22KPrescribed person—nominated person

#### 22K Prescribed person—nominated person (1) If: (a) a person is a prescribed person (the first person) under regulation 22G, 22H, 22I or 22J for an emissions‑intensive trade‑exposed activity to be carried on at a site during a year; and (b) before the first person makes an application in respect of the site and the year under subsection 46A(1) of the Act, the first person gives the Regulator notice; and (c) the notice states that another person in relation to the principal facility carried on, or to be carried on, at the site may apply for an exemption certificate for the activity, the site and the year; and (d) the other person is a controlling person (see subregulation (3)) in relation to the principal facility; and (e) immediately before the day the application is made in relation to the activity, the site and the year there is no valid application before the Regulator, and there is no exemption certificate issued, for the activity, the site and the year; then the other person is taken to be the prescribed person for the activity, the site and the year. (2) The notice under subregulation (1) must be given in writing. (3) Controlling person, in relation to the principal facility to be carried on at the site, means 1 of the following: (a) a person with operational control of the facility; (b) the controlling corporation that has a member of its group with operational control of the facility; (c) a person that is not the operator of the facility who has financial control (see subregulation (4)) over the facility. (4) If a person (the operator) has operational control over a facility, another person (the second person) has financial control over the facility if: (a) under a contract between: (i) the operator; and (ii) the second person; the operator operates the facility on behalf of the second person; or (b) under a contract between: (i) the operator; and (ii) the second person and 1 or more other persons; the operator operates the facility on behalf of the second person and those other persons; or (c) the second person is able to control the trading or financial relationships of the operator in relation to the facility; or (d) the second person has the economic benefits from the facility; or (e) all of the following conditions are satisfied: (i) the second person is a participant in a joint venture; (ii) there is only 1 other participant in the joint venture; (iii) the second person shares the economic benefits from the facility with the other participant; (iv) the second person’s share equals or exceeds the share of the other participant; or (f) all of the following conditions are satisfied: (i) the second person is a participant in a joint venture; (ii) there are 2 or more other participants in the joint venture; (iii) the second person shares the economic benefits from the facility with the other participants; (iv) no other participant has a share of the economic benefits from the facility; or (g) all of the following conditions are satisfied: (i) the second person is a partner in a partnership; (ii) there are 2 or more other partners in the partnership; (iii) the second person shares the economic benefits from the facility with the other partners; (iv) no other partner has a share that exceeds the share of the second person; or (h) the second person is able to direct or sell the output of the facility. (5) In determining whether the second person has that financial control, regard must be had to the economic and commercial substance of the matters mentioned in subregulation (4).