The Greenhouse Gas Emissions Trading Scheme Regulations 2005 (revoked)

PART 3 ALLOWANCES

National Allocation Plans

20.—(1) Subject to regulation 46, the Secretary of State shall develop a national allocation plan in respect of the second scheme phase and in respect of each subsequent scheme phase.

(2) The Secretary of State shall send to the Scottish Ministers, the National Assembly for Wales and the Department of the Environment—

(a) a copy of the national allocation plan developed under paragraph (1), at least 18 months before the beginning of the scheme phase in respect of which it is developed;

(b) information on whether the European Commission has accepted or rejected a national allocation plan or any aspect of a plan as soon as practicable after being advised of such acceptance or rejection; and

(c) any amendment to the national allocation plan proposed by the Secretary of State as soon as practicable after its communication to the European Commission.

(3) The Secretary of State shall publish in England the national allocation plan developed for each scheme phase, at least 18 months before the beginning of the relevant phase.

(4) The Secretary of State shall publish in England information on whether the European Commission has accepted or rejected a national allocation plan or any aspect of a plan as soon as practicable after being advised of such acceptance or rejection.

(5) Where the European Commission rejects a national allocation plan or any aspect of such plan under Article 9(3) of the Directive and the Secretary of State proposes an amendment to the plan, the Secretary of State shall publish in England the amendment as soon as practicable after its communication to the European Commission.

(6) The Scottish Ministers shall publish in Scotland any plan, information or amendment sent to them by the Secretary of State under paragraph (2) as soon as practicable after it is received.

(7) The National Assembly for Wales shall publish in Wales any plan, information or amendment sent to it by the Secretary of State under paragraph (2) as soon as practicable after it is received.

(8) The Department of the Environment shall publish in Northern Ireland any plan, information or amendment sent to it by the Secretary of State under paragraph (2) as soon as practicable after it is received.

Allocation and issue of allowances

21.—(1) Subject to regulation 46, for the second scheme phase and each subsequent scheme phase, the Secretary of State shall decide upon—

(a) the total quantity of allowances to be allocated for that phase;

(b) the allocation of allowances in respect of each installation including the number of those allowances to be issued in each scheme year in that phase; and

(c) where there is more than one greenhouse gas emissions permit relating to an installation, the division of the allowances allocated in respect of that installation under sub-paragraph (b) between each part of the installation to which a separate greenhouse gas emissions permit relates.

(2) Decisions under paragraph (1) shall—

[F1 (a) be based upon the approved national allocation plan for the relevant phase;]

(b) take due account of comments from the public in accordance with the provisions of the [F2 that plan].

(3) The Secretary of State shall publish in England a decision under paragraph (1), at least twelve months before the beginning of the scheme phase to which the decision relates.

(4) The Secretary of State shall notify the Scottish Ministers, the National Assembly for Wales and the Department of the Environment of her decision under paragraph (1).

F3 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) Where—

(a) an approved national allocation plan provides that where conditions specified in the approved national allocation plan are met allowances allocated under these Regulations in respect of an installation for a particular scheme year in the scheme phase to which the plan relates should be issued to the operator of the installation after 28^th February; and

(b) such conditions are met in respect of an installation,

the relevant decision maker shall notify the registry administrator and the operator that [F4 Article 40(2)] of the Registries Regulation applies to that installation in respect of the scheme year in which the notice is served.

(7) A notice under paragraph (6) shall, in accordance with the approved national allocation plan, either—

(a) specify the date after 28^th February on which, in accordance with the approved national allocation plan, allowances should be issued in respect of the installation; or

(b) where the approved national allocation plan provides for such date to be determined by reference to when specified conditions have been met, specify the conditions and indicate that the relevant decision maker will further notify the registry administrator when those conditions have been met.

(8) Where paragraph (7)(b) applies, the relevant decision maker shall periodically, or where requested by a notice served on the relevant decision maker by the operator, assess whether the conditions specified in the notice under paragraph (6) have been met and shall notify the operator and the registry administrator when the conditions have been met.

(9) Where a notice is served under paragraph (6), the reference to “later date” in [F5 Article 40(2)] of the Registries Regulation shall be to the date specified in accordance with paragraph (7)(a) or to the date [F6 specified in] a notice under paragraph (8).

(10) For the purposes of this regulation, “relevant decision maker” means—

(a) where the conditions referred to in paragraph (6)(a) relate to an installation in respect of which an application for temporary exclusion under Article 27(2) of the Directive has been made, the responsible authority;

(b) where the conditions referred to in paragraph (6)(a) relate to a supplementary decision of the Secretary of State under regulation 25(7), the Secretary of State;

(c) in all other cases, the regulator.

Textual Amendments

F1 Reg. 21(2)(a) substituted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(3)(a) (with reg. 5)

F2 Words in reg. 21(2)(b) substituted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(3)(b) (with reg. 5)

F3 Reg. 21(5) omitted (1.1.2012) by virtue of The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 8(a) (with Sch. paras. 33-36)

F4 Words in reg. 21(6) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 8(b) (with Sch. paras. 33-36)

F5 Words in reg. 21(9) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 8(c) (with Sch. paras. 33-36)

F6 Words in reg. 21(9) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 6

[F7 Allocation by auction or sale

21A.— (1) Before 1st May 2008, the Secretary of State may decide to allocate allowances which meet the conditions in paragraph (2) by way of auction or sale.

(2) The allowances must—

(a) be for the first scheme phase;

(b) be contained within the new entrant reserve; and

(c) qualify for auction or sale in accordance with the approved national allocation plan for that phase.

(3) Subject to regulation 46, if the Secretary of State decides under paragraph (1) to allocate allowances by way of auction or sale, he may enter into an agreement with an account holder (“the purchaser”) to allocate allowances to that person in exchange for payment.

(4) Where the Secretary of State—

(a) agrees to allocate allowances to the purchaser in accordance with this regulation; and

(b) has received the agreed payment from the purchaser by the agreed date,

he shall, within 7 days of receiving the payment, serve a notice on the purchaser and the registry administrator allocating those allowances to the purchaser.

(5) The Secretary of State may take one of the steps specified in paragraph (6) if—

(a) he has agreed to allocate allowances to the purchaser in accordance with this regulation; and

(b) he has not received the agreed payment from the purchaser by the agreed date.

(6) The steps are—

(a) not to allocate those allowances to the purchaser, by serving a notice on him to that effect; or

(b) to recover the outstanding payment from the purchaser summarily as a civil debt.

(7) If in accordance with paragraph (6)(b) the Secretary of State recovers the outstanding payment from the purchaser before 10th April 2008, he shall, within 7 days of receiving such payment, serve a notice on the purchaser and the registry administrator allocating the allowances that were the subject of their agreement to the purchaser.

(8) A notice under paragraph (4) or (7) shall specify—

(a) the purchaser;

(b) the purchaser’s holding account;

(c) the number of allowances to be allocated to the purchaser,

(d) where all of the allowances are not to be issued in the same year, the number of allowances to be issued in each remaining year or part year of the first scheme phase; and

(e) the date, or where all of the allowances are not to be issued in the same year the dates in each relevant year, by which the allowances are to be issued (the first of which shall be no later than 14 days after the date of the notice).

(9) Where a notice [F8 , which shall be an instruction to the registry administrator for the purposes of Article 48a of the Registries Regulation,] is served on the registry administrator in accordance with paragraph (4) or (7), the registry administrator shall transfer the quantity of allowances specified in the notice from the party holding account to the account specified in the notice.

(10) The registry administrator shall transfer allowances in accordance with paragraph (9) by the date specified in the notice in accordance with paragraph (8)(e).

(11) The registry administrator shall transfer allowances in accordance with the internal transfer process set out in Annex IX to the Registries Regulation.

(12) Where appointed to do so by the Secretary of State, the Environment Agency or the Scottish Environment Protection Agency may exercise any of the Secretary of State’s functions under this regulation (other than the power of appointment under this paragraph) subject to any limitations imposed by the Secretary of State when making the appointment.]

Textual Amendments

F7 Reg. 21A inserted (16.3.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2007 (S.I. 2007/465), regs. 1(2), 3

F8 Words in reg. 21A(9) inserted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 7

Application for an allocation from the new entrant reserve

22.—(1) Where an approved national allocation plan provides for a new entrant reserve in the scheme phase to which it relates, an operator of an installation may apply to the regulator for an allocation of allowances in respect of that installation from the new entrant reserve.

[F9 (1A) However, an operator of an installation may not apply to the regulator under paragraph (1) for an allocation of allowances in respect of the production of nitric acid if any such production has been carried out at the installation prior to 30th June 2010.]

(2) Subject to paragraph (3), an application under paragraph (1) shall be combined with an application for a greenhouse gas emissions permit under regulation 8(1) or an application for a variation of a greenhouse gas emissions permit under regulation 14(2).

(3) Paragraph (2) shall not apply where an application under paragraph (1) relates to—

(a) an installation in respect of which an operator made an application for a greenhouse gas emissions permit under regulation 8(1) before the date on which the approved NAP Regulations enter into force; or

(b) a change in operation in respect of which an operator made an application for a variation of a greenhouse gas emissions permit under regulation 14(2) before the date on which the approved NAP Regulations enter into force.

(4) An application under paragraph (1) shall contain such information as the regulator may reasonably require for the purpose of determining the application in accordance with the provisions of the approved national allocation plan and, except where paragraph F10 ... (7) applies, shall be accompanied by the fee prescribed in Schedule 5 in respect of such application.

F11 (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F11 (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) Where an application under paragraph (1)F12 ...relates to an offshore installation, the fee prescribed in Schedule 5 in respect of the application shall be payable within the period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(8) If an operator fails to comply with paragraph (7) the regulator may refuse the application.

(9) The regulator may, by notice to the applicant, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified, the application shall, if the regulator gives notice to the applicant that it treats the application as having been withdrawn, be deemed to have been withdrawn at the end of that period.

[F13 (10) Subject to paragraph (11), the regulator must give notice under paragraph (13) of its determination of an application under paragraph (1) within a period of two months beginning on the date on which the application is received by the regulator, or within such longer period as may be agreed in writing by the applicant.]

(11) For the purposes of calculating the period of two months mentioned in paragraph (10) no account shall be taken of—

(a) any period beginning with the date on which notice is served on the applicant under paragraph (9) and ending on the date on which the applicant furnishes the information specified in the notice;

(b) any period beginning with the date on which notice is served on the applicant under regulation 8(5) or 14(6) in respect of an application with which an application under paragraph (1) is combined in accordance with paragraph (2).

(12) If the regulator fails to give notice of its determination of an application under paragraph (1) within the period allowed by paragraph (10), the application shall, if the operator notifies the regulator that it treats the application as having been refused, be deemed to have been refused.

(13) Where an application under paragraph (1) is duly made to the regulator, the regulator shall, in accordance with the provisions of the approved national allocation plan—

(a) determine the eligible allocation subject to such conditions as the regulator considers appropriate to comply with the approved national allocation plan;

(b) determine the eligible allocation and, subject to paragraph (14), allocate allowances to the operator in respect of the installation to which the application relates; or

(c) reject the application,

by serving a notice on the operator and, in the case of a determination under sub-paragraph (b), on the registry administrator.

(14) Where the eligible allocation is greater than the number of available allowances, a notice under paragraph (13)(b) shall allocate the available allowances and the regulator may make additional allocations of allowances under paragraph (13)(b) if additional allowances subsequently become available in the new entrant reserve in accordance with the approved national allocation plan until the number of allowances allocated under paragraph (13)(b) equals the eligible allocation.

(15) A notice under paragraph (13)(a) shall–

(a) specify the conditions applying to the determination;

(b) require the operator to notify the regulator if any of the information provided in the application or provided to the regulator in response to a request for further information under paragraph (9) changes; and

(c) where the approved national allocation plan provides for allowances from the new entrant reserve to be reserved for an installation in respect of which an application under paragraph (1) has been made, indicate whether, and, if so, how many allowances have been reserved in respect of the installation.

(16) Where it appears to the regulator, whether as a result of a notification in accordance with a condition imposed pursuant to paragraph (13)(a) or otherwise, that the approved national allocation plan requires a variation of any of the provisions of the notice served on the operator under paragraph (13)(a), the regulator shall serve a further notice under paragraph (13)(a) on the operator varying the provisions of the previous notice.

(17) Where it appears to the regulator, whether as a result of a notification in accordance with a condition imposed pursuant to paragraph (13)(a) or otherwise, that it would no longer be consistent with the approved national allocation plan for an allocation of allowances to be made in respect of an installation to which a notice under paragraph (13)(a) relates, the regulator shall serve a further notice on the operator rejecting the application.

(18) Subject to paragraph (19), where the regulator is satisfied that all the conditions specified in a notice under paragraph (13)(a) are met, the regulator shall serve a notice on the operator and the registry administrator allocating allowances in respect of the installation.

(19) Where the eligible allocation is greater than the number of available allowances, a notice under paragraph (18) shall allocate the available allowances and the regulator may make additional allocations of allowances under paragraph (18) if additional allowances subsequently become available in the new entrant reserve in accordance with the approved national allocation plan until the number of allowances allocated under paragraph (18) equals the eligible allocation.

(20) A notice under paragraph (13)(b) or (18) shall specify—

(a) the operator and installation identification code of the installation in respect of which the allocation is made and the permit identification code of the greenhouse gas emissions permit which relates to that installation;

(b) the allocation of allowances to the operator in respect of the installation including the number of allowances to be issued in each remaining year or part year of the phase in relation to which the allocation is made and the date on which the allowances will be issued in the year in which the notice is served.

(21) A notice under paragraph (13)(b) or (18) shall be an instruction to the registry administrator for the purposes of [F14 the automatic national allocation plan table change process in] [F15 Article 37(1) and 40(3)] of the Registries Regulation.

(22) Where an application under regulation 15(1) specifies that an application under paragraph (1) in respect of the installation relates to the transferred unit, any allocation of allowances under paragraph (13)(b) or (18) made after the transfer takes effect shall be allocated to the proposed transferee.

(23) For the purposes of this regulation—

“eligible allocation” means the amount of allowances which may be allocated in respect of an installation under the provisions of the approved national allocation plan subject to the number of available allowances;

“available allowances” means allowances in the new entrant reserve which are available for allocation in accordance with the approved national allocation plan;

[F16 “new entrant reserve” does not include any late installation element (as defined in an approved national allocation plan) of the new entrant reserve;]

“proposed transferee” and “transferred unit” shall have the same meaning as in regulation 15(1) and (4).

Textual Amendments

F9 Reg. 22(1A) inserted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(4) (with reg. 5)

F10 Words in reg. 22(4) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(2)

F11 Reg. 22(5)(6) repealed (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(3)

F12 Words in reg. 22(7) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(4)

F13 Reg. 22(10) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(5)

F14 Words in reg. 22(21) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 8(6)

F15 Words in reg. 22(21) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 9 (with Sch. paras. 33-36)

F16 Words in reg. 22(23) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 12

Application for an allocation for late installations

[F17 22A.— (1) Before 1st January 2010, an operator of an installation may apply to the regulator and, where the regulator is not the Environment Agency, shall send a copy of that application to the Environment Agency, for an allocation of allowances from the element of the new entrant reserve which, in accordance with an approved national allocation plan, has been set aside for late installations.

(2) The regulator shall notify the operator and, where the regulator is not the Environment Agency, the Environment Agency of whether the application under paragraph (1) is duly made within 21 working days of receipt of the application and, where the regulator does not notify within this time, the application shall be deemed to have been duly made.

(3) Where an operator has not made an application for a greenhouse gas emissions permit under regulation 8(1), an application for a permit must be made at the same time as an application under paragraph (1).

(4) An application under paragraph (1) shall contain such information as the regulator may reasonably require for the purpose of determining the application in accordance with the approved national allocation plan, this regulation and regulation 22B and shall be accompanied by the fee prescribed in a charging scheme under regulation 18 or 19.

(5) Where an application under paragraph (1) relates to an offshore installation, the fee prescribed in the charging scheme in respect of the application shall be payable within the period of 28 days beginning on the date on which the regulator serves a notice on the operator requesting payment of the fee.

(6) If an operator fails to pay the fee in accordance with paragraph (5) the regulator may reject the application.

(7) The regulator may, by notice to the applicant, require the applicant to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application and, if the applicant fails to furnish the information within the period specified and the regulator gives notice to the applicant that it treats the application as having been withdrawn, the application shall be deemed to have been withdrawn at the end of the specified period.

(8) Subject to paragraph (9), the regulator must give notice under paragraph (11) of its determination of an application under paragraph (1) within a period of two months beginning on the date on which the application was received by the regulator, or within such longer period as may be agreed in writing by the applicant.

(9) For the purposes of calculating the period of two months mentioned in paragraph (8) no account shall be taken of any period beginning with the date on which notice is served on the applicant under paragraph (7) and ending on the date on which the applicant furnishes the information specified in the notice.

(10) If the regulator fails to give notice of its determination of an application under paragraph (1) within the period allowed by paragraph (8), the application shall be deemed to have been rejected if the operator notifies the regulator that it treats the application as having been rejected.

(11) Where an application under paragraph (1) is duly made to the regulator, the regulator must, in accordance with the provisions of the approved national allocation plan—

(a) determine the eligible allocation and, subject to paragraphs (12) and (13), allocate allowances to the operator in respect of the installation to which the application relates, or

(b) reject the application,

by serving a notice on the operator and, in the case of an allocation under sub-paragraph (a), on the registry administrator.

(12) Allocations of allowances to operators under paragraph (11)(a) must be made in the order that duly made applications are received by the Environment Agency under paragraph (1).

(13) Where a notice has been served under paragraph (11)(a) but allocations are not immediately allocated, the regulator may serve a further notice under paragraph (11)(a) allocating the allowances.

(14) Where the eligible allocation is greater than the number of available allowances, a notice under paragraph (11)(a) shall allocate the available allowances and the regulator may make additional allocations of allowances under paragraph (11)(a) in accordance with paragraph (12) if additional allowances subsequently become available in the late installation element of the new entrant reserve until the number of allowances allocated under paragraph (11)(a) equals the eligible allocation.

(15) Where an allocation of allowances is made under paragraph (11)(a), a notice under that paragraph shall specify—

(a) the operator and installation identification code of the installation in respect of which the allocation is made and the permit identification code of the greenhouse gas emissions permit which relates to that installation; and

(b) the allocation of allowances to the operator in respect of the installation including the number of allowances to be issued, subject to regulations 22C and 23(3), in each remaining year or part year of the phase in relation to which the allocation is made and the date on which the allowances will be issued in the year in which the notice is served.

(16) A notice under paragraph (11)(a) shall be an instruction to the registry administrator for the purposes of the automatic national allocation plan table change in [F18 Article 37(1) and 40(3)] of the Registries Regulation.

(17) Where an application under regulation 15(1) specifies that an application under paragraph (1) in respect of the installation relates to the transferred unit, any allocation of allowances under paragraph (11)(a) made after the transfer takes effect shall be allocated to the proposed transferee.

(18) For the purposes of this regulation the eligible allocation shall be calculated in accordance with regulation 22B.

(19) Where—

(a) the regulator rejects an application under paragraph (11)(b), or

(b) an operator appeals the determination of the regulator under paragraph (11)(a),

the regulator may set aside an appropriate amount of allowances in the late installations element of the new entrant reserve pending either the expiry of the time in which an appeal must be notified under paragraph 2(1)(e) of Schedule 2 or the determination of the appeal.

(20) For the purposes of this regulation—

“available allowances” means allowances—

(a)

in the element of the new entrant reserve set aside for late installations as set out in the approved national allocation plan, or

(b)

which have been added to that element of the new entrant reserve by the Secretary of State,

which have been neither allocated or set aside in accordance with this regulation nor removed from the reserve by virtue of a correction to the national allocation plan table made under Article 44(2) of the Registries Regulation;

“proposed transferee” and “transferred unit” shall have the same meaning as in regulation 15(1) and (4).]

Textual Amendments

F17 Reg. 22A substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 9

F18 Words in reg. 22A(16) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 10 (with Sch. paras. 33-36)

Eligible allocations

[F19 [F20 22B.— (1) For the purposes of an application made under regulation 22A(1) the eligible allocation shall be the allocation for the year in which the permit is issued or, where the permit is issued before the start of a phase, the allocation for the first year of that phase, plus the annual allocations for the remaining years of the phase.

(2) For the purposes of paragraph (1), the allocation for the year in which the permit is issued shall be calculated using the following formula:

Where:

• Z is the allocation for the year in which the permit is issued;

• X is the annual allocation calculated in accordance with paragraphs (3);

• D (permitted days) is the number of days comprised in the period beginning on the date upon which the installation became the subject of a greenhouse gas emissions permit and ending at the end of the same calendar year.

(3) The annual allocation shall, for the purposes of paragraph (1), be calculated using the following formula:

Where:

• X is the annual allocation;

• A (gross annual allocation) is—

  (a)

  for installations that commenced operation before 1st January 2004, the verified relevant emissions of the installation calculated in accordance with section 3 and appendix C of the approved national allocation plan;

  (b)

  for installations that commenced operation on or after 1st January 2004 or that do not have the data available to calculate their emissions under sub-paragraph (a), the verified gross annual allocation calculated in accordance with section E6 of appendix D of the approved national allocation plan;

• S (sector reduction factor) is the number listed as the sector reduction factor in the table in Schedule 7 adjacent to the sector in which, in accordance with the approved national allocation plan, the Secretary of State considers the installation should be classified;

• L (late installation reduction factor) is—

  (a)

  where an application for a greenhouse gas emissions permit in respect of an installation that should have been covered by a permit in the first phase was made—

  (i)

  on or before 28th February 2007, 100%;

  (ii)

  before 1st January 2008, 60%;

  (iii)

  on or after 1st January 2008, 25%;

  (b)

  where an application for a greenhouse gas emissions permit in respect of an installation in an expansion sector of the phase was made—

  (i)

  before 1st January 2008, 100%;

  (ii)

  on or before 30th June 2008, 90%;

  (iii)

  after 30th June 2008, 75%.

(4) For the purposes of this regulation—

• “verified” means verified in accordance with the guidance issued by the Secretary of State on 31st March 2006 entitled “Guidance on baseline verification data”; and

• “expansion sector” has the meaning given to it in an approved national allocation plan.]]

Textual Amendments

F19 Regs. 22A-22C inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 13

F20 Reg. 22B substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 10

[F19 Power to withhold allowances

22C.— (1) Where—

(a) an approved national allocation plan provides that where conditions specified in the plan are met, allowances allocated under these Regulations in respect of an installation for a particular scheme year in the scheme phase to which the plan relates should not be issued to the operator of the installation on or before 28th February of that scheme year; and

(b) such conditions are met in respect of an installation in relation to which allowances have been allocated under regulation 22 or 22A,

the regulator shall serve a notice on the registry administrator and the operator stating that for the scheme year in question, the allocation of allowances shall be withheld.

(2) A notice under paragraph (1) shall in accordance with the approved national allocation plan either—

(a) specify the date after 28th February on which, in accordance with the approved national allocation plan, allowances should be issued in respect of the installation; or

(b) where the approved national allocation plan provides for such date to be determined by reference to when specified conditions have been met, specify the conditions and indicate that the regulator will further notify the registry administrator when those conditions have been met.

(3) Where a notice under paragraph (1) contains the information required by sub-paragraph (2)(b), the regulator shall periodically, or when requested by a notice served on the regulator by the operator, assess whether the conditions specified in the notice under paragraph (1) have been met and shall notify the operator and the registry administrator when the conditions have been met.

(4) A notice under paragraph (1) containing the information required by sub-paragraph (2)(a) shall be an instruction to the registry administrator for the purposes of [F21 Article 40(1) or 40(3)] of the Registries Regulation and shall supersede a previous instruction issued for the installation and scheme year in question.

(5) A notice under paragraph (1) containing the information required by sub-paragraph (2)(b) shall revoke a previous instruction to the registry administrator for the purposes of [F21 Article 40(1) or 40(3)] of the Registries Regulation for the installation and scheme year in question.

(6) A notice served by the regulator in accordance with paragraph (3) shall be an instruction to the registry administrator for the purposes of [F21 Article 40(1) or 40(3)] of the Registries Regulation for the installation and scheme year in question.]

Textual Amendments

F19 Regs. 22A-22C inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 13

F21 Words in reg. 22C substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 11 (with Sch. paras. 33-36)

Allowance allocation where permit varied, surrendered or revoked

[F22 23.— (1) Where a greenhouse gas emissions permit is varied under regulation 14 so that it no longer applies to an installation in which the operator has ceased to carry out a Schedule 1 activity, surrendered under regulation 16 or revoked under regulation 17(1), the regulator must notify the Secretary of State and the registry administrator.

(2) A notice under paragraph (1) to the registry administrator shall be an instruction for the purposes of [F23 Article 23(1)] of the Registries Regulation.

(3) Where the regulator notifies the Secretary of State that a greenhouse gas emissions permit has been varied so that it no longer applies to an installation in which the operator has ceased to carry out a Schedule 1 activity, surrendered or revoked, the Secretary of State shall take steps to ensure that no further allowances are issued in respect of the installation which has ceased to be the subject of a permit from the date on which the variation notice, the notice of surrender or the revocation notice takes effect.

(4) The steps which the Secretary of State may take for the purposes of paragraph (3) includes instructing the registry administrator by notice not to issue any further allowances in respect of that installation.

(5) The registry administrator must comply with any notice served by the Secretary of State under paragraph (4).]

Textual Amendments

F22 Reg. 23 substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 11

F23 Words in reg. 23(2) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 12 (with Sch. paras. 33-36)

Applications to retain allocation

24.—(1) Where the approved national allocation plan provides that, if conditions specified in the approved national allocation plan are met, an operator which ceases to carry out a Schedule 1 activity in an installation may retain the allowances F24 ...allocated in respect of that installation under these Regulations, the operator may apply to the regulator to retain its allocation.

(2) An application under paragraph (1) shall contain such information as the regulator may reasonably require for the purpose of determining the application in accordance with the provisions of the approved national allocation plan.

(3) Subject to paragraph (4), the regulator shall give notice under paragraph (7) of its determination of an application which is duly made under paragraph (1) within a period of two months beginning on the day on which the regulator received the application or within such longer period as may be agreed in writing with the applicant.

(4) For the purposes of calculating the period of two months mentioned in paragraph (3) no account shall be taken of any period beginning with the date on which notice is served on the applicant under paragraph (6) and ending on the date on which the applicant furnishes the information specified in the notice.

(5) If the regulator fails to give notice of its determination of an application under paragraph (1) within the period allowed by paragraph (3), the application shall, if the operator notifies the regulator that it treats the application as having been refused, be deemed to have been refused.

(6) The regulator may, by notice to the applicant, require him to furnish such further information specified in the notice, within the period so specified, as the regulator may require for the purpose of determining the application and if the applicant fails to furnish the specified information within the period specified, the application shall, if the regulator gives notice to the applicant that it treats the application as having been withdrawn, be deemed to have been withdrawn at the end of that period.

(7) Where an application is duly made under paragraph (1), the regulator shall, in accordance with the provisions of the approved national allocation plan—

[F25 (a) accept the application and provide, subject to such conditions as the regulator considers appropriate, for all the allowances allocated in respect of the installation for the scheme phase to which the application relates to be retained, or]

(b) refuse the application,

by serving a notice on the operator.

(8) A notice under paragraph (7)(a) (a “retention notice”) shall—

(a) specify such variations to the provisions of the greenhouse gas emissions permit as the regulator considers appropriate which shall take effect from the date on which the notice takes effect;

(b) specify the number of hours which the regulator required to determine the application under paragraph (1) and shall require the operator to pay, within such period as may be specified in the notice, the fee prescribed in Schedule 5 in respect of the determination of the application.

F26 (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F26 (10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) Where—

(a) an application under paragraph (1) is withdrawn by the operator or refused by the regulator; or

(b) any conditions specified in a notice under paragraph (7)(a) are no longer met,

the regulator shall revoke the greenhouse gas emissions permit in accordance with regulation 17(1).

Textual Amendments

F24 Words in reg. 24(1) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 12(2)

F25 Reg. 24(7)(a) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 12(3)

F26 Reg. 24(9)(10) repealed (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 12(4)

Supplementary decisions by the regulator or the Secretary of State

25.—(1) Subject to paragraph (3), paragraph (2) shall apply where—

(a) a person has made a false statement–

(i) in connection with an application under regulation 22(1); or

(ii) in connection with an application under regulation F27 ...; and

(b) the statement resulted in an over-allocation in respect of an installation.

(2) Where this paragraph applies, the regulator may make a supplementary decision by serving a notice on the operator.

(3) Where a person has made a false statement in connection with an application under regulation 24(1) and the application would, in accordance with the approved national allocation plan, have been refused if the statement had not been false or misleading, the regulator shall revoke the greenhouse gas emissions permit in accordance with regulation 17(1).

(4) A supplementary decision under paragraph (2) shall—

(a) identify the false statement and specify the amount of the over-allocation;

(b) set out the steps which the regulator will take in accordance with paragraph (5) and, if applicable, paragraph (6),

and, subject to regulation 32(10), shall take effect from the expiry of a period of two months beginning on the date of the notice.

(5) Subject to paragraph (6), where the regulator makes a supplementary decision under paragraph (2), the regulator shall take such steps as it considers necessary to ensure that the amount of allowances issued pursuant to an allocation under regulation 22(13)(b) or (18) in respect of the installation to which the false statement relates are reduced by the amount of the over-allocation [F28 , and such steps may include—]

(a) [F28 an instruction to the registry administrator under [F29 Article 37] of the Registries Regulation to amend the allocation relating to the new entrant; and]

(b) [F28 a revocation of a previous instruction under [F30 Article 40] of the Registries Regulation.]

(6) Where paragraph (2) applies and–

(a) all allowances allocated under regulation 22(13)(b) or (18) in respect of the installation for the scheme phase to which the false statement relates have been issued; or

(b) the amount of such allowances which have not been issued is less than the amount of the over-allocation,

the regulator shall notify the Secretary of State specifying the amount of over-allocation or, where the regulator has made a supplementary decision under paragraph (2), the remaining over-allocation.

(7) Subject to regulation 46, where—

(a) a person has made a false statement in response to a request for information from the Secretary of State for the purposes of developing a national allocation plan under regulation 20(1) or making a decision under regulation 21(1) and the statement has resulted in an over-allocation in respect of the installation; or

(b) the regulator notifies the Secretary of State in accordance with paragraph (6), F31 ...

F32 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

the Secretary of State may make a supplementary decision by serving notice on the operator.

(8) A supplementary decision under paragraph (7) shall—

(a) identify the false statement and specify the amount of the over-allocation;

(b) set out the steps which the Secretary of State will take in accordance with paragraph (9),

and, subject to regulation 33(6), shall take effect from the expiry of a period of two months beginning on the date of the notice.

(9) Where the Secretary of State makes a supplementary decision under paragraph (7), the Secretary of State shall take such steps as she considers necessary to ensure that the number of allowances issued in respect of the installation to which the false statement relates for—

(a) the phase to which the false statement relates; and

(b) where the number of allowances allocated in respect of the installation in that scheme phase which have not been issued is less than the amount of the over-allocation or, if applicable, the remaining over-allocation, a subsequent scheme phase,

are reduced by the amount of the over-allocation or, if applicable, the remaining over-allocation.

(10) The steps which may be taken by the Secretary of State under paragraph (9) may include—

(a) where the supplementary decision relates to an installation situated in England (other than an offshore installation), directing the regulator; or

(b) where the supplementary decision relates to an installation, other than an offshore installation, situated in Scotland, Wales or Northern Ireland, arranging for the appropriate authority in relation to that installation to direct the regulator,

to take such steps as are necessary to reduce the amount of allowances issued pursuant to an allocation under regulation 22(13)(b) or (18).

(11) As soon as practicable after the Secretary of State makes a supplementary decision under paragraph (7), she shall publish her supplementary decision under paragraph (7) in England and notify the Scottish Ministers, the National Assembly for Wales and Department of the Environment of the decision.

(12) The Scottish Ministers shall publish in Scotland any decision notified to them under paragraph (11) as soon as practicable on notification.

(13) The National Assembly for Wales shall publish in Wales any decision notified to them under paragraph (11) as soon as practicable on notification.

(14) The Department of the Environment shall publish in Northern Ireland any decision notified to them under paragraph (11) as soon as practicable on notification.

(15) A regulator which has served a notice under paragraph (2) or the Secretary of State who has served a notice under paragraph (7), may before the date on which the notice takes effect withdraw the notice.

(16) For the purposes of this regulation–

“false statement” means a statement which is which is false or misleading in a material particular;

“over-allocation” means—

(i)

the number of allowances by which an allocation under regulation 21(1)(b), or if applicable, (1)(c) or regulation 22(13)(b) or (18) in respect of an installation in the scheme phase to which a false statement relates exceeds the number of allowances which would have been allocated in accordance with the approved national allocation plan for that scheme phase if the statement had not been false or misleading;

(ii)

F33 ...

(iii)

[F34 in relation to an allocation of allowances made under regulation 22A, the difference between the number of allowances allocated in respect of the application made under that regulation, and the number of allowances that would have been allocated if the statement had not been false or misleading;]

“remaining over-allocation” means the difference between the over-allocation and the amount by which the number of allowances to be issued in respect of an installation is reduced by the supplementary decision under paragraph (2).

Textual Amendments

F27 Word in reg. 25(1)(a)(ii) substituted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(2)

F28 Words in reg. 25(5) inserted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(3)

F29 Words in reg. 25(5)(a) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 13(a) (with Sch. paras. 33-36)

F30 Words in reg. 25(5)(b) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 13(b) (with Sch. paras. 33-36)

F31 Word in reg. 25(7)(b) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(4)

F32 Reg. 25(7)(c) repealed (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(5)

F33 Words in reg. 25(16) deleted (31.12.2007) by The Greenhouse Gas Emissions Trading Scheme (Amendment No. 2) Regulations 2007 (S.I. 2007/3433), regs. 1, 13(6)

F34 Words in reg. 25(16) inserted (6.4.2006) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2006 (S.I. 2006/737), regs. 1, 16

[F35 UK Registry and Union Registry

26.— (1) The Environment Agency shall act as national administrator for the purposes of the Registries Regulation and these Regulations.

(2) Where the Secretary of State has determined that the Union Registry is not capable of performing some or all of its functions for the purposes specified in Article 3(1) of the Registries Regulation—

(a) the Environment Agency may continue to maintain the UK Registry and act as the KP registry administrator in relation to that registry in accordance with the Registries Regulation and these Regulations for the purposes specified in Article 3(1) of the Registries Regulation to the extent that the Secretary of State has determined that the Union Registry is not capable of performing its functions for those purposes; but

(b) that power may not be exercised after the Secretary of State has determined that the Union Registry is capable of performing all of its functions for the purposes specified in Article 3(1) of the Registries Regulation.

(3) Where the Secretary of State has determined that the Union Registry is not capable of performing some or all of its functions for the purposes specified in Article 3(2) of the Registries Regulation—

(a) the Environment Agency may continue to maintain the UK Registry and act as registry administrator in relation to that registry in accordance with the old Regulations for the purposes specified in Article 3(2) of the Registries Regulation to the extent that the Secretary of State has determined that the Union Registry is not capable of performing its functions for those purposes; but

(b) that power may not be exercised after the Secretary of State has determined that the Union Registry is capable of performing all of its functions for the purpose specified in Article 3(2) of the Registries Regulation.

(4) The old Regulations continue to have effect for the purposes of paragraph (3) above.

(5) Any determination under paragraphs (2) or (3) shall be published in such manner as the Secretary of State thinks appropriate.

(6) The Environment Agency may require users of the UK Registry or the Union Registry to comply with reasonable terms and conditions in relation to those registries.

(7) Subject to paragraph (8), the competent authority for the purposes of the Registries Regulation shall be the regulator.

(8) The Secretary of State shall be the competent authority or competent body for the purposes of Articles 12(2), 18, 20(4), 21(1), 26(2), 27(5), 27(6), 28(1), 28(5), 29(2), 29(5), 29(6), 40(3), 41(3), 42, 47 and 64a of the Registries Regulation.

(9) It shall be the duty of the verifier to comply with the requirement to enter emissions data in accordance with Article 29(2) of the Registries Regulation.

(10) It shall be the duty of the verifier to mark emissions as verified in accordance with Article 29(5) of the Registries Regulation.

(11) Subject to paragraph (14), where an operator fails to comply with a condition imposed pursuant to regulation 10(3) in respect of an installation, the national administrator shall ensure that the operator may not transfer any allowances out of the operator holding account for that installation until the compliance status figure for that installation calculated in accordance with Article 31 of the Registries Regulation is greater than or equal to zero.

(12) Paragraph (13) applies where—

(a) an operator is required to submit a report to the regulator by the terms of a notice of surrender in relation to an installation included pursuant to regulation 16(7)(a) or by the terms of a revocation notice in relation to an installation included pursuant to regulation 17(5)(a); and

(b) the operator—

(i) fails to submit the report to the regulator;

(ii) submits the report to the regulator and the report is incomplete; or

(iii) submits the report to the regulator and the report or part of the report cannot be verified in accordance with the relevant monitoring and reporting conditions.

(13) Subject to paragraph (14), where this paragraph applies, the registry administrator shall ensure that the relevant person may not transfer allowances out of the operator holding account for a relevant installation until—

(a) the report referred to in paragraph (12) has been submitted to the regulator and has been verified in accordance with the terms of the notice of surrender or the revocation notice; or

(b) the regulator has notified a determination in accordance with regulation 30(3).

(14) Paragraphs (11) and (13) shall not prevent the surrender of allowances, CERs or ERUs in accordance with Articles 46, 47 and 48 of the Registries Regulation.

(15) Where a national administrator prevents the transfer of allowances out of an account under paragraphs (11) or (13) the national administrator shall notify the account holder specifying the reason why and the period during which transfers will be prevented.

(16) In this regulation—

(a) “old Regulations” means these Regulations as they had effect immediately prior to 1st January 2012;

(b) in relation to an aviation operator, “regulator” means the person specified by regulations 4 to 6 of the Aviation Regulations;

(c) “relevant installation” means the installation to which the notice of surrender or revocation notice referred to in paragraph (12) relates;

(d) “relevant person” means—

(i) the operator of the installation; or

(ii) the pool administrator where the installation is covered by a notice under regulation 27(10)(b).]

Textual Amendments

F35 Reg. 26 substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 14 (with Sch. paras. 33-36)

Pooling

27.—(1) One or more operators of installations to which this regulation applies may make a joint application to the appropriate authority to form a pool for the second scheme phase.

(2) This regulation applies to installations which carry out activities which—

(a) fall within the same description in Schedule 1; and

(b) do not fall within any description in Annex I of Council Directive 96/61/EC concerning integrated pollution prevention and control M1 .

(3) An application under paragraph (1) shall be made at least 6 months before the start of the scheme phase in which the operators wish to form a pool and shall—

(a) identify the installations to be included in the pool;

(b) contain the names and postal addresses of the operators of those installations and, if different, any addresses to which correspondence should be sent;

(c) contain a copy of the greenhouse gas emissions permit in respect of each of those installations and identify the regulator which granted that permit;

(d) nominate a person to act as pool administrator and contain a declaration from that person that he is willing to act as pool administrator; and

(e) contain evidence that the pool administrator will be able to fulfil the obligations in paragraph (12).

(4) Where an application is duly made under paragraph (1) and the appropriate authority considers it appropriate to allow the pool—

(a) where the Secretary of State is not the appropriate authority, the appropriate authority shall send a copy of the application to the Secretary of State; and

(b) the Secretary of State shall submit the application to the European Commission.

(5) The appropriate authority shall notify—

(a) the operator of each installation to be included in the pool;

(b) the regulator or regulators for the installations to be included in the pool; and

(c) the person nominated to act as pool administrator under paragraph (3)(d),

whether it considers it appropriate to allow the pool.

(6) If the European Commission rejects the application within three months of the date it receives the application—

(a) where the Secretary of State is not the appropriate authority, the Secretary of State shall notify the appropriate authority; and

(b) the appropriate authority shall notify–

(i) the operator of each installation to be included in the pool;

(ii) the regulator or regulators for the installations to be included in the pool; and

(iii) the person nominated to act as pool administrator under paragraph (3)(d),

that the application has been rejected and of the reasons given by the European Commission for the rejection.

(7) Where operators are notified under paragraph (6) that the European Commission has rejected their application, they may within a period of four weeks beginning on the date of the notice under paragraph (6)(b) submit an amended application to the appropriate authority.

(8) If the appropriate authority considers that the amended application addresses the reasons given by the European Commission for rejection of the application—

(a) where the Secretary of State is not the appropriate authority, the appropriate authority shall send a copy of the amended application to the Secretary of State; and

(b) the Secretary of State shall submit the amended application to the European Commission.

(9) The appropriate authority shall notify—

(a) the operator of each installation to be included in the pool;

(b) the regulator or regulators for the installations to be included in the pool; and

(c) the person nominated to act as pool administrator under paragraph (3)(d),

of whether it considers that the amended application addresses the reasons given by the European Commission for rejection of the application.

(10) If the European Commission does not reject the application within three months of the date it receives the application or accepts an amended application submitted under paragraph (8)(b)—

(a) where the Secretary of State is not the appropriate authority, the Secretary of State shall notify the appropriate authority; and

(b) the appropriate authority shall serve a notice authorising the pool on–

(i) the operator of each installation to be included in the pool;

(ii) the regulator for each installation to be included in the pool;

(iii) the person nominated to act as pool administrator under paragraph (3)(d); and

(iv) the registry administrator.

(11) A notice under paragraph (10)(b) shall—

(a) identify the installations included in the pool;

(b) identify the person who will act as pool administrator;

(c) specify any conditions applying to the approval of the pool; and

(d) specify the phase for which the pool is approved.

(12) For the duration of the period for which a group of installations are covered by a notice under paragraph (10)(b) authorising the pool—

(a) the operator of each installation referred to in paragraph (11)(a) shall ensure that the pool administrator is nominated as primary authorised representative for the operator holding account for the installation;

(b) the pool administrator shall surrender allowances equal to the annual reportable emissions from all the installations within the pool for which he is acting as pool administrator (as increased by any condition of a greenhouse gas emissions permit relating to an installation included in the pool imposed pursuant to regulation 10(4)) within four months of the end of the scheme year during which those emissions arose; and

(c) regulation 39 shall apply to a pool administrator who fails to comply with the obligation in sub-paragraph (b) as it applies to an operator who fails to comply with a condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3).

(13) An operator of an installation which is included in a notice authorising a pool in accordance with paragraph (11)(a) shall be deemed, unless the notice is revoked, to be in compliance with any condition of a greenhouse gas emissions permit imposed pursuant to regulation 10(3).

(14) Where the pool administrator fails to pay a civil penalty under regulation 39 by the due date determined in accordance with regulation 41(3), the appropriate authority shall serve a notice on the persons specified in paragraph (10)(b) providing for the notice under paragraph (10)(b) authorising the pool to be revoked, subject to paragraph 33(6), from the date specified in the notice.

(15) For the purposes of this regulation, where an application to form a pool relates to installations in more than one country of the United Kingdom, the appropriate authority in relation to the application and any subsequent pool shall, subject to regulation 46, be the Secretary of State.

(16) Where a notice of surrender or a revocation notice is served in respect of an installation which is included in a pool, the appropriate authority shall serve on the persons on which the notice under paragraph (10)(b) in respect of the pool was served, a further notice amending the notice under paragraph (10)(b) to remove the installation from the list of installations included in the pool from the date on which the notice of surrender or revocation notice takes effect.

(17) Where the regulator effects a transfer under regulation 15 of a greenhouse gas emissions permit which relates to an installation included in a pool, the appropriate authority shall serve on the persons on which the notice under paragraph (10)(b) in respect of the pool was served, a further notice amending the notice under paragraph (10)(b) from the date on which the transfer takes effect to take account of the transfer in accordance with the provisions of the application for transfer under regulation 15(4)(d).

(18) Where—

(a) the Secretary of State is the appropriate authority by virtue of paragraph (15);

(b) no agreement has been reached under regulation 46 in relation to a decision under paragraph (4); and

(c) the deadline in paragraph (3) for making an application to form a pool has passed,

the Secretary of State shall forthwith serve a notice on those persons referred to in paragraph (5) indicating that, as no agreement has been reached, it is not considered appropriate to allow the pool and providing that the operators of installations included in the application which are situated in the same country of the United Kingdom may make a new application under paragraph (1) to the appropriate authority within two weeks of the date of the notice under this paragraph.

(19) Where—

(a) the Secretary of State is the appropriate authority by virtue of paragraph (15);

(b) no agreement has been reached under regulation 46, in relation to a decision under paragraph (8); and

(c) a period of four weeks from the date of submission of an amended application to the Secretary of State under paragraph (7) has expired,

the Secretary of State shall forthwith serve a notice on those persons referred to in paragraph (9) indicating that it has not been agreed that the amended application addresses the reasons given by the European Commission for rejection of the application to form a pool and providing that the operators of installations included in the application which are situated in the same country of the United Kingdom may submit a further amended application under paragraph (8) to the appropriate authority within two weeks of the date of the notice under this paragraph.

Marginal Citations

M1 OJ No. L 257, 10.10.1996, p.26; to which there are amendments not relevant to this regulation.

[F36 Use of CERs and ERUs

27A.— (1) Subject to paragraphs (2) to (5), an operator of an installation may, in accordance with [F37 Article 48] of the Registries Regulation, use any combination of—

(a) CERs from project activities;

(b) ERUs from project activities; and

(c) allowances,

to comply with a requirement to surrender allowances imposed pursuant to regulation 10(3), 16(7)(b), 17(5)(b) or 40(2)(a).

(2) An operator may not use ERUs to comply with an obligation relating to emissions in the first scheme phase.

[F38 (2A) An operator may not use CERs or ERUs to comply with an obligation relating to emissions of nitrous oxide.]

(3) An operator may not use CERs or ERUs generated from—

(a) nuclear facilities; or

(b) land use, land use change and forestry activities.

(4) In relation to the second and subsequent scheme phases, an operator may only use CERs and ERUs up to the limit provided for in the approved national allocation plan for that scheme phase.

(5) In relation to a scheme phase in which a partial transfer of a greenhouse gas emissions permit is effected in accordance with regulation 15(7)(a), an operator may not use CERs or ERUs where the obligation relates to the transferred unit.]

Textual Amendments

F36 Reg. 27A inserted (13.11.2005) by The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 (S.I. 2005/2903), regs. 1, 4(c)

F37 Words in reg. 27A(1) substituted (1.1.2012) by The Greenhouse Gas Emissions Trading Scheme (Amendment) (Registries and Fees etc.) Regulations 2011 (S.I. 2011/2911), reg. 1(1), Sch. para. 15 (with Sch. paras. 33-36)

F38 Reg. 27A(2A) inserted (16.6.2011) by The Greenhouse Gas Emissions Trading Scheme (Nitrous Oxide) Regulations 2011 (S.I. 2011/1506), regs. 1(1), 3(5) (with reg. 5)