42Determination that a facility is a trade‑exposed baseline‑adjusted facility

42 Determination that a facility is a trade‑exposed baseline‑adjusted facility

(1) If the responsible emitter for a facility applies for a determination, in accordance with this Subdivision, that the facility is a trade‑exposed baseline‑adjusted facility in a particular financial year (the first financial year) and the next 2 financial years, the Regulator must: (a) make the determination; or (b) refuse to make the determination. (2) The Regulator must not make the determination unless: (a) the Regulator is reasonably satisfied, having regard to any EBIT Guidelines in force at the end of the first financial year and any other matter the Regulator considers relevant, that: (i) the information included in the application is correct; and (ii) the borrowing adjustment for the facility for the first financial year is zero; and (iii) the first financial year is not included in a multi‑year period declaration that is in force in relation to the facility; and (iv) the number that is equal to the total number of tonnes of carbon dioxide equivalence of covered emissions of greenhouse gases from the operation of the facility during the first financial year is greater than the hypothetical baseline of the facility for that year; and (v) the amount of covered emissions of greenhouse gases from the operation of the facility in the first financial year was not increased for the sole or substantial purpose of achieving a result mentioned in subsection 39(4); and (vi) the primary production variable for the facility in the first financial year is a trade‑exposed production variable; and (vii) the assessed cost impact for the facility for the first financial year is greater than 0.03 (known as the material cost impact threshold); and (b) the audit report accompanying the application includes a reasonable assurance conclusion, or a qualified reasonable assurance conclusion, in relation to each of the matters specified in subsection 40(3). (3) The determination must be in writing and comes into force on the first day of the first financial year.

Note: See subsection 22XQ(2) of the Act (commencement of determination).

(4) The determination must specify the emissions reduction contribution for the facility for the first financial year and the next 2 financial years. Notification of decision etc. (5) If the Regulator makes a determination under this section, the Regulator must: (a) notify the applicant for the determination that the Regulator has made the determination; and (b) publish the determination on the Regulator’s website. (6) If the Regulator decides to refuse to make a determination under this section, the Regulator must give the applicant for the determination a written notice of the decision that includes the Regulator’s reasons for the decision. Where previous determination has been revoked at request of responsible emitter (7) This section has effect subject to section 46 (consequence of revocation at request of responsible emitter).