New Zealand Legislation: Acts

32 New subpart 2 of Part 4 substituted

• Subpart 2 of Part 4 is repealed and the following subpart substituted:

  “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.”