The Greenhouse Gas Emissions Trading Scheme Regulations 2012

PART 3 U.K. Aviation

CHAPTER 1 U.K. General

Interpretation U.K.

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—

(a)

in respect of the Environment Agency, EnglandF2 ...;

(aa)

[F3 in respect of the NRBW, Wales;]

(b)

in respect of SEPA, Scotland;

(c)

in respect of the chief inspector, Northern Ireland;

“authority”, in relation to a UK administered operator (“P”) means—

(a)

[F4 the Welsh Ministers, where P’s regulator is the NRBW;]

(b)

the Scottish Ministers, where P's regulator is SEPA;

(c)

the Department of the Environment in Northern Ireland, where P's regulator is the chief inspector;

(d)

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 F5 , as amended from time to time;

“emissions plan” means a plan issued under—

(a)

regulation 34(1)(a);

(b)

regulation 19(1)(a) of the 2010 Regulations; or

(c)

regulation 15(1)(a) of the 2009 Regulations;

[F6 “Eurocontrol” means the European organisation for air safety navigation;

“excluded aviation activity” means—

(a)

in respect of the scheme year 2013, an activity consisting in—

(i)

a flight departing from, or arriving in, an aerodrome situated in any country other than an EEA state or Croatia; or

(ii)

an outermost region flight;

(b)

in respect of any other scheme year, an activity consisting in—

(i)

a flight departing from, or arriving in, an aerodrome situated in any country other than an EEA state; or

(ii)

an outermost region flight;

“excluded aviation emissions” means aviation emissions arising from an excluded aviation activity;]

“member State” includes an EEA state;

[F7 “non-UK operator” has the meaning given in regulation 24(2);

“outermost region” means—

(a)

in respect of the scheme year 2013, the Canary Islands, French Guiana, Guadeloupe, Martinique, Réunion, Saint-Martin, the Azores, or Madeira;

(b)

in respect of any other scheme year, the Canary Islands, French Guiana, Guadeloupe, Martinique, Mayotte, Réunion, Saint-Martin, the Azores, or Madeira;

“outermost region flight” means—

(a)

in respect of the scheme year 2013, a flight between an aerodrome located in an outermost region and an aerodrome located in—

(i)

a different outermost region;

(ii)

an area of an EEA state which is not an outermost region; or

(iii)

Croatia;

(b)

in respect of any other scheme year, a flight between an aerodrome located in an outermost region and an aerodrome located in—

(i)

a different outermost region; or

(ii)

an area of an EEA state which is not an outermost region;]

“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 F8 ;

[F9 “Small Emitters Tool Regulation” means Commission Regulation (EU) No 606/2010 on the approval of a simplified tool developed by the European organisation for air safety navigation (Eurocontrol) to estimate the fuel consumption of certain small emitting aircraft operators, as amended from time to time;]

“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—

(a)

identified in the Commission list, and

(b)

specified in that list as an aircraft operator to be administered by the United Kingdom;

“unlisted operator” means a person who is—

(a)

not identified in the Commission list, and

(b)

the user or owner of an aircraft used to perform an aviation activity.

Textual Amendments

F1 S.I. 2009/2301; revoked with savings etc. by S.I. 2010/1996.

F2 Words in reg. 20 omitted (1.4.2013) by virtue of The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 420(2)(a) (with Sch. 7)

F3 Words in reg. 20 inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 420(2)(b) (with Sch. 7)

F4 Words in reg. 20 substituted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 420(3) (with Sch. 7)

F5 OJ 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).

F6 Words in reg. 20 inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 4(a)

F7 Words in reg. 20 inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 4(b)

F8 2006 c. 46.

F9 Words in reg. 20 inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 4(c)

Civil Aviation Authority U.K.

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).

CHAPTER 2 U.K. UK administered operators, UK aircraft operators and regulators

UK administered operators: power to designate U.K.

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.

Application to be designated as a UK administered operator U.K.

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.

Transfers of operators between member States U.K.

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.

Gibraltar operators U.K.

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.

UK aircraft operators U.K.

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.

Regulators: general U.K.

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 F10 ...; or

(ii) P does not have a registered office;

[F11 (aa) the NRBW, where P has its registered office in Wales;]

(b) SEPA, where P has its registered office in Scotland;

(c) the chief inspector, where P has its registered office in Northern Ireland.

Textual Amendments

F10 Words in reg. 27(a)(i) omitted (1.4.2013) by virtue of The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 421(2) (with Sch. 7)

F11 Reg. 27(aa) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 421(3) (with Sch. 7)

Regulators: assessment of emissions U.K.

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.

Regulators: change in registered office U.K.

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.

CHAPTER 3 U.K. Allocation of aviation allowances

Allocation of aviation allowances U.K.

30.  The following Schedules have effect—

(a) Schedule 7 (allocation of aviation allowances);

(b) Schedule 8 (allocation of aviation allowances from the special reserve).

CHAPTER 4 U.K. Monitoring and reporting aviation emissions

Interpretation U.K.

31.  In this Chapter, any reference to a numbered Article is to that Article of the Monitoring and Reporting Regulation.

Application for an emissions plan by a UK administered operator U.K.

32.— [F12 (1) Subject to paragraphs (3), (4), (6) and (7), a UK administered operator (“A”) must apply to the regulator for a monitoring plan where required by Article 51(1) and within the period of time required by that Article.]

(2) That application must contain a [F13 draft] 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.

[F14 (7) This regulation does not apply to a UK administered operator who commences aviation activities during the scheme years 2015 or 2016.]

Textual Amendments

F12 Reg. 32(1) substituted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 5(2)

F13 Word in reg. 32(2) inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 5(3)

F14 Reg. 32(7) inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 5(4)

[F15 Application for an emissions plan by a UK administered operator: 2015 activities and 2016 activities U.K.

32A.— (1) This regulation applies to a UK administered operator (“B”) who commences aviation activities other than excluded aviation activities during the scheme years 2015 (“the 2015 activities”) or 2016 (“the 2016 activities”).

(2) Subject to paragraphs (3) to (7), B must apply to the regulator for a monitoring plan by the application date.

(3) Where B is unable to foresee the date on which B is due to commence, as appropriate, the 2015 activities or the 2016 activities, B must—

(a) apply to the regulator for a monitoring plan without delay after B is aware that B will commence, as appropriate, the 2015 activities or the 2016 activities and in any event by a date no later than 6 weeks after the date on which the 2015 activities or the 2016 activities commence; and

(b) include with the application a written explanation of why B was unable to comply with paragraph (2).

(4) Paragraph (5) applies where B is unable to comply with paragraph (2) by reason only that B’s administering member State, referred to in Article 18a of the Directive, is not known by the application date.

(5) Where this paragraph applies B must—

(a) apply to the regulator for a monitoring plan in respect of, as appropriate, the 2015 activities or the 2016 activities, without delay once information on B’s administering member State becomes available; and

(b) include with the application a written explanation of why B was unable to comply with paragraph (2).

(6) Paragraph (7) applies where B was a non-UK operator and becomes a UK administered operator after the transferred operator cut-off date.

(7) Where this paragraph applies, B must apply to the regulator for a monitoring plan by the transferred operator application date.

(8) In this regulation—

(a) “application date” means—

(i) in the case of 2015 activities, the later of 31st January 2015 or the date which is 4 months before the date on which the 2015 activities are due to commence; and

(ii) in the case of 2016 activities, the date which is 4 months before the date on which the 2016 activities are due to commence;

(b) “transferred operator application date” means—

(i) in the case of 2015 activities, the later of 31st January 2015 or the last day of the 8 week period beginning with the date on which B becomes a UK administered operator; and

(ii) in the case of 2016 activities, the last day of the 8 week period beginning with the date on which B becomes a UK administered operator; and

(c) “transferred operator cut-off date” means the date which is 6 months before the date on which the 2015 activities, or 2016 activities, as appropriate, are due to commence.

Textual Amendments

F15 Regs. 32A-32C inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 6

Application for an emissions plan by a UK administered operator: post-2016 activities U.K.

32B.— (1) This regulation applies—

(a) to a UK administered operator (“C”) who commences only excluded aviation activities during the scheme years 2015 or 2016; and

(b) where C carries out aviation activities after 31st December 2016 (“post-2016 activities”).

(2) Subject to paragraphs (3) to (7), C must apply to the regulator for a monitoring plan in respect of C’s post-2016 activities by a date which is no later than 4 months before the date on which C’s post-2016 activities are due to commence (“the application date”).

(3) Where C is unable to foresee the date on which C is due to commence post-2016 activities, C must—

(a) apply to the regulator for a monitoring plan in respect of C’s post-2016 activities without delay after C is aware that C will commence the post-2016 activities and in any event by a date no later than 6 weeks after the date on which the post-2016 activities commence; and

(b) include with the application a written explanation of why C was unable to comply with paragraph (2).

(4) Paragraph (5) applies where C is unable to comply with paragraph (2) by reason only that C’s administering member State, referred to in Article 18a of the Directive, is not known by the application date.

(5) Where this paragraph applies, C must—

(a) apply to the regulator for a monitoring plan in respect of C’s post-2016 activities without delay once information on C’s administering member State becomes available; and

(b) include with the application a written explanation of why C was unable to comply with paragraph (2).

(6) Paragraph (7) applies where C was a non-UK operator and becomes a UK administered operator after the transferred operator cut-off date.

(7) Where this paragraph applies, C must apply to the regulator for a monitoring plan by the transferred operator application date.

(8) In this regulation—

(a) “transferred operator application date” means the last day of the 8 week period beginning with the date on which C becomes a UK administered operator; and

(b) “transferred operator cut-off date” means the date which is 6 months before the post-2016 activities are due to commence.

Textual Amendments

F15 Regs. 32A-32C inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 6

Application for an emissions plan by a UK administered operator: general U.K.

32C.— (1) An application for a monitoring plan under regulation 32A or 32B must include a draft plan to monitor the UK administered operator’s aviation emissions, together with the supporting documents which are required to be submitted under Article 12(1).

(2) If a UK administered operator has previously been issued with an emissions plan (“the existing plan”)—

(a) an application under regulation 32A or 32B may not be made without the agreement of the regulator; and

(b) any plan issued under regulation 34(1)(a) replaces the existing plan.]

Textual Amendments

F15 Regs. 32A-32C inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 6

Requirement to notify the regulator if an emissions plan is not applied for [F16 before 1st January 2015] U.K.

33.—(1)  [F17 Subject to paragraph (4), 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.

[F18 (4) This regulation does not apply after 31st December 2014.]

Textual Amendments

F16 Words in reg. 33 heading inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 7(2)

F17 Words in reg. 33(1) substituted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 7(3)

F18 Reg. 33(4) inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 7(4)

[F19 Requirement to notify the regulator if an emissions plan is not applied for on or after 1st January 2015 U.K.

33A.— (1) Where a person (“B”)—

(a) becomes a UK administered operator on or after 1st January 2015; but

(b) is not required to apply for a monitoring plan under regulation 32 or 32A,

B must, by the relevant date, notify the regulator in accordance with paragraph (2).

(2) Where—

(a) the relevant date is before 1st September 2016, the notification must state that—

(i) B does not expect to commence an aviation activity within the four-month period beginning with the relevant date; or

(ii) B does expect to commence an aviation activity within the four-month period beginning with the relevant date, but B expects to carry out only excluded aviation activities within that four-month period;

(b) the relevant date is on or after 1st September 2016, 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.]

Textual Amendments

F19 Reg. 33A inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 8

Issue of an emissions plan U.K.

34.—(1) Where a UK administered operator (“A”) has made an application under [F20 regulation 32, 32A or 32B,] 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.

Textual Amendments

F20 Words in reg. 34(1) substituted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 9

Monitoring and reporting emissions U.K.

35.—(1)  [F21 Subject to paragraph (5), 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) [F22 Subject to paragraph (5), 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) [F23 Subject to paragraphs (6) and (7),] 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.

[F24 (4) Subject to paragraphs (6) to (8), the report prepared under paragraph (3) must be submitted to the regulator—

(a) for the scheme year 2018, by 11th March 2019; or

(b) for any other scheme year, by 31st March in the year following that scheme year.]

[F25 (5) The obligation to monitor aviation emissions does not apply in respect of excluded aviation emissions for the scheme years 2015 and 2016.

(6) The obligation to prepare and to submit to the regulator a verified report of aviation emissions does not apply—

(a) in respect of excluded aviation emissions, for the scheme years beginning with 2013 and ending with 2016; or

(b) where, for the scheme years 2013 or 2014, A was an exempt non-commercial air transport operator.

(7) The obligation for the report to be verified in accordance with the Verification Regulation does not apply where—

(a) A has annual reportable emissions of less than 25,000 tonnes; and

(b) A has determined its emissions using the small emitters tool approved under the Small Emitters Tool Regulation and populated with data by Eurocontrol.

(8) The verified report for the scheme year 2013 must be submitted to the regulator by 31st March 2015.]

Textual Amendments

F21 Words in reg. 35(1) substituted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 10(2)

F22 Words in reg. 35(2) substituted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 10(3)

F23 Words in reg. 35(3) inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 10(4)

F24 Reg. 35(4) substituted (27.12.2017) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2017 (S.I. 2017/1207), regs. 1, 2(2)

F25 Reg. 35(5)-(8) inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 10(6)

Emissions plan conditions U.K.

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.

Variation of an emissions plan U.K.

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).

[F26 (3A) The regulator may, by giving notice to a UK administered operator, vary an emissions plan in order to take account of any amendments to the Directive which may be made from time to time.]

(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.

Textual Amendments

F26 Reg. 37(3A) inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 11

Variation of a benchmarking plan U.K.

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.

CHAPTER 5 U.K. Sanctions (other than civil penalties)

Detention and sale of aircraft U.K.

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).

Aircraft operating bans U.K.

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.