the Executive Director must be satisfied that:
(a) the end use for the industrial chemical does not pose an unreasonable risk to human health or to the environment, having regard to:
(i) Schedule 1AA to the old regulations, as if those regulations were still in force; and
(ii) any other matter the Executive Director considers relevant; and
(b) the total volume of the industrial chemical that will be introduced during any 12‑month period will not exceed:
(i) if the industrial chemical meets the criteria set out in clauses 2 and 3 of Schedule 1AA to the old regulations, as if those regulations were still in force—1,000 kilograms; or
(ii) otherwise—100 kilograms.
Notice of the issue of the assessment certificate
(3) For the purposes of paragraph (1)(c), the Executive Director must publish on the AICIS website a notice setting out:
(a) the trade name of the industrial chemical or the chemical name for the industrial chemical; and
(b) the end use for the industrial chemical; and
(c) the period for which the assessment certificate is to be in force.
36 Content of assessment certificate
Subsection 38(1) of the new law applies in relation to the assessment certificate subject to the following modifications:
(a) paragraph 38(1)(a) applies as if the reference to the proper name for the industrial chemical were instead a reference to the trade name of the industrial chemical or the chemical name for the industrial chemical;
(b) paragraph 38(1)(b) does not apply.
Note: Subsection 38(2) of the new law also does not apply in relation to the assessment certificate: see item 23 of Schedule 2 to the transitional Act.
37 Applying for protection of end use
Section 105 of the new law applies in relation to an application that is taken to have been made under the new law in accordance with item 21 of Schedule 2 to the transitional Act as if:
(a) subsection 105(4) were expressly confined to dealing with applications under subsection 105(1); and
(b) section 105 included a requirement that an application under subsection 105(2) be given to the Executive Director within 10 working days after 1 July 2020.
Division 2—Pending applications for renewal of low volume permits
38 Pending applications for renewal to be treated as variation applications under new law
(1) This section applies in relation to an application if:
(a) the application is for renewal of a low volume permit relating to an industrial chemical under subsection 21R(1A) of the old law; and
(b) the application is pending immediately before 1 July 2020.
(2) For the purposes of the new law:
(a) the period for which the assessment certificate is in force under paragraph 19(2)(f) of Schedule 2 to the transitional Act (as modified by section 40 of this instrument) is taken to be a term of the assessment certificate; and
(b) the application has effect, on and after 1 July 2020, as if it were an application to vary that term of the assessment certificate under section 43 of the new law; and
(c) section 44 of the new law applies in relation to the application as if:
(i) that section included a requirement that before deciding to vary the term of the assessment certificate the Executive Director must be satisfied in accordance with subsection (3) of this section; and
(ii) the reference in paragraph 44(2)(a) to 70 working days were instead a reference to 20 working days; and
(iii) paragraphs 44(3)(c), (d) and (e) did not apply; and
(d) sections 46, 47 and 48 of the new law do not apply in relation to the application; and
(e) section 49 of the new law applies as if that section included a requirement that the term of the assessment certificate as varied must not provide that the period for which the assessment certificate is in force is more than 3 years from the day written notice of the decision is given; and
(f) subsection 49(4) of the new law applies in relation to the application as if that subsection were limited to a requirement to give written notice of the decision; and
(g) if a decision is not made on the application before the end of the remaining period for which the low volume permit would have been in force under section 21V of the old law—the period for which the assessment certificate is in force under the new law is taken to continue until a decision is made on the application.
Note 1: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
Note 2: Low volume permits that were in force under the old law immediately before 1 July 2020 are taken to be time‑limited assessment certificates under the new law: see item 19 of Schedule 2 to the transitional Act.
(3) For the purposes of subparagraph (2)(c)(i), the Executive Director must be satisfied of the following:
(a) that the function or use of the industrial chemical:
(i) has not changed significantly since the low volume permit was granted; and
(ii) is not likely to change significantly if the low volume permit is renewed;
(b) that the volume of the industrial chemical being introduced by the applicant:
(i) has not significantly increased since the low volume permit was granted; and
(ii) is not likely to significantly increase if the low volume permit is renewed;
(c) if the low volume permit is for an industrial chemical that is manufactured in Australia by the applicant—that the method of manufacture of the industrial chemical employed by the applicant:
(i) has not changed since the low volume permit was granted in a way that may result in an increased risk to occupational health and safety, public health or the environment; and
(ii) is not likely to change if the low volume permit is renewed;
(d) if the low volume permit is for an industrial chemical that was not manufactured, or proposed to be manufactured in Australia at the time the permit was granted, by the applicant—that the industrial chemical has not been manufactured by the applicant in Australia since the low volume permit was granted;
(e) that no additional information has become available to the applicant as to any adverse effects of the industrial chemical on occupational health and safety, public health or the environment.
Division 3—Transitioned low volume permits
39 Application of Division
For the purposes of subitems 19(2) and 21(2) of Schedule 2 to the transitional Act, this Division prescribes modifications of the new law in relation to an assessment certificate for an industrial chemical that:
(a) is taken to have been issued under the new law in accordance with item 19 of that Schedule; or
(b) is issued under the new law in accordance with item 21 of that Schedule.
40 Modification of period for which transitioned low volume permits are taken to be in force
Item 19 of Schedule 2 to the transitional Act applies as if paragraph (2)(f) of that item were replaced with the following paragraph:
“(f) section 39 of the new law applies in relation to the assessment certificate as if that section expressly limited the period for which the assessment certificate is in force to the period beginning on 1 July 2020 and ending on the earliest of the following:
(i) if the remaining period for which the permit would have been in force under section 21V of the old law would have ended on or before 30 June 2022—30 June 2022;
(ii) if the remaining period for which the permit would have been in force under section 21V of the old law would have ended after 30 June 2022—the day the permit would have ceased to be in force under section 21V of the old law;
(iii) any of the other days mentioned in paragraphs 39(a) to (c) of the new law.”.
41 Varying the assessment certificate
(1) This section applies in relation to an application under section 43 of the new law to vary a term of the assessment certificate (other than an application that is taken to have been made under section 43 of the new law in accordance with section 38 of this instrument).
(2) Paragraph 44(2)(a) of the new law applies in relation to the application as if the reference in that paragraph to 70 working days were instead a reference to 20 working days.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
(3) Paragraphs 44(3)(c), (d) and (e), and sections 46, 47 and 48, of the new law do not apply in relation to the application.
(4) Section 49 of the new law applies in relation to the application as if:
(a) subsection 49(4) were limited to a requirement to give written notice of the decision; and
(b) if the assessment certificate is issued under the new law in accordance with item 21 of Schedule 2 to the transitional Act—subsection 49(6) does not apply.
Note: Subsection 49(6) of the new law also does not apply in relation to an assessment certificate that is taken to be issued under the new law in accordance with item 19 of Schedule 2 to the transitional Act: see item 20 of that Schedule.
42 Variations on Executive Director’s initiative
Section 50 of the new law applies in relation to a variation by the Executive Director of a term of the assessment certificate as if:
(a) paragraphs 50(1)(a), (b) and (c) do not apply; and
(b) subsection 50(6) were limited to a requirement to give written notice of the decision; and
(c) if the assessment certificate is issued under the new law in accordance with item 21 of Schedule 2 to the transitional Act—subsection 50(8) does not apply.
Note: Subsection 50(8) of the new law also does not apply in relation to an assessment certificate that is taken to be issued under the new law in accordance with item 19 of Schedule 2 to the transitional Act: see item 20 of that Schedule.
43 Cancellation on Executive Director’s initiative
Section 52 of the new law applies in relation to the cancellation of the assessment certificate as if:
(a) subsection 52(1) were instead a power for the Executive Director to cancel the assessment certificate if the Executive Director is not satisfied that the risks to human health or the environment from the introduction and use of the industrial chemical can be managed; and
(b) subsection 52(6) were limited to a requirement to give written notice of the decision; and
(c) if the assessment certificate is issued under the new law in accordance with item 21 of Schedule 2 to the transitional Act—subsection 52(7) does not apply.
Note: Subsection 52(7) of the new law also does not apply in relation to an assessment certificate that is taken to be issued under the new law in accordance with item 19 of Schedule 2 to the transitional Act: see item 20 of that Schedule.
Part 5—Controlled use permits under new law
Division 1—Pending applications for controlled use permits
44 Application of Division
For the purposes of subitem 28(2) of Schedule 2 to the transitional Act, this Division prescribes modifications of the new law in relation to:
(a) a pending application for a controlled use permit in respect of an industrial chemical that is made under the old law; and
(b) an assessment certificate for an industrial chemical that is issued under the new law following such an application.
45 Period within which decision must be made on application
Paragraph 32(2)(a) of the new law applies in relation to the application as if the reference in that paragraph to 70 working days were instead a reference to 20 working days.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
46 Requests for further information under old law
(1) This section applies in relation to a notice given before 1 July 2020 under section 22D of the old law requiring the applicant to give further information to the Director.
(2) For the purposes of the new law, on and after 1 July 2020, the notice has effect as if it were a request for further information given by the Executive Director under section 33 of the new law.
47 Issue of assessment certificate
(1) Section 37 of the new law applies in relation to the assessment certificate as if:
(a) subsections 37(2) and (3) do not apply and were instead a requirement for the Executive Director to be satisfied in accordance with subsection (2) of this section; and
(b) subsection 37(5) were limited to a requirement to give written notice of the decision; and
(c) section 37 included a requirement for the Executive Director to publish written notice of the issue of the assessment certificate in accordance with subsection (3) of this section.
Note: Subsection 37(7) of the new law also does not apply in relation to the assessment certificate: see item 31 of Schedule 2 to the transitional Act.
Matters of which the Executive Director must be satisfied
(2) For the purposes of paragraph (1)(a), the Executive Director must be satisfied that the end use for the industrial chemical does not pose an unreasonable risk to human health or to the environment, having regard to:
(a) Schedule 1AB to the old regulations, as if those regulations were still in force; and
(b) any other matter the Executive Director considers relevant.
Notice of the issue of the assessment certificate
(3) For the purposes of paragraph (1)(c), the Executive Director must publish on the AICIS website a notice setting out:
(a) the trade name of the industrial chemical or the chemical name for the industrial chemical; and
(b) the end use for the industrial chemical; and
(c) the period for which the assessment certificate is to be in force.
48 Content of assessment certificate
Subsection 38(1) of the new law applies in relation to the assessment certificate subject to the following modifications:
(a) paragraph (1)(a) applies as if the reference to the proper name for the industrial chemical were instead a reference to the trade name of the industrial chemical or the chemical name for the industrial chemical;
(b) paragraph (1)(b) does not apply.
Note: Subsection 38(2) of the new law also does not apply in relation to the assessment certificate: see item 30 of Schedule 2 to the transitional Act.
49 Applying for protection of end use
Section 105 of the new law applies in relation to an application that is taken to have been made under the new law in accordance with item 28 of Schedule 2 to the transitional Act as if:
(a) subsection 105(4) were expressly confined to dealing with applications under subsection 105(1); and
(b) section 105 included a requirement that an application under subsection 105(2) be given to the Executive Director within 10 working days after 1 July 2020.
Division 2—Pending applications for renewal of controlled use permits
50 Pending applications for renewal to be treated as variation applications under new law
(1) This section applies in relation to an application if:
(a) the application is for renewal of a controlled use permit in respect of an industrial chemical under subsection 22B(2) of the old law; and
(b) the application is pending immediately before 1 July 2020.
(2) For the purposes of the new law:
(a) the period for which the assessment certificate is in force under paragraph 28(2)(b) of Schedule 2 to the transitional Act is taken to be a term of the assessment certificate; and
(b) the application has effect, on and after 1 July 2020, as if it were an application to vary that term of the assessment certificate under section 43 of the new law; and
(c) section 44 of the new law applies in relation to the application as if:
(i) that section included a requirement that before deciding to vary the term of the assessment certificate the Executive Director must be satisfied in accordance with subsection (3) of this section; and
(ii) the reference in paragraph 44(2)(a) to 70 working days were instead a reference to 20 working days; and
(iii) paragraphs 44(3)(c), (d) and (e) did not apply; and
(d) sections 46, 47 and 48 of the new law do not apply in relation to the application; and
(e) section 49 of the new law applies as if that section included a requirement that the term of the assessment certificate as varied must not provide that the period for which the assessment certificate is in force is more than 3 years from the day written notice of the decision is given; and
(f) subsection 49(4) of the new law applies in relation to the application as if that subsection were limited to a requirement to give written notice of the decision; and
(g) if a decision is not made on the application before the end of the remaining period for which the controlled use permit would have been in force under section 22G of the old law—the period for which the assessment certificate is in force under the new law is taken to continue until a decision is made on the application.
Note 1: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
Note 2: Controlled use permits that were in force under the old law immediately before 1 July 2020 are taken to be time‑limited assessment certificates under the new law: see item 28 of Schedule 2 to the transitional Act.
(3) For the purposes of subparagraph (2)(c)(i), the Executive Director must be satisfied of the following:
(a) that the function or use of the industrial chemical:
(i) has not changed significantly since the controlled use permit was granted; and
(ii) is not likely to change significantly if the controlled use permit is renewed;
(b) that the volume of the industrial chemical being introduced by the applicant:
(i) has not significantly increased since the controlled use permit was granted; and
(ii) is not likely to significantly increase if the controlled use permit is renewed;
(c) if the controlled use permit is for an industrial chemical that is manufactured in Australia by the applicant—that the method of manufacture of the industrial chemical employed by the applicant:
(i) has not changed since the controlled use permit was granted in a way that may result in an increased risk to occupational health and safety, public health or the environment; and
(ii) is not likely to change if the controlled use permit is renewed;
(d) if the controlled use permit is for an industrial chemical that was not manufactured, or proposed to be manufactured in Australia at the time the permit was granted, by the applicant—that the industrial chemical has not been manufactured by the applicant in Australia since the controlled use permit was granted;
(e) that no additional information has become available to the applicant as to any adverse effects of the industrial chemical on occupational health and safety, public health or the environment.
Division 3—Transitioned controlled use permits
51 Application of Division
For the purposes of subitems 26(2) and 28(2) of Schedule 2 to the transitional Act, this Division prescribes modifications of the new law in relation to an assessment certificate for an industrial chemical that:
(a) is taken to have been issued under the new law in accordance with item 26 of that Schedule; or
(b) is issued under the new law in accordance with item 28 of that Schedule.
52 Modification of period for which transitioned controlled use permits are taken to be in force
Item 26 of Schedule 2 to the transitional Act applies as if paragraph (2)(f) of that item were replaced with the following paragraph:
“(f) section 39 of the new law applies in relation to the assessment certificate as if that section expressly limited the period for which the assessment certificate is in force to the period beginning on 1 July 2020 and ending on the earliest of the following:
(i) if the remaining period for which the permit would have been in force under section 22G of the old law would have ended on or before 30 June 2022—30 June 2022;
(ii) if the remaining period for which the permit would have been in force under section 22G of the old law would have ended after 30 June 2022—the day the permit would have ceased to be in force under section 22G of the old law;
(iii) any of the other days mentioned in paragraphs 39(a) to (c) of the new law.”.
53 Varying the assessment certificate
(1) This section applies in relation to an application under section 43 of the new law to vary a term of the assessment certificate (other than an application that is taken to have been made under section 43 of the new law in accordance with section 50 of this instrument).
(2) Paragraph 44(2)(a) of the new law applies in relation to the application as if the reference in that paragraph to 70 working days were instead a reference to 20 working days.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
(3) Paragraphs 44(3)(c), (d) and (e), and sections 46, 47 and 48, of the new law do not apply in relation to the application.
(4) Section 49 of the new law applies in relation to the application as if:
(a) subsection 49(4) were limited to a requirement to give written notice of the decision; and
(b) if the assessment certificate is issued under the new law in accordance with item 28 of Schedule 2 to the transitional Act—subsection 49(6) does not apply.
Note: Subsection 49(6) of the new law also does not apply in relation to an assessment certificate that is taken to be issued under the new law in accordance with item 26 of Schedule 2 to the transitional Act: see item 27 of that Schedule.
54 Variations on Executive Director’s initiative
Section 50 of the new law applies in relation to a variation by the Executive Director of a term of the assessment certificate as if:
(a) paragraphs 50(1)(a), (b) and (c) do not apply; and
(b) subsection 50(6) were limited to a requirement to give written notice of the decision; and
(c) if the assessment certificate is issued under the new law in accordance with item 28 of Schedule 2 to the transitional Act—subsection 50(8) does not apply.
Note: Subsection 50(8) of the new law also does not apply in relation to an assessment certificate that is taken to be issued under the new law in accordance with item 26 of Schedule 2 to the transitional Act: see item 27 of that Schedule.
55 Cancellation on Executive Director’s initiative
Section 52 of the new law applies in relation to the cancellation of the assessment certificate as if:
(a) subsection 52(1) were instead a power for the Executive Director to cancel the assessment certificate if the Executive Director is not satisfied that the risks to human health or the environment from the introduction and use of the industrial chemical can be managed; and
(b) subsection 52(6) were limited to a requirement to give written notice of the decision; and
(c) if the assessment certificate is issued under the new law in accordance with item 28 of Schedule 2 to the transitional Act—subsection 52(7) does not apply.
Note: Subsection 52(7) of the new law also does not apply in relation to an assessment certificate that is taken to be issued under the new law in accordance with item 26 of Schedule 2 to the transitional Act: see item 27 of that Schedule.
Part 6—Early introduction permits
56 Permits allowing introduction before assessment in the public interest
(1) Despite the repeal of the old law by Part 1 of Schedule 1 to the transitional Act:
(a) subject to this section, section 30 of the old law continues to apply in relation to an application (the related application) for an assessment certificate for an industrial chemical made under section 23 of the old law, until a decision is made on the related application; and
(b) a permit granted under subsection 30(1B) of the old law is taken to be an authorisation for the introduction of the industrial chemical under section 30 of the new law until a decision is made on the related application under the new law.
(2) For the purposes of subsection (1) of this section, subsections 30(2) and (3) of the old law apply, on and after 1 July 2020, in relation to an application under that section as if the requirement for a notice to be published in the Chemical Gazette were instead a requirement to publish a notice on the AICIS website.
57 Pending applications for permits allowing introduction before assessment of non‑hazardous chemicals
(1) This section applies in relation to an application for an introduction permit made under section 30A of the old law if:
(a) the application is pending immediately before 1 July 2020; or
(b) the application is made under section 30A of the old law as continued in existence by item 4 of Schedule 2 to the transitional Act.
(2) For the purposes of subsection (1) of this section, subsection 30A(11) of the old law applies, on and after 1 July 2020, in relation to the application as if the requirement for a notice to be published in the Chemical Gazette were instead a requirement to publish a notice on the AICIS website.
Part 7—Introductions under section 21 of old law
58 Introductions under section 21 of old law
The transitional Act applies as if items 33 and 34 of Schedule 2 were omitted and replaced with the following:
“33 Introductions under section 21 of old law
(1) This item applies in relation to the introduction of an industrial chemical if:
(a) the introduction is made before 1 September 2022; and
(b) the introduction could have been under paragraph 21(3)(b), subsection 21(4) or paragraph 21(6)(a) or (c) of the old law (the authorising provisions) if the old law were still in force at the time the industrial chemical is introduced; and
(c) the introduction complies with:
(i) the requirements of the relevant authorising provision, as if the relevant authorising provision was still in force; and
(ii) regulations made in relation to the relevant authorising provision (other than subregulations 6AB(6) and (7) of the Industrial Chemicals Notification and Assessment Regulations 1990), as if those regulations were still in force.
(2) For the purposes of the new law:
(a) the introduction of the industrial chemical is taken, on and after 1 July 2020, to be authorised under section 27 of the new law; and
(b) the following are taken to be the terms of the pre‑introduction report for the purposes of paragraph 27(1)(c) of the new law:
(i) the terms of the relevant authorising provision, as if the relevant provision was still in force;
(ii) regulations made in relation to the authorising provision (other than subregulations 6AB(6) and (7) of the Industrial Chemicals Notification and Assessment Regulations 1990), as if those regulations were still in force.”.
Part 8—Assessment of priority existing chemicals
59 Publication of final assessment reports where a variation request has been made
Despite the repeal of the old law by Part 1 of Schedule 1 to the transitional Act, section 60F of the old law continues to apply in relation to an assessment report under the old law if:
(a) the draft assessment report is prepared before 1 July 2020; and
(b) the final assessment report is not prepared before 1 July 2020; and
(c) the preparation of the final assessment report under subsection 60F(2) of the old law is delayed because of the operation of paragraph 60F(3)(a) or (b) of the old law.
Part 9—Secondary notifications under old law
Division 1—Incomplete assessments under old law following secondary notification
Subdivision A—Incomplete assessments under old law following secondary notification
60 Incomplete assessments under old law following secondary notification
(1) This section applies if:
(a) the Director requires the secondary notification of an industrial chemical under section 65 of the old law; and
(b) the Director causes the industrial chemical to be assessed in accordance with section 68 or 68A of the old law; and
(c) a final assessment report under the old law has not been published before 1 July 2020.
(2) For the purposes of the new law:
(a) the assessment is taken, on and after 1 July 2020, to be an evaluation conducted by the Executive Director under Part 4 of the new law relating to the introduction of the industrial chemical; and
(b) the Executive Director must, within 20 working days of 1 July 2020:
(i) if the evaluation is of the introduction of an industrial chemical that is authorised by an assessment certificate—give written notice specifying the period within which the evaluation will be conducted to each holder of the assessment certificate; or
(ii) otherwise—publish on the AICIS website the period within which the evaluation will be conducted; and
(c) sections 72, 73 and 78 of the new law do not apply in relation to the evaluation.
Note: For evaluations under paragraph (2)(a) of introductions of industrial chemicals that are authorised by an assessment certificate, see Subdivision B; for evaluations under paragraph (2)(a) of introductions other than introductions of industrial chemicals that are authorised by an assessment certificate, see Subdivision C.
Subdivision B—Evaluations of introductions of industrial chemicals that are authorised by an assessment certificate
61 Application of Subdivision
This Subdivision applies if the assessment under paragraph 60(2)(a) is of the introduction of an industrial chemical that is authorised by an assessment certificate.
62 Executive Director must prepare draft assessment report and public report
(1) The Executive Director must, by written notice, provide each person who gave secondary notification of the industrial chemical mentioned in paragraph 60(1)(a) with:
(a) a draft assessment report for the industrial chemical; and
(b) a draft public report for the industrial chemical.
(2) A person mentioned in subsection (1) may apply to the Executive Director to vary the draft assessment report.
(3) An application under subsection (2) must be made within 10 working days after the day the notice is given.
(4) After considering the application, the Executive Director must:
(a) decide to:
(i) vary the draft assessment report; or
(ii) not vary the draft assessment report; and
(b) do so within 10 working days (the consideration period) after the day the application is made.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
(5) The Executive Director must vary the draft assessment report if the Executive Director is satisfied that the draft assessment report as varied would be correct.
(6) If the decision is to vary the draft assessment report, the Executive Director must also:
(a) make any corresponding changes to the public report; and
(b) give each person mentioned in subsection (1) the assessment report as varied.
(7) Section 167 of the new law applies in relation to the application as if the application were an application made under the new law.
Note: Section 167 of the new law deals with general requirements relating to applications.
63 Issue of assessment report and public report
(1) The Executive Director must issue an assessment report within the period mentioned in subparagraph 60(2)(b)(i).
(2) The Executive Director must give each person mentioned in subsection 62(1) the assessment report and the public report.
64 Publication of public report
(1) The Executive Director must publish the public report for the industrial chemical on the AICIS website:
(a) if each person mentioned in subsection 62(1) gives the Executive Director consent, in writing, to the publication of the public report—as soon as practicable after the consent is given; or
(b) otherwise—no earlier than 20 working days after the day the assessment report is given to the applicant.
(2) Despite subsection (1), if a person has made an application for information in the assessment report to be treated as exempt information or confidential business information, the Executive Director must not publish the report unless:
(a) the application has been decided; and
(b) the reconsideration and review rights under section 102 of the old law, or section 166 of the new law (as the case requires), in relation to the decision have been exhausted or have expired.
Note: The operation of section 102 of the old law is preserved in relation to decisions made before 1 July 2020: see item 5 of Schedule 2 to the transitional Act.
(3) Despite subsection (1), if a person has made an application to vary the assessment report, the Executive Director must not publish the report unless:
(a) the application has been decided; and
(b) the reconsideration and review rights under section 102 of the old law, or section 166 of the new law (as the case requires), in relation to the decision have been exhausted or have expired.
Note: The operation of section 102 of the old law is preserved in relation to decisions made before 1 July 2020: see item 5 of Schedule 2 to the transitional Act.
Subdivision C—Evaluations of introductions of industrial chemicals other than introductions that are authorised by an assessment certificate
65 Application of Subdivision
This Subdivision applies if the assessment under paragraph 60(2)(a) is of the introduction of an industrial chemical other than an introduction that is authorised by an assessment certificate.
66 Executive Director must prepare draft evaluation report
(1) The Executive Director must publish a draft evaluation report for the industrial chemical on the AICIS website.
(2) A person may apply to the Executive Director to vary the draft evaluation report.
(3) An application under subsection (2) must be made within 20 working days after the day the draft evaluation is published under subsection (1).
(4) After considering the application, the Executive Director must:
(a) decide to:
(i) vary the draft evaluation report; or
(ii) not vary the draft evaluation report; and
(b) do so within 20 working days (the consideration period) after the day the application is made.
Note: For circumstances affecting the calculation of the consideration period, see section 83 of this instrument, and section 169 of the new law.
(5) The Executive Director must vary the draft evaluation report if the Executive Director is satisfied that the draft evaluation report as varied would be correct.
(6) The Executive Director must publish the decision on the AICIS website.
(7) Section 167 of the new law applies in relation to the application as if the application were an application made under the new law.
Note: Section 167 of the new law deals with general requirements relating to applications.
67 Publication of evaluation report
(1) The Executive Director must publish the evaluation report for the industrial chemical on the AICIS website:
(a) within the period mentioned in subparagraph 60(2)(b)(ii); and
(b) no earlier than 20 working days after:
(i) if no application is made under subsection 66(2) to vary the draft evaluation report within the period mentioned in subsection 66(3)—the draft evaluation report is published on the AICIS website; or
(ii) otherwise—the decision to vary the draft evaluation report is published.
(2) Despite subsection (1), if a person has made an application for information given in the secondary notification, or provided in response to a notice under section 76 of the new law, to be treated as exempt information or confidential business information, the Executive Director must not publish the report unless:
(a) the application has been decided; and
(b) the reconsideration and review rights under section 102 of the old law, or section 166 of the new law (as the case requires), in relation to the decision have been exhausted or have expired.
Note: The operation of section 102 of the old law is preserved in relation to decisions made before 1 July 2020: see item 5 of Schedule 2 to the transitional Act.
(3) Despite subsection (1), if a person has made an application to vary the evaluation report, the Executive Director must not publish the report unless:
(a) the application has been decided; and
(b) the reconsideration and review rights under section 102 of the old law, or section 166 of the new law (as the case requires), in relation to the decision have been exhausted or have expired.
Note: The operation of section 102 of the old law is preserved in relation to decisions made before 1 July 2020: see item 5 of Schedule 2 to the transitional Act.
Subdivision D—Reconsideration and review of decisions to not vary reports
68 Reconsideration and review of decision to not vary a draft assessment report or a draft evaluation report
Section 166 of the new law applies as if the table in subsection (1) of that section included the following item at the end of the table (after the item inserted by section 17 of this instrument):
23
A decision to not vary a draft assessment report
Subparagraph 62(4)(a)(ii) of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019
24
A decision to not vary a draft evaluation report
Subparagraph 66(4)(a)(ii) of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019
Division 2—Variations following secondary notification assessment under old law
69 Assessment certificate variations following secondary notification assessment under old law
(1) This section applies if:
(a) the Director causes an industrial chemical to be assessed in accordance with section 68 of the old law; and
(b) the Director concludes as part of that assessment that the assessment certificate may require variation (the proposed variation); and
(c) the final assessment report under the old law has been published under section 38 of the old law; and
(d) the proposed variation is not made before 1 July 2020.
Note: An assessment caused by the Director under section 68 of the old law is conducted in accordance with section 32 of the old law.
(2) For the purposes of the new law:
(a) the assessment is taken, on and after 1 July 2020, to be an evaluation completed by the Executive Director under Part 4 of the new law relating to the introduction of the industrial chemical; and
(b) section 50 of the new law applies in relation to the proposed variation as if:
(i) paragraphs 50(1)(b) and (c) do not apply; and
(ii) subsection 50(6) were limited to a requirement to give written notice of the decision; and
(iii) subsection 50(8) does not apply.
70 Inventory listing variations following secondary notification assessment under old law
(1) This section applies if:
(a) the Director causes an industrial chemical to be assessed in accordance with section 68A of the old law; and
(b) the Director concludes as part of that assessment that a variation to the Inventory listing for the industrial chemical is necessary (the proposed variation); and
(c) the final assessment report has been published under section 60F of the old law; and
(d) the proposed variation is not made before 1 July 2020.
(2) For the purposes of the new law:
(a) the assessment is taken, on and after 1 July 2020, to be an evaluation completed by the Executive Director under Part 4 of the new law relating to the introduction of the industrial chemical; and
(b) section 86 of the new law applies in relation to the proposed variation as if paragraphs (1)(b) and (c) do not apply.
Division 3—Requirement to provide information for the purposes of an assessment under old law
71 Requirement to provide information for the purposes of an assessment under old law
(1) This section applies in relation to a notice given before 1 July 2020 under section 69 of the old law requiring the applicant to give further information to the Director.
(2) For the purposes of the new law, on and after 1 July 2020, the notice has effect as if it were:
(a) if the notice relates to an industrial chemical for which there was, immediately before 1 July 2020, an assessment certificate in force—a notice given by the Executive Director under section 70 of the new law; and
(b) otherwise—a notice given by the Executive Director under section 76 of the new law.
Part 10—Application fees payable under old law
72 Application fees payable under old law
If a fee was payable under a provision of the old law in relation to an application, section 170 of the new law applies in relation to the fee as if it were payable under a provision of the new law.
Part 11—Inventory
73 Application for confidential listing
Item 43 of Schedule 2 to the transitional Act applies as if:
(a) subitem 43(1) of that Schedule also applied in relation to an assessment certificate for an industrial chemical that is issued under the new law in accordance with item 13 of that Schedule; and
(b) the reference in subitem 43(2) of that Schedule to the holder of the assessment certificate included a reference to a person who is given a notice under section 74 of this instrument; and
(c) subitem 43(2) of that Schedule required the application to be made within 20 working days of the day the Executive Director gives notice that the industrial chemical is to be listed on the Inventory; and
(d) if notice was given under subsection 14(2) of the old law—paragraph 82(2)(a) of the new law does not apply in relation to an application under subitem 43(2) of that Schedule; and
(e) if an application is made by a person who is given a notice under section 74 of this instrument—subsection 82(2) of the new law applies as if that subsection included a requirement:
(i) for a decision to have been made on any application made under item 43 of that Schedule; and
(ii) for the reconsideration and review rights under section 166 of the new law in relation to the decision on all applications to have been exhausted or have expired.
74 Confidence holders and holders of old law assessment certificates may also apply for confidential listing
(1) This section applies if:
(a) an assessment certificate (the earlier certificate) for an industrial chemical is:
(i) taken to have been issued under the new law in accordance with item 11 of Schedule 2 to the transitional Act; or
(ii) issued under the new law in accordance with item 13 of that Schedule; and
(b) the Executive Director gives notice to the holder of the earlier certificate that the industrial chemical is to be listed on the Inventory; and
(c) the notice is given under paragraph 82(2)(a) of the new law; and
(d) either:
(i) another assessment certificate (a later certificate) for the same industrial chemical is taken to have been issued under the new law in accordance with item 11 of Schedule 2 to the transitional Act, or is issued under the new law in accordance with item 13 of that Schedule; or
(ii) there are one or more confidence holders for an approval for the proper name or end use of the industrial chemical to be treated as confidential business information.
(2) The Executive Director must give written notice of the proposed listing and the terms of item 43 of Schedule 2 to the transitional Act (including as modified by section 73 of this instrument) to:
(a) each holder of the later certificate; and
(b) if the assessment certificate has been extended under the old law to cover another person—each such person; and
(c) each confidence holder.
75 Particulars of listing under old law
(1) This section applies in relation to an industrial chemical that is taken to have been listed on the Inventory under item 39 or 40 of Schedule 2 to the transitional Act.
(2) For the purposes of the new law:
(a) if the approved particulars for the industrial chemical under subsections 12(3), (4) or (4A) of the old law included a condition of use to which the industrial chemical was subject, the condition of use is taken to be:
(i) if the industrial chemical is mentioned in clause 1 of Schedule 1 to this instrument—the defined scope of assessment for the industrial chemical under paragraph 81(1)(c) of the new law; or
(ii) if the industrial chemical is mentioned in clause 2 of Schedule 1 to this instrument—a condition relating to the introduction or use of the industrial chemical under paragraph 81(1)(d) of the new law; and
(b) if the industrial chemical was a polymer of low concern under the old law—the notification obligation under subsection 64(1) of the old law is taken to be a specific requirement to provide information to the Executive Director in relation to the introduction of the industrial chemical; and
(c) if the industrial chemical was not a polymer of low concern under the old law—the notification obligations under subsections 64(1) and (2) of the old law are taken to be specific requirements to provide information to the Executive Director in relation to the introduction of the industrial chemical; and
(d) if:
(i) an assessment certificate for the industrial chemical had been issued under the old law—the term required to be published under paragraph 81(1)(e) of the new law were instead a requirement to publish “obligations to provide information apply” in lieu of that term; and
(ii) the industrial chemical was a priority existing chemical under the old law—the term required to be published under paragraph 81(1)(e) of the new law were instead a requirement to publish the notification obligations under subsections 64(1) and (2) of the old law; and
(e) subsection 81(2) of the new law does not apply.
76 Removing chemicals that have been wrongly listed on the Inventory
(1) This section applies if:
(a) immediately before 1 July 2020, a chemical was listed in the non‑confidential section of the old Inventory; and
(b) the chemical is not an industrial chemical under the old law or the new law.
(2) For the purposes of the new law and the transitional Act, the chemical is taken to have never been listed in the old Inventory.
(3) The Executive Director must publish on the AICIS website a list of the chemicals to which this section applies.
77 Exempt information ceases to be taken to be protected information in certain circumstances
(1) This section applies if:
(a) an industrial chemical is to be listed on the Inventory; and
(b) either:
(i) the Executive Director gives notice, under subsection 14(2) of the old law or paragraph 82(2)(a) of the new law, to the holder (a notified person) of an assessment certificate of the listing; or
(ii) the Executive Director gives notice, under subsection 74(2) of this instrument, to another person (a notified person); and
(c) the proper name of the industrial chemical is taken to be protected information in accordance with subitem 38(2) of Schedule 2 to the transitional Act; and
(d) no notified person has applied to the Executive Director for “confidential” to be published in lieu of each term of the Inventory listing for the industrial chemical under subitem 43(2) of Schedule 2 to the transitional Act within 20 working days of the day the Executive Director gives the notice.
(2) Despite subitem 38(2) of Schedule 2 to the transitional Act, the proper name of the industrial chemical ceases to be protected information on the day after the end of the 20 working day period.
Part 12—Information, reporting and confidentiality
78 Post‑introduction declarations for exempted introductions
Section 96A of the new law applies in relation to the registration year beginning on 1 September 2020 as if that registration year included the period beginning on 1 July 2020 and ending on 31 August 2020.
79 Annual declaration for all introduction categories
Section 99 of the new law applies in relation to the registration year beginning on 1 September 2020 as if that registration year included the period beginning on 1 July 2020 and ending on 31 August 2020.
80 Information and documents obtained under section 100G of old law
Section 174 of the new law applies in relation to documents produced to the Director before 1 July 2020 in accordance with a request under section 100G of the old law as if the document were produced to the Executive Director under a provision of the new law.
Part 13—Movements authorised under section 106 of old law
81 Introduction of industrial chemicals authorised under section 106 of old law
(1) This section applies in relation to the introduction of an industrial chemical if:
(a) before 1 July 2020, the Director gives written approval, under subregulation 11C(3) or paragraph 11C(4)(a) of the old regulations, for the introduction; and
(b) immediately before 1 July 2020, the approval has not been exhausted or revoked.
(2) Section 163 of the new law applies in relation to the introduction as if:
(a) the introduction of the industrial chemical were subject to the condition that the introduction must have been approved by the Executive Director, in writing, before the industrial chemical is introduced; and
(b) the written approval given by the Director under subregulation 11C(3) or paragraph 11C(4)(a) of the old regulations is taken to have been given under section 71 or 72 of the Industrial Chemicals (General) Rules 2019.
82 Export of industrial chemicals authorised under section 106 of old law
(1) This section applies in relation to the export of an industrial chemical if:
(a) before 1 July 2020, the Director gives written approval, under subregulation 11C(2) of the old regulations, for the export; and
(b) immediately before 1 July 2020, the approval has not been exhausted or revoked.
(2) Section 163 of the new law applies in relation to the export as if:
(a) the export of the industrial chemical were subject to the condition that the export must have been approved by the Executive Director, in writing, before the industrial chemical is exported; and
(b) the written approval given by the Director under subregulation 11C(2) of the old regulations is taken to have been given under section 73 of the Industrial Chemicals (General) Rules 2019.
Part 14—Consideration period
83 Calculating the consideration period for an application
(1) Section 169 of the new law applies as if:
(a) the definition of consideration period in section 9 of the new law included a reference to the consideration period for an application to vary a draft assessment report having the meaning given by subsections 11(4), 62(4) and 66(4) of this instrument; and
(b) the table in subsection 169(1) of the new law included the following items at the end of the table:
13
Information is requested from an applicant under section 27 of the Industrial Chemicals (Notification and Assessment) Act 1989
The day the application is made
The earlier of:(a) the day a complete response is given to the Executive Director; or(b) the last day of the period specified in the notice in accordance with subsection 27(2) of the Industrial Chemicals (Notification and Assessment) Act 1989
14
Information:(a) is requested from an applicant or another person under section 21F of the Industrial Chemicals (Notification and Assessment) Act 1989; and(b) is not given to the Executive Director before the day this section commences
The day this section commences
The earlier of:(a) the day a complete response is given to the Executive Director; or(b) the last day of the period specified in the notice in accordance with subsection 21F(1) of the Industrial Chemicals (Notification and Assessment) Act 1989
15
Information is requested from an applicant under section 21SA of the Industrial Chemicals (Notification and Assessment) Act 1989
The day notice of the request is given
The earlier of:(a) the day a complete response is given to the Executive Director; or(b) the last day of the period specified in the notice in accordance with subsection 21SA(1) of the Industrial Chemicals (Notification and Assessment) Act 1989
16
An applicant amends, under section 21T of the Industrial Chemicals (Notification and Assessment) Act 1989, an application, or any document that accompanied the application
The day the original application is made
The day the amended application, or the amended document, is given to the Executive Director
17
Information is requested from an applicant under section 22D of the Industrial Chemicals (Notification and Assessment) Act 1989
The day notice of the request is given
The earlier of:(a) the day a complete response is given to the Executive Director; or(b) the last day of the period specified in the notice in accordance with subsection 22D(1) of the Industrial Chemicals (Notification and Assessment) Act 1989
18
An applicant amends, under section 22E of the Industrial Chemicals (Notification and Assessment) Act 1989, an application, or any document that accompanied the application
The day the original application is made
The day the amended application, or the amended document, is given to the Executive Director
19
A notice is given to an applicant under section 36 of the Industrial Chemicals (Notification and Assessment) Act 1989
The day the notice is given
The earliest of:(a) the day an application is made under subsection 37(1) of the Industrial Chemicals (Notification and Assessment) Act 1989; or(b) the day the applicant gives consent to the publication of the assessment report; or(c) the last day of the 14‑day period beginning on the day the notice is given
20
A draft assessment report is given to an applicant under section 11 of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019
The day the draft assessment report is given
The earliest of:(a) the day a variation is requested under subsection 11(2) of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019; or(b) the day the applicant gives consent to the publication of the public report; or(c) the last day of the period mentioned in subsection 11(3) of those rules
21
A person applies to vary a draft assessment report under subsection 11(2) of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019
The day the application is made
The earlier of:(a) the day a decision is made on the application under subsection 11(4) of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019; or(b) the last day of the period mentioned in paragraph 11(4)(b) of those rules
22
Information is requested from an applicant under section 30 of the Industrial Chemicals (Consequential Amendments and Transitional Provisions) Rules 2019
The day notice of the request is given
The earlier of:(a) the day a complete response is given to the Executive Director; or(b) the last day of the period specified in the notice in accordance with subsection 30(3) of those rules
(2) To avoid doubt, if:
(a) item 1 of the table in subsection 169(1) of the new law applies to a period in relation to a request for information from an applicant because of the operation of section 9, 34 or 46 of this instrument; and
(b) the same period could also be excluded under item 13, 15 or 17 of the table (as inserted by subsection (1) of this section) in respect of the same request;
then:
(c) item 13, 15 or 17 of the table (as the case requires) applies instead of item 1 of the table; and
(d) the period is only counted once in relation to the request.
Note: Sections 9, 34 and 46 of this instrument deem requests for further information that were made under the old law to be requests made under the new law.
(3) To avoid doubt, if:
(a) item 5 of the table in subsection 169(1) of the new law applies to a period in relation to a request for information from an applicant because of the operation of section 23 of this instrument; and
(b) the same period could also be excluded under item 14 of the table (as inserted by subsection (1) of this section) in respect of the same request;
then:
(c) item 14 of the table applies instead of item 5 of the table; and
(d) the period is only counted once in relation to the request.
Note: Section 23 of this instrument deems requests for further information that were made under the old law to be requests made under the new law.
Part 15—Miscellaneous
84 Refund of overpayments of registration charge paid under old Act
(1) This section applies if:
(a) a person has paid an amount as or on account of registration charge in relation to a registration year, imposed as referred to in section 80S of the Industrial Chemicals (Notification and Assessment) Act 1989, as in force immediately before 1 July 2020; and
(b) the amount paid was greater than the amount (if any) the person was liable to pay under that section in relation to the registration year.
(2) The Executive Director may, on behalf of the Commonwealth, refund the overpayment of registration charge by the person in relation to the registration year:
(a) on the Executive Director’s own initiative, at any time within 3 years after the end of the registration year; or
(b) if, within 3 years after the end of the registration year, the person applies to the Executive Director, in writing, for the refund.