161D Power to require information for purposes of allocation to industry

(1)

The Minister may, for any of the purposes in subsection (3), by notice in the Gazette

(a)

specify a description of an activity, including the matters listed in section 161A(1)(b)(i) in respect of the activity:

(b)

specify in respect of the activity each product that may be used, if the activity is prescribed in regulations as an eligible industrial activity, as the basis for an allocation of New Zealand units in respect of the activity (a specified product):

(c)

specify in respect of the activity—

(i)

the emissions that must be included in any information provided under paragraph (e) (the included emissions); and

(ii)

the emissions that may not be included in any information provided under paragraph (e) (the excluded emissions):

(d)

specify the financial years for which information must be provided under paragraph (e):

(e)

require any person carrying out the activity specified under paragraph (a) on the date of the notice to provide to the Minister—

(i)

any or all of the following information for the financial years specified in the notice:

(A)

financial statements that show the total revenue of the person from the activity in those years, calculated in accordance with any methodology specified under paragraph (g)(i):

(B)

information showing the number of whole tonnes of included emissions from the activity carried out by the person in those years, calculated in accordance with any methodology specified under paragraph (g)(ii) (emissions-intensity):

(C)

information showing the number of whole tonnes of included emissions from the activity carried out by the person in those years, calculated in accordance with any methodology specified under paragraph (g)(iii) (allocative baselines):

(D)

information showing the amount of each specified product produced by the person in those years calculated in accordance with any methodology specified under paragraph (g)(iv):

(ii)

copies of any electricity-related contracts in force on the date of the notice that affect the electricity cost increase that the persons carrying out the activity will face owing to the obligation imposed by this Act on participants to surrender units, or any information in relation to such contracts:

(iii)

any other information that would, in the Minister’s opinion, assist the Minister to determine any of the matters listed in subsection (3):

(f)

specify the date by which the information required to be provided under paragraph (e) must be provided to the Minister, which date must be no earlier than 30 working days from the date of the notice:

(g)

specify a methodology or methodologies for calculating—

(i)

revenue from the activity for the purpose of paragraph (e)(i)(A):

(ii)

emissions from the activity (emissions-intensity) for the purpose of paragraph (e)(i)(B):

(iii)

emissions from the activity (allocative baselines) for the purpose of paragraph (e)(i)(C):

(iv)

the amount of any specified product from the activity for the purpose of paragraph (e)(i)(D).

(2)

A methodology specified in a notice in accordance with subsection (1)(g) may incorporate by reference any material referred to in section 169(1), and if material is incorporated by reference, sections 169(2) and (3), 170, and 177 apply with any necessary modifications.

(3)

The purpose for which a notice may be issued under subsection (1) is to provide the Minister with the information necessary to determine any 1 or more of the following matters:

(a)

whether an activity meets the criteria listed in section 161A(3) and, if so, determine—

(i)

whether the activity is highly emissions-intensive or moderately emissions-intensive; and

(ii)

the appropriate allocative baseline or baselines for each product of the activity:

(b)

whether it is necessary to adjust any person’s number of whole tonnes of included emissions provided under subsection (1)(e)(i)(C) in accordance with section 161C(4):

(c)

any other matter listed in section 161A(1) in respect of an activity:

(d)

whether any matter should be considered by a review under section 160.

(4)

A Gazette notice under subsection (1) is a disallowable instrument, but not a legislative instrument, for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

(5)

Following the provision of information by any person in accordance with subsection (1)(e), the Minister may give notice to the person—

(a)

requiring the person to provide any further information that the Minister considers is necessary to enable the verification of the accuracy of the information; and

(b)

specifying the date by which the further information specified in the notice must be provided to the Minister.

(6)

If a person who is required to comply with a notice under subsection (1) or (5) fails to provide the required information by the date specified in the notice, the Minister may give a notice to the person that requires the information to be provided within 10 working days and advises the person that a failure to provide the information within that time period will render the person ineligible for an allocation of New Zealand units in respect of the activity specified in the notice if it is prescribed as an eligible industrial activity.

(7)

Despite anything in this Act, if an activity specified in a notice made under subsection (1)(a) is subsequently prescribed as an eligible industrial activity, the following persons are not eligible to be allocated New Zealand units under subpart 2 in respect of the eligible industrial activity:

(a)

any person who carried out the activity at the date of the notice and who without reasonable excuse failed to supply the data and information required by the date specified in a notice given under subsection (6); and

(b)

any associated person of a person referred to in paragraph (a).

Section 161D: inserted, on 8 December 2009, by section 56 of the Climate Change Response (Moderated Emissions Trading) Amendment Act 2009 (2009 No 57).

Section 161D(3)(a): amended, on 23 June 2020, by section 138 of the Climate Change Response (Emissions Trading Reform) Amendment Act 2020 (2020 No 22).

Section 161D(4): replaced, on 5 August 2013, by section 77(3) of the Legislation Act 2012 (2012 No 119).