The Greenhouse Gas Emissions Trading Scheme Regulations 2005

Allocation and issue of allowances

21.—(1) Subject to regulation 46, for the second scheme phase and each subsequent scheme phase, the Secretary of State shall decide upon—

(a) the total quantity of allowances to be allocated for that phase;

(b) the allocation of allowances in respect of each installation including the number of those allowances to be issued in each scheme year in that phase; and

(c) where there is more than one greenhouse gas emissions permit relating to an installation, the division of the allowances allocated in respect of that installation under sub-paragraph (b) between each part of the installation to which a separate greenhouse gas emissions permit relates.

(2) Decisions under paragraph (1) shall—

(a) be based upon the national allocation plan for the relevant phase which has not been rejected by the European Commission or in relation to which the European Commission has accepted amendments in accordance with Article 9(3) of the Directive; and

(b) take due account of comments from the public in accordance with the provisions of the national allocation plan.

(3) The Secretary of State shall publish in England a decision under paragraph (1), at least twelve months before the beginning of the scheme phase to which the decision relates.

(4) The Secretary of State shall notify the Scottish Ministers, the National Assembly for Wales and the Department of the Environment of her decision under paragraph (1).

(5) Where the European Commission has provided for additional allowances to be allocated in respect of an installation, or installations of any description, under Article 29(1) of the Directive, the Secretary of State shall instruct the registry administrator to issue allowances in accordance with Article 43(1) of the Registries Regulation.

(6) Where—

(a) an approved national allocation plan provides that where conditions specified in the approved national allocation plan are met allowances allocated under these Regulations in respect of an installation for a particular scheme year in the scheme phase to which the plan relates should be issued to the operator of the installation after 28^th February; and

(b) such conditions are met in respect of an installation,

the relevant decision maker shall notify the registry administrator and the operator that the second sentence of Article 40 or 46 of the Registries Regulation applies to that installation in respect of the scheme year in which the notice is served.

(7) A notice under paragraph (6) shall, in accordance with the approved national allocation plan, either—

(a) specify the date after 28^th February on which, in accordance with the approved national allocation plan, allowances should be issued in respect of the installation; or

(b) where the approved national allocation plan provides for such date to be determined by reference to when specified conditions have been met, specify the conditions and indicate that the relevant decision maker will further notify the registry administrator when those conditions have been met.

(8) Where paragraph (7)(b) applies, the relevant decision maker shall periodically, or where requested by a notice served on the relevant decision maker by the operator, assess whether the conditions specified in the notice under paragraph (6) have been met and shall notify the operator and the registry administrator when the conditions have been met.

(9) Where a notice is served under paragraph (6), the reference to “later date” in Article 40 or 46 of the Registries Regulation shall be to the date specified in accordance with paragraph (7)(a) or to the date of a notice under paragraph (8).

(10) For the purposes of this regulation, “relevant decision maker” means—

(a) where the conditions referred to in paragraph (6)(a) relate to an installation in respect of which an application for temporary exclusion under Article 27(2) of the Directive has been made, the responsible authority;

(b) where the conditions referred to in paragraph (6)(a) relate to a supplementary decision of the Secretary of State under regulation 25(7), the Secretary of State;

(c) in all other cases, the regulator.