• “(1) Any provision in this Act that imposes an obligation on, or provides an entitlement to, a person in respect of an activity listed in Schedule 3 or 4—

  • “(a) does not apply to that person unless—

    • “(i) the Part or subpart in Schedule 3 or 4 in which the activity is listed applies; and

    • “(ii) the person, if carrying out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3, falls within a class of persons prescribed in an Order in Council that applies that subpart; and

  • “(b) applies subject to sections 2C(3), 217 to 221, and 222A to 222D.”

“2B Orders in Council in relation to Part 5 of Schedule 3

• “(1) An Order in Council made under section 2A(8) or (9) appointing a date on and after which subpart 2 or 4 of Part 5 of Schedule 3 applies must—

  • “(a) be made on the recommendation of the Minister responsible for the administration of this Act; and

  • “(b) appoint a date that is 1 January in a year; and

  • “(c) be made at least 1 year before the date appointed in the Order in Council; and

  • “(d) not appoint a date earlier than 1 January 2013.

  “(2) One or more Orders in Council made under section 2A(8) or (9) may provide that subpart 2 or 4 of Part 5 of Schedule 3 applies—

  • “(a) specifically to 1 or more classes of persons who carry out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 on and after a date appointed in the order; or

  • “(b) generally to all persons who carry out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 on and after a date appointed in the order.

  “(3) Before recommending that an Order in Council be made under section 2A(8) or (9), the Minister must have regard to—

  • “(a) the need for the chief executive responsible for the administration of Parts 4 and 5 of this Act to be able to verify information contained in emissions returns of the persons who will become participants in respect of an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 by operation of the order; and

  • “(b) the likelihood that, as a result of becoming participants by operation of the order, persons carrying out an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 will reduce their emissions; and

  • “(c) the desirability of minimising—

    • “(i) the compliance and administration costs of persons who will become participants in respect of an activity listed in subpart 2 or 4 of Part 5 of Schedule 3 by operation of the order; and

    • “(ii) the administration costs of the Crown in administering the greenhouse gas emissions trading scheme established under this Act.

  “(4) Before recommending the making of an Order in Council under section 2A(8) or (9), the Minister must consult, or be satisfied that the chief executive has consulted, persons (or their representatives) that appear to the Minister or the chief executive likely to have an interest in the order.

“2C Effect of Orders in Council in relation to Part 5 of Schedule 3

• “(1) This section applies if an Order in Council made under section 2A(8) or (9) has the effect that subparts 1 and 2 of Part 5 of Schedule 3, or subparts 3 and 4 of Part 5 of Schedule 3, apply at the same time.

  “(2) If this section applies, then regulations made under section 163(1) may require—

  • “(a) a person carrying out an activity listed in subpart 1 of Part 5 of Schedule 3 and a person carrying out an activity listed in subpart 2 of Part 5 of Schedule 3 to—

    • “(i) collect data or other information relating to the same synthetic fertiliser; and

    • “(ii) calculate emissions in respect of emissions relating to the same synthetic fertiliser; or

  • “(b) a person carrying out an activity listed in subpart 3 of Part 5 of Schedule 3 and a person carrying out an activity listed in subpart 4 of Part 5 of Schedule 3 to—

    • “(i) collect data or other information relating to the same ruminant animals, pigs, horses, or poultry; and

    • “(ii) calculate emissions relating to the same ruminant animals, pigs, horses, or poultry.

  “(3) However,—

  • “(a) on and after the date from which the person carrying out an activity listed in subpart 2 of Part 5 of Schedule 3 is required to surrender units for emissions relating to the fertiliser, this Act no longer applies to the person carrying out the activity listed in subpart 1 of Part 5 of Schedule 3 in relation to the fertiliser; and

  • “(b) on and after the date from which the person carrying out an activity listed in subpart 4 of Part 5 of Schedule 3 is required to surrender units for emissions relating to the ruminant animals, pigs, horses, or poultry, this Act no longer applies to the person carrying out the activity listed in subpart 3 of Part 5 of Schedule 3 in relation to those ruminant animals, pigs, horses, or poultry.

  “(4) If an Order in Council is made under—

  • “(a) section 2A(8) that has the effect of applying subpart 2 of Part 5 of Schedule 3 to all persons who carry out an activity listed in that subpart from a date appointed in that order, then section 2A(5) and subpart 1 of Part 5 of Schedule 3 expire and are repealed on the date from which all persons carrying out an activity listed in subpart 2 of Part 5 of Schedule 3 are liable to surrender units in respect of emissions from the activity:

  • “(b) section 2A(9) that has the effect of applying subpart 4 of Part 5 of Schedule 3 to all persons who carry out an activity listed in that subpart from a date appointed in that order, then section 2A(6) and subpart 3 of Part 5 of Schedule 3 expire and are repealed on the date from which all persons carrying out an activity listed in subpart 4 of Part 5 of Schedule 3 are liable to surrender units in respect of emissions from the activity.

  “(5) If, by operation of subsection (3)(a) or (b) or (4)(a) or (b), this Act no longer applies to a person carrying out an activity in subpart 1 or 3 of Part 5 of Schedule 3, or an activity listed in subpart 1 or 3 of Part 5 of Schedule 3 is repealed, then—

  • “(a) section 54(4) applies, with any necessary modifications, to any person who has ceased, by operation of the provision, to be a participant in respect of that activity; and

  • “(b) the person is not required to comply with section 59, but the chief executive may, for the purposes of section 59(2), determine that the person has ceased to carry out the activity.”

• “(3) For the purposes of this section, business-as-usual levels means the levels of New Zealand's greenhouse gas emissions, estimated by a Minister or chief executive with powers or functions under this Act at any particular point in time, as if the greenhouse gas emissions trading scheme provided for under this Act had not been implemented.”

“3A Treaty of Waitangi (Te Tiriti o Waitangi)

• In order to recognise and respect the Crown’s responsibility to give effect to the principles of the Treaty of Waitangi,—

  • “(a) with respect to section 2B (which relates to Orders in Council in relation to Part 5 of Schedule 3), before recommending the making of an Order in Council under section 2A(8) or (9), the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the order:

  • “(b) with respect to section 75 (which relates to consultation on a pre-1990 forest land allocation plan), before making a recommendation under section 72, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the pre-1990 forest land allocation plan:

  • “(c) with respect to section 76 (which relates to consultation on a fishing allocation plan), before making a recommendation under section 74, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the fishing allocation plan:

  • “(d) with respect to section 161 (which relates to the appointment and conduct of a review panel),—

    • “(i) the Minister must, when appointing members to a review panel under section 160(6), ensure that the review panel has at least 1 member who, in the Minister’s opinion, has the appropriate knowledge, skill, and experience relating to the principles of the Treaty of Waitangi and tikanga Māori to conduct the review; and

    • “(ii) the review panel must consult with the representatives of iwi and Māori that appear to the panel likely to have an interest in the review; and

    • “(iii) the terms of reference for the review panel must incorporate reference to the principles of the Treaty of Waitangi:

  • “(e) with respect to section 161G (which relates to regulation-making powers in relation to eligible agricultural activities), before recommending the making of a regulation under section 161G(1), the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation:

  • “(f) with respect to section 162 (which relates to regulations adding further activity to Part 2 of Schedule 4), before recommending the making of a regulation under section 162(1), the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation:

  • “(g) with respect to section 163 (which relates to regulations relating to methodologies and verifiers), before recommending the making of a regulation under section 163(1), the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation:

  • “(h) with respect to section 164 (which relates to regulations relating to unique emissions factors), before recommending the making of a regulation under section 164, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation:

  • “(i) with respect to section 224 (which relates to the gazetting of targets), before the Minister responsible for the administration of this Act may set, amend, or revoke a target, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the target:

  • “(j) with respect to section 225 (which relates to regulations relating to targets), before recommending the making of a regulation under section 225(1), the Minister must consult, or be satisfied that the chief executive has consulted, representatives of iwi and Māori that appear to the Minister or chief executive likely to have an interest in the regulation.”

“allocate, in relation to New Zealand units,—

• “(a) means the allocation or provisional allocation of New Zealand units; but

• “(b) does not include the transfer of New Zealand units

“animal welfare export certificate means an animal welfare export certificate issued under section 46 of the Animal Welfare Act 1999

“Australian eligible industrial activity means an activity that is, or is likely to be, specified as an emissions-intensive trade-exposed activity in respect of which a person may be allocated emissions units under Australian law

“consolidated group means a consolidated group formed under section 150

“Crown holding account—

• “(a) means a holding account that is established and held by the Crown in accordance with a direction of the Minister of Finance under section 6; and

• “(b) does not include a holding account opened by any other person on behalf of the Crown under section 18A

“eligible activity means—

• “(a) an eligible agricultural activity; or

• “(b) an eligible industrial activity

“eligible agricultural activity means an activity or subclass of an activity listed in Part 5 of Schedule 3 in respect of which a person is required to surrender units for emissions under this Act

“eligible industrial activity means an activity that is specified as an eligible industrial activity in regulations made under section 161A

“eligible land means pre-1990 forest land (other than land that has been declared to be exempt land under section 183 or 184)

“eligible person means a person who meets any requirements for receiving an allocation of New Zealand units specified in, as relevant,—

• “(a) section 80(1):

• “(b) section 85(1):

• “(c) any regulations made under this Act:

• “(d) an allocation plan

“financial year has the same meaning as in section 2(1) of the Public Finance Act 1989

“fishing allocation plan means the allocation plan that provides for the matters specified in section 74

“member, in relation to an unincorporated body, means a partner, joint venturer, trustee, joint owner of land, or other member of the body

“nominated entity, in relation to a consolidated group, means an entity appointed under section 150(4)(b) or 152(3)(b) as the nominated entity of a consolidated group

“pre-1990 forest land allocation plan means an allocation plan that provides for the matters specified in section 72

“provisional allocation means a provisional allocation made under section 81

“solid biofuel means wood, wood waste, sulphate lyes, or charcoal

“unincorporated body—

• “(a) means an unincorporated body of persons; and

• “(b) includes (but is not limited to)—

  • “(i) a partnership, a joint venture, or the trustees of a trust; and

  • “(ii) if land, a lease, a forestry right, or a Crown conservation contract is not owned, held, or entered into by a partnership, joint venture, or the trustees of a trust, 3 or more joint—

    • “(A) landowners; or

    • “(B) leaseholders; or

    • “(C) holders of a registered forestry right; or

    • “(D) parties to a Crown conservation contract; but

• “(c) does not, unless they are partners, joint venturers, or trustees of a trust, include 2 joint—

  • “(i) landowners; or

  • “(ii) leaseholders; or

  • “(iii) holders of a registered forestry right; or

  • “(iv) parties to a Crown conservation contract”.

• “(c) is constituted as a carbon accounting area by operation of section 188(7)(b) or 192(3)(b)”.

“Convention—

• “(a) means the United Nations Framework Convention on Climate Change done at New York on 9 May 1992, a copy of the English text of which is set out in Schedule 1; and

• “(b) includes any amendments made to the Convention that are, or will become, binding on New Zealand from time to time”.

“Protocol—

• “(a) means the Protocol to the United Nations Framework Convention on Climate Change done at Kyoto on 11 December 1997, a copy of the English text of which is set out in Schedule 2; and

• “(b) includes any amendments made to the Protocol that are, or will become, binding on New Zealand from time to time”.

“waste means any thing that has been disposed of or discarded—

• “(a) including (but not limited to) any disposed of or discarded thing that is defined by its composition or source (for example, organic waste, electronic waste, or construction and demolition waste); but

• “(b) excluding any solid biofuel combusted for the purposes of generating electricity or industrial heat”.

• “(5) Despite anything in this Act, a hectare of land is not to be treated as pre-1990 forest land if,—

  • “(a) on 1 January 2008, the land had—

    • “(i) no standing exotic forest species (dead or alive), other than a strip of standing exotic forest species that had, or was likely to have, tree crown cover of an average width of less than 30 metres; and

    • “(ii) no other merchantable timber from exotic forest species; and

  • “(b) 4 years after the date on which the land met the conditions in paragraph (a), it is not forest land and no allocation has been made in respect of the land under the pre-1990 forest land allocation plan.”

“14 Registrar must give effect to directions

• The Registrar must give effect to any direction relating to the transfer of units from a Crown holding account (or in the case of reimbursement, from a surrender account) to the holding account of an eligible person or a participant (or, if required, in the prescribed circumstances to another holding account notified by one of those persons) that is given by a Minister or chief executive authorised to give such direction in accordance with a provision in Part 4 or 5 of this Act.”

“17A Power of Registrar to delegate

• “(1) The Registrar may, in writing, delegate to any person who is employed in the State services all or any of the functions, duties, and powers exercisable by the Registrar under this Act, except this power of delegation.

  “(2) Subject to any general or special directions given or conditions specified at any time by the Registrar, the person to whom any functions, duties, or powers are delegated under this section must perform and may exercise those functions, duties, and powers in the same manner and with the same effect as if they had been conferred on that person directly by a section of this Act and not by delegation.

  “(3) Every person purporting to act under any delegation under this section is, in the absence of proof to the contrary, presumed to be acting in accordance with the terms of the delegation.

  “(4) Any delegation under this section may be to a specified person or to persons of a specified class, or may be to the holder or holders for the time being of a specified office or specified classes of offices.

  “(5) Every delegation under this section is revocable in writing at will by the Registrar, and no such delegation prevents the exercise of any function, duty, or power by the Registrar.

  “(6) Every delegation under this section, until revoked, continues in force according to its tenor, even if the Registrar by whom it was made has ceased to hold office.

  “(7) For the purposes of this section, State services has the same meaning as in section 2 of the State Sector Act 1988.”

• “(7) The Registrar must give effect to any directions given by the chief executive under subsection (2) in accordance with, and subject to, the procedures set out in this subpart and any regulations made under section 30G.”

• “(3) A Kyoto unit that is transferred to a surrender account may only be further transferred, in accordance with—

  • “(a) a direction from the Minister of Finance, to a retirement account or a cancellation account; or

  • “(b) a direction of the chief executive of the department responsible for the administration of Part 4 given under section 124, to a participant's holding account.

• “(4) A New Zealand unit or an approved overseas unit that is transferred to a surrender account may only be further transferred in accordance with a direction of the chief executive of the department responsible for the administration of Part 4 given under section 124.”

• “(1) Notice of a trust, whether express, implied, or constructive, may not be entered on the unit register except in accordance with subsection (1A).

• “(1A) If the trustees of a trust apply to open a holding account under section 18A, then—

  • “(a) the trustees may specify the name of the trust as the name of the holding account; and

  • “(b) the Registrar may enter on the unit register the name of the trust as the name of the holding account.”

• “(a) the Minister or chief executive who gave the direction, if the Registrar registered the transaction following receipt of a direction from a Minister or chief executive authorised to give the direction under a provision of this Act; or”.

• “(1) This section applies to any New Zealand units transferred or to be transferred after 31 December 2012 in accordance with the pre-1990 forest land allocation plan issued under section 70.”

• “(8) The Governor-General may, by Order in Council, make regulations—

  • “(a) amending Schedule 1 by making any amendments to the text of the Convention set out in that schedule as are required to bring the text up to date:

  • “(b) revoking Schedule 1 and substituting a new schedule setting out in an up-to-date form the text of the Convention:

  • “(c) amending Schedule 2 by making any amendments to the text of the Protocol set out in that schedule as are required to bring the text up to date:

  • “(d) revoking Schedule 2 and substituting a new schedule setting out in an up-to-date form the text of the Protocol.”

• “(ii) member of an unincorporated body; or”.

• “(c) has paid any prescribed fees or charges.”

• “(1A) An Order in Council made under subsection (1) may specify any terms and conditions (including, but not limited to, terms and conditions imposing geographical or operational restrictions) that the Governor-General thinks fit.”

“61 Requirement to have holding account

• “(1) A participant or an eligible person must have a holding account for the purpose of—

  • “(a) surrendering units or repaying units as required under this Part or Part 5:

  • “(b) receiving New Zealand units to which the participant or eligible person is entitled under this Part or Part 5.

  “(2) Despite anything in subsection (1), a person who does not have a holding account at the time the person becomes a participant complies with subsection (1) if the person complies with section 56(1)(b) or 57(3), as the case may require.

  “(3) Despite anything in this Act, the Registrar must, subject to section 18A(5), open a holding account in the name of—

  • “(a) a person—

    • “(i) who applies to open a holding account in accordance with section 56(1)(b) or 57(3); and

    • “(ii) whose name has been entered on a register kept for the purposes of section 56 or 57; or

  • “(b) an eligible person.”

• “(d) keep, in the prescribed format (if any), records of the data or information and calculations.”

• “(2) If a participant submits an emissions return to the chief executive that contains an assessment of the participant's entitlement to receive New Zealand units, then the chief executive must, within 20 working days of receiving the emissions return, direct the Registrar to transfer the number of New Zealand units contained in the assessment to the participant’s holding account.

• “(3) Subsection (2) does not apply if, within 20 working days of the chief executive receiving the emissions return, the chief executive or an enforcement officer serves notice on the participant under section 94 requiring the participant to provide information in respect of any matter contained in the emissions return.”

“Subpart 2—Issuing and allocating New Zealand units

“68 Issuing New Zealand units

• “(1) The Minister may, at any time, direct the Registrar to issue New Zealand units into a Crown holding account.

  “(2) Before giving a direction, the Minister must—

  • “(a) consult the Minister of Finance; and

  • “(b) have regard to the following matters:

    • “(i) the number of units that New Zealand has received, or that the Minister expects New Zealand to receive, under any international agreement; and

    • “(ii) New Zealand's international obligations, including any obligation to retire units equal to the number of tonnes of emissions that are emitted in New Zealand; and

    • “(iii) the proper functioning of the greenhouse gas emissions trading scheme established under this Act; and

    • “(iv) any other matters that the Minister considers relevant; and

  • “(c) if the direction under subsection (1) relates to issuing New Zealand units into a Crown holding account on or after 1 January 2013, and if there is no subsequent commitment period specified or determined under the Protocol or no successor international agreement to the Protocol, have regard to the following matters:

    • “(i) New Zealand's annual emissions for the 5 years (on record) before the year of the direction under consideration; and

    • “(ii) the report of the most recent review completed under section 160(1); and

    • “(iii) New Zealand's obligations under the Convention (if any); and

    • “(iv) New Zealand's anticipated future international obligations.

  “(3) The Registrar must give effect to a direction given by the Minister under subsection (1).

  “(4) As soon as practicable after giving a direction under subsection (1), the Minister must—

  • “(a) publish a copy of the direction in the Gazette; and

  • “(b) ensure that the direction is accessible via the Internet site of the department of the chief executive responsible for the administration of this Act; and

  • “(c) present a copy of the direction to the House of Representatives.

  “(5) Each copy of the direction under subsection (4) must be accompanied by a statement setting out how the Minister has had regard to the matters specified in subsection (2)(b) and, if relevant, subsection (2)(c).

“69 Notification of intention regarding New Zealand units

• “(1) The Minister must give notice in the Gazette of the Crown's intentions to issue and allocate or sell New Zealand units at least 9 months before the end of each of the following periods:

  • “(a) the first commitment period:

  • “(b) each subsequent commitment period (if any):

  • “(c) if there is no subsequent commitment period, then—

    • “(i) the 5-year period commencing on 1 January 2013:

    • “(ii) each subsequent 5-year period after the period specified in subparagraph (i).

  “(2) The notice must include—

  • “(a) the number of New Zealand units that are intended to be issued under section 68; and

  • “(b) the time frames for issuing the New Zealand units under section 68; and

  • “(c) the intended time frame for any allocation of New Zealand units, or the sale of New Zealand units and the method of sale.

  “(3) The Minister must present a copy of the report under section 160(7)(b) to the House of Representatives before notice may be given under this section.

  “(4) The Minister must ensure that a copy of any notice given under subsection (1) is accessible via the Internet site of the department of the chief executive responsible for the administration of this Act.

  “(5) The Crown is not bound by any notice given under subsection (1) to make any decisions in relation to the issuing, sale, or allocation of New Zealand units.

“Allocation of New Zealand units in relation to pre-1990 forest land and fishing

“70 Governor-General may issue allocation plans

• “(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, issue an allocation plan providing for the matters in section 72 or 74.

  “(2) The allocation plan must—

  • “(a) comply with any relevant requirements specified in this subpart; and

  • “(b) be presented to the House of Representatives as soon as practicable after it is issued, along with, in the case of the fishing allocation plan, the report provided to the Minister under section 76(5) and any of the Minister's decisions on the recommendations contained in the report.

  “(3) An allocation plan comes into force on the day after the date it is presented to the House of Representatives.

  “(4) An allocation plan is a regulation for the purposes of the Regulations (Disallowance) Act 1989 and for the purposes of the Acts and Regulations Publication Act 1989.

“71 Correction of allocation plans

• “(1) For the purpose of correcting any minor mistakes or defects in an allocation plan, the Minister may, without complying with section 75 or 76, recommend that the Governor-General amend any allocation plan.

  “(2) An amended allocation plan comes into force at the time it is issued.

  “(3) Section 70(2)(b) and (3) do not apply to an amended allocation plan.

“72 Allocation in respect of pre-1990 forest land

• “(1) The Minister must recommend to the Governor-General that an allocation plan be issued under section 70 in respect of pre-1990 forest land.

  “(2) The pre-1990 forest land allocation plan must provide for—

  • “(a) an allocation of New Zealand units to—

    • “(i) landowners, or former landowners, of eligible land who are eligible persons; or

    • “(ii) a person appointed in accordance with section 73 to hold any New Zealand units allocated in respect of the eligible land specified in paragraph (b)(i)(A); and

  • “(b) an allocation of New Zealand units of—

    • “(i) 18 New Zealand units for each hectare of eligible land that was Crown forest licence land on 1 January 2008 and—

      • “(A) will not have been transferred to iwi as part of a Treaty of Waitangi settlement by the date on which the allocation plan is issued; or

      • “(B) has been, or will have been, transferred to iwi as part of a Treaty of Waitangi settlement either on or after 1 January 2008 but before the date on which the allocation plan is issued:

    • “(ii) 39 New Zealand units for each hectare of eligible land, other than land covered by subparagraph (i) that was transferred to the landowner, or former landowner, of the land—

      • “(A) after 31 October 2002; or

      • “(B) before 1 November 2002 if, since that date, ownership (including, if specified in the allocation plan, the beneficial ownership) of any body corporate owning the land or, if specified in the allocation plan, the beneficial ownership of the land owned by a body corporate, has changed in the manner and to the extent specified in the allocation plan:

    • “(iii) 60 New Zealand units for each hectare of eligible land not covered in subparagraph (i) or (ii).

  “(3) The pre-1990 forest land allocation plan must provide that the New Zealand units allocated under the plan will be transferred so that—

  • “(a) a person allocated 18 units for each hectare of eligible land in accordance with subsection (2)(b)(i) receives—

    • “(i) 7 units for each hectare of eligible land by 31 December 2012; and

    • “(ii) 11 units for each hectare of eligible land after 31 December 2012; and

  • “(b) a person allocated 39 units for each hectare of eligible land in accordance with subsection (2)(b)(ii) receives—

    • “(i) 15 units for each hectare of eligible land by 31 December 2012; and

    • “(ii) 24 units for each hectare of eligible land after 31 December 2012; and

  • “(c) a person allocated 60 units for each hectare of eligible land in accordance with subsection (2)(b)(iii) receives—

    • “(i) 23 units for each hectare of eligible land by 31 December 2012; and

    • “(ii) 37 units for each hectare of eligible land after 31 December 2012.

  “(4) In addition to the matters provided for in subsections (2) and (3), the pre-1990 forest land allocation plan—

  • “(a) must specify—

    • “(i) the landowners, or former landowners, of the eligible land who are eligible persons; and

    • “(ii) the manner in which, and the extent to which, the ownership of eligible land must have changed to constitute a ‘transfer’ for the purposes of subsection (2)(b)(ii)(A) or (B); and

    • “(iii) the circumstances, if any, in which a transfer for the purposes of subsection (2)(b)(ii) includes transmission; and

    • “(iv) the manner in which, and the extent to which, the ownership of any body corporate owning eligible land must have changed for the purposes of subsection (2)(b)(ii)(B); and

    • “(v) the data and information, or the kind of data and information, that each eligible person must supply, and the form in which the person must supply the data and information, in order to—

      • “(A) receive an allocation of New Zealand units under the plan; and

      • “(B) enable the Minister to determine the person’s correct allocation of New Zealand units under the allocation plan; and

    • “(vi) in relation to an eligible person who receives an allocation of New Zealand units,—

      • “(A) the records, or the kinds of records, that the person must retain; and

      • “(B) the form in which the person must retain the records; and

      • “(C) the period for which the person must retain the records; and

  • “(b) may specify—

    • “(i) the manner in which, and the extent to which, the beneficial ownership of eligible land must have changed to constitute a ‘transfer’ for the purposes of subsection (2)(b)(ii)(A) or (B); and

    • “(ii) the manner in which, and the extent to which, the beneficial ownership of any body corporate owning eligible land, or, if relevant, the beneficial ownership of the land owned by a body corporate, must have changed for the purposes of subsection (2)(b)(ii)(B); and

  • “(c) may provide for any other matters contemplated by this subpart, necessary for its administration, or necessary for giving it full effect.

  “(5) Despite subsection (2)(b), the pre-1990 forest land allocation plan must treat any Crown forest licence land transferred pursuant to the Te Uri o Hau Claims Settlement Act 2002 as if it were eligible land covered by subsection (2)(b)(iii).

  “(6) For the purposes of—

  • “(a) this section,—

    • “(i) eligible land is to be treated as transferred on the settlement date, unless the pre-1990 forest land allocation plan specifies another date or event upon which any or all eligible land is to be treated as transferred; and

    • “(ii) Crown forest licence land means eligible land subject to a Crown forestry licence under section 14 of the Crown Forest Assets Act 1989; and

  • “(b) subsection (2)(b)(ii),—

    • “(i) transfer means a transfer specified in the pre-1990 forest land allocation plan, but does not include transmission unless the allocation plan specifies otherwise (for example, in relation to any land vested under an Act); and

    • “(ii) body corporate means a company whether incorporated in New Zealand or elsewhere and any other body corporate specified in the pre-1990 forest land allocation plan.

“73 Minister to appoint person to hold certain New Zealand units

• “(1) The Minister must, before making a determination in respect of the eligible land specified in section 72(2)(b)(i)(A), by notice in the Gazette,—

  • “(a) appoint a person to—

    • “(i) apply for an allocation of New Zealand units in respect of the land; and

    • “(ii) hold on trust for the future owners of the land any New Zealand units allocated in respect of the land; and

  • “(b) notify—

    • “(i) the structure, composition, and functions of the person; and

    • “(ii) the terms and conditions upon which the person is to hold the New Zealand units.

  “(2) If the Minister has not appointed a person in accordance with subsection (1) before issuing a notice under section 77(1) inviting persons to apply for an allocation of New Zealand units under the pre-1990 forest land allocation plan, then the Minister must, by notice in the Gazette, appoint a person to apply for an allocation of New Zealand units in respect of the land specified in section 72(2)(b)(i)(A) on behalf of the person to be appointed under subsection (1).

“74 Allocation to owners of fishing quota

• “(1) The Minister must recommend to the Governor-General that an allocation plan be issued under section 70 in relation to fishing.

  “(2) The fishing allocation plan must provide for—

  • “(a) an allocation of New Zealand units to persons who—

    • “(i) were shown on the quota register kept under Part 8 of the Fisheries Act 1996 as owners of fishing quota on 24 September 2009; and

    • “(ii) meet any tests or thresholds that are specified in the allocation plan; and

  • “(b) a total of 700 000 New Zealand units to be available for allocation under the allocation plan; and

  • “(c) an allocation of New Zealand units to each eligible person calculated in accordance with the following formula:

    P = A × (B + C)/(D + E)

    where—

    P

    is the eligible person's allocation entitlement under the fishing allocation plan

    A

    is 700 000 New Zealand units

    B

    is the total quota weight equivalent (expressed in kilograms) of stocks, other than Foveaux Strait dredge oysters, owned by the eligible person on the close of 24 September 2009

    C

    is the total quota weight equivalent (expressed as a number of oysters) of Foveaux Strait dredge oyster stock owned by the eligible person on the close of 24 September 2009 divided by 9.8

    D

    is the sum of the total allowable commercial catch (expressed in kilograms) of stocks, other than Foveaux Strait dredge oysters (excluding any quota shown in the quota register kept under Part 8 of the Fisheries Act 1996 as being owned by the Crown), on the close of 24 September 2009

    E

    is the sum of the total allowable commercial catch (expressed as a number of oysters) of the Foveaux Strait dredge oyster stock divided by 9.8 (excluding any quota shown in the quota register kept under Part 8 of the Fisheries Act 1996 as being owned by the Crown) on the close of 24 September 2009; and

  • “(d) the data and information, or the kind of data and information, that each eligible person must supply, and the form in which the person must supply the data and information, in order to—

    • “(i) receive an allocation of New Zealand units under the allocation plan; and

    • “(ii) enable the Minister to determine the person's correct allocation of New Zealand units under the allocation plan; and

  • “(e) in relation to an eligible person who receives an allocation of New Zealand units,—

    • “(i) the records, or the kinds of records, that the person must retain; and

    • “(ii) the form in which the person must retain the records; and

    • “(iii) the period for which the person must retain the records; and

  • “(f) any other matters contemplated by this subpart, necessary for its administration, or necessary for giving it full effect.

  “(3) For the purposes of this section, quota weight equivalent and total allowable commercial catch have the same meaning as in section 2(1) of the Fisheries Act 1996.

“75 Consultation on pre-1990 forest land allocation plan

• “(1) Before making a recommendation under section 72, the Minister must consult, or be satisfied that the chief executive has consulted, representatives of persons that appear to the Minister or the chief executive likely to have an interest in the pre-1990 forest land allocation plan.

  “(2) A failure to comply with this section does not affect the validity of any pre-1990 forest land allocation plan issued under section 70.

  “(3) Any consultation undertaken before the commencement of this section in respect of the pre-1990 forest land allocation plan is to be treated as the consultation required for the purposes of this section.

“76 Consultation on fishing allocation plan

• “(1) Before making a recommendation under section 74(1), the Minister must—

  • “(a) prepare a draft fishing allocation plan; and

  • “(b) consult, or be satisfied that the chief executive has consulted, persons (or their representatives) that appear to the Minister or the chief executive likely to have an interest in the fishing allocation plan.

  “(2) The draft fishing allocation plan must provide for the matters set out in section 74(2).

  “(3) The Minister must ensure that—

  • “(a) public notice is given of the draft fishing allocation plan; and

  • “(b) the draft fishing allocation plan is made available in hard copy at the office of, and is accessible via the Internet site of the department of, the chief executive responsible for the administration of this Act and at such other places as the Minister considers appropriate.

  “(4) The notice of the draft fishing allocation plan given under subsection (3) must specify—

  • “(a) how a hard copy of the draft fishing allocation plan may be obtained; and

  • “(b) that any person may make a submission on the draft fishing allocation plan, how submissions may be made, and by what date submissions must be made (which must be no earlier than 20 working days after the date on which notice is given).

  “(5) If any submission is made on the draft fishing allocation plan under subsection (4), the chief executive must, after the expiry of the time for making submissions, prepare for the Minister a report that contains recommendations in respect of the submissions.

“77 Determinations made in accordance with allocation plan

• “(1) As soon as practicable after an allocation plan comes into force, the Minister must give public notice inviting any person who may be eligible for an allocation of New Zealand units under the allocation plan to apply for an allocation.

  “(2) The notice under subsection (1) must specify—

  • “(a) the form in which an application must be made; and

  • “(b) the final date by which applications for an allocation of New Zealand units under the allocation plan must be received by the Minister (which must, in the case of a pre-1990 forest land allocation plan, be no earlier than 40 working days after the date on which the notice is given and, in the case of a fishing allocation plan, be no earlier than 20 working days after the date on which the notice is given); and

  • “(c) the data and other information, or the kind of data and other information, that must accompany the application in order for the person’s application to be considered (which must be the data and other information specified in the allocation plan); and

  • “(d) how the data and other information are to be supplied.

  “(3) To avoid doubt, data and information supplied under subsection (2) are subject to the Official Information Act 1982.

  “(4) Despite anything in this subpart or in any allocation plan,—

  • “(a) a person is not entitled to receive an allocation of New Zealand units under an allocation plan unless the person applies to the Minister for an allocation under the allocation plan and supplies the required data and other information in the required format; and

  • “(b) the Minister is not required to make a determination in respect of an application for an allocation if the application is received after the date specified in the notice under subsection (2)(b).

  “(5) The Minister must, in relation to each application received by the date specified in the notice given under subsection (1), make a preliminary determination in accordance with the allocation plan as to—

  • “(a) whether the person is eligible to receive an allocation of New Zealand units under the plan; and

  • “(b) the total number of New Zealand units the person is entitled to receive under the plan (which may be expressed by reference to a formula); and

  • “(c) the year or years in which the New Zealand units will be transferred to the person.

  “(6) After making a preliminary determination, the Minister must notify the applicant of the following:

  • “(a) whether, in the Minister's opinion, the person is an eligible person under the allocation plan, and—

    • “(i) if so, the total number of New Zealand units the Minister has determined the person is entitled to receive under the plan (which may be expressed by reference to a formula) and the year or years in which those units will be transferred; and

    • “(ii) if not, the reasons for that opinion; and

  • “(b) that, if the applicant believes there are any errors or miscalculations in the Minister’s preliminary determination of eligibility or entitlement, the person may provide further information to the Minister supporting a different determination; and

  • “(c) the final date by which any further information must be received by the Minister (which must, in the case of a pre-1990 forest land allocation plan, be no earlier than 20 working days after the date on which the notice is given, and in the case of a fishing allocation plan, be no earlier than 10 working days after the date on which the notice is given).

  “(7) Following the expiry of the date referred to in subsection (6)(c), the Minister must, taking into account any information received by the due date in response to the notice, make a final determination of the matters specified in subsection (5).

  “(8) As soon as practicable after making a final determination under subsection (7), the Minister must—

  • “(a) notify the applicant of the determination; and

  • “(b) publish the determination in the Gazette; and

  • “(c) ensure that the determination is accessible via the Internet site of the department of the chief executive responsible for the administration of this Act; and

  • “(d) if New Zealand units are allocated to an applicant, direct the Registrar to transfer the allocated New Zealand units to the applicant's holding account in the amounts and on the date or dates specified in the determination.

  “(9) For the purposes of making a preliminary determination under subsection (5) or a final determination under subsection (7) in respect of a fishing allocation plan, the Minister may access, and rely on, the information set out in the quota register kept under Part 8 of the Fisheries Act 1996.

  “(10) To avoid doubt, and without limiting the powers conferred under sections 94 to 106, the chief executive or any other person with powers under sections 94 to 106 may exercise those powers for the purposes of ascertaining whether a person who applies for an allocation of New Zealand units or is allocated New Zealand units under an allocation plan is complying with, or has complied with,—

  • “(a) any requirement in this section or section 78 or 79; or

  • “(b) any requirement in the relevant allocation plan (for example, a requirement to keep records).

“78 Power to revoke and replace determinations

• “(1) Despite anything in section 77(7) or (8), the Minister may (but is not required to) reconsider, revoke, and replace a determination made under section 77(7) with a new determination if—

  • “(a) the allocation plan under which the determination was made is amended; or

  • “(b) in the Minister's opinion, the determination has resulted, or would otherwise result, in a person receiving an incorrect allocation because—

    • “(i) of an error in the application of the criteria specified in the applicable allocation plan; or

    • “(ii) a person has provided altered, false, incomplete, or misleading information in response to a notice given under section 77(1) or (6) or 86E.

  “(2) Before revoking and replacing a determination that would affect the number of units allocated to a person, the Minister must—

  • “(a) make a preliminary determination of the matters specified in section 77(5); and

  • “(b) give notice to the person of—

    • “(i) the ground specified in subsection (1) and any information that led the Minister to reconsider the person’s allocation under the relevant allocation plan; and

    • “(ii) the Minister’s preliminary determination made under paragraph (a); and

  • “(c) follow the procedure in section 77(6) to (8), which apply, with any necessary modifications, to the new determination.

  “(3) The Minister may not revoke or replace a determination under this section after the expiry of 4 years from the date of notification of the Minister’s first determination under section 77(7) if the new determination would decrease the number of units allocated to a person.

  “(4) Despite subsection (3), if the Minister is satisfied that an application for an allocation under an allocation plan, or any other document submitted in respect of the application, was submitted with the intention to deceive, then the Minister may revoke and replace any determination that resulted from the application at any time so as to decrease the number of units allocated to the applicant (including decreasing that number to zero).

  “(5) Subsections (6) and (7) apply if—

  • “(a) the Minister has made a determination under section 77 that Te Ohu Kai Moana Trustee Limited is entitled to receive New Zealand units under a fishing allocation plan; and

  • “(b) New Zealand units have been transferred to Te Ohu Kai Moana Trustee Limited under the determination in respect of unallocated quota; and

  • “(c) Te Ohu Kai Moana Trustee Limited has allocated and transferred unallocated quota together with New Zealand units associated with that quota to any iwi or mandated iwi organisation in accordance with section 138A(2) of the Maori Fisheries Act 2004; and

  • “(d) the Minister reconsiders the determination.

  “(6) In reconsidering the determination of Te Ohu Kai Moana Trustee Limited's entitlement, the Minister must treat an iwi or a mandated iwi organisation which has received unallocated quota from Te Ohu Kai Moana Trustee Limited as if it owned that quota on 24 September 2009.

  “(7) If the Minister decides that the determination of Te Ohu Kai Moana Trustee Limited’s entitlement to New Zealand units should be revoked, the Minister must make a new determination of—

  • “(a) Te Ohu Kai Moana Trustee Limited’s entitlement to be allocated New Zealand units under the fishing allocation plan as if the unallocated quota that Te Ohu Kai Moana Trustee Limited owns on the date of the new determination were all the unallocated quota it owned on 24 September 2009; and

  • “(b) the entitlement of an iwi or a mandated iwi organisation that has received unallocated quota to be allocated New Zealand units under the fishing allocation plan as if that iwi or mandated iwi organisation owned the unallocated quota it received on 24 September 2009.

  “(8) In subsections (5) to (7) and section 79(4),—

  “iwi has the same meaning as in section 5 of the Maori Fisheries Act 2004

  “mandated iwi organisation has the same meaning as in section 5 of the Maori Fisheries Act 2004

  “unallocated quota means quota held by Te Ohu Kai Moana Trustee Limited on 24 September 2009 and that had not been allocated under section 130(1), 135, or 151 of the Maori Fisheries Act 2004 at that date.

“79 Effect of new determination

• “(1) If the Minister makes a new determination in accordance with section 78, then—

  • “(a) the new determination applies and replaces the earlier determination from the date the new determination is made; and

  • “(b) the Minister—

    • “(i) may, if practicable, amend or revoke any direction given under section 77(8)(d); or

    • “(ii) must otherwise give any new direction necessary under section 77(8)(d) in order to give effect to the new determination.

  “(2) Subject to subsection (3), a new determination does not change or otherwise affect any transfer of New Zealand units made to a person in accordance with a revoked determination before the date the new determination came into effect.

  “(3) If New Zealand units have been transferred to a person under an earlier determination and the person would not be entitled under the new determination to those New Zealand units (including where the result of the new determination is that the person would not be entitled to any New Zealand units under the allocation plan), then—

  • “(a) the notice of the new determination given to the person under section 77(8) must specify—

    • “(i) the number of units required to be repaid; and

    • “(ii) the Crown holding account into which they must be transferred; and

  • “(b) the person must, within 60 working days after the date of the notice, repay those units by transferring the specified number of units to a Crown holding account in accordance with the notice, and sections 134 and 135 apply, with any necessary modifications, as if—

    • “(i) the units the person is required to repay were units transferred to the person in error; and

    • “(ii) the requirement to repay the units arose under section 125.

  “(4) This section applies to any new determination made in accordance with section 78(7) as if—

  • “(a) only the New Zealand units associated with the unallocated quota held by Te Ohu Kai Moana Trustee Limited at the date of the new determination had been transferred to it under the earlier determination; and

  • “(b) the New Zealand units associated with the unallocated quota transferred to an iwi or a mandated iwi organisation by Te Ohu Kai Moana Trustee Limited had been transferred to the iwi or mandated iwi organisation under the earlier determination.

“Allocation of New Zealand units in relation to industry and agriculture

“80 Criteria for allocation of New Zealand units to industry

• “(1) A person is eligible for an allocation of New Zealand units for an eligible industrial activity in respect of a year if the person carries out the activity at any time in a year.

  “(2) Subsection (1) is subject to sections 86E and 161D(7).

“81 Entitlement to provisional allocation for eligible industrial activities

• Subject to section 82, an eligible person is entitled to a provisional allocation of New Zealand units for an eligible industrial activity in respect of a year calculated in accordance with the following formula:

  PA = LA × ∑(PDCT × AB)

  where—

  PA

  is the person’s provisional allocation entitlement for the eligible industrial activity for the year

  LA

  is the level of assistance for the eligible industrial activity for the year, being,—

  • (a) for a moderately emissions-intensive eligible industrial activity,—

    • (i) 0.6 in 2010, 2011, and 2012; and

    • (ii) in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a moderately emissions-intensive eligible industrial activity) (expressed to 2 decimal places):

  • (b) for a highly emissions-intensive eligible industrial activity,—

    • (i) 0.9 in 2010, 2011, and 2012; and

    • (ii) in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a highly emissions-intensive eligible industrial activity) (expressed to 2 decimal places)

  ∑

  is the symbol for summation (of each PDCT × AB calculation)

  PDCT

  is the amount of each prescribed product from the eligible industrial activity produced by the person in the year immediately preceding the year to which the provisional allocation relates, as determined, if relevant, in accordance with regulations made under this Act

  AB

  is the prescribed allocative baseline for the applicable product that is required to be used by the eligible person by regulations made under this Act.

“82 Entitlement to allocation for eligible industrial activities where provisional allocation not received

• “(1) An eligible person who carries out an eligible industrial activity at any time in a year, but did not carry out that activity during the immediately preceding year (a new entrant) is not entitled to a provisional allocation calculated under section 81, but is entitled to an allocation under subsection (2).

  “(2) A new entrant or other eligible person who did not receive a provisional allocation of New Zealand units for an eligible industrial activity in respect of a year is entitled to an allocation of New Zealand units for the eligible industrial activity for the year calculated in accordance with the formula in section 83(2).

“83 Annual allocation adjustment

• “(1) A person who has received a provisional allocation of New Zealand units for an eligible industrial activity in respect of a year must, subject to section 84, calculate the person’s annual allocation adjustment for the activity for the year by—

  • “(a) determining the person’s final allocation entitlement for the eligible industrial activity in respect of the year in accordance with the formula in subsection (2); and

  • “(b) then determining the annual allocation adjustment in accordance with the formula in subsection (3).

  “(2) The formula for the calculation of a person’s final allocation entitlement is as follows:

  FA = LA × ∑(PDCT × AB)

  where—

  FA

  is the person’s final allocation entitlement for the eligible industrial activity for the year

  LA

  is the level of assistance for the activity for the year, being,—

  • (a) for a moderately emissions-intensive eligible industrial activity,—

    • (i) 0.6 in 2010, 2011, and 2012; and

    • (ii) in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a moderately emissions-intensive eligible industrial activity) (expressed to 2 decimal places):

  • (b) for a highly emissions-intensive eligible industrial activity,—

    • (i) 0.9 in 2010, 2011, and 2012; and

    • (ii) in each year after 2012, the level of assistance from the previous year less 1.3% (the phase-out rate for a highly emissions-intensive eligible industrial activity) (expressed to 2 decimal places)

  ∑

  is the symbol for summation (of each PDCT × AB calculation)

  PDCT

  is the amount of each prescribed product from the eligible industrial activity produced by the person in the year, as determined, if relevant, in accordance with regulations made under this Act

  AB

  is the prescribed allocative baseline for the applicable product that is required to be used by the eligible person by regulations made under this Act.

  “(3) The formula for the calculation of a person’s annual allocation adjustment is as follows:

  AA = PA – FA

  where—

  AA

  is the person’s annual allocation adjustment of units for the eligible industrial activity for the year

  PA

  is the person's provisional allocation for the eligible industrial activity notified by the chief executive under section 86B

  FA

  is the person's final allocation entitlement for the eligible industrial activity for the year calculated under subsection (2).

  “(4) If the figure for AA calculated under the formula in subsection (3)—

  • “(a) is a negative number, then the person is entitled to be allocated the number of units in the annual allocation adjustment:

  • “(b) is a positive number, then the person is liable to repay the number of units in the annual allocation adjustment.

  “(5) If an eligible person is entitled to be allocated the number of units in an annual allocation adjustment and the person—

  • “(a) makes an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, then the person must record the adjustment in the person's application for a provisional allocation for the following year:

  • “(b) does not make an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, the person may make a separate application under section 86 for an allocation of the number of units in the annual allocation adjustment.

  “(6) If an eligible person is liable to repay the number of units in an annual allocation adjustment and the person—

  • “(a) makes an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, then—

    • “(i) the person must record the adjustment for the year in the person's application for a provisional allocation for the following year; and

    • “(ii) subject to section 86B, the chief executive must deduct the number of units in the adjustment from the provisional allocation for the following year, unless the number of units in the provisional allocation is less than the adjustment, in which case the person must, within 20 working days of being notified of the shortfall in the number of units by the chief executive, repay the shortfall by transferring the relevant number of units to a Crown holding account designated by the chief executive; or

  • “(b) does not make an application for a provisional allocation for the same eligible industrial activity in the year following the year to which the annual allocation adjustment relates, then the person must—

    • “(i) by 30 April in the year following the year to which the annual allocation adjustment relates, notify the chief executive of the person’s annual allocation adjustment; and

    • “(ii) by 31 May in the year following the year to which the annual allocation adjustment relates, repay the number of units in the annual allocation adjustment by transferring the units to a Crown holding account designated by the chief executive.

  “(7) If a person is required to repay units under this section, then—

  • “(a) the units repaid must be of a type that may be transferred to a surrender account at the time the units are repaid; and

  • “(b) sections 134 and 135 apply, with any necessary modifications, as if—

    • “(i) the units the person is required to repay were units transferred to the person in error; and

    • “(ii) the requirement to repay the units arose under section 125.

“84 Closing allocation adjustment

• “(1) An eligible person who has received a provisional allocation for an eligible industrial activity in respect of a year and who ceases during the year to carry out that activity must, within 20 working days of ceasing to carry out the activity,—

  • “(a) calculate the person’s final allocation entitlement for the activity for the year in accordance with the formula in section 83(2); and

  • “(b) using the formula in section 83(3), calculate the person’s closing allocation adjustment, and, for this purpose, section 83(3) applies, with any necessary modifications, as if the closing allocation adjustment were an annual allocation adjustment; and

  • “(c) if the closing allocation adjustment is—

    • “(i) a negative number, apply to the chief executive under section 86 for an allocation of the number of units in the closing allocation adjustment:

    • “(ii) a positive number, notify the chief executive of the person's closing allocation adjustment and repay the number of units in the closing allocation adjustment by transferring the units to a Crown holding account designated by the chief executive.

  “(2) For the purposes of subsection (1), a person who has received a provisional allocation for an eligible industrial activity in respect of a year and who temporarily does not carry out the activity—

  • “(a) is not immediately to be treated as having ceased to carry out the activity; but

  • “(b) must, if the person does not carry out the activity for a period of 3 months in the year, notify the chief executive as soon as practicable after the expiry of that 3-month period of that fact; and

  • “(c) must, if given notice by the chief executive (following receipt of the person’s notice under paragraph (b)) that the chief executive is satisfied that the person has ceased to carry out the activity for the year and that the person is required to comply with subsection (1), within 20 working days of the date of the chief executive’s notice, comply with subsection (1).

  “(3) Subject to subsection (4), an eligible person who has complied with subsection (1) during the year in which the person ceased to carry out the eligible industrial activity—

  • “(a) is not required to comply with section 83 in respect of that activity; and

  • “(b) may not calculate an annual allocation adjustment under section 83 in respect of that year.

  “(4) A person who has applied for or notified a closing allocation adjustment in accordance with subsection (1) during a year, but who then recommences carrying out the activity in the year,—

  • “(a) may calculate an annual allocation adjustment for the year in accordance with the following formula:

    AA = PA – FA – CAA

    where—

    AA

    is the person’s annual allocation adjustment of units for the eligible industrial activity for the year

    PA

    is the person's provisional allocation for the eligible industrial activity for the year notified by the chief executive under section 86B

    FA

    is the person's final allocation entitlement for the eligible industrial activity for the year (which must be calculated in accordance with section 83(2)).

    CAA

    is the amount of the person’s closing allocation adjustment for the eligible industrial activity; and

  • “(b) is entitled to be allocated the number of units in the person’s annual allocation adjustment (as calculated under paragraph (a)) in accordance with section 83(5).

  “(5) Section 83(7) applies to the repayment of units under this section as if the units were required to be repaid under section 83.

“85 Allocation of New Zealand units in relation to agriculture

• “(1) A person is eligible for an allocation of New Zealand units for an eligible agricultural activity in respect of a year if the person carries out the activity at any time in the year.

  “(2) An eligible person is entitled to an allocation for the eligible agricultural activity in respect of the year calculated in accordance with the following formula:

  A = LA × ∑(PDCT × AB)

  where—

  A

  is the person's allocation entitlement for the eligible agricultural activity for the year

  LA

  is the level of assistance for the eligible agricultural activity for the year, being—

  • (a) 0.9 for 2015; and

  • (b) for each year after 2015, the level of assistance from the previous year less 1.3% (the phase-out rate for an eligible agricultural activity) (expressed to 2 decimal places)

  ∑

  is the symbol for summation (of each PDCT × AB calculation)

  PDCT

  is the total amount of each product from the eligible agricultural activity produced by the person in the year as determined, if relevant, in accordance with regulations made under this Act

  AB

  is the prescribed allocative baseline for the applicable product.

  “(3) Despite section 86(1)(c), a person who ceases to carry out an eligible agricultural activity in a year may, within 20 working days of ceasing to carry out the activity, apply under section 86 for an allocation for that year calculated in accordance with the formula in subsection (2).

  “(4) A person—

  • “(a) is not to be treated as having ceased to carry out an eligible agricultural activity for the purposes of subsection (3) and section 59, if the person does not continuously carry out the activity during a year; but

  • “(b) must, if the person does not carry out the eligible agricultural activity for a period of 3 months in a year, be treated as having ceased to carry out the activity in the year.

  “(5) Subject to subsection (6), an eligible person who has applied for an allocation for a year (the closing year) in accordance with subsection (3) may not apply under section 86 for a further allocation in respect of the closing year.

  “(6) An eligible person who has applied in accordance with subsection (3) for an allocation in respect of a closing year, but who then recommences carrying out the activity in the closing year may apply under section 86 for an allocation in respect of the part of the year after the date the person recommenced carrying out the activity (and which was not covered by the application made in accordance with subsection (3)) and, for that purpose, subsection (2) applies as if the year were the part of the year from the date the person recommenced carrying out the activity.

“86 Applications for allocation of New Zealand units for industry and agriculture

• “(1) An eligible person who wishes to be allocated New Zealand units for an eligible industrial activity or eligible agricultural activity under this subpart must, unless this subpart otherwise provides, apply to the chief executive for an allocation—

  • “(a) no later than 30 April in the year to which it relates, if the application is for a provisional allocation for an eligible industrial activity in respect of a year; and

  • “(b) no later than 30 April in the year following the year to which it relates, if the application is for an allocation (other than a provisional allocation for an industrial activity) in respect of a year (including for an allocation of an annual allocation adjustment); and

  • “(c) on or after 1 January and before 31 December in the year following the year to which it relates, if the application is for an allocation for an eligible agricultural activity in respect of a year.

  “(2) An application under subsection (1) must—

  • “(a) be in the prescribed form; and

  • “(b) contain, as relevant, the applicant’s assessment of,—

    • “(i) in the case of an eligible industrial activity, the person’s—

      • “(A) provisional allocation entitlement in respect of the year calculated in accordance with section 81:

      • “(B) final allocation entitlement in respect of the previous year calculated in accordance with section 83(2):

      • “(C) annual allocation adjustment relating to the previous year calculated in accordance with section 83(3) or 84(4):

      • “(D) closing allocation adjustment for the year calculated as required under section 84(1)(b):

    • “(ii) in the case of an eligible agricultural activity, the person’s—

      • “(A) allocation entitlement in respect of the previous year calculated in accordance with section 85(2); or

      • “(B) if section 85(3) applies, allocation entitlement in respect of the year in which the person ceased to carry out the eligible agricultural activity; and

  • “(c) be accompanied by—

    • “(i) any other information that the chief executive may require; and

    • “(ii) the prescribed fee (if any); and

  • “(d) contain the account number of the eligible person’s holding account, required by section 61.

“86A Provisional allocation to industry in and after 2013

• Despite section 86(1)(a), if an eligible industrial activity is prescribed under section 161A(1)(a) in the year 1 January 2013 to 31 December 2013 or in any subsequent year (the prescribing year), an eligible person who carried out the activity in the year preceding the prescribing year may apply for a provisional allocation for the eligible industrial activity in respect of the prescribing year in the period—

  • “(a) commencing on the date the regulation prescribing the activity as an eligible industrial activity comes into force; and

  • “(b) ending on the date 3 months after the date in paragraph (a).

“86B Decisions on applications for allocations of New Zealand units to industry and agriculture

• “(1) On receipt of an application under section 86, the chief executive must decide—

  • “(a) whether the applicant is eligible to receive an allocation in respect of the application:

  • “(b) if in the chief executive’s opinion the applicant is eligible for an allocation in respect of the application, the number of units the applicant is entitled to be allocated in respect of the application that, if the application relates to a provisional allocation for an eligible industrial activity, must—

    • “(i) include any units to which the person is entitled in respect of an annual allocation adjustment for the previous year; or

    • “(ii) be net of any units required to be deducted from the person’s provisional allocation entitlement in accordance with section 83(6)(a).

  “(2) If the chief executive decides under subsection (1) that an applicant is entitled to receive an allocation in respect of the application, then the chief executive must—

  • “(a) notify the applicant of—

    • “(i) the number of units the applicant has been allocated in respect of the application and, in the case of an eligible industrial activity, any adjustment to that allocation that the chief executive has made under subsection (1); and

    • “(ii) the person's right under section 144 to seek a review of the allocation decision; and

  • “(b) direct the Registrar to transfer to the holding account notified in the person’s application the number of units notified under paragraph (a) (as adjusted, in the case of an eligible industrial activity, under subsection (1)).

  “(3) If the chief executive decides under subsection (1) that an applicant is not eligible to receive an allocation in respect of the application, or that the allocation to which the person is entitled in respect of the application is the same as or less than the number of units that the person is liable to repay in respect of an annual allocation adjustment recorded in the application in accordance with section 83(6)(a), then the chief executive must notify the applicant of—

  • “(a) the chief executive's decision; and

  • “(b) the reasons for the decision; and

  • “(c) if the result of the decision is that the person is liable to repay more units than the number of units to which the person would have been entitled in respect of the application, the number of units in the shortfall; and

  • “(d) the person's right under section 144 to seek a review of the allocation decision.

  “(4) If a person has failed to notify the chief executive of an annual allocation adjustment or a closing allocation adjustment when required by section 83(6)(b) or 84(1)(c)(ii), or if the chief executive is satisfied that an annual allocation adjustment or closing allocation adjustment notified by a person to the chief executive under section 83(6)(b) or 84(1)(c)(ii) is incorrect, then the chief executive may make a decision as to the person’s annual allocation adjustment, or closing allocation adjustment or correct annual allocation adjustment or closing allocation adjustment.

  “(5) The chief executive must, as soon as practicable, after deciding an eligible person’s final allocation for an eligible activity in respect of a year,—

  • “(a) publish the decision in the Gazette; and

  • “(b) ensure it is accessible via the Internet site of the department of the chief executive responsible for the administration of this Act.

  “(6) For the purposes of subsection (5),—

  • “(a) the final allocation of a person who received a provisional allocation for an eligible industrial activity is the person’s provisional allocation for the activity in respect of the year adjusted by the annual allocation adjustment for the activity for the year (or closing allocation adjustment, as the case may be); and

  • “(b) the chief executive is not required to publish the final allocation of an eligible person for an eligible activity in respect of a year, or ensure it is accessible via the Internet, if the chief executive considers that publishing that information would be likely to prejudice unreasonably the commercial position of the eligible person who received the allocation.

“86C Reconsideration of allocation decisions

• “(1) Without limiting section 144, the chief executive may reconsider, vary, or revoke any decision made under section 86B if in the chief executive’s opinion the decision has resulted, or would otherwise result, in a person receiving an incorrect allocation because—

  • “(a) of an error in the calculation of the person’s entitlement to an allocation or liability to repay units under this subpart; or

  • “(b) the person has provided altered, false, incomplete, or misleading information in or with an application.

  “(2) The chief executive may not make a decision in relation to an annual allocation adjustment or a closing allocation adjustment under section 86B(4) or vary or revoke a decision under subsection (1) after the expiration of 4 years from the end of the year or other period to which the decision relates if the decision, or variation or revocation of the decision, would decrease the number of units allocated to a person.

  “(3) However, if the chief executive is satisfied that a notice under section 83(6)(b) or 84(1)(c)(ii) or application for an allocation, or any other document submitted under section 86, 86E, or 144, was submitted with intent to deceive, the chief executive may make a decision in relation to an annual allocation adjustment or a closing allocation adjustment under section 86B(4) or vary or revoke a decision under subsection (1) at any time so as to decrease the number of units allocated to the person to whom the notice or application related (including decreasing that number to zero).

  “(4) If the chief executive makes a decision in relation to an annual allocation adjustment or a closing allocation adjustment under section 86B(4) or varies or revokes a decision under subsection (1), the chief executive must, as soon as practicable after doing so, notify the person who gave, or should have given, the notice under section 83(6)(b) or 84(1)(c)(ii) or the applicant, as the case may be, of—

  • “(a) the particulars of the decision, or variation or revocation of the decision; and

  • “(b) any grounds or information upon which the decision or variation or revocation of the decision was based; and

  • “(c) the person's right under section 144 to seek a review of the allocation decision.

  “(5) If the result of a decision in relation to an annual allocation adjustment or a closing allocation adjustment under section 86B(4), variation or revocation of an allocation decision under subsection (1), or review under section 144 is that a person allocated units is found to have been allocated and transferred—

  • “(a) units to which the person was not entitled, or to have repaid too few units, the person must within 90 working days after the date of the notice under subsection (4) repay the number of units notified to the person by transferring the units to a Crown holding account designated by the chief executive; or

  • “(b) fewer units than the person was entitled to, or to have repaid too many units, the chief executive must, as soon as practicable after the date of the notice under subsection (4), direct the Registrar to transfer to the holding account notified in the person’s application (or any other holding account notified by the person) the number of New Zealand units recorded in the notice.

  “(6) Section 83(7) applies to repayment of units under subsection (5) as if it were repayment under section 83.

“86D Retention of records and materials in relation to allocation

• “(1) A person who has been allocated New Zealand units for an eligible activity must keep sufficient records to enable the chief executive to verify, for any year in respect of which the person received an allocation,—

  • “(a) that the person was an eligible person; and

  • “(b) the person’s calculations of the person’s entitlement to be allocated New Zealand units or liability to repay units under the relevant subsections in sections 81 to 85; and

  • “(c) the total amount of each product produced by the person from the eligible activity in the year, as determined, if relevant, in accordance with regulations made under this Act; and

  • “(d) any other prescribed information.

  “(2) The records specified in subsection (1)—

  • “(a) must include—

    • “(i) a copy of any application made to the chief executive under section 86 or notice given to the chief executive under section 83(6)(b) or 84(1)(c)(ii); and

    • “(ii) any information used to prepare the application or notice; and

  • “(b) must be retained for a period of at least 7 years after the end of the year to which the application or notice relates.

“86E Minister or chief executive may require further information for purpose of carrying out functions under subpart

• “(1) For the purposes of making a determination under section 77 or 78 or a decision under section 86B, the Minister or chief executive, as appropriate, may give to any of the following persons a notice requiring the person to supply information or further information to the Minister or chief executive:

  • “(a) a person who has made an application for an allocation of New Zealand units or notified an annual allocation adjustment or closing allocation adjustment:

  • “(b) a person who has failed to notify an annual allocation adjustment or closing allocation adjustment as required by section 83(6)(b) or 84(1)(c)(ii):

  • “(c) a person who may be affected by a reconsideration of a determination or decision.

  “(2) A notice under subsection (1) must be given before the determination or decision is made.

  “(3) A notice under subsection (1) may require the information to be provided that is necessary to determine whether a person is or was—

  • “(a) eligible for an allocation of New Zealand units; or

  • “(b) entitled to the allocation that the person has applied for or received (in relation to an annual allocation adjustment or a closing allocation adjustment).

  “(4) The Minister or chief executive may, as appropriate, for the purpose of verifying whether a determination made under section 77 or 78 or a decision made under section 86B was correct or whether it should be reconsidered, give a notice to a person who has been allocated New Zealand units under one of those sections, requiring the person to supply to the Minister or chief executive any records, data, or other information that the person is required to keep in relation to the allocation.

  “(5) A person who has received a notice under this section must supply the information requested within the period specified in the notice.

  “(6) A person who fails to comply with a notice under this section within the period specified in the notice, or any further period agreed with the Minister or chief executive as appropriate, and who—

  • “(a) has applied for an allocation under an allocation plan or under section 86 is not entitled to receive an allocation under that plan or in respect of that application; or

  • “(b) has been allocated but not yet received some or all units allocated to the person under an allocation plan is not entitled to be transferred any units or any further units allocated to the person under the plan.

“86F Balance of units at end of true-up period or other balance date

• “(1) By the end of the true-up period, the Minister must ensure that the Crown holds, in any Crown holding account in the Registry, or in any retirement or surrender account, a number of Kyoto units equal to the number of New Zealand units issued into a Crown holding account during the first commitment period, but not including New Zealand units that are, during the first commitment period,—

  • “(a) transferred to a conversion account in accordance with section 30E; or

  • “(b) allocated to pre-1990 forest land owners under the pre-1990 forest land allocation plan that will be transferred after 31 December 2012 and that have not been transferred to a cancellation account; or

  • “(c) transferred to a cancellation account.

  “(2) Subsection (3) applies if New Zealand has received, or if the Minister expects New Zealand to receive, units under—

  • “(a) the Protocol during a subsequent commitment period; or

  • “(b) a successor international agreement.

  “(3) If this subsection applies the Governor-General may, by Order in Council made on the recommendation of the Minister, specify a date by which the Crown must hold, in any Crown holding account in the Registry, or in any retirement or surrender account, a number of Kyoto units or approved overseas units received under any international agreement as calculated under subsection (4).

  “(4) The number of Kyoto or approved overseas units held in accordance with subsection (3) must be equal to the number of New Zealand units issued into a Crown holding account up to the date specified in the Order in Council but not including New Zealand units that up to the date specified in the order are—

  • “(a) transferred to a conversion account in accordance with section 30E; or

  • “(b) allocated to pre-1990 forest land owners under the pre-1990 forest land allocation plan that will be transferred after 31 December 2012 and that have not been transferred to a cancellation account; or

  • “(c) transferred to a cancellation account.

  “(5) If an Order in Council is made under subsection (3), the Minister must ensure that the Crown holds the required number of units by the date specified in the order.

  “(6) For the purposes of subsection (1), true-up period means the 100 days, beginning on a date determined by the Conference of the Parties (serving as the Meeting of the Parties to the Protocol), that provide the Parties with an additional period for fulfilment of their obligation under Article 3.1 of the Protocol through the acquisition and transfer of Kyoto units.”

• “(ba) administer allocations relating to industry and agriculture in accordance with sections 80 to 86E; and”.

• “(d) direct the Registrar to transfer New Zealand units to which participants are entitled for removal activities to participants’ holding accounts; and”.

• “(i) the total number of New Zealand units allocated under subpart 2 less any units repaid.”

• “(4) The chief executive is only required to publish the total quantity of emissions and the total quantity of removals in aggregate for the activities in Part 1 of Schedule 4.”

• “(1) The chief executive may not make an emissions ruling––

  • “(a) with respect to a provision that authorises or requires the chief executive to—

    • “(i) impose or remit a penalty; or

    • “(ii) inquire into the correctness of any return or other information supplied by any person; or

    • “(iii) prosecute any person; or

    • “(iv) recover any debt owing by any person; or

  • “(b) if the information submitted with the application for the ruling, including (but not limited to) information submitted under section 107(3), raises questions of fact that the chief executive would need to determine in order to make the ruling.”

• “(a) a person who has—

  • “(i) ceased to carry out an activity listed in Schedule 3 or 4 in relation to which the person was a participant; and

  • “(ii) left, or is about to leave, New Zealand:”.

• “(a) contain all of the information required in an annual emissions return under section 65(2), but only in respect of the following periods, as relevant:

  • “(i) if the return is submitted in response to a requirement of the chief executive under subsection (2), the period specified by the chief executive:

  • “(ii) if the return is made under subsection (3)(a) or (b), the period—

    • “(A) beginning on the later of 1 January in the year in which the return is submitted, or the day after the end of the period covered by the last emissions return submitted by the person for the activity; and

    • “(B) ending on the day the person ceased to carry out the specified activity, or the last of the specified activities covered by the return:

  • “(iii) if the return is made under subsection (3)(c) or (d), the period determined by the submitter; and”.

• “(6) Despite anything in subsection (3),—

  • “(a) a person who meets the conditions in that subsection, and who is (at the time of meeting those conditions) a member of a consolidated group, may not submit a final emissions return; and

  • “(b) the nominated entity of the consolidated group of which the person is a member may not submit a final emissions return in respect of the person.

• “(7) To avoid doubt, a person who submits a final emissions return in respect of a specified activity under this section—

  • “(a) is not required to submit an annual emissions return under section 65 that covers the activity for any period covered by the return submitted under this section; but

  • “(b) must, if the final emissions return does not cover the full period in which the activity was carried out by the participant in a year, submit an annual emissions return under section 65 in respect of the activity that covers any part of the year in which the activity was carried out by the participant that is not covered by the return submitted under this section.”

• “(5) If the amendment or assessment results in an entitlement for a participant to receive New Zealand units for the participant's removal activities, the chief executive must direct the Registrar to transfer the number of New Zealand units to which the participant is entitled to the participant's holding account.”

“124 Reimbursement of units by chief executive

• “(1) If the chief executive is required to arrange for the reimbursement of units to a person under section 123(4), 126(2), 138(2), or 189(7), the chief executive must direct the Registrar to transfer units to the person in accordance with subsection (2).

  “(2) If the reimbursement is of—

  • “(a) New Zealand units or approved overseas units, the chief executive must direct the Registrar to transfer the applicable number of New Zealand units or approved overseas units from the appropriate surrender account or Crown holding account to the person's holding account; or

  • “(b) Kyoto units, the chief executive must direct the Registrar to transfer the applicable number and type of Kyoto units from the appropriate surrender account or Crown holding account to the person's holding account.

  “(3) The chief executive must take into account the views of the person to whom units will be reimbursed about the type of units to be reimbursed when determining what units to reimburse.”

• “(iia) fails to comply with the requirements relating to the calculation of, application for, or notification of an annual allocation adjustment or closing allocation adjustment under section 83 or 84, including where required to comply with section 84(1)(a) to (c) by the chief executive under section 84(2)(c); or

• “(iii) fails to keep records as required—

  • “(A) under section 67 or 86D; or

  • “(B) by a fishing allocation plan; or

  • “(C) by a pre-1990 forest land allocation plan; or”.

• “(v) fails to notify the chief executive, within the time required, of a matter required to be notified under section 84(2)(b) or 192(3).”

• “(da) knowingly fails to comply with the requirements relating to the calculation of, application for, or notification of an annual allocation adjustment or a closing allocation adjustment under section 83 or 84, including when required to comply with section 84(1)(a) to (c) by the chief executive under section 84(2)(c); or

• “(e) knowingly fails to keep records as required—

  • “(i) under section 67 or 86D; or

  • “(ii) by a fishing allocation plan; or

  • “(iii) by a pre-1990 forest land allocation plan; or”.

• “(ba) fails to comply with the requirements relating to calculation and application for or notification of an annual allocation adjustment or a closing allocation adjustment under section 83 or 84 (including where required to comply with section 84(1)(a) to (c) by the chief executive under section 84(2)(c)); or

• “(c) fails to keep records as required—

  • “(i) under section 67 or 86D; or

  • “(ii) by a fishing allocation plan; or

  • “(iii) by a pre-1990 forest land allocation plan; or”.

“136 Additional penalty for knowing failure to comply

• “(1) This section applies to a person who—

  • “(a) is or was liable following—

    • “(i) a new determination under section 78 or a variation or revocation of a decision under section 86C to repay units allocated and transferred to the person; or

    • “(ii) an amendment under section 120 or an assessment under section 121 to surrender units (or additional units) or to repay units, in respect of any period covered by, or that should have been covered by, an emissions return; and

  • “(b) is convicted of an offence under section 132(1)(c) to (f) or 133 that relates to—

    • “(i) the units allocated and transferred to the person (including, but not limited to, the provision of information); or

    • “(ii) an emissions return that was—

      • “(A) amended under section 120; or

      • “(B) assessed under section 121.

  “(2) If this section applies, the person is liable, in addition to any penalty imposed in respect of the offence, to—

  • “(a) as the case may require,—

    • “(i) transfer to the Crown holding account designated by the Minister or chief executive in the notice referred to in section 79(3) or 86C(4) a number of units equivalent to the number of units specified as being repayable in that notice under section 79(3)(a) or 86C(4), or in any review or appeal proceedings relating to that determination or decision; or

    • “(ii) surrender a number of units equivalent to the number of units determined by the chief executive in the amendment under section 120 or the assessment under section 121, or in any review or appeal proceedings relating to that determination; and

  • “(b) pay an excess emissions penalty of $30 for each unit the person is liable to transfer or surrender under paragraph (a).

  “(3) If this section applies, the chief executive must give a notice to the person that—

  • “(a) sets out the—

    • “(i) number of additional units that the person is required to transfer to a Crown holding account or surrender under subsection (2); and

    • “(ii) amount of the excess emissions penalty to which the person is liable under subsection (2); and

  • “(b) requires the person to transfer to the designated Crown holding account or surrender the additional units, and pay the penalty within 90 days after the date of the notice; and

  • “(c) advises that, unless both the units are transferred to the designated Crown holding account or surrendered (as the case may require) and the penalty paid in full by the due date, interest on the amount of the penalty will accrue in accordance with section 137.

  “(4) To avoid doubt, any liability to transfer units to a Crown holding account or surrender units and pay a penalty under subsection (2) is additional to, and does not affect, the liability of a person to surrender or repay units under any other section of this Act or to pay a penalty under a penalty notice given by the chief executive under section 134.

  “(5) The amount of the excess emissions penalty, together with any interest that accrues on that penalty, constitutes a debt due to the Crown and is recoverable by the chief executive in a court of competent jurisdiction.”

• “(1) This section applies if—

  • “(a) a person—

    • “(i) has failed to surrender or repay units when required to do so and is liable to pay an excess emissions penalty in relation to those units under section 134(2)(b)(i) or (iii); or

    • “(ii) is required to surrender or repay units under section 123 and is liable to pay an excess emissions penalty in relation to those units under section 134(2)(b)(ii); or

    • “(iii) is required to transfer units to a Crown holding account or surrender units and pay an excess emissions penalty under section 136; and

  • “(b) the person does not comply, or comply in full, with the requirement to surrender or repay units and to pay the penalty by the relevant date.”

• “(b) for the period from the date by which the penalty was due to be paid until the associated liability to surrender or repay units or to transfer units to a Crown holding account under section 136 (or to pay any associated debt under section 159) has been met, and until the penalty and any interest due have been paid in full.”

• “(3) To avoid doubt, interest accrues under subsection (2) even if the amount of the excess emissions penalty in a penalty notice has been paid in full if the associated requirement to surrender or repay units or to transfer units to a Crown holding account under section 136 (or to pay any associated debt under section 159) has not been met in full.”

• “(a) the failure of the person to comply with the requirement to surrender or repay units or to transfer units to a Crown holding account under section 136 and pay the penalty in full arises as a result of an event or a circumstance beyond the control of that person; and”.

• “(1) The obligation to pay and the right to receive and recover any excess emissions penalty or interest imposed under section 134, 136, or 137, and the obligation to transfer to a Crown holding account or surrender any additional units under section 136, are not suspended by any review or appeal.”

• “(2) If the applicant or appellant is successful in the review or appeal, the amount of any excess emissions penalty or interest paid by the applicant must be refunded to the applicant or appellant by the chief executive, and any units not required to be transferred to a Crown holding account or surrendered must be reimbursed in accordance with the procedure specified in section 124.”

• “(6A) Despite subsection (1), 2 or more members of a group may, if they elect to form a consolidated group in respect of an activity, give notice to the chief executive under subsection (3)—

  • “(a) at the same time they all give notice to the chief executive under section 56 in respect of that activity; or

  • “(b) at the same time they all submit an application under section 57 in respect of that activity.

• “(6B) Despite sections 56(1), 57(3), and 61, an entity that gives notice to the chief executive in accordance with subsection (6A) is not required to have its own holding account under section 61 to comply with its obligations as a participant in respect of an activity specified in the notice given under subsection (3) and is not required to open a holding account when giving notice under section 56 or making an application under section 57 in respect of an activity, if—

  • “(a) the notice given in accordance with subsection (6A) is received by the chief executive by 30 September in the year in which that notice is given; and

  • “(b) the nominated entity specified in the notice given in accordance with subsection (6A) has, or has applied for, a holding account in the name of the consolidated group.”

• “(4) Subject to subsection (6), if a participant elects under subsection (1) to join a consolidated group, that participant must be treated for the purposes of this Part and Part 5 as being a member of that consolidated group on and after 1 January of the year in which the participant gives notice to the chief executive under subsection (1).”

• “(6) An entity may, if the entity elects to be treated as a member of a consolidated group on and after the date the entity is registered as a participant in respect of an activity, give notice to the chief executive under subsection (1)—

  • “(a) at the same time as giving notice to the chief executive under section 56 in respect of that activity; or

  • “(b) when submitting an application under section 57 in respect of that activity.

• “(7) Despite sections 56(1), 57(3), and 61, an entity that gives notice to the chief executive in accordance with subsection (6) is not required to have its own holding account under section 61 to comply with its obligations as a participant in respect of an activity specified in the notice given under subsection (1) and is not required to apply for a holding account, when—

  • “(a) giving notice to the chief executive under section 56 in respect of that activity; or

  • “(b) submitting an application under section 57 in respect of that activity.”

“151A Addition of activities to consolidated groups

• “(1) A member of a consolidated group may elect to add to the activities in respect of which the member is treated as a member of the consolidated group by giving notice to the chief executive in the prescribed form.

  “(2) A notice given under subsection (1) must—

  • “(a) include the name of the member and the activity or activities the member is electing to add to the activities in respect of which the member is treated as a member of the consolidated group; and

  • “(b) contain the agreement of every existing member of the consolidated group—

    • “(i) to be jointly and severally liable with the other members of the group for any obligations under this Part or Part 5 in respect of emissions and removals resulting from the member's activity or activities specified in the notice; and

    • “(ii) to the transfer to the consolidated group’s holding account, on behalf of the group, of any units to which the adding member may become entitled in respect of the activity or activities specified in the notice.

  “(3) The chief executive must acknowledge that the member has added the activity or activities specified in the notice under subsection (1) to the activities in respect of which the member is treated as a member of the consolidated group by giving notice to all members of the group within 1 month of the chief executive’s receipt of the notice.

  “(4) If a member has elected under subsection (1) to add to the activities in respect of which the member is treated as a member of the consolidated group, the activity or activities specified in the notice are added,—

  • “(a) if the notice of the election is received by the chief executive by 30 September in a year, on and after 1 January of that year:

  • “(b) if the notice of the election is received by the chief executive after 30 September in a year, on and after 1 January of the next year.”

• “(7) To avoid doubt, an emissions return for a consolidated group or any member of a consolidated group may be submitted only by the nominated entity of the consolidated group.”

• “(ab) may, if section 189(2)(d) applies to a member, submit an emissions return in accordance with section 189(4A) on behalf of the member; and”.

• “(3) To avoid doubt, only the nominated entity may submit an emissions return for a consolidated group that has been formed in respect of 1 or more of the activities listed in Part 1 of Schedule 4.”

• “(a) if subsection (1)(a) applies and the notice of election to cease to be a member of the consolidated group is received by the chief executive—

  • “(i) by 30 September in any year, on and after 1 January of that year; or

  • “(ii) after 30 September in any year, on and after 1 January of the following year; and”.

• “(6) Subsection (7) applies to an entity that—

  • “(a) ceases to be a member of a consolidated group but remains a participant; and

  • “(b) does not have its own holding account.

• “(7) An entity to which this subsection applies must,—

  • “(a) immediately upon ceasing to be a member of the consolidated group, apply to open a holding account under section 18A; and

  • “(b) supply the account number of the holding account, or ensure the account number of the holding account is supplied, to the chief executive within 10 working days of receiving the account number from the Registrar.”

“156A Removal of activities from consolidated groups

• “(1) A member of a consolidated group may elect to remove 1 or more activities from the activities in respect of which the member is treated as a member of the consolidated group by giving notice to the chief executive in the prescribed form.

  “(2) The activity or activities specified in the notice under subsection (1) are removed from the activities in respect of which the member is treated as a member of the consolidated group,—

  • “(a) if the notice of the election is received by the chief executive by 30 September in a year, on and after 1 January of that year:

  • “(b) if the notice of the election is received by the chief executive after 30 September in a year, on and after 1 January of the next year.

  “(3) The chief executive must acknowledge that the activity or activities specified in the notice under subsection (1) are removed from the activities in respect of which the member is treated as a member of the consolidated group by giving notice to all members of the group within 1 month of the chief executive’s receipt of the notice.

  “(4) If a member has removed an activity from the activities in respect of which the member is treated as a member of a consolidated group, that member continues to be jointly and severally liable with the other members of the consolidated group for any obligations under this Part or Part 5 in respect of emissions and removals related to the activity, and jointly entitled to any units transferred for the activity (if it is a removal activity), in respect of the period in which the activity was an activity in respect of which the member was treated as a member of the consolidated group.

  “(5) Subsection (6) applies to a member of a consolidated group that—

  • “(a) removes 1 or more activities from the activities in respect of which the member is treated as a member of the consolidated group; and

  • “(b) remains a participant in respect of 1 or more of those activities; but

  • “(c) does not have its own holding account.

  “(6) A member of a consolidated group to which this subsection applies must—

  • “(a) apply to open a holding account under section 18A immediately upon removal of the activity or activities from the activities in respect of which the member is treated as a member of the consolidated group; and

  • “(b) supply the account number of the holding account, or ensure the account number of the holding account is supplied, to the chief executive within 10 working days of receiving the account number from the Registrar.”

“157 Unincorporated bodies

• “(1) This section applies if the members of an unincorporated body—

  • “(a) jointly carry out an eligible activity; or

  • “(b) are required under section 180, 204, or 213 to be treated as jointly carrying out an activity listed in Schedule 3; or

  • “(c) if paragraph (b) does not apply, jointly carry out an activity listed in Schedule 3 or 4.

  “(2) If this section applies,—

  • “(a) the members of the unincorporated body are not individually to be treated as persons carrying out the activity; and

  • “(b) if the activity is an eligible activity,—

    • “(i) the members of the unincorporated body may not apply individually for an allocation of New Zealand units for the eligible activity under section 86; but

    • “(ii) the unincorporated body may, as the eligible person, make such an application under section 86; and

  • “(c) if the activity is an activity listed in Schedule 3 or 4,—

    • “(i) the members of the unincorporated body—

      • “(A) are not liable to, and may not, be registered as a participant under section 56 in respect of the activity; and

      • “(B) may not be registered as a participant under section 57 in respect of the activity; and

    • “(ii) the unincorporated body—

      • “(A) must notify the chief executive that it is the participant under section 56 in respect of the activity (if the activity is an activity listed in Schedule 3):

      • “(B) may apply to be registered as the participant under section 57 in respect of the activity (if the activity is an activity listed in Schedule 4):

      • “(C) when notifying under section 56 or applying to be registered under section 57, as the case may be, advise the chief executive of the name of the unincorporated body that should be entered on the register of participants kept for the purposes of section 56 or 57; and

    • “(iii) the chief executive must, for the purpose of section 56(3) or 57(5) (as applicable), enter the name of the unincorporated body on the register kept for the purposes of section 56 or 57; and

  • “(d) the unincorporated body must, when applying for an allocation, or notifying the chief executive under section 56, or applying to the chief executive to be registered as a participant under section 57, as the case may be, provide the chief executive with—

    • “(i) the names and contact details of the members of the unincorporated body; and

    • “(ii) the name and contact details of the person to whom notices are to be given under this Act on behalf of the unincorporated body; and

  • “(e) subject to subsections (3) to (5), any change of members of the unincorporated body has no effect for the purposes of this Act.

  “(3) Each person who is or has ceased to be a member of an unincorporated body is, in respect of the period during which the person is or was a member of the unincorporated body,—

  • “(a) jointly and severally liable for the obligations of the unincorporated body as an eligible person (or a person to whom units have been allocated) or as a participant in respect of the activity; and

  • “(b) jointly entitled to the benefits of the unincorporated body as an eligible person or as a participant in respect of the activity.

  “(4) If this Act requires any thing to be done by or on behalf of an eligible person (or a person to whom units have been allocated) or a participant that is an unincorporated body,—

  • “(a) it is the joint and several liability of all the members of the unincorporated body to do the thing; and

  • “(b) any such thing done by 1 member of the unincorporated body is sufficient compliance with the requirement.

  “(5) A notice that is addressed to an unincorporated body and given in accordance with this Act to the person nominated by the unincorporated body under subsection (2)(d)(ii) or (if relevant) notified under section 157A(2)(a) is to be treated as notice given to the unincorporated body and all members of the unincorporated body.

  “(6) To avoid doubt, if this Act requires a landowner, registered leaseholder, holder of a registered forestry right, or party to a Crown conservation contract to be treated as the person carrying out an eligible activity or an activity listed in Schedule 3 or 4, and the land, registered lease, registered forestry right, or Crown conservation contract is owned, held, or has been entered into, as the case may be, jointly by 2 persons, those persons—

  • “(a) must together be treated as the person carrying out the activity for the purposes of this Act; and

  • “(b) are, as relevant, together the eligible person in respect of the eligible activity, or the participant in respect of any activity listed in Schedule 3, or may together be registered as the participant in respect of an activity listed in Schedule 4; and

  • “(c) are jointly and severally liable for the obligations, or entitled to the benefits, of an eligible person (or a person to whom units have been allocated) or a participant in respect of the activity.

“157A Changes to unincorporated bodies that are participants

• “(1) This section applies if—

  • “(a) a member of an unincorporated body joins or leaves an unincorporated body that is registered as a participant; or

  • “(b) the name or contact details of the person to whom notices are to be given changes; or

  • “(c) an unincorporated body wishes to change the name under which the body is registered as a participant.

  “(2) If this section applies,—

  • “(a) the unincorporated body must, as relevant,—

    • “(i) within 20 working days of a person joining or leaving the unincorporated body, give the chief executive notice of—

      • “(A) the name and contact details of the person joining or leaving; and

      • “(B) the date on which the person joined or left the unincorporated body; or

    • “(ii) within 20 working days of a change in the name or contact details of the person to whom notices are to be given, give the chief executive notice of that matter; or

    • “(iii) give the chief executive notice if the unincorporated body wishes to change the name under which the body is recorded as a participant on the register kept for the purposes of section 56 or 57; and

  • “(b) the chief executive must, as soon as practicable after receiving the notice,—

    • “(i) amend—

      • “(A) the chief executive’s records to reflect the change in membership of the unincorporated body or the change in the name or contact details of the person to whom notices are to be given; or

      • “(B) the register kept under section 56 or 57, as the case may be, to record the change in the name of the unincorporated body; and

    • “(ii) notify the Registrar of the change in membership of the unincorporated body, the change in the name or contact details of the person to whom notices are to be given, or the change in the unincorporated body’s name; and

    • “(iii) notify the unincorporated body of the amendment to the chief executive’s records or the participant register and the notification to the Registrar.

  “(3) A notice given under subsection (2) must—

  • “(a) be in the prescribed form; and

  • “(b) contain any other information the chief executive may require; and

  • “(c) be accompanied by the prescribed fee (if any).

  “(4) For the purposes of subsection (1), the following transfers must be treated as changes in the membership of an unincorporated body and not as the transfer of an interest for the purposes of section 192(1)(a):

  • “(a) the transfer of land from members of an unincorporated body to members of an unincorporated body if at least 60% of the members of an unincorporated body are the same following the transfer; and

  • “(b) the transfer of a registered lease, registered forestry right, or Crown conservation contract relating to post-1989 forest land from members of an unincorporated body to members of an unincorporated body if at least 60% of the members of an unincorporated body are the same following the transfer.”

“160 Reviews of operation of emissions trading scheme

• “(1) The Minister responsible for the administration of this Act must initiate a review of the operation and effectiveness of the emissions trading scheme established by this Act in each of the following periods:

  • “(a) the first commitment period and each subsequent commitment period (if any); and

  • “(b) if there is no subsequent commitment period,—

    • “(i) the 5-year period commencing on 1 January 2013; and

    • “(ii) each subsequent 5-year period after the period specified in subparagraph (i).

  “(2) Each review initiated under subsection (1) must be completed no later than 12 months before the end of the period in which the review is initiated.

  “(3) Despite anything in subsections (1) and (2),—

  • “(a) the Minister responsible for the administration of this Act must ensure that a review of the matters listed in subsection (5)(j) (an allocation review) is initiated and completed at least once in each of the following periods:

    • “(i) the 5-year period commencing on 1 January 2011; and

    • “(ii) each subsequent 5-year period after the period specified in subparagraph (i); and

  • “(b) subsections (6) to (8) apply to each allocation review with all necessary modifications as if the allocation review were initiated under subsection (1); and

  • “(c) the person conducting each allocation review may consider any other matter, including (but not limited to) the matters listed in subsection (5); and

  • “(d) if the person conducting an allocation review considers the matters specified in subsection (5) in the relevant period, that consideration satisfies the obligation of the Minister responsible for the administration of this Act under subsection (1).

  “(4) For the avoidance of doubt, if a review initiated under subsection (1) results in the matters listed in subsection (5)(j) being reviewed in a period listed in subsection (3)(a), then the Minister responsible for the administration of this Act is not obliged under subsection (3) to ensure any further review of those matters is initiated in that period.

  “(5) Without limiting the scope of the review, a review under subsection (1) must consider—

  • “(a) whether an amendment to this Act in relation to the emissions trading scheme is necessary or desirable; and

  • “(b) whether New Zealand has undertaken, or is expected to undertake, any international obligations with respect to its emissions and removals that are different from or additional to any international obligations that New Zealand had undertaken when this section came into force, or since the last review under this section; and

  • “(c) the stringency of any of the international obligations specified in paragraph (b); and

  • “(d) the contribution of the emissions trading scheme established under this Act towards any targets that are in effect in accordance with section 224 or 225 at the time the review is initiated; and

  • “(e) the types of Kyoto units and overseas units that may be surrendered for compliance with the emissions trading scheme established by this Act; and

  • “(f) the operation of the commitment period reserve (if any); and

  • “(g) the potential for linkage of the emissions trading scheme established under this Act to other greenhouse gas emissions trading schemes, including (but not limited to) Australia's carbon pollution reduction scheme; and

  • “(h) the appropriateness of any methodologies that are prescribed for calculating emissions and removals; and

  • “(i) whether it is necessary or desirable to—

    • “(i) omit any of the activities from Schedule 3 or 4; and

    • “(ii) add any additional removal activities to Part 2 of Schedule 4; and

    • “(iii) amend the level of participant opt-in thresholds in Schedule 4; and

  • “(j) whether changes to the provision of any allocation to industry or agriculture under subpart 2 are necessary or desirable, having regard to—

    • “(i) whether New Zealand has undertaken, or is expected to undertake, any international obligations with respect to its emissions and removals that are different from, or additional to, any international obligations that New Zealand had undertaken when this section came into force, or since the last review under this section; and

    • “(ii) the stringency of any of the international obligations specified in subparagraph (i); and

    • “(iii) any change proposed to the activities listed in Schedule 3 or 4 following consideration of the matters specified in paragraph (i); and

    • “(iv) the relative climate change obligations and emissions policies of New Zealand's trade competitors and trading partners; and

    • “(v) any significant changes in emissions mitigation technology; and

    • “(vi) the cost to the taxpayer and the economy of providing free allocation under subpart 2; and

  • “(k) the appropriateness of the penalties in subpart 4 of this Part; and

  • “(l) the implications (if any) of the following matters for the notification of intention under section 69:

    • “(i) New Zealand's annual emissions for the 5 years before notification; and

    • “(ii) the average price of units for the 2 years before notification; and

  • “(m) the impacts of the forestry sector elements of the emissions trading scheme established under this Act on biodiversity within New Zealand; and

  • “(n) the costs and benefits of establishing an independent or quasi-independent government body to carry out the allocation process, or any part of the allocation process, contained in subpart 2; and

  • “(o) the social, economic, and environmental effects of the emissions trading scheme established by this Act (other than those considered under paragraphs (a) to (n)); and

  • “(p) any other matter that the Minister responsible for the administration of this Act considers relevant.

  “(6) The Minister responsible for the administration of this Act must appoint a panel to conduct any review under subsection (1) and report in accordance with the terms of reference set by the Minister on the matters set out in this section.

  “(7) Following the completion of each review under subsection (1), the Minister responsible for the administration of this Act must—

  • “(a) publish the report of the panel on the review; and

  • “(b) present a copy of the report to the House of Representatives.

  “(8) If the panel recommends any change in relation to allocation to industry or agriculture that involves amending any Act or making or amending regulations under this Act, the Minister responsible for the administration of this Act must—

  • “(a) prepare a report that contains a response to the panel's recommendations for legislative change; and

  • “(b) present a copy of his or her report to the House of Representatives.

  “(9) To avoid doubt, this section does not limit the ability of the Minister responsible for the administration of this Act to initiate reviews of the operation and effectiveness of the emissions trading scheme established by this Act at any time and may use any method of review (including, but not limited to, the method specified in this section).

“161 Appointment and conduct of review panel

• “(1) When appointing members to a review panel under section 160, the Minister responsible for the administration of this Act must—

  • “(a) ensure that there are a minimum of 3 and a maximum of 7 members; and

  • “(b) ensure that the majority of the members are not employees under the State Sector Act 1988; and

  • “(c) consider whether the members have, in the Minister's opinion, the appropriate knowledge, skill, and experience to conduct the review, including knowledge, skill, and experience of—

    • “(i) this Act; and

    • “(ii) New Zealand's international obligations under the Protocol and the Convention and any other relevant international agreement; and

    • “(iii) the operation of the emissions trading scheme established under this Act, including its environmental, social, and economic effects; and

  • “(d) appoint 1 member as the chairperson of the panel.

  “(2) The Minister must, by written notice to the panel, specify the terms of reference for the review to be conducted by the panel.

  “(3) A review panel must complete a draft report on the review and provide the report to the Minister responsible for the administration of this Act at least 1 month before the date on which the review is required to be completed under section 160.

  “(4) The review panel must—

  • “(a) allow the Minister at least 10 working days within which to respond to and comment on the contents of the draft report; and

  • “(b) after considering the Minister's response and comments (if any), prepare a final report and provide it to the Minister by the date on which the review is required to be completed under section 160.

  “(5) In conducting a review, the review panel—

  • “(a) must establish a procedure that is appropriate, fair in the circumstances, and in accordance with the terms of reference for the review; and

  • “(b) must consult persons (or their representatives) that appear to the panel likely to have an interest in the review; and

  • “(c) may call for submissions.

“161A Regulations in relation to eligible industrial activities

• “(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:

  • “(a) prescribing, for the purposes of subpart 2, the activities that are eligible industrial activities:

  • “(b) prescribing in respect of each eligible industrial activity, as appropriate,—

    • “(i) a description of the activity, including (but not limited to)—

      • “(A) the input or inputs:

      • “(B) the output or outputs:

      • “(C) the physical, chemical, or biological transformation that takes place to transform the inputs into the outputs:

    • “(ii) whether the activity is—

      • “(A) highly emissions-intensive; or

      • “(B) moderately emissions-intensive:

    • “(iii) the products to be used as the basis for an allocation of New Zealand units in respect of the activity:

    • “(iv) a methodology or methodologies for calculating the amount of each prescribed product for the purposes of sections 81 to 84:

  • “(c) prescribing, for each prescribed product,—

    • “(i) 1 or more allocative baselines; and

    • “(ii) for the purpose of sections 81 to 84, which allocative baseline any person carrying out the activity must use when calculating an allocation entitlement under those sections (which may include an allocative baseline that a particular person must use):

  • “(d) prescribing—

    • “(i)  an allocation factor or factors for—

      • “(A) electricity:

      • “(B) natural gas feedstock:

    • “(ii) how each allocation factor must be used for the purpose of calculating allocative baselines in accordance with section 161B(3):

  • “(e) prescribing information that must be kept for the purposes of section 86D.

  “(2) A regulation made under subsection (1) may permit persons to apply for and receive an allocation in respect of a period beginning on—

  • “(a) 1 January of the year in which the regulation is made even if the regulation comes into force on a later date in that year:

  • “(b) 1 January or 1 July in a year before the year in which the regulation is made provided the regulation comes into force on or before 31 December 2012.

  “(3) Before recommending that a regulation be made under subsection (1)(a), the Minister must be satisfied either that the activity to be prescribed as an eligible industrial activity—

  • “(a) is—

    • “(i) moderately emissions-intensive or highly emissions-intensive; and

    • “(ii) trade-exposed; or

  • “(b) may be treated as meeting the criteria in paragraph (a) under section 161B(1).

  “(4) Despite anything in this section or section 161B or 161C, a regulation may not be made under subsection (1) that prescribes electricity generation as an eligible industrial activity.

  “(5) The following regulations made under subsection (1) come into force on the day 5 years after the date of their notification in the Gazette or any later date that may be set by the regulations:

  • “(a) a regulation that revokes a regulation prescribing an activity as an eligible industrial activity:

  • “(b) a regulation that amends a regulation providing that an eligible industrial activity is highly emissions-intensive to provide that the eligible industrial activity is moderately emissions-intensive.

“161B Australian eligible industrial activities

• “(1) An activity may be treated as meeting the criteria specified in section 161A(3)(a) if the activity is an Australian eligible industrial activity.

  “(2) If an activity is treated as meeting the criteria specified in section 161A(3)(a) because it is an Australian eligible industrial activity, any regulations that prescribe that activity as an eligible industrial activity must prescribe—

  • “(a) the same activity description for the activity, including (but not limited to) the matters listed in section 161A(1)(b)(i), as the activity description for the Australian eligible industrial activity; and

  • “(b) the same products to be used as a basis for an allocation of New Zealand units in respect of the activity as the products that are, or are likely to be, used as a basis for the allocation of emissions units in respect of the Australian eligible industrial activity; and

  • “(c) the same emissions-intensity level of the activity as the emissions-intensity level, or the likely emissions-intensity level, of the Australian eligible industrial activity; and

  • “(d) for each prescribed product of the activity an allocative baseline or baselines that is or are the same as the allocative baseline or baselines that is or are, or is likely to be or are likely to be, specified as the allocative baseline or baselines of the equivalent product of the Australian eligible industrial activity.

  “(3) Despite subsection (2)(d), if an Australian electricity allocation factor or Australian natural gas feedstock allocation factor was used in the calculation of an allocative baseline (or likely allocative baseline) of a product of the Australian eligible industrial activity, then the allocative baseline or baselines prescribed under section 161A(1)(c) for the equivalent product must be the allocative baseline or baselines that is or are, or is likely or are likely, to be specified as the allocative baseline or baselines of the product of the Australian eligible industrial activity adjusted by substituting an electricity allocation factor or natural gas feedstock allocation factor (as the case may be) prescribed under section 161A(1)(d).

“161C Other eligible industrial activities

• “(1) For the purposes of section 161A(3)(a), an activity is—

  • “(a) moderately emissions-intensive if the specified emissions from the activity are equal to or greater than 800 whole tonnes per $1 million of specified revenue from the activity, but less than 1 600 whole tonnes per $1 million of specified revenue from the activity:

  • “(b) highly emissions-intensive if the specified emissions from the activity are equal to or greater than 1 600 whole tonnes per $1 million of specified revenue from the activity:

  • “(c) trade-exposed unless, in the Minister’s opinion,—

    • “(i) there is no international trade of the output of the activity across oceans; or

    • “(ii) it is not economically viable to import or export the output of the activity.

  “(2) If an activity meets the criteria in section 161A(3)(a) in accordance with subsection (1), any regulations that prescribe the activity as an eligible industrial activity and the products to be used as the basis for an allocation of New Zealand units in respect of the activity must prescribe the allocative baseline or baselines of each product, calculated in accordance with the following formula:

  AB = SE/STA

  where—

  AB

  is the allocative baseline of the product

  SE

  is the specified emissions from the activity

  STA

  is the specified total amount of the product from the activity.

  “(3) For the purposes of this section,—

  • “(a) the specified revenue from an activity is the amount of revenue obtained by adding together the revenue from the activity of persons who provided the information referred to in section 161D(1)(e)(i)(A) to the Minister in accordance with a notice under section 161D(1) that contained a description of the activity:

  • “(b) the specified emissions, in respect of the emissions intensity of an activity, is the number of whole tonnes of included emissions obtained by adding together the included emissions from the activity of persons who provided the information referred to in section 161D(1)(e)(i)(B) to the Minister in accordance with a notice under section 161D(1) that contained a description of the activity:

  • “(c) the specified emissions, in respect of the allocative baselines of an activity, is the number of whole tonnes of included emissions obtained by adding together the included emissions from the activity of persons who provided the information referred to in section 161D(1)(e)(i)(C) to the Minister in accordance with a notice under section 161D(1) that contained a description of the activity:

  • “(d) the specified total amount of product from the activity is the amount of the product obtained by adding together the amount of the product produced by each person who provided the information referred to in section 161D(1)(e)(i)(D) to the Minister in accordance with a notice under section 161D(1) that contained a description of the activity.

  “(4) Despite subsection (3)(c), the Minister may adjust the number of whole tonnes of included emissions shown in the information referred to in section 161D(1)(e)(i)(C) provided by any persons carrying out an activity specified in a notice given under section 161D(1) after taking into account any electricity-related contract that was in force on the date of the notice that affects the electricity cost increase that any of the persons will face due to the obligation imposed by this Act on participants to surrender units, or any information relating to any such contracts.

  “(5) If the Minister has adjusted the tonnes of emissions of 1 or more persons under subsection (4), the Minister may use both the information as originally submitted and as adjusted to calculate different allocative baselines for the relevant product.

“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)(a) 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 regulation for the purposes of the Regulations (Disallowance) Act 1989, but not for the purposes of the Acts and Regulations Publication Act 1989.

  “(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).

“161E Requirements in respect of notice given under section 161D

• “(1) Before giving notice of an activity under section 161D(1), the Minister must have regard to the following matters:

  • “(a) the requirement to define each activity by reference to a physical, chemical, or biological transformation of inputs into outputs; and

  • “(b) the undesirability of activities being defined by reference to the technology employed, the fuel used, the age of the plant, or the quality of the types of feedstock used when the activity is carried out; and

  • “(c) the desirability of defining activities—

    • “(i) consistently and equitably across industries; and

    • “(ii) in a way that takes into account the impact that definitions may have on business investment, geographical location, and the structure of activities; and

    • “(iii) in a way that takes into account the potential for intermediate inputs produced when the activity is carried out to be substituted for bought-in inputs; and

  • “(d) the desirability of there being no overlap between activity definitions; and

  • “(e) the desirability of activity definitions reflecting activity definitions used in Australia; and

  • “(f) any other matters the Minister considers relevant.

  “(2) For the purposes of section 161D(1)(c),—

  • “(a) the emissions that must be included in any information provided under section 161D(1)(e)(ii) and (iii) may only include—

    • “(i) emissions of greenhouse gases resulting from—

      • “(A) the direct use of any coal, natural gas, geothermal fluid, used oil, or waste oil as part of the activity; and

      • “(B) the direct use of any coal, natural gas, geothermal fluid, used oil, or waste oil to generate steam that is used as part of the activity; and

      • “(C) any of the activities listed in Part 4 of Schedule 3 carried out as part of the activity; and

    • “(ii) a number of whole tonnes of emissions, which must be treated for the purpose of this section and sections 161C and 161D as emissions from the activity, calculated in accordance with the following formula:

      E = MWh × pEAF

      where—

      E

      is the number of whole tonnes of emissions from the activity that may be included in any information submitted under section 161D(1)(e)(ii) and (iii)

      MWh

      is the number of megawatt hours of electricity used when the activity is carried out

      pEAF

      is a prescribed electricity allocation factor; and

  • “(b) the emissions that may not be included in any information provided under section 161D(1)(e)(ii) and (iii) must include (but are not limited to) emissions resulting from—

    • “(i) the use of machinery and equipment, and other processes, that are not integral to, nor essential to, the physical, chemical, biological, or other transformation taking place when the activity is carried out; and

    • “(ii) any extraction or production of raw materials that are subsequently used when the activity is carried out; and

    • “(iii) the transportation of inputs used in the activity to storage at the location where the activity is carried out; and

    • “(iv) the transportation of outputs of the activity from storage at the location where the activity is carried out to another location; and

    • “(v) the transportation of intermediate products between different locations where the activity is carried out; and

    • “(vi) operations that are complementary to the activity, including (but not limited to) packaging, head office operations, and administration and marketing (whether carried out at the same location where the activity is carried out or at another location); and

    • “(vii) the generation of electricity at the location where the activity is carried out; and

  • “(c) before giving notice of the emissions that must be included in, or excluded from, any information provided in accordance with a notice issued under section 161D, the Minister must have regard to the following matters:

    • “(i) the matters listed in subsection (1); and

    • “(ii) the desirability of all notices given under section 161D being consistent with respect to the classes of included and excluded emissions that are specified in the notices.

  “(3) If an activity specified in a notice under section 161D was carried out by any person in each of the financial years 2006/07, 2007/08, and 2008/09, then the notice must specify those financial years as the financial years for which information must be provided in accordance with the notice.

“161F Consultation on activities that may be prescribed as eligible industrial activities

• “(1) If an activity is treated as meeting the criteria specified in section 161A(3)(a) because it is an Australian eligible industrial activity, then before recommending the making of a regulation under section 161A prescribing the activity as an eligible industrial activity, the Minister must consult, or be satisfied that the chief executive has consulted, the persons (or representatives of those persons) that appear to the Minister or the chief executive likely to be substantially affected by any regulation made in accordance with the recommendation.

  “(2) Before notifying an activity in the Gazette under section 161D, the Minister must consult, or be satisfied that the chief executive has consulted, the persons (or the representatives of the persons) that appear to the Minister or the chief executive likely to be substantially affected by the description of the activity to be notified.

  “(3) The processes for consultation under subsections (1) and (2) must include—

  • “(a) giving adequate and appropriate notice of the proposed terms and conditions of the recommendation or the notice and the reasons for them; and

  • “(b) the provision of a reasonable opportunity for interested persons to consider the proposed terms and conditions of the recommendation or the notice and make submissions; and

  • “(c) adequate and appropriate consideration of submissions.

  “(4) A failure to comply with this section does not affect the validity of—

  • “(a) any regulations made under section 161A; or

  • “(b) any Gazette notices issued under section 161D.

  “(5) The Minister is not required to consult under subsection (2) if the Minister issues a notice under section 161D for the sole purpose of requiring persons to provide electricity-related contracts or any information related to those contracts.

“161G Regulations in relation to eligible agricultural activities

• “(1) The Governor-General may, by Order in Council made on the recommendation of the Minister, make regulations for 1 or more of the following purposes:

  • “(a) prescribing in respect of each eligible agricultural activity, as appropriate,—

    • “(i) the product or products of the activity:

    • “(ii) an allocative baseline for each product:

  • “(b) prescribing, for the purpose of subsection (2),—

    • “(i) a methodology or methodologies for calculating—

      • “(A) the total number of tonnes of methane and nitrous oxide emissions that resulted from the eligible agricultural activity carried out to produce the prescribed product or products in the prescribed years; and

      • “(B) the total amount of each prescribed product produced from the eligible agricultural activity in the prescribed years; and

    • “(ii) the year or years for the purposes of subparagraph (i):

  • “(c) prescribing a methodology or methodologies for calculating the amount of any prescribed product of an eligible agricultural activity for the purposes of sections 85 and 161H:

  • “(d) prescribing information that must be kept for the purposes of section 86D.

  “(2) For the purposes of subsection (1)(a)(ii), the allocative baseline for each prescribed product of an eligible agricultural activity must be calculated using the following formula:

  AB = ∑(E) / ∑(PDCT)

  where—

  AB

  is the allocative baseline for the product

  E

  is the total number of tonnes of methane and nitrous oxide emissions that resulted from the eligible agricultural activity carried out to produce the product in the prescribed year or years, calculated in accordance with methodologies prescribed in regulations made under this Act

  PDCT

  is the total amount of the product produced from the eligible agricultural activity in the prescribed year or years, calculated in accordance with methodologies prescribed in regulations made under this Act

  ∑

  is the symbol for the summation of E for the year or years for which E must be calculated (as prescribed by regulations made under this Act) and of PDCT for the year or years for which PDCT must be calculated (as prescribed in regulations made under this Act).

  “(3) Before recommending the making of a regulation under subsection (1) prescribing the allocative baseline or baselines of an eligible agricultural activity, the Minister must consult, or be satisfied that the chief executive has consulted, the persons (or representatives of the persons) that appear to the Minister or the chief executive likely to be substantially affected by any regulation made in accordance with the recommendation.

  “(4) The process for consultation under subsection (3) must include—

  • “(a) giving adequate and appropriate notice of the proposed allocative baseline or baselines and the reasons for them; and

  • “(b) the provision of a reasonable opportunity for interested persons to consider the proposed allocative baseline or baselines and make submissions; and

  • “(c) adequate and appropriate consideration of submissions.

  “(5) A failure to comply with subsections (3) and (4) does not affect the validity of any regulations made under subsection (1).

  “(6) Despite section 4, in this section and section 161H, eligible agricultural activity—

  • “(a) means any activity or subclass of any activity listed in Part 5 of Schedule 3; but

  • “(b) excludes any activity or subclass of any activity listed in subpart 2 or 4 of Part 5 of Schedule 3, unless an Order in Council has been made under section 2A(8) or (9) in respect of any such activity or subclass of activity.

“161H Power to request information showing output from eligible agricultural activities

• “(1) The Minister may, after 1 January 2011, by notice in the Gazette,—

  • “(a) specify an eligible agricultural activity in respect of which information must be provided under paragraph (d):

  • “(b) specify, in respect of the eligible agricultural activity specified under paragraph (a), the product or products of the eligible agricultural activity in respect of which the information must be provided under paragraph (d):

  • “(c) specify the year or years for which information must be provided under paragraph (d):

  • “(d) require any person carrying out the eligible agricultural activity on the date of the notice to provide to the Minister information that shows the amount of each specified product from the activity specified by the person in the year or years specified in the notice, determined (if relevant) in accordance with any prescribed methodologies:

  • “(e) specify the date by which the information specified in the notice must be provided to the Minister, which must be no earlier than 30 working days from the date of the notice.

  “(2) If a person who is required to comply with a notice given under subsection (1) fails to provide the required information by the date specified in the notice, the Minister may give written 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.

  “(3) Despite anything in this Act, if notice is given under subsection (1) requiring a person to provide information with respect to an eligible agricultural activity, the following persons are not eligible to be allocated New Zealand units under subpart 2 in respect of the eligible agricultural activity:

  • “(a) any person who—

    • “(i) carried out the activity at the date of the notice given under subsection (1); and

    • “(ii) failed, without reasonable excuse, to supply the data and information required by the date specified in the notice given under subsection (2); and

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

  “(4) A Gazette notice under subsection (1) is a regulation for the purposes of the Regulations (Disallowance) Act 1989, but not for the purposes of the Acts and Regulations Publication Act 1989.”