The Greenhouse Gas Emissions Trading Scheme Regulations 2012

PART 11 U.K. Revocations, savings and transitional provisions.

Revocations U.K.

85.  The following enactments are revoked—

(a) the 2005 Regulations;

(b) the following enactments amending the 2005 Regulations—

(i) S.I. 2006/737;

(ii) S.I. 2007/465;

(iii) S.I. 2007/1096;

(iv) S.I. 2007/3433;

(v) regulation 3 of S.R. (N.I.) 2010/92;

(vi) regulation 4 of S.I. 2005/2903;

(vii) regulation 8 of S.I. 2010/1513;

(viii) regulations 3 and 4 of S.I. 2011/1506;

(ix) paragraphs 1 to 20 of the Schedule to S.I. 2011/2911;

(c) the Greenhouse Gas Emissions Data and National Implementation Measures Regulations 2009 F1 ;

(d) the 2010 Regulations;

(e) the Aviation Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2011 F2 .

Textual Amendments

F1 S.I. 2009/3130.

F2 S.I. 2011/765.

Savings and transitional provisions: the 2005 Regulations U.K.

86.—(1) Notwithstanding the revocations made by regulation 85, the following provisions of the 2005 Regulations (“ the relevant provisions”) continue to have effect to the extent specified below.

[F3 ("1A) the relevant provisions have effect as if—

(a) in regulation 2(1) the definition of “regulator” was amended as follows—

(i) in sub-paragraph (i) omit “and Wales”;

(ii) after sub-paragraph (i) insert—

“(ia) in relation to an installation (other than an offshore installation) which is (or will be) situated in Wales, the Natural Resources Body for Wales;”;

(b) regulation 35(5) was amended as follows—

(i) in sub-paragraph (a) omit “and Wales”; and

(ii) in sub-paragraph (b) after “in relation to” insert “Wales,”.]

(2) Part 1 and Schedule 1 have effect for the purpose of the relevant provisions.

(3) Regulations 16 and 17 have effect for the purposes of making an application for the surrender of a permit, or the service of a notice of revocation in respect of a failure to make such an application, where the circumstances giving rise to the requirement to make the application occurred before 1st January 2013.

(4) Regulation 18(3) to (5) has effect in relation to the charging schemes referred to in that regulation.

(5) Regulation 22 (other than paragraph (2)) has effect for the purpose of allowing an operator to make an application for an allocation from the new entrant reserve (as defined by regulation 2 of the 2005 Regulations).

(6) But for the purpose of paragraph (5) above, the reference in regulation 22(22) to regulation 15(1) of the 2005 Regulations is to be read as a reference to regulation 12(1) of these Regulations (and the reference to the proposed transferee is accordingly to be read as a reference to the new operator).

(7) Subject to paragraph (8) below, regulation 26 has effect for all purposes relating to the registry referred to in Article 3(2) of the Registries Regulation 2010.

(8) In regulation 26—

(a) paragraphs (2) to (5) do not have effect; and

(b) paragraph (8) has effect as if the references to Articles 18, 20(4) and 27(5) were omitted.

(9) The following provisions have effect in so far as they relate to any activities carried out, or emissions arising, prior to 1st January 2013—

(a) regulation 27A;

(b) Part 4.

(10) Subject to paragraph (11) below, Part 5 and Schedules 2 to 4 have effect in relation to any appeal brought against a decision or notice specified in regulation 32(1) to (5) of the 2005 Regulations.

(11) Regulation 32(4) has effect as if the reference to the appropriate authority were a reference to the First-tier tribunal (and the reference to the appropriate authority in regulation 32(7) is to be construed accordingly).

(12) Regulation 35 has effect in so far as it relates to functions carried out before 1st January 2013 or under the relevant provisions.

(13) Regulation 36 has effect in so far as it relates to a civil penalty in respect of emissions arising before 1st January 2013.

(14) Regulation 37 has effect.

(15) Paragraph (1)(c) to (f) of regulation 38 has effect in so far as it relates to the relevant provisions, but where the conduct giving rise to the offence occurs after 31st December 2012 the following civil penalties apply [F4 (subject to the regulator’s discretion under regulation 51 above)] instead of the offences under that paragraph—

(a) the penalty in regulation 59 above applies instead of the offence of failing to making an application to surrender a permit;

(b) the penalties in regulation 53 above apply instead of the offence of failing to comply with a notice under regulation 22(13)(a) (and for that purpose the condition of the notice is deemed to be a condition falling within paragraph (1)(c) of regulation 53);

(c) the penalties in regulation 68 above apply instead of the offence of failing to comply with an enforcement notice; and

(d) the penalty in regulation 70 above applies instead of an offence under paragraph (1)(f) of regulation 38.

(16) Subject to paragraph (17) below, regulation 38(2) and (3) has effect.

(17) No prosecution may be brought in respect of an offence under regulation 38(1)(a) if—

(a) the conduct that gave rise to the offence continues after 31st December 2012; and

(b) the person who has committed the offence will be liable to a civil penalty under regulation 52 above.

(18) [F5 Subject to regulation 87B below, regulations] 39 to 41 have effect in relation to a failure to surrender allowances in respect of emissions arising before 1st January 2013, and regulation 40 has effect in relation to an understatement of such emissions.

(19) Parts 8 to 10 have effect in so far as they relate to functions carried out, or powers exercised, under the relevant provisions or as national administrator under the Registries Regulation 2010.

Textual Amendments

F3 Reg. 86(1A) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 424 (with Sch. 7)

F4 Words in reg. 86(15) inserted (31.1.2014) by The Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013 (S.I. 2013/3135), regs. 1, 4(2)(a)

F5 Words in reg. 86(18) substituted (31.1.2014) by The Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013 (S.I. 2013/3135), regs. 1, 4(2)(b)

Savings and transitional provisions: the 2010 Regulations U.K.

87.—(1) Notwithstanding the revocations made by regulation 85, the following provisions of the 2010 Regulations (“ the relevant provisions”) continue to have effect to the extent specified below.

[F6 (1A) The relevant provisions have effect as if the 2010 Regulations were amended as follows—

(a) in regulation 4(1)—

(i) in sub-paragraph (a)(i) omit “or Wales”;

(ii) after sub-paragraph (a) insert—

“(aa) the Natural Resources Body for Wales, where the UK operator has its registered office in Wales;”;

(b) in regulation 7, for sub-paragraph (a) substitute—

“(a) the Welsh Ministers, where the regulator is the Natural Resources Body for Wales;”;

(c) in regulation 52(9)—

(i) for sub-paragraph (a) substitute—

“(a) in respect of an appeal against a notice or deemed refusal of the Environment Agency, the Secretary of State;”;

(ii) after sub-paragraph (a) insert—

“(aa) in respect of an appeal against a notice or deemed refusal of the Natural Resources Body for Wales, the Welsh Ministers;”;

(d) in regulation 60—

(i) in paragraph (5)(a) for “paragraph (5A)” substitute “paragraphs (5A) to (5C)”;

(ii) in paragraph (5)(g) after “and 9” insert “, as modified by paragraph (7A)”;

(iii) for paragraph (5A) substitute—

“(5A) In regulation 2—

(a) in the definition of “area”—

(i) in sub-paragraph (a) omit “and Wales”

(ii) after sub-paragraph (a) insert—

“(aa) in respect of the Natural Resources Body for Wales, Wales;”;

(b) in the definition of “UK operator”, after “means” insert “(subject to regulation 2A of the Aviation Greenhouse Gas Emissions Trading Scheme Regulations 2010)”.”;

(iv) after paragraph (5A) insert—

“(5B) In regulation 4—

(a) in sub-paragraph (a)(i) omit “or Wales”;

(b) after sub-paragraph (a) insert—

“(aa) the Natural Resources Body for Wales, where the UK operator has its registered office in Wales;”.

(5C) In regulation 7, for sub-paragraph (a) substitute—

“(a) the Welsh Ministers, where the regulator is the Natural Resources Body for Wales;”.”;

(v) after paragraph (7) insert—

“(7A) In regulation 36(6)—

(a) for sub-paragraph (a) substitute—

“(a) in respect of an appeal against a notice or deemed refusal of the Environment Agency, the Secretary of State;”;

(b) after sub-paragraph (a) insert—

“(aa) in respect of an appeal against a notice or deemed refusal of the Natural Resources Body for Wales, the Welsh Ministers;”.”.]

(2) Part 1 has effect for the purpose of the relevant provisions.

(3) The time period in regulation 18(1) has effect in relation to a person who became an aircraft operator under the 2010 Regulations before 1st January 2013, but the application for an emissions plan must otherwise be made under regulation 32 of these Regulations.

(4) Regulations 21 and 22 have effect in relation to aviation emissions arising before 1st January 2013.

(5) [F7 Subject to regulation 87AA, regulations] 26 and 27 have effect in relation to aviation emissions arising before 1st January 2013.

(6) Regulation 28 has effect in relation to the charging schemes referred to in that regulation.

(7) Regulation 29 has effect in relation to the functions referred to in that regulation.

(8) [F8 [F9 Subject to paragraph (8A) and to regulations 87A and 87B below], the following] have effect in relation to civil penalties arising under the 2010 Regulations—

(a) Part 8;

(b) regulation 49.

[F10 (8A) Regulation 51 above applies in relation to the penalty under regulation 35 of the 2010 Regulations as it applies in relation to the penalty under regulation 64 above.]

(9) Part 11 and Schedules 3 to 5 have effect in relation to any appeal brought against any decision made or notice served under the 2010 Regulations.

(10) The following have effect in relation to decisions or functions of the regulator under the 2010 Regulations—

(a) Part 12;

(b) regulations 58 and 59.

(11) Regulations 55 to 57, and Schedule 6, have effect in relation to information provided, reports submitted, or notices served under the 2010 Regulations.

(12) Paragraph (3), and (5) to (8), of regulation 60 have effect.

Textual Amendments

F6 Reg. 87(1A) inserted (1.4.2013) by The Natural Resources Body for Wales (Functions) Order 2013 (S.I. 2013/755), art. 1(2), Sch. 4 para. 425 (with Sch. 7)

F7 Words in reg. 87(5) substituted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 19(1)

F8 Words in reg. 87(8) substituted (23.5.2013) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2013 (S.I. 2013/1037), regs. 1(1), 2(2)

F9 Words in reg. 87(8) substituted (31.1.2014) by The Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013 (S.I. 2013/3135), regs. 1, 4(3)

F10 Reg. 87(8A) inserted (31.1.2014) by The Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013 (S.I. 2013/3135), regs. 1, 4(4)

[F11 Obligations in relation to aviation emissions arising before 2013 U.K.

87A.— (1) In this regulation—

“international activity” means an aviation activity performed in 2010, 2011 or 2012 and consisting in a flight departing from, or arriving in, an aerodrome situated in any country or territory other than—

(a)

an EEA state;

(b)

Croatia;

(c)

Switzerland; or

(d)

a country or territory listed in paragraph (6);

“international allowance” means an aviation allowance that has been allocated free of charge for 2012 in consequence of an international activity;

“international emissions” means aviation emissions arising from an international activity;

“P” is any person on whom a duty is imposed under regulation 20, 21 or 26 of the 2010 Regulations.

(2) Where the condition in paragraph (3) is satisfied, P is not liable to any civil penalty in respect of a failure to—

(a) monitor aviation emissions, contrary to regulation 20 of the 2010 Regulations, in so far as the duty to monitor arises in respect of P’s international emissions;

(b) report aviation emissions, contrary to regulation 21 of the 2010 Regulations, in so far as the duty to report arises in respect of P’s international emissions; or

(c) surrender sufficient allowances or project credits, contrary to regulation 26(1) of the 2010 Regulations, in so far as the duty to surrender arises in respect of P’s international emissions.

(3) The condition is that P—

(a) has not been issued with any international allowances; or

(b) has, before 29th May 2013, returned a sum of aviation allowances allocated for 2012 equal to the international allowances that were issued to P.

(4) For the purposes of paragraph (3)(b), an allowance is returned if it is transferred to an account in the Union Registry opened by the registry administrator with the name “aviation return account”.

(5) The registry administrator must cancel any allowances returned under paragraph (3)(b).

(6) The countries or territories are—

• Greenland;

• Faeroe Islands;

• French Polynesia;

• Mayotte;

• New Caledonia,

• Saint Barthélemy;

• Saint Pierre and Miquelon;

• Wallis and Futuna;

• Aruba;

• Bonaire;

• Saba;

• Sint Eustasius;

• Curaçao;

• Sint Maarten;

• Svalbard;

• Anguilla;

• Bermuda;

• British Antarctic Territory;

• British Indian Ocean Territory;

• British Virgin Islands;

• Cayman Islands;

• Falkland Islands;

• Bailiwick of Guernsey;

• Isle of Man;

• Bailiwick of Jersey;

• Montserrat;

• Pitcairn Islands;

• Saint Helena;

• Ascension and Tristan da Cunha;

• South Georgia and the South Sandwich Islands;

• Turks and Caicos Islands;

• Sovereign Base Areas of Akrotiri and Dhekelia;

• Andorra;

• Monaco;

• San Marino;

• Vatican City.]

Textual Amendments

F11 Reg. 87A inserted (23.5.2013) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2013 (S.I. 2013/1037), regs. 1(1), 2(3)

[F12 Obligations in relation to aviation emissions arising before 2013: deficits U.K.

87AA.— (1) Paragraph (2) applies where—

(a) a duty is imposed on a person (“P”) under regulation 26 of the 2010 Regulations;

(b) the condition in regulation 87A(3) is satisfied; and

(c) P fails to surrender sufficient allowances or project credits, contrary to regulation 26(1) of the 2010 Regulations.

(2) Where this paragraph applies, no duty arises to surrender allowances or project credits equal to the deficit to which regulation 26(2) of the 2010 Regulations applies, in so far as the duty to surrender arises in respect of P’s international emissions.

(3) Paragraph (4) applies where—

(a) the regulator has given a person (“Q”)—

(i) a 2012 excess emissions penalty notice; and

(ii) a deficit notice; and

(b) Q brings a 2012 excess emissions penalty notice appeal.

(4) Where this paragraph applies—

(a) the 2012 excess emissions penalty appeal is deemed to include an appeal against the deficit notice; and

(b) the bringing of the 2012 excess emissions penalty appeal suspends the operation of the deficit notice pending the final determination or withdrawal of the appeal.

(5) Where paragraph (4) applies, the appeal body may, in respect of the deficit notice—

(a) affirm it;

(b) quash all or part of it;

(c) vary it; or

(d) give directions to the regulator in relation to it.

(6) In this regulation—

(a) “2012 excess emissions penalty appeal” means an appeal under regulation 52(3)(b) of the 2010 Regulations, against a 2012 excess emissions penalty notice;

(b) “2012 excess emissions penalty notice” means a notice under regulation 30(1)(a) of the 2010 Regulations that P is liable to a civil penalty under regulation 38(1)(a) of the 2010 Regulations, for a failure to surrender sufficient allowances or project credits for the calendar year beginning on 1st January 2012;

(c) “deficit notice” means a notice given under regulation 26(2)(a) of the 2010 Regulations; and

(d) “international emissions” has the meaning given in regulation 87A(1).]

Textual Amendments

F12 Reg. 87AA inserted (22.12.2014) by The Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2014 (S.I. 2014/3125), regs. 1(1), 19(2)

[F13 Unreported emissions arising before 2013 U.K.

87B.— (1) Where paragraph (2) applies, a person (“P”) is not liable to an excess emissions penalty for a failure to surrender allowances in respect of those reportable emissions in a relevant year (“Y”) that—

(a) were not reported in the verified emissions report submitted for Y; but

(b) have been determined by the regulator.

(2) This paragraph applies where P, before the regulator serves on P a penalty notice imposing an excess emissions penalty in respect of emissions in Y (or a notice of the regulator’s intention to do so)—

(a) notifies the regulator that there are reportable emissions not included in the report that has been submitted for Y; and

(b) has surrendered allowances equal to the reportable emissions for Y as determined by the regulator.

(3) Where paragraph (2) applies, P is liable to the civil penalty of the sterling equivalent of 20 Euros for each allowance that P failed to surrender by 30th April in the year following Y in respect of the unreported emissions.

(4) Regulation 51(1) above applies to a penalty under paragraph (3) as it applies to a penalty under Part 7.

(5) In this regulation—

(a) “allowance” includes—

(i) where the excess emission penalty would arise under the 2010 Regulations, an aviation allowance; and

(ii) within the limits allowed by regulation 27A of the 2005 Regulations or regulation 26 of the 2010 Regulations, a project credit as defined by regulation 27 of the 2010 Regulations;

(b) “determined” means determined under regulation 30 of the 2005 Regulations or regulation 22 of the 2010 Regulations;

(c) “excess emissions penalty” means the penalty under regulation 39 of the 2005 Regulations or regulation 38(1)(a) of the 2010 Regulations;

(d) “penalty notice” means a notice under regulation 41(2) of the 2005 Regulations or regulation 30(1) of the 2010 Regulations;

(e) “relevant year” means a calendar year prior to 2013;

(f) “unreported emissions” means the emissions mentioned in paragraph (1);

(g) “sterling equivalent” has the meaning given in regulation 54(7) above.]

Textual Amendments

F13 Reg. 87B inserted (31.1.2014) by The Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013 (S.I. 2013/3135), regs. 1, 4(5)

Transitional provisions: permits U.K.

88.—(1) An application under regulation 8 of the 2005 Regulations for a greenhouse gas emissions permit that is made to the regulator before 1st January 2013, and not determined before that date, may be treated by the regulator as an application made under—

(a) regulation 10(1) above; or

(b) if the installation to which the application relates is an excluded installation, regulation 10(2) above.

(2) An application under regulation 14 of the 2005 Regulations for the variation of a permit that is made to the regulator before 1st January 2013, and not determined before that date, may be treated by the regulator as an application made under regulation 11(3)(a) above.

(3) An application under regulation 15 of the 2005 Regulations for the transfer of a permit (other than for a partial transfer) that is made to the regulator before 1st January 2013, and not determined before that date, may be treated by the regulator as an application made under regulation 12(1) above.

(4) An application under regulation 15 of the 2005 Regulations for the partial transfer of a permit that is made to the regulator before 1st January 2013 and not determined before that date may be treated by the regulator as an application made under regulation 12(1) above, provided that the application has been amended to the satisfaction of the regulator (and is otherwise deemed to have been withdrawn).

(5) Subject to paragraphs (6) and (7), a permit granted under regulation 9 of the 2005 Regulations that is in force immediately before 1st January 2013 (“the permit”) continues to have effect until it is revoked or surrendered under these Regulations.

(6) The regulator must vary the permit as necessary to bring it into a form in which it could have been granted under regulation 10 above.

(7) Until such variations are made, the permit has effect in relation to emissions in the year beginning with 1st January 2013, or in any subsequent scheme year, as if—

(a) any reference in the permit to Commission Decision 2007/589/EC of 18 July 2007 were a reference to the Monitoring and Reporting Regulation, and any reference to Section 5.2, 5.3 or Section 9 of Annex 1 to that Decision were a reference to the corresponding provision of that Regulation;

(b) any reference in the permit to Annex 5 to the Directive were a reference to the Verification Regulation;

(c) any reference in the permit to the Emission Trading Registry for the UK were a reference to the Union Registry; and

(d) any requirement of the permit to submit a report to the regulator by 30th June each year, setting out proposed improvements in monitoring at the installation, applied only in relation to the report required to be submitted by 30th June 2013.

(8) Notwithstanding the variations made pursuant to paragraph (6), the permit as it had effect immediately before 1st January 2013 continues to have such effect in relation to any emissions arising before that date and any obligations relating to them.

Transitional provisions: aviation emissions plans U.K.

89.—(1) An application for an emissions plan under regulation 18 of the 2010 Regulations that has not been determined under those Regulations may be treated by the regulator as an application made under regulation 32 above.

(2) An application for the variation of an emissions plan, pursuant to a condition of the plan, that is made to the regulator before 1st January 2013 may be treated by the regulator as an application made under regulation 37(2)(a) above.

(3) Subject to paragraph (4) and (5), an aviation emissions plan that is in force immediately before 1st January 2013 (“the plan”) continues to have effect.

(4) The regulator must vary the plan as necessary to bring it into a form in which it could have been issued under regulation 34 above.

(5) Until such variations are made, the plan has effect in relation to emissions in the year beginning with 1st January 2013, or in any subsequent scheme year, as if—

(a) any reference in the plan to Commission Decision 2007/589/EC of 18 July 2007 were a reference to the Monitoring and Reporting Regulation, and any reference to Section 9 of Annex 1 and Sections 2, 3 and 4 of Annex 14 to that Decision were a reference to the corresponding provision of that Regulation; and

(b) any requirement of the plan to submit a report to the regulator by 30th June each year, setting out proposed improvements in monitoring of aviation activities, applied only in relation to the report required to be submitted by 30th June 2013.