The Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013

• Citation: S.I. 2013/3135
• Sections: 17

Section 1 Citation and commencement

These Regulations may be cited as the Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013 and come into force on 31st January 2014.

Section 2 Interpretation

A reference in this Part to a numbered regulation or Schedule is to that regulation of, or Schedule to, the Greenhouse Gas Emissions Trading Scheme Regulations 2012 .

Section 3 Penalty for carrying out an unauthorised activity

(1) Regulation 52 (carrying out a regulated activity contrary to regulation 9) is amended as follows.

(2) In paragraph (2), for “For each” substitute “Subject to paragraph (3), for each”.

(3) For paragraph (3), substitute—

(3) In imposing the penalty under paragraph (2), the regulator may increase the amount determined under that paragraph by a percentage designed to ensure that the penalty exceeds the amount of any economic benefit that P has obtained as result of the failure to comply with regulation 9.

(4) In paragraph (4)(b), for “in accordance with” substitute “under”.

Section 4 Transitional provisions: penalties

(1) In regulation 3 (interpretation), in the definition of “allowance”, for “subject to regulations 54(7) and 82(1)” substitute “subject to regulations 54(7), 82(1) and 87B(5)”.

(2) In regulation 86 (savings and transitional provisions: the 2005 Regulations)—

(a) in paragraph (15), after “the following civil penalties apply” insert “(subject to the regulator’s discretion under regulation 51 above)”; and

(b) in paragraph (18), for “Regulations” substitute “Subject to regulation 87B below, regulations”.

(3) In paragraph (8) of regulation 87 (savings and transitional provisions: the 2010 Regulations) , for “Subject to regulation 87A below” substitute “Subject to paragraph (8A) and to regulations 87A and 87B below”.

(4) After regulation 87(8) insert—

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

(5) After regulation 87A insert—

Unreported emissions arising before 2013

(87B)

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

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

(b) have been determined by the regulator.

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

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

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

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

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

(5) In this regulation—

(a) “allowance” includes—

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

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

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

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

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

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

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

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

Section 5 Registries

(1) In regulation 3 (interpretation)—

(a) omit the definition of “the Registries Regulation 2011”, and at the appropriate place insert—

“the Registries Regulation 2013” means Commission Regulation (EU) No 389/2013 of 2 May 2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 280/2004/ EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011 , as amended from time to time;

(b) in the definition of “registry account”—

(i) for “or “excluded”” substitute “, “excluded” or “closed””; and

(ii) for “Article 9 of the Registries Regulation 2011” substitute “Article 10 of the Registries Regulation 2013”; and

(c) in the definition of “the Union Registry” for “2011” substitute “2013”.

(2) In regulation 8 (Commission Regulations: designations)—

(a) in paragraph (1), for “2011” substitute “2013”;

(b) for paragraphs (2) and (3) substitute—

(2) Subject to paragraph (3), the regulator is the competent authority designated by the United Kingdom for the purposes of the Registries Regulation 2013 (other than Articles 25(3) and 34(6)).

(3) The Secretary of State is the competent authority so designated for the purposes of—

(a) Article 19;

(b) Article 32(2);

(c) Article 33(1);

(d) Article 34(7); and

(e) Article 97(1).

(c) omit paragraphs (4) and (5).

(3) In paragraph (5) of regulation 44 (power to determine reportable emissions), for “Article 32(6) of the Registries Regulation 2011” substitute “Article 35(6) of the Registries Regulation 2013”.

(4) In paragraph (6)(e) of regulation 45 (provision of information), for “2011” substitute “2013”.

(5) In regulation 74 (rights of appeal: registries)—

(a) in paragraph (1)—

(i) after “registry administrator” insert “or KP registry administrator”; and

(ii) for “2011” substitute “2013”;

(b) for paragraph (2) substitute—

(2) Those provisions are—

(a) Article 22(3);

(b) Article 24(6);

(c) Article 25(3);

(d) Article 33(5);

(e) Article 34(6).

(c) omit paragraphs (3) and (4).

(6) In regulation 77 (determination of an appeal)—

(a) for paragraph (2) substitute—

(2) In determining an appeal under regulation 74, the appeal body may give directions to the registry administrator or the KP registry administrator as to the exercise of their functions under the Registries Regulation 2013.

(b) in paragraph (3), for “2010 or 2011” substitute “2013”.

(7) In regulation 79 (interpretation)—

(a) for paragraph (1) substitute—

(1) In this Part, a reference to a numbered Article is to that Article of the Registries Regulation 2013.

(b) in paragraph (2), for “Article 49” substitute “Article 51(1)” and for “Article 53(1)” substitute “Article 54(1)”.

(8) In regulation 80 (the Union Registry)—

(a) omit paragraph (1);

(b) in paragraph (2), for “Article 32(2)” substitute “Article 35(2)”;

(c) in paragraph (3), for “Articles 32(4) and (5)” substitute “Article 35(4) and (5)”;

(d) in paragraph (4), for “Article 14(1) or 15(1)” substitute “Article 16(1) or 17(1)”;

(e) in paragraph (6), for “Article 34” substitute “Article 37”;

(f) in paragraph (11), for “Article 50(1) or 54(1)” substitute “Article 52(1) or 55(1)”;

(g) in paragraph (12), for “Article 50(2) or 54(2)” substitute “Article 52(2) or 55(2)”; and

(h) in paragraph (16), for “Article 36(3)” substitute “Article 39(3)”.

(9) In paragraph (1) of regulation 81 (the UK Registry), for “Article 3(1) of the Registries Regulation 2010” substitute “Article 5(1) of the Registries Regulation 2013”.

(10) Omit paragraph 81(2).

(11) In paragraph 2 of regulation 84 (guidance), for “the Registries Regulations 2011 or the Registries Regulations 2010” substitute “the Registries Regulations 2013”.

(12) In paragraph 3(12) of Schedule 4 (permits), for “Article 50(1)(d) or (e) of the Registries Regulation 2011” substitute “Article 52(1)(c) or (d) of the Registries Regulation 2013”.

(13) In paragraph 8(9) and (10) of Schedule 5 (excluded installations), for “2011” substitute “2013”.

Section 6 Minor amendments

(1) In paragraph (1) of regulation 69 (failure to comply with an information notice), for “notice” substitute “a notice”.

(2) In paragraph 1(5)(b) of Schedule 3 (applications etc. ), for “report” substitute “report or notice”.

(3) In paragraph 3(3) of Schedule 5 (excluded installations), for “mention” substitute “mentioned”.

(4) In Schedule 6 (allocation and adjustment of allowances)—

(a) in paragraph 7(7)(b), for “paragraph 11(1)” substitute “paragraph 11(1)(c) and (2)”;

(b) in paragraph 7(9)(c), for “12(1)” substitute “13(1)”; and

(c) in paragraph 11(3), for “sub-paragraph (1)” substitute “sub-paragraph (2)”.

(5) In paragraph 1(2) of Schedule 7 (allocation of aviation allowances), insert at the end “or under the 2009 Regulations”.

Section 7 Interpretation

A reference in this Part to a numbered regulation is to that regulation of the Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005 .

Section 8 Review of the Regulations

After regulation 1 insert—

Duty to review these Regulations

(1A)

(1) The Secretary of State must from time to time—

(a) carry out a review of these Regulations;

(b) set out the conclusions of the review in a report; and

(c) publish the report.

(2) In carrying out the review the Secretary of State must, so far as is reasonable, have regard to how the Emissions Trading Directive and Decision 280/2004/EC are implemented in other member States.

(3) The report must in particular—

(a) set out the objectives intended to be achieved by the regulatory system established by these Regulations;

(b) assess the extent to which those objectives are achieved; and

(c) assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved with a system that imposes less regulation.

(4) The first report under this regulation must be published before the end of the period of five years beginning with the day on which the Greenhouse Gas Emissions Trading Scheme and National Emissions Inventory (Amendment) Regulations 2013 come into force.

(5) Reports under this regulation are afterwards to be published at intervals not exceeding five years.

Section 9 Notices

In regulation 3, for “Regulation 4 of the 2005 Regulations” substitute “Schedule 2 to the Greenhouse Gas Emissions Trading Scheme Regulations 2012”.

Section 10 National inventory: removal of powers of entry

(1) Omit regulation 11 (powers of entry).

(2) In regulation 12 (agreement with devolved administrations on national inventory)—

(a) after “under regulation 10” omit “and to authorise a person under regulation 11”;

(b) after “served in Scotland” omit “or an authorisation authorises the exercise of powers in Scotland”;

(c) after “served in Northern Ireland” omit “or an authorisation authorises the exercise of powers in Northern Ireland”; and

(d) after “served in Wales” omit “or an authorisation authorises the exercise of powers in Wales”.

Section 11 National inventory: abolition of criminal offences

In paragraph (1) of regulation 13 (offences), omit—

(a) sub-paragraph (a);

(b) paragraphs (ii) and (iii) of sub-paragraph (b); and

(c) sub-paragraphs (c) and (d).

Section 12 National inventory: civil penalties

After regulation 13 insert—

Civil penalties

Penalty notices

(14)

(1) Subject to regulation 15, where the Secretary of State is satisfied that a person (“P”) is liable to a civil penalty under this Part the Secretary of State must, serve a notice on P (a “penalty notice”).

(2) The penalty notice must specify—

(a) the regulation under which that liability arises;

(b) the amount of the civil penalty due;

(c) whether or not P may be liable to a civil penalty in accordance with regulation 16(2)(b) (an “additional daily penalty”); and

(d) if P will not be liable to an additional daily penalty, the date by which the penalty for which P is liable must be paid.

(3) Subject to regulation 15, where the Secretary of State is satisfied that P is liable to an additional daily penalty the Secretary of State must, when the amount of that additional daily penalty can be determined, serve a notice on P (an “additional penalty notice”) specifying—

(a) the total amount of the civil penalties due; and

(b) the date by which that amount must be paid.

(4) A civil penalty imposed by a penalty notice or an additional penalty notice must be paid to the Secretary of State by the date specified in the notice.

(5) Any such civil penalty is recoverable by the Secretary of State as a civil debt.

Discretion in imposing civil penalties

(15) Where the Secretary of State considers it appropriate to do so, the Secretary of State may—

(a) refrain from imposing a civil penalty under this Part;

(b) reduce the amount of a penalty (including the amount of an additional daily penalty);

(c) extend the time for payment specified in the penalty notice or additional penalty notice;

(d) withdraw a penalty notice or an additional penalty notice; or

(e) modify the notice by substituting a lower penalty.

Failure to comply with a notice under regulation 10(1)

(16)

(1) A person (“P”) is liable to the civil penalties in paragraph (2) where P fails to comply (or to comply on time) with the requirements of a notice served under regulation 10(1) (an “information notice”).

(2) The civil penalties are—

(a) £1,500; and

(b) £150 for each day that P fails to comply with the requirements of the information notice, following service of a penalty notice, up to a maximum of £13,500.

Providing false or misleading information

(17)

(1) Where paragraph (2) applies, a person is liable to the civil penalty in paragraph (3) where that person provides false or misleading information, or makes a statement which is false or misleading in a material particular.

(2) This paragraph applies where the statement is made (or the information is provided) to the Secretary of State in writing for the purpose of preparing a national inventory, whether or not the statement is made (or the information provided) in purported compliance with a requirement imposed by a notice under regulation 10(1).

(3) The civil penalty is £1,000.

Appeals

(18)

(1) A person on whom a penalty notice or additional penalty notice has been served under this Part may appeal to the First-tier tribunal .

(2) The bringing of the appeal suspends the effect of the notice pending the final determination or withdrawal of the appeal.

(3) In determining the appeal the First-tier tribunal may—

(a) affirm or quash the notice; or

(b) reduce the amount of the penalty imposed by the notice (including the amount of any additional daily penalty).

Section 13 Section 41A of the Environment Act 1995

(1) Section 41A of the Environment Act 1995 (charges in respect of the EU greenhouse gas emissions trading scheme) is amended as follows.

(2) In subsections (1)(b)(i) and (6)(a) for “Registries Regulation 2011” substitute “Registries Regulation 2013”.

(3) For subsection (7) substitute—

(7) In this section—

“charging authority” means the Agency, the Natural Resources Body for Wales or SEPA ;

“the Registries Regulation 2013” means Commission Regulation (EU) No 389/2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 290/2004/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011, as amended from time to time; and

“trading scheme registry” means any registry operated by the Agency for the purpose of meeting the obligations of the United Kingdom referred to in Articles 4(3) and 5(1) of the Registries Regulation 2013.

Section 14 Interpretation

A reference in this Part to a numbered paragraph is to that paragraph of Schedule 1 to the Environment (Northern Ireland) Order 2002 (particular purposes for which provision may be made under Article 4 (regulation of polluting activities) .

Section 15 Paragraph 9B of Schedule 1

In paragraph 9B(2)(a) for “Registries Regulation 2011” substitute “Registries Regulation 2013”.

Section 16 Paragraph 26

(1) Paragraph 26 is amended as follows.

(2) For the definition of “the Registries Regulation 2011” substitute—

“the Registries Regulation 2013” means Commission Regulation (EU) No 389/2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 290/204/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011, as amended from time to time;

(3) For the definition of “trading scheme registry” substitute—

“trading scheme registry” means any registry operated by the Environment Agency for the purpose of meeting the obligations of the United Kingdom referred to in Articles 4(3) and 5(1) of the Registries Regulation 2013.

Section 17 Regulation 2 of the Greenhouse Gas Emissions Trading Scheme Charging Scheme Regulations (Northern Ireland) 2010

(1) Regulation 2 of the Greenhouse Gas Emissions Trading Scheme Charging Scheme Regulations (Northern Ireland) 2010 is amended as follows.

(2) For the definition of “the Registries Regulation 2011” substitute—

“the Registries Regulation 2013” means Commission Regulation (EU) No 389/2013 establishing a Union Registry pursuant to Directive 2003/87/EC of the European Parliament and of the Council, Decisions No 290/204/EC and No 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulations (EU) No 920/2010 and No 1193/2011, as amended from time to time;

(3) For the definition of “trading scheme registry” substitute—

“trading scheme registry” means any registry operated by the Environment Agency for the purpose of meeting the obligations of the United Kingdom referred to in Articles 4(3) and 5(1) of the Registries Regulation 2013.