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Environment Act 2003 - Environment Act (Ozone Layer Protection) Regulations 2008

COOK ISLANDS

2008/23

ENVIRONMENT (OZONE LAYER PROTECTION) REGULATIONS 2008
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Sir F. Goodwin, KBE

Queen's Representative

ORDER IN EXECUTIVE COUNCIL

At Avarua, Rarotonga, this 7^th day of October 2008

Present:

HIS EXCELLENCY THE QUEEN'S REPRESENTATIVE IN EXECUTIVE COUNCIL

PURSUANT to Section 70 of the Environment Act 2003 His Excellency the Queen's Representative, acting by and with the advice and consent of the Executive Council, hereby makes the following regulations.

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ANALYSIS

PART I
PRELIMINARY

1. Title
2. Interpretation

PART II
PROHIBITIONS RELATING TO CONTROLLED SUBSTANCES

3. Prohibitions on importation
4. Prohibitions on the importation of certain goods
5. Exemptions in relation to imports
6. Prohibitions on exportation
7. Prohibition on manufacture
8. Prohibition on sales
9. Exemptions in relation to sales

PART III PERMITS

10. General principles to be applied in relation to permits
11. Quarantine and pre-shipment permits
12. Healthy and safety permits
13. HCFC permits
14. General provisions in relation to permits
15. Goods for which no permit may apply

PART IV-ENFORCEMENT AND OFFENCES

16. Seizure of substances and goods
17. Forfeiture of seized substances and goods
18. Call-up of substances and goods
19. Offences and penalties schedule

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REGULATIONS

PART I
PRELIMINARY

l. Title - These Regulations may be cited as the Environment Act (Ozone Layer Protection) Regulations 2008.

2. Interpretation - (1) In these Regulations, unless the context otherwise requires-

"Act" means the Environment Act 2003;

"aerosol spray" and "aerosol" means any substance packed under pressure in a container with a device for releasing it directly into the atmosphere as a foam or fine spray, or a liquid or solid stream;

"bulk", in relation to any controlled substance, -

(a) means any controlled substance that is acquired in a non-processed form, whether alone or in a mixture; and

(b) includes any controlled substance that is acquired in a non-processed form, whether alone or in a mixture, that has been recovered, cleaned (by filtering or drying) or reclaimed (by filtering, drying, distillation or chemical treatment); but

(c) excludes any controlled substance that is in a manufactured product other than a container used for the transportation or storage of the substance;

"Carbon tetrachloride" means the substance specified in Part IV of the Schedule;

"CFC" means any substance specified in Part I of Part III of the Schedule;

"controlled substance" means any substance specified in the Schedule;

"Convention" means the Vienna Convention for the Protection of the Ozone Layer, and includes any amendments to, or substitutions of, that Convention that

are, or will become, binding on the Cook Islands from time to time.

as specified in the Schedule to the Act;

"Director" means the Director of the Tu'anga Taporoporo or any person delegated to act on his behalf pursuant to the provisions of section 8 of the Environment Act 2003;

"export" and "exportation" means to take or cause to be taken out of the Cook Islands;

"Halon" means any substance specified in Part II of the Schedule;

"HBFC" means any substance specified in Part VI of the Schedule;

"HCFC" means any substance specified in Part VII of the Schedule;

"import" and "importation" means to bring or cause to be brought into the Cook Islands;

"Methyl bromide" means the substance specified in Part VIII of the Schedule;

"Methyl chloroform" means the substance specified in Part V of the Schedule;

"Montreal Protocol" means the Montreal Protocol on Substances that Deplete the Ozone Layer and includes any amendments to, or substitutions of, that Protocol that are, or will become, binding on the Cook Islands from time to time as specified in the Schedule to the Act;

"non-complying country" means

(a) any country that is not a party to the Montreal Protocol

(b) a country that has not been determined, in accordance with the Montreal Protocol, to be a country that is in full compliance with Articles 2, 2A to 2E, and 2c, and Article 4 of that Protocol, and any certificate given by the Minister of Foreign Affairs to the effect that any country is or is not a complying country shall be conclusive evidence of that fact:

"officer" means an Environment Officer appointed under the Part 4. Section 25 of the Act

"plastic foam" means any plastics in cellular mass which are formed with the use of any gas or volatile liquid introduced into liquid plastic to make bubbles;

"sale" means every method of disposition for valuable consideration (including barter), and includes -

(a) the disposition to an agent for sale on consignment;

(b) offering for sale or attempting to sell, or receiving or having in possession for sale, or exposing for sale, or sending or delivering for sale, or causing or permitting any of these things to be done;

(c) disposal by way of lottery, raffle or game of chance -

and "sell" and "sold" shall have corresponding meanings.

"solvent" means any aqueous or organic product designed to clean a component or assembly by dissolving the contaminants present on its surface.

(2) Words used in these Regulations shall have the same meaning as is given to them under the Act or in the Montreal Protocol, unless a contrary intention appears.

PART II
PROHIBITIONS RELATING TO CONTROLLED SUBSTANCES

3. Prohibitions on importation - (1) The importation into the Cook Islands of any controlled substance specified in Parts III and VI of the Schedule is prohibited.

(2) Subject to regulation 5, the importation into the Cook Islands of the following is prohibited -

(a) any bulk CFC, halons, carbon tetrachloride and methyl chloroform whether alone or in a mixture;

(b) any bulk methyl bromide whether alone or in a mixture,; and

(c) any bulk HCFCs, whether alone or in a mixture.

4. Prohibitions on the importation of certain goods - (1) Subject to regulation 5, the importation into the Cook Islands of the following goods is prohibited -

(a) any aerosol spray that contains any controlled substance, other than methyl bromide or HCFC;

(b) any dry-cleaning machine that contains or is designed to use any controlled substance as a solvent;

(c) any fire extinguisher that contains any controlled substance; and

(d) any dehumidifiers, refrigerators, freezers, air-conditioners, supermarket display cases, heat pumps and water coolers that contain any CFCs; or

(e) any air-conditioning or refrigeration units, whether fitted to a vehicle, vessel or aircraft or as mechanical components intended for use in or on a vehicle, vessel, or aircraft and which contain any CFC or halon at the time they are imported into the Cook Islands.

(2) The importation into the Cook Islands from a non-complying country, of any of the following goods containing any controlled substance (other than any HCFCs or methyl bromide) is prohibited -

(a) refrigerators and freezers;

(b) dehumidifiers and domestic and commercial refrigeration, air conditioning and heat pump equipment;

(c) air conditioning and heat pump units;

(d) automobile and truck air conditioning units (whether incorporated in vehicles or not);

(e) ice machines and water coolers;

(f) aerosol products (other than medical aerosols);

(g) portable fire extinguishers;

(h) insulation boards, panels and pipe covers; and

(i) pre-polymers (a reactive mixture of isocyanate and polyoll to which chlorofluorocarbons are added to make rigid plastic foams).

5. Exemptions in relation to imports - (1) The following exemptions may be given in relation to imports referred to in regulation 3(1), in accordance with a permit issued under Part III as follows -

(a) a Quarantine and Pre-shipment Permit in relation to methyl bromide;

(b) a Human Health or Safety permit in relation to any bulk controlled substance or any goods containing controlled substances;

(c) an HCFC Permit.

(2) Nothing in regulation 4 shall make it unlawful for any person to -

(a) import any controlled substance, or any goods containing any controlled substance, that is or are used only as packaging, or part of the packaging, of any other imported goods; or

(b) import any goods that are personal or household effects, and in respect of which an officer is satisfied that they are not intended for any other person, or for gift, sale or exchange provided that no bulk controlled substance may be considered a personal effect.

6. Prohibitions on exportation - (1) The exportation from the Cook Islands of any bulk CFC, halons, carbon tetrachloride, methyl chloroform, HCFCs or HBFCs to a non-complying country is prohibited.

(2) Any person who exports any bulk controlled substance shall, within 14 days after the exportation, notify the Minister in writing and shall give particulars of the substance exported, the date and amount of the export, and its destination.

7. Prohibitions on manufacture - The manufacture within the Cook Islands of the following substances or goods is prohibited -

(a) any controlled substance;

(b) any aerosol spray that contains any controlled substance other than methyl bromide;

(c) any plastic foam, or any goods that contain plastic foam, that is or are manufactured using any CFC or halon;

(d) any dry-cleaning machine that contains or is designed to use any controlled substance as a solvent; and

(e) any fire extinguisher that contains any controlled substance.

8. Prohibitions on sales - Subject to regulation 9, six months after the date of entry into force of this regulation the sale in the Cook Islands of the following goods is prohibited -

(a) any goods specified in regulation 7 (a) - (d) (inclusive); and

(b) any fire extinguisher that contains any CFC, halons, carbon tetrachloride, methyl chloroform, HCFCs or HBFCs.

9. Exemptions in relation to sales - Nothing in regulation 8 shall make it unlawful for any person to sell -

(a) any second hand goods; or

(b) any goods in respect of which an exemption granted under Part III of these Regulations applies.

PART III
PERMITS

10. General Principles to be applied in relation to permits - When considering the grant of a permit under this Part, the Minister shall have regard to the following -

(a) the obligations of the Cook Islands under the Convention

and the Montreal Protocol;

(b) the need to phase out ozone depleting substances, except for essential uses;

(c) whether any alternative products are available to be used instead of the ozone depleting substance; and

(d) any requirement that may be imposed in relation to the use of any ozone depleting substance so as to minimise its effect on the ozone layer.

11. Quarantine and pre-shipment permits - (1) In this regulation -

(a) "quarantine applications" mean any treatments to prevent the introduction, establishment or spread of quarantine pests (including diseases), or to ensure their official control; and

(b) "pre-shipment applications" mean any treatments applied directly preceding and in relation to export, to meet the phytosanitary or sanitary requirements of the importing country, or the existing phytosanitary or sanitary requirements of the exporting country.

(2) The Director may grant a permit under this regulation in relation to the importation of methyl bromide where he is satisfied, after consulting the Secretary for Agriculture, that it is to be used for legitimate quarantine or pre-shipment applications.

12. Health and safety permits - The Director may grant a permit under this regulation in relation to the importation of any bulk controlled substance or any product containing a controlled substance, where he is satisfied, after consulting the Secretary for Health, that it necessary for human health or safety and that he is satisfied that the Cook Islands will not be thereby in breach of its obligations under the Convention or the Montreal Protocol.

13. HCFC permits -The Director may grant a permit under this section for importation of bulk HCFC, whether alone on in a mixture, in any specified calendar year.

14. General provisions in relation to permits - The following requirements shall apply to all permits issued under this Part -

(a) an application shall be made to the Director on a form approved from time to time by the Director, or otherwise in accordance with any reasonable requirement of the Director;

(b) the applicant shall provide any further information, required by the Director;

(c) the application shall be accompanied by a fee of $200, and such additional fees as may be determined from time to time by order of the Director, except in relation to an application made by any Department or agency of Government, which shall be exempt from fees;

(d) a permit may not be transferred;

(e) the permit holder shall submit a report to the Director by the 30^th January of each year specifying the amount of any controlled substance imported or consumed in the previous year, the uses to which the controlled substance was put, and any other matter that the Director may from time to time require to be included in the report;

(f) any permit shall be subject to such conditions as may be imposed by the Director, including any condition requiring compliance with any approval, permission, code of practice, licence or accreditation available in another country relating to any controlled substance, any equipment used in relation to a controlled substance, or the manner in which a controlled substance may be used;

(g) the Director may revoke any permit if he is satisfied that the permit holder -

(i) has been convicted of any offence against the Act, these Regulations or any other offence involving ozone depleting substances; or

(ii) provided any false or misleading information in relation to the application for the permit;

(h) subject to regulation 13, shall be valid for 12 months from the date of its issue, and may be renewed for periods not exceeding 12 months; and

(i) all imports made under any permit shall be subject to Section 46 of the Customs Act 1913.

15. Goods for which no permit may apply - No permit issued under this Part shall operate to allow the importation of the following -

(a) any dry-cleaning machine which contains or is designed to use any bulk controlled substance as a solvent;

(b) any goods specified in regulation 4(2) imported from any non-complying country; and

(c) any aerosol or fire extinguisher prohibited by these Regulations, except where its use is necessary for human health or safety.

PART IV
ENFORCEMENT AND OFFENCES

16. Seizure of substances and goods - (1) Any officer, in the course of exercising a power under the Environment Act 2003 or the Customs Act 1913, may seize any controlled substance, any goods containing any controlled substance or any equipment using or use in connection with any controlled substance, which he reasonable suspects is the subject of a breach of any prohibition under these Regulations.

(2) Any controlled substance, goods or equipment seized under this regulation -

(a) shall be stored at a place, and in a manner, in accordance with a direction given by the Director; and

(b) may be retained until such time as the Director has been satisfied by its owner, or the person from whom it has been seized, that it is not or has not been the subject of any breach of a prohibition under these Regulations.

(3) Where it is agreed by the owner of the controlled substance, goods or equipment that they are in breach of a prohibition under these Regulations, or where the owner has not satisfied the Director under sub-regulation (2) within 6 months from the date of seizure, the controlled substance, goods or equipment may be disposed of or destroyed in a manner directed by the Director.

(4) Where the Court convicts a person of an offence against this section the Court may, if it thinks fit, in addition to imposing of penalty, order the offender to pay by way of compensation to the Service, as the case may be, such sum as it considers reasonable to cover the cost of disposal, and the amount so awarded shall be deemed to be a judgement debt due to the Service from the offender, and may be enforced in any manner in which a judgement or order of the Court for the payment of a civil debt may be enforced.

17. Forfeiture of seized substances and goods - In addition to all other goods elsewhere declared by the Customs Act to be forfeited, all goods listed in the schedule of this regulation shall be forfeited to the State, to be disposed of in a manner determined by the Director.

18. Call-up of substances and goods - The Director may, from time to time, issue a public notice requiring that any controlled substance, any goods containing any controlled substance or any equipment using or used in connection with any controlled substance -

(a) be stored or handled in accordance with any direction that he gives;

(b) be delivered at a designated time to a designated place for storage or disposal;

(c) be otherwise disposed of or destroyed in accordance with any direction that he gives.

19. Offences and penalties - (1) Any person or body corporate who -

(a) does any act in contravention of any prohibition under these Regulations;

(b) aids or abets any person in contravening any prohibition under these Regulations; or

(c) conspires with any person to do any act in contravention of any prohibition under these Regulations -

commits an offence, and shall be liable upon conviction in addition to the penalties in Section 59 (2) and (3) of the Act to a fine not exceeding $50,000.

(2) Any person or body corporate who fails to comply with -

(a) any condition of a permit issued under Part III; or

(b) a notice given by the Minister under regulation 18 -

commits an offence, and shall be liable upon conviction in addition to the penalties in Section 59 (2) and (3) of the Act to a fine not exceeding $50,000.

(3) No person may, in the course of installing, operating, servicing dismantling or otherwise handling any equipment used in relation to any controlled substance, wilfully or negligently permit any controlled substance to be discharged into the atmosphere.

Grover L. Harmon
Clerk of the Executive Council

These Regulations are administered by the Environment Services
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SCHEDULE

CONTROLLED SUBSTANCES

PART I

CFCs (CHLOROFLUOROCARBONS)

PART II

HALONS

PART III

OTHER CFCS (CHLOROFLUOROCARBONS)

PART IV

CARBON TETRACHLORIDE

PART V

METHYLCHLOROFORM

This formula does not refer to 1,1, 2-trichloroethane.

PART VI

HBFCS (HYDROBROMOFLUOROCARBONS)

PART VII

HCFCS (HYDROBROMOFLUOROCARBONS)

PART VIII

METHYL BROMIDE

* Notes
Ozone depleting potential is determined in accordance with the relevant Annexes to the Montreal Protocol Where a range of ODPs is indicated, the highest value in that range shall be used for the purposes of the Protocol. The ODPs listed as a single value have been determined from calculations based on laboratory measurements. Those listed as a range are based on estimates and are less certain. The range pertains to an isomeric group. The upper value is the estimate of the ODP of the isomer with the highest ODP, and the lower value is the estimate of the ODP of the isomer with the lowest ODP.

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