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20. In this Part (and in Schedules 7 to 10)—
“the 2009 Regulations” means the Aviation Greenhouse Gas Emissions Trading Scheme Regulations 2009 F1;
“area”, in relation to a regulator, means—
in respect of the Environment Agency, England and Wales;
in respect of SEPA, Scotland;
in respect of the chief inspector, Northern Ireland;
“authority”, in relation to a UK administered operator (“P”) means—
the Welsh Ministers, where—
P's regulator is the Environment Agency; and
P's registered office is in Wales;
the Scottish Ministers, where P's regulator is SEPA;
the Department of the Environment in Northern Ireland, where P's regulator is the chief inspector;
otherwise, the Secretary of State;
“benchmarking plan” has the meaning given by paragraph 2 of Schedule 7;
“benchmarking year”, in relation to a trading period, means the calendar year ending 24 months before the beginning of the period;
“Commission list” means the list of operators set out in Commission Regulation (EC) No 748/2009 on the list of aircraft operators which performed an aviation activity listed in Annex I to Directive 2003/87/EC on or after 1 January 2006 specifying the administering Member State for each aircraft operator F2, as amended from time to time;
“emissions plan” means a plan issued under—
regulation 34(1)(a);
regulation 19(1)(a) of the 2010 Regulations; or
regulation 15(1)(a) of the 2009 Regulations;
“member State” includes an EEA state;
“registered office” (except in Schedule 9) means the registered office in the United Kingdom that a company is required to have under section 86 of the Companies Act 2006 F3;
“tonne-kilometre” and “tonne-kilometre data” have the same meaning as in the Monitoring and Reporting Regulation;
“UK administered operator” means (subject to regulations 22 to 25) a person who is—
identified in the Commission list, and
specified in that list as an aircraft operator to be administered by the United Kingdom;
“unlisted operator” means a person who is—
not identified in the Commission list, and
the user or owner of an aircraft used to perform an aviation activity.
Textual Amendments
F1S.I. 2009/2301; revoked with savings etc. by S.I. 2010/1996.
F2OJ No L 219, 22.8.2009, p 1; amended by Commission Regulations (EU) No 82/2010 (OJ No L 25, 29.1.2010, p 12), No 115/2011 (OJ No L 39, 12.2.2011, p 1), No 394/2011 (OJ No L 107, 27.4.2011, p 1) and No 100/2012 (OJ No L 39, 11.2.2012, p 1).
21.—(1) The Civil Aviation Authority must provide such assistance and advice as the regulator may require in connection with any of the regulator's functions under this Part (including Schedules 7 to 10) or under regulation 44.
(2) The Civil Aviation Authority is entitled to recover from the regulator a sum equal to any expense reasonably incurred by it in providing the regulator with assistance or advice under paragraph (1).
22.—(1) This paragraph applies where the Secretary of State is satisfied that, under Article 18a(1) of the Directive, the United Kingdom is to be regarded as the administering member State in respect of an unlisted operator (“P”).
(2) Where paragraph (1) applies the Secretary of State must—
(a)designate P as an operator to whom these Regulations apply; and
(b)give notice to P of that designation.
(3) From the date of service of the notice under paragraph (2), P is to be treated as a UK administered operator for the purposes of these Regulations.
(4) Before making a designation under paragraph (2), the Secretary of State must consult—
(a)P;
(b)the relevant regulator;
(c)the relevant authority; and
(d)such other persons as the Secretary of State considers appropriate.
(5) For the purposes of paragraph (4)—
(a)the relevant regulator is the person who will be the regulator of P if the designation is made; and
(b)the relevant authority is a person (other than the Secretary of State) who will then be the authority in relation to P.
(6) A designation under paragraph (2)—
(a)must (subject to paragraph (7)) be revoked by the Secretary of State if paragraph (1) no longer applies in relation to P, and
(b)ceases to have effect once P is identified in the Commission list,
but this is without prejudice to any specification of P in that list as an aircraft operator to be administered by the United Kingdom.
(7) A designation may not be revoked solely because P has ceased to perform an aviation activity.
(8) Paragraphs (2)(b), (3) and (4) apply to the revocation of a designation as they apply to the designation itself, except that the reference in paragraph (3) to being treated as a UK administered operator is to be read (subject to the proviso in paragraph (6)) as a reference to no longer being so treated.
23.—(1) An unlisted operator (“Q”) may apply to the Secretary of State to be designated as a UK administered operator.
(2) Where such an application is made the Secretary of State must, after consulting the relevant persons—
(a)designate Q in accordance with regulation 22(1) and (2); or
(b)refuse the application.
(3) For the purposes of paragraph (2) the relevant persons are—
(a)the person who will be the regulator of Q if the designation is made;
(b)a person (other than the Secretary of State) who will then be the authority in relation to Q; and
(c)such other persons as the Secretary of State considers appropriate.
(4) An application under this regulation must be accompanied by evidence that the United Kingdom is to be regarded as the administering member State in respect of Q.
24.—(1) This regulation applies where a person (a “transferred operator”)—
(a)was a non-UK operator at the beginning of a scheme year but, in the course of that year, ceased to be a non-UK operator and became a UK administered operator, or
(b)was a UK administered operator at the beginning of a scheme year but, in the course of that year, ceased to be a UK administered operator and became a non-UK operator.
(2) For those purposes, “non-UK operator” means a person who is—
(a)identified in the Commission list, and
(b)specified in that list as an aircraft operator to be administered by a member State other than the United Kingdom (“the other State”).
(3) Subject to paragraphs (4) and (5), a regulator (“R”) in performing any of R's functions under these Regulations may (if it appears to R appropriate to do so) treat the transferred operator—
(a)as a person who, for the whole of that scheme year, is not a UK administered operator, or
(b)as a person who is a UK administered operator for the whole of that scheme year.
(4) R may not so treat a transferred operator unless R has—
(a)consulted the other State and the transferred operator, and
(b)given both of them notice of that decision.
(5) R may not treat the transferred operator as a UK administered operator under paragraph (3)(b) for the purposes of imposing a civil penalty in respect of any failure to comply with these Regulations that occurred—
(a)while the transferred operator was still a non-UK operator, or
(b)after the transferred operator became a non-UK operator.
25.—(1) This paragraph applies where—
(a)a person (“P”) is specified in the Commission list as an aircraft operator to be administered by the United Kingdom;
(b)the Commission list identifies P's State as “Gibraltar (UK)”; and
(c)the Secretary of State is satisfied that P is regulated for the purposes of the Directive under legislation implementing the Directive that is applicable in Gibraltar.
(2) Where paragraph (1) applies, the Secretary of State—
(a)may designate P as a Gibraltar operator, and
(b)must in that case give notice to P of the designation.
(3) From the date of service of the notice under paragraph (2), P is to be treated for the purposes of these Regulations as a person who is not a UK administered operator.
(4) Where regulation (1)(b) or (c) no longer applies in relation to P, the Secretary of State may revoke P's designation; and in that case—
(a)the Secretary of State must give notice to P of the revocation, and
(b)from the date following the date of service of that notice (and for as long as paragraph (1)(a) continues to apply in relation to P) P is to be treated as a UK administered operator for the purposes of these Regulations.
(5) Before making a designation under paragraph (2), the Secretary of State must consult—
(a)P;
(b)the regulator of P;
(c)a person (other than the Secretary of State) who is the authority in relation to P; and
(d)the Government of Gibraltar.
(6) Before revoking a designation under paragraph (4), the Secretary of State must consult—
(a)P;
(b)the person who will be the regulator of P if the revocation is made;
(c)a person (other than the Secretary of State) who will then be the authority in relation to P; and
(d)the Government of Gibraltar.
26.—(1) A person (“P”) is a UK aircraft operator in relation to a scheme year where, in respect of that year, P—
(a)is a UK administered operator; and
(b)performs an aviation activity (or is deemed to perform an aviation activity in accordance with paragraph (5)).
(2) Where the regulator cannot identify the person that performed an aviation activity the regulator may, where the owner of the aircraft at the time it was used to perform the activity (“the owner”) is a UK administered operator or an unlisted operator, serve a notice on the owner.
(3) A notice under paragraph (2) must—
(a)where this information is available to the regulator, specify the dates, times and locations of the activity;
(b)be accompanied by such evidence relevant to the activity as the regulator considers appropriate; and
(c)require the owner to inform the regulator of the identity of the person who performed the activity, by the deadline specified in the notice.
(4) The regulator may extend the deadline specified in a notice under paragraph (2).
(5) Where the owner does not comply with a notice under paragraph (2) by the deadline as so specified or extended, the owner is on the expiry of that deadline deemed to be the person that performed the aviation activity.
27. Subject to regulations 28 and 29, the regulator of a UK administered operator (“P”) is—
(a)the Environment Agency, where—
(i)P has its registered office in England or Wales; or
(ii)P does not have a registered office;
(b)SEPA, where P has its registered office in Scotland;
(c)the chief inspector, where P has its registered office in Northern Ireland.
28.—(1) Where—
(a)a UK aircraft operator (“A”) does not have a registered office, and
(b)the regulator (“B”) is in possession of the necessary data,
B must by 1st September in the final year of each trading period make an assessment in accordance with paragraph (2).
(2) The assessment must—
(a)determine whether the highest percentage of A's aviation emissions is attributable to the area of a different regulator (“C”); and
(b)in doing so take into account data from the two scheme years preceding the year in which the assessment is made (if received by B before the date that it is made).
(3) Where that assessment shows that the highest percentage of emissions is attributable to the area of C, B must give notice to A and C by 21st December in the final year of the trading period.
(4) Where—
(a)B has given notice under paragraph (3), and
(b)the regulator for the trading period following that notice is not determined under regulation 29,
C is the regulator of A from the beginning of that trading period.
29.—(1) This paragraph applies where a UK administered operator (“A”) with a registered office in the area of one regulator changes, in the course of a trading period, the address of its registered office to the area of a different regulator (“R”).
(2) Where paragraph (1) applies, R is the regulator of A from the beginning of the next trading period.
(3) Where—
(a)a UK administered operator (“B”) which did not have a registered office at the beginning of a trading period acquires a registered office in the course of that period, and
(b)that registered office is in the area of a regulator (“S”) who is not the regulator of B in that trading period,
S is the regulator of B from the beginning of the next trading period.
30. The following Schedules have effect—
(a)Schedule 7 (allocation of aviation allowances);
(b)Schedule 8 (allocation of aviation allowances from the special reserve).
31. In this Chapter, any reference to a numbered Article is to that Article of the Monitoring and Reporting Regulation.
32.—(1) Subject to paragraphs (3), (4) and (6), a UK administered operator (“A”) must apply to the regulator for a monitoring plan in accordance with Article 51(1).
(2) That application must contain a plan to monitor A's aviation emissions (together with supporting documents) submitted under Article 12(1).
(3) If A has previously been issued with an emissions plan—
(a)an application under paragraph (1) may not be made without the agreement of the regulator; and
(b)any plan issued under regulation 34(1)(a) replaces the plan that has previously been issued.
(4) Where an application is made by virtue of the second or third sub-paragraphs of Article 51(1), the application must include a satisfactory explanation of why it could not have been made earlier.
(5) Without prejudice to paragraph (1), a UK administered operator who has not previously been issued with an emissions plan may make an application in accordance with paragraph (2) at any time.
(6) If A is a transferred operator within regulation 24(1)(a), and has previously applied to another member State for a monitoring plan in accordance with Article 51(1)—
(a)this regulation applies to A as it applies to a UK administered operator who is not a transferred operator; but
(b)the application to the regulator may be made within the period of 8 weeks beginning with the date on which A became a UK administered operator.
33.—(1) Without prejudice to regulation 32(1), a person (“B”) who becomes a UK administered operator after 31st December 2012 must by the relevant date—
(a)apply to the regulator in accordance with regulation 32, or
(b)notify the regulator in accordance with paragraph (2).
(2) The notification must state that B does not expect to commence an aviation activity within the four-month period beginning with the relevant date.
(3) For the purposes of this regulation, “the relevant date” is the last day of the period of 12 weeks beginning with the date on which B became a UK administered operator.
34.—(1) Where a UK administered operator (“A”) has made an application under regulation 32 the regulator must, by the notice of determination of the application—
(a)issue to A a plan setting out how A's aviation emissions must be monitored; or
(b)where paragraph (2) applies, refuse the application.
(2) This paragraph applies where—
(a)the regulator is not satisfied that the plan proposed in the application complies with the Monitoring and Reporting Regulation; and
(b)A has not agreed to amendments of the plan that so satisfy the regulator.
(3) A plan issued under paragraph (1)(a) must contain—
(a)the provisions of the plan as proposed in the application, or with amendments as mentioned in paragraph (2)(b); and
(b)any conditions included pursuant to regulation 36(1).
(4) Where the application is refused—
(a)the regulator must state in the notice under paragraph (1)(b) what changes must be made to the application if a plan is to be issued; and
(b)A must (or, in the case of an application under regulation 32(5), may) resubmit the amended application within the period of 31 days beginning with the date of service of that notice.
(5) This regulation applies to the resubmission of an application as it applies to the original application, but for that purpose the references to the period of two months in paragraph 2(1)(a) and (2)(b) of Schedule 3 are to be read as a reference to a period of 24 days.
35.—(1) Once a UK administered operator (“A”) has been issued with an emissions plan, A must monitor aviation emissions for each scheme year in which A is a UK aircraft operator.
(2) Monitoring under paragraph (1) must be carried out in accordance with—
(a)the Monitoring and Reporting Regulation; and
(b)A's emissions plan (including the written procedures supplementing that plan).
(3) A must prepare a verified report of aviation emissions, for the whole of each such scheme year, in accordance with the Monitoring and Reporting Regulation and the Verification Regulation.
(4) The report prepared under paragraph (3) must be submitted to the regulator by 31st March in the year following that scheme year.
36.—(1) Each regulator (“R”) must ensure that the emissions plan of a UK administered operator (“A”) for which R is the regulator includes any conditions that R from time to time considers necessary to give proper effect to—
(a)the Monitoring and Reporting Regulation; and
(b)the Verification Regulation.
(2) A must comply with any condition included in A's emissions plan.
37.—(1) The regulator may, by giving notice to a UK administered operator (“A”), make any variation of A's emissions plan that the regulator considers necessary in consequence of a report made by A under Article 69.
(2) The regulator may, by giving notice to A, vary A's emissions plan where—
(a)A applies to the regulator for an amendment to the emissions plan, pursuant to a condition of the plan; or
(b)A has failed to comply with a requirement in the emissions plan to apply for such an amendment.
(3) The regulator may, by giving notice to a UK administered operator, vary an emissions plan in order to comply with the regulator's duty under regulation 36(1) or 89(4).
(4) A notice given under paragraph (1), (2)(b) or (3) may specify a period within which a fee for the variation of the emissions plan must be paid.
38. The regulator may, by giving notice to a UK administered operator (“B”), vary B's benchmarking plan where B applies to the regulator under paragraph 4(1) of Schedule 7 or paragraph 4(1) of Schedule 8.
39.—(1) Where a person (“P”) is—
(a)a UK administered operator who has not paid a civil penalty within the period of 6 months beginning with the date by which it is due, or
(b)the subject of an operating ban imposed under Article 16(10) of the Directive,
the regulator may detain a relevant aircraft.
(2) For the purposes of paragraph (1)—
(a)a “civil penalty” is any penalty imposed—
(i)under Part 7; or
(ii)under the 2010 Regulations in respect of a failure to comply with those Regulations on or after 1st January 2012; and
(b)a “relevant aircraft” is any aircraft of which the regulator has reason to believe that P is the operator.
(3) Schedule 9 makes further provision about the detention of aircraft under this regulation, and about the sale of aircraft following such detention.
(4) For the purposes of paragraph (2), and of Schedules 9 and 10, the operator of an aircraft is the person using the aircraft to perform an aviation activity (and “operate” has the corresponding meaning).
40. Schedule 10 has effect in relation to—
(a)requests to the European Commission made by the Secretary of State under Article 16(5) of the Directive for the imposition of an operating ban on a UK administered operator; and
(b)the enforcement of any operating ban imposed under Article 16(10) of the Directive.
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