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OZONE PROTECTION AND SYNTHETIC GREENHOUSE GAS MANAGEMENT AMENDMENT REGULATIONS 2004 (NO. 3) 2004 NO. 381
STATUTORY RULES 2004 No. 381
ISSUED BY THE AUTHORITY OF THE
MINISTER FOR THE ENVIRONMENT AND
HERITAGE
Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2004 (No. 3)
Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
Subsection 45A (1) of the Act provides that regulations may be made that:
• regulate the sale, purchase, acquisition and disposal of scheduled substances;
• regulate the storage, use or handling of scheduled substances; and
• confer functions on persons or bodies in relation to these matters.
The purpose of the Regulations is to:
• prescribe the information that will be included in a record of all sales and use of the scheduled substance methyl bromide;
• prescribe the information that will be included in a report of all use of methyl bromide for non-quarantine and pre-shipment purpose. Quarantine and pre-shipment (QPS) use relates to the fumigation of goods after they are imported or before they are exported to prevent the spread of pests. Non-QPS uses are all other uses of methyl bromide that do not fall within the QPS definition;
• prescribe who can sell and purchase methyl bromide for non-QPS use and in what quantities;
• prescribe the powers of inspectors appointed under Section 49 of the Act
Methyl bromide is used as a fumigant to treat pests and weeds in agriculture and to treat pests in goods after import or prior to export. Methyl bromide contributes to the depletion of the ozone layer when released into the atmosphere.
The regulations will prescribe procedures necessary for Australia to comply with its obligations under the Montreal Protocol on Substances that Deplete the Ozone Layer with respect to ensuring that all stocks of the ozone depleting substance methyl bromide imported are only sold and used for authorised purposes.
The Regulations will implement recommendations arising from the Review of the Commonwealth's Ozone Protection Legislation published in 2001.
Details of the Regulations are in the Attachment.
The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.
The Regulations commence on 1 January 2005.
Authority: Section 70 of the Ozone Protection and Synthetic Greenhouse Gas Management Act 1989
Attachment
Details of the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2004 (No. 3)
Regulation 1
Provides that the Regulations will be known as the Ozone Protection and Synthetic Greenhouse Gas Management Amendment Regulations 2004 (No. 3).
Regulation 2
Provides that the Regulations commence on 1 January 2005.
Regulation 3
Provides that the Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995, as amended by regulations for the refrigeration and air conditioning industries (the Principal Regulations), are amended as set out in Schedule 1.
Schedule 1
Item 1 substitutes regulation 100 which describes the purpose of Part 6A of the Principal Regulations.
Regulation 100 is to be inserted by regulations recommended under a separate Minute. Those regulations extend regulatory controls on the refrigeration and air conditioning industry in relation to ozone depleting substances and synthetic greenhouse gases. Item 1 amends regulation 100 so that the purpose of Part 6A also refers to the sale, purchase, acquisition, disposal, storage use and handling of methyl bromide.
Item 2 substitutes the note under regulation 150 to note that regulation numbers 151 to 199 (inclusive) are reserved for future use. Regulation 150 will be inserted by regulations recommended under a separate Minute. Item 2 substitutes "151 to 899" with "151 to 199" in recognition of new regulations to be inserted by Item 3 below.
Item 3 inserts Division 6A.3 in the Principal Regulations, entitled "Methyl Bromide", after Division 6A.2.
Subdivision 6A.3.1 Preliminary
Regulation 200 contains definitions to be used to interpret Part 6A. The regulation provides that:
allocated amount means the meaning given by regulation 211;
approved form means a form approved by the Secretary of the Department for the purposes of the provision in which the expression is used;
exempt person means a person on the non-quarantine and pre-shipment (Non-QPS) Exemption List;
nominated supplier means, for an exempt person, a person shown as a nominated supplier for the exempt person on the Non-QPS Exemption List;
Non-QPS Exemption List means the document called Exemption List for Non-QPS Applications of Methyl Bromide, published by the Department and in force on 1 January 2005.
Subregulation 201 (1) defines that a QPS or quarantine and pre-shipment application means the use of methyl bromide to prevent the introduction, establishment or spread of a pest or disease, performed or authorised by a Commonwealth State or Territory Authority. For pre-shipment applications it means the use of methyl bromide to treat a commodity before it is exported, to comply with a requirement of the importing country or of a law of the Commonwealth.
Subregulation 201 (2) defines that a non-QPS or non-quarantine and pre-shipment application means the use of methyl bromide that is not for a quarantine and pre-shipment (QPS) application.
Regulation 202 prescribes the powers of inspectors appointed under section 49 of the Act with respect to these regulations. The regulation provides that an inspector may use the existing powers granted under section 49 at premises that are used for storing records relating to the sale or use of methyl bromide or for the storage of methyl bromide.
Subdivision 6A.3.2 Restrictions on the use and sale of methyl bromide
Regulation 210 specifies that the subdivision only applies to methyl bromide that is imported on or after 1 January 2005.
Regulation 211 defines allocated amount to mean the amount of methyl bromide set out in the Non-QPS Exemption List for an exempt person and the person's nominated supplier is the person's allocated amount for that supplier for 2005.
Subregulation 212 (1) makes it an offence to use methyl bromide for non-QPS applications if the person is not an exempt person or acting on behalf of an exempt person.
Subregulation 212 (2) makes it an offence if the amount of methyl bromide used by or for an exempt person for non-QPS applications is more than their allocated amount for the year.
Subregulation 212 (3) provides that the offences in subregulations 212 (1) and 212 (2) are strict liability offences. The penalty for breaching these subregulations is ten penalty units. One penalty unit is $110 under the Crimes Act 1914.
Subregulation 213 (1) makes it an offence for a supplier, other than an importer, to sell methyl bromide to a buyer, who signs a declaration outlined by paragraph 220 (1) ( e) stating the methyl bromide is for a non-QPS application, and if subregulations 213 (2),213 (3) and 213 (4) are not satisfied in relation to the sale.
Subregulation 213 (2) prescribes that a buyer must be an exempt person or acting on behalf of an exempt person, or a nominated supplier.
Subregulation 213 (3) prescribes that if the buyer is, or acting on behalf of an exempt person, the supplier must be a nominated supplier for the person and must ensure that the total amount of methyl bromide the supplier sells to the buyer for non-QPS applications in one year is equal to or less than the exempt person's allocated amount for that year.
Subregulation 213 (4) prescribes that if the buyer is a nominated supplier for an exempt person, that the supplier must be an intermediate supplier for the buyer, and must ensure that the total amount of methyl bromide the supplier sells to the buyer in one year is equal to or less than the allocated amounts that the buyer is entitled to supply to exempt persons for non-QPS applications for the year.
Subregulation 213 (5) prescribes that if a buyer is an exempt person and also a nominated supplier for an exempt person, the amount of methyl bromide that the supplier may sell to that buyer during a year for non-QPS applications is the sum of the total amounts in subregulation 213 (3) and subregulation 213 (4).
Subregulation 213 (6) provides definitions to be used to interpret regulation 213. The subregulation provides that:
importer means a licensee who holds a controlled substances licence that allows the licensee to import methyl bromide and is subject to a condition to the effect that methyl bromide imported for non-QPS applications may only be supplied to a person, or persons, specified on the licence.
intermediate supplier means, in relation to a buyer, a person who is shown as an intermediate supplier for the buyer on the document called Intermediate Supplier List for Non-QPS Applications of Methyl Bromide, published by the Department and as in force on 1 January 2005.
Subregulation 213 (7) provides that the offence in subregulation 213 (1) is a strict liability offence. The penalty for breaching this subregulation is ten penalty units.
Subdivision 6A.3.3 Record keeping requirements
Regulation 220 prescribes the records that must be kept by a supplier of methyl bromide who sells to a buyer. The regulation provides that the form of the report must be approved by the Secretary of the Department.
Subregulation 220 (1) prescribes the details to be kept in a record of sale of methyl bromide:
• the name and ABN of the supplier;
• the name, address, telephone number, and ABN of the buyer;
• the date of sale;
• the amount of methyl bromide sold;
• a declaration signed by the buyer, which states in relation to the quantities sold how much was being bought to be used in QPS applications and how much was being bought to use in non-QPS applications.
Subregulation 220 (2) prescribes that the supplier must retain the records of sale for a period of 5 years from the date of sale.
Subregulation 220 (3) provides that the offences in subregulations 220 (1) and 220 (2) are strict liability offences. The penalty for breaching these subregulations is ten penalty units.
Regulation 221 prescribes the details that must be recorded by any person that uses methyl bromide.
Subregulation 221 (1) prescribes that a person who uses methyl bromide must make a record of the information specified in paragraphs (a) to (e) of subregulation 221 (2) in a form that must be approved by the Secretary of the Department, unless the person is required to make a record of the information under another law of the Commonwealth or of a State or Territory.
Subregulation 221 (2) prescribes that the following information must be kept in a record of all use of methyl bromide referred to in subregulation 221 (1):
• under paragraph (a) the name and address of the person; and
• under paragraph (b) the date of the fumigation; and
• under paragraph ( c) the amount of methyl bromide used; and
• under paragraph (d) if the fumigation was for a QPS application the following information will be required to be kept:
- the kind of produce for which, or to which, the methyl bromide was applied; and
- the dosage rate at which the methyl bromide was applied; and
- the methyl bromide/chloropicrin ratio used; and
- the number of hectares or the number and volume of the container fumigated; and
- if the person is a contractor - the name and address of the exempt person for whom the methyl bromide was used;
• under paragraph ( e) if the fumigation was for a QPS application the following information will be required to be kept:
- the type of QPS application; and
- the commodity or pest fumigated; and
- any reference number issued to the person by a Commonwealth, State or Territory authority in relation to the QPS application.
Subregulation 221 (3) prescribes that the records made under subregulation 221 (2) must be kept for a period of 5 years from the date of the fumigation to which the record relates.
Subregulation 221 (4) provides that the offences in subregulations 221 (1) and 221 (3) are strict liability offences. The penalty for breaching these subregulations is ten penalty units.
Subregulation 222 (1 ) prescribes that a person who uses methyl bromide must keep a record in a form approved by the Secretary of the Department, of the date and the total amount of methyl bromide used by the person on that day, for each day on which the person uses methyl bromide.
Subregulation 222 (2) prescribes that the records made under subregulation 222 (1) must be kept for a period of 5 years from the day to which the record relates.
Subregulation 222 (3) provides that the offences in subregulations 222 (1) and 222 (2) are strict liability offences. The penalty for breaching these subregulations is ten penalty units.
Subdivision 6A.3.4 Reporting requirements
Subregulation 230 (1) prescribes that a supplier who sells methyl bromide must provide to the Minister within 14 days of the end of a quarter the following information:
• under paragraph (a) the name and ABN of the supplier; and
• under paragraph (b) for each sale in the quarter:
- the date of the sale; and
- the name and ABN of the buyer; and
- the amount of methyl bromide sold; and
- how much of the methyl bromide is to be used for QPS and for non-QPS applications respectively; and
• under paragraph ( c) the supplier must provide a statement if they did not sell any methyl bromide during the quarter.
Subregulation 230 (2) provides that that the offence in subregulation 230 (1) is a strict liability offence. The penalty for breaching this subregulation is ten penalty units.
Subregulation 231 (1) prescribes that an exempt person must report the information prescribed in subregulation 231 (2), in a form approved by the Secretary of the Department and signed by the exempt person and any contractor who carried out a fumigation to which the report relates, within 14 days of the end of a report period.
Subregulation 231 (2) prescribes that the following information must be contained in the report prescribed by subregulation 231 (1):
• under paragraph (a) the exempt person's name, address and ABN; and
• under paragraph (b) in relation to each occasion on which methyl bromide is used by, or on behalf of, the exempt person for a non-QPS application:
- the date of the fumigation; and
- the amount of methyl bromide used; and
- the kind of produce for which, or to which, the methyl bromide was applied; and
- the methyl bromide/chloropicrin ratio used; and
- the dosage rate at which the methyl bromide was applied; and
- the number of hectares or the number and volume of the container treated; and
- if the methyl bromide is used by a contractor"": the name, address, telephone number and ABN of the contractor.
Subregulation 231 (3) defines that report period means a period of 6 months commencing on 1 January or 1 July
Subregulation 231 (4) provides that the offence in subregulation 231 (1) is a strict liability offence. The penalty for breaching this subregulation is ten penalty units.
Subregulation 232 (1) prescribes that if a person buys methyl bromide on or after 1 January 2005 that he or she must, within 14 days of the end of the quarter in which they first bought the methyl bromide, give the Minister a report that sets out how much methyl bromide the person possessed immediately before the purchase.
Subregulation 232 (2) provides that the offence in subregulation 232 (1) is a strict liability offence. The penalty for breaching this subregulation is ten penalty units.