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Ozone Layer Protection Act

LAWS OF TUVALU
2008 REVISED EDITION

CAP. 30.30

OZONE LAYER PROTECTION ACT

Arrangement of Sections
Section

PART I - PRELIMINARY

1 Short title
2 Interpretation
3 Objects and application of the precautionary principle

PART II - PROHIBITIONS RELATING TO CONTROLLED SUBSTANCES

4 Prohibitions on importation
5 Prohibitions on the importation of certain goods
6 Exemptions in relation to imports
7 Regulation of exports of controlled substances
8 Prohibitions on Manufacture
9 Prohibitions on Sales
10 Exemptions in relation to sales

PART III - PERMITS

11 General Principles to be applied in relation to permits
12 Quarantine and pre-shipment permits
13 Medical permits
14 Base year permits
15 General provisions in relation to permits
16 Goods for which no permit may apply

PART IV - ENFORCEMENT AND OFFENCES

17 Powers of officers
18 Seizure of substances and goods
19 Forfeiture of seized substances and goods
20 Call-up of substances or goods
21 Offences and penalties
22 Regulations

SCHEDULE

CONTROLLED SUBSTANCES

PART I - CFCS (CHLOROFLUOROCARBONS)

PART II - HALONS

PART III - OTHER CFCS (CHLOROFLUOROCARBONS)

PART IV - CARBON TETRACHLORIDE

PART V - METHYL CHLOROFORM

PART VI - HBFCS (HYDROBROMOFLUOROCARBONS)

PART VII - HCFCS (HYDROCHLOROFLUOROCARBONS)

PART VIII - METHYL BROMIDE

Supporting Documents

ENDNOTES

OZONE LAYER PROTECTION ACT

AN ACT TO CONTROL OZONE DEPLETING SUBSTANCES IN TUVALU IN ACCORDANCE WITH THE OBLIGATIONS APPLYING UNDER THE VIENNA CONVENTION FOR THE PROTECTION OF THE OZONE LAYER AND THE MONTREAL PROTOCOL, AND RELATED PURPOSES. ^[1]

Commencement [18 August 2008^[2]]

______________________________________________________________________________

PART I - PRELIMINARY

1 Short title

This Act may be cited as the Ozone Layer Protection Act.

2 Interpretation

(1) In this Act, unless the context otherwise requires —

"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;

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

"Convention" means the Vienna Convention for the Protection of the Ozone Layer (Adopted at Vienna on 22 March 1985);

"Director" means the Director of Environment;

"export" and "exportation" means to take or cause to be taken out of Tuvalu;

"import" and "importation" means to bring or cause to be brought into Tuvalu;

"Minister" means the Minister responsible for this Act;

"Montreal Protocol" means the Montreal Protocol on Substances that Deplete the Ozone Layer (Adopted at Montreal on 16 September 1987);

"non-complying country" means any country that is not a party to the Montreal Protocol;

"Officer" means an Environment Officer, any police officer and any customs officer appointed under the Customs 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 this Act shall have the same meaning as is given to them in the Montreal Protocol, unless a contrary intention appears.

3 Objects and application of the precautionary principle

(1) The objects of this Act are to —

(a) protect human health and the environment from adverse effects resulting or likely to result from human activities which modify or are likely to modify the ozone layer;

(b) phase out ozone depleting substances as soon as possible except for essential uses; and

(c) give effect to the Tuvalu's obligations under the Convention for the Protection of the Ozone Layer and the Montreal Protocol on Substances that Deplete the Ozone Layer.

(2) All persons and agencies having responsibilities under this Act, or whose functions and powers may relate to any matter or thing involving the use, manufacture, sale, handling, storage or movement of ozone depleting substances within Tuvalu, shall apply the precautionary principle when discharging their responsibilities and functions, or exercising their powers.

(3) For the purposes of this section, the precautionary principle is applied if, in the event of a threat of damage to the environment or a risk to human health in Tuvalu, a lack of scientific certainty regarding the extent of adverse effects is not used to prevent or avoid a decision being made to minimise the potential adverse effects or risks from the importation, use, storage, handling or movement of ozone depleting substances within Tuvalu.

PART II - PROHIBITIONS RELATING TO CONTROLLED SUBSTANCES

4 Prohibitions on importation

(1) The importation into Tuvalu of any controlled substance specified in Parts III and VI of the Schedule is prohibited.

(2) Subject to section 6, the importation into Tuvalu of the following is prohibited —

(a) any bulk controlled substance specified in Parts I, II, IV and V of the Schedule;

(b) any bulk methyl bromide, as specified in Part VIII of the Schedule; and

(c) any bulk hydro chlorofluorocarbons, as specified in Part VII of the Schedule (whether alone or in a mixture).

5 Prohibitions on the importation of certain goods

(1) Subject to section 6, the importation into Tuvalu of the following goods (whether new or second hand) is prohibited —

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

(b) any plastic foam, or any goods that contain plastic foam, that is or are manufactured using any controlled substance specified in Part I or Part II of the Schedule (including any extruded polystyrene foam, polystyrene board stock and any thermoformed plastic packaging such as supermarket meat/produce trays, egg cartons, fast-food containers, disposable plates and cups, horticultural packaging trays and packaging netting);

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

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

(e) any dehumidifiers, refrigerators, freezers, air-conditioners, supermarket display cases, heat pumps and water coolers that contain any controlled substance listed in Part I and Part II of the Schedule.

(2) The importation into Tuvalu from a non-complying country, of any of the following goods containing any controlled substance (other than one specified in Part VII or Part VIII of the Schedule) 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).

6 Exemptions in relation to imports

(1) The following exemptions may be given in relation to imports referred to in section 4(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 Medical Permit in relation to medical products using a controlled substance;

(c) a Base Year Permit.

(2) Nothing in section 5 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.

(3) Nothing in this Act shall prevent an exemption being granted in respect of the import or subsequent export of any substances or goods only for the purpose of being transhipped into another ship or aircraft for carriage to a destination that is outside the territorial limits of Tuvalu.

7 Regulation of exports of controlled substances

(1) The exportation from Tuvalu of any bulk controlled substance specified in Part I - VI of the Schedule 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 —

(a) the substance exported;

(b) the date and amount of the export; and

(c) the destination of the exported substance.

(3) The Minister may give approval to the export of any bulk controlled substance which has been retrieved from vehicles, goods and equipment in Tuvalu and which is to be exported for the purposes of safe disposal in a foreign country.

(4) An approval given under subsection (3) shall be consistent with any requirement applying under the Convention or the Montreal Protocol, and shall require that the storage, movement and disposal of the controlled substance be undertaken in accordance with accepted international best practice.

8 Prohibitions on Manufacture

(1) The manufacture within Tuvalu 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 controlled substance specified in Part I or Part II of the Schedule (including any of the goods referred to in section 5(1)(b));

(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.

9 Prohibitions on Sales

(1) Subject to section 10, the sale in Tuvalu of the following goods is prohibited —

(a) any goods specified in section 8 (a) - (d) (inclusive); and

(b) any fire extinguisher that contains any controlled substance listed in Parts I – VI (inclusive) of the Schedule.

10 Exemptions in relation to sales

(1) Nothing in section 9 shall make it unlawful for any person to sell —

(a) any second hand goods; or

(b) any goods in respect of which a permit granted under Part III applies.

PART III - PERMITS

11 General Principles to be applied in relation to permits

(1) When considering the grant of a permit under this Part, the Minister shall have regard to the following —

(a) the obligations of Tuvalu 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.

12 Quarantine and pre-shipment permits

(1) In this section —

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

13 Medical permits

The Minister may grant a permit under this section in relation to the importation of any product containing a controlled substance, where the Minister is satisfied, after consulting the Minister for Health, Education and Community Affairs, that it has a medical application relating to the protection of life or health.

14 Base year permits

(1) Any permit granted under this section may —

(a) where the permit is to relate to a controlled substance specified in Parts I - VI or Part VIII of the Schedule - be issued only to a person who, in Tuvalu, consumed the relevant controlled substance in the base year applying to that controlled substance under the Montreal Protocol (taking into account the application of Article 5 relating to developing countries); or

(b) where the permit is to relate to a controlled substance specified in Part VII of the Schedule - be issued to any person whose activities will not contravene the Montreal Protocol or any provision of this Act; and

(c) require the reduction of the consumption of the relevant controlled substance in accordance with the timetable applying to that controlled substance under the Montreal Protocol (taking into account the application of Article 5 relating to developing countries);

(d) cease to apply on 1st January 2010, or such earlier date as is specified in the permit or by reason of section 15(1)(g) or (h).

(2) Subject to subsection (1), the Minister may grant a permit under this section permitting the importation and consumption of a controlled substance, if the Minister is satisfied that Tuvalu will not be thereby in breach of its obligations under the Convention or the Montreal Protocol.

15 General provisions in relation to permits

(1) The following requirements shall apply to all permits issued under this Part —

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

(b) the applicant shall provide any information, or 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 the Minister (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 30th January of each year to which the permit applies specifying the amount of any controlled substance imported or consumed, the uses to which the controlled substance was put, and any other matter that the Minster may from time to time require be included in the report;

(f) any permit shall be subject to such conditions as may be imposed by the Minister, including any condition requiring compliance with any approval, permission, 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 Minister may revoke any permit if the Minister is satisfied that the permit holder —

(i) has been convicted of any offence against this Act 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 section 14(1), permits 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 the Customs Act and the Quarantine Act.

16 Goods for which no permit may apply

(1) 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 section 5(2) imported from any non-complying country; and (c) any aerosol or fire extinguisher prohibited by this Act, except where its use is necessary for human health.

PART IV - ENFORCEMENT AND OFFENCES

17 Powers of officers

(1) Subject to the provisions of subsections (2) and (3) an Officer may enter —

(a) any land or building (other than a dwelling house) at any time;

(b) a dwelling house at a reasonable time during daylight hours; and

(c) vessels, ships, aircraft, vehicles or other form of conveyance at any time for the purposes of —

(i) investigating the commission of any offence or the breach of any lawful obligation under this Act; or

(iii) enforcing any provision of this Act.

(2) An Officer shall not exercise the powers conferred by subsection (1)(a) or (b) except for the purpose of investigating an alleged offence of which an Officer has reasonable and probable grounds to believe that such entry will produce evidence.

(3) The powers conferred by subsection (1)(a) or (b) shall not be exercised unless reasonable notice has been given to the owner or occupier of the land building or dwelling house, or unless a search warrant has been obtained from a magistrate or island magistrate.

(4) The provisions of the Penal Code or any law which replaces the Penal Code, shall apply to the issuance of search warrants for the purposes of this section.

(5) In the exercise of the powers conferred by this section, an Officer may —

(a) conduct such investigations and examinations as are necessary to monitor the effects of any activity, matter or thing relevant to ozone depleting substances, or to determine whether any offence has been committed;

(b) take samples for the purpose of analysis and testing;

(c) take photographs or measurements;

(d) require any person apparently associated with an activity under investigation to state his or her full name, occupation and usual place of residence;

(e) require the production of any document relevant to the activity, matter or thing under investigation, including any licence or permit required by this law; and

(f) require from any person any assistance that is relevant to the investigation or monitoring activity; and

(g) seize any item used in the commission of an offence against this Act.

18 Seizure of substances and goods

(1) Any officer, in the course of exercising a power under this Act, the Environment Protection Act or the Customs Act may seize any controlled substance, any goods containing any controlled substance or any equipment using or use in connection with any controlled substance, which the officer reasonable suspects is the subject of a breach of any prohibition under this Act.

(2) Any controlled substance, goods or equipment seized under this section —

(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 this Act.

(3) Where it is agreed by the owner of the controlled substance, goods or equipment that they are in breach of a prohibition under this Act, or where the owner has not satisfied the Director under subsection (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.

19 Forfeiture of seized substances and goods

(1) Where any person is convicted of an offence against this Act, the court may order that any controlled substance, goods or equipment in relation to which the offence was committed, shall be forfeited to the government.

(2) All substances, goods and equipment forfeited under subsection (1) shall be disposed of in a manner determined by the Director.

20 Call-up of substances or goods

(1) The Minister 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 the Minister or the Director 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 the Minister or Director gives.

21 Offences and penalties

(1) Any person who —

(a) does any act in contravention of any requirement or prohibition under this Act;

(b) aids or abets any person in contravening any requirement or prohibition under this Act; or

(c) conspires with any person to do any act in contravention of any requirement or prohibition under this Act —

commits an offence, and shall be liable upon conviction to a fine not exceeding $20,000, or to imprisonment for a term not exceeding 6 months, or both.

(2) Any person who fails to comply with —

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

(b) a notice given by the Minister under section 19 —

commits an offence, and shall be liable upon conviction to a fine not exceeding $10,000, or to imprisonment for a term not exceeding 1 month, or both.

(3) Any person who, in the course of servicing any equipment used in relation to any controlled substance, wilfully or negligently permits any controlled substance to be discharged into the atmosphere commits an offence and shall be liable upon conviction to a fine not exceeding $20,000, or to imprisonment for a term not exceeding 6 months, or both.

(4) Any person who —

(a) hinders or obstructs an Officer in the performance of his or her duties under this Act, or the exercise of a power under this Act;

(b) induces or incites any other person to hinder or obstruct an Officer acting in accordance with this Act;

(c) by words or conduct falsely represents that he or she is an Officer, or who otherwise impersonates an Officer; or

(d) provides false or misleading information to an Officer who is exercising any power under this Act —

commits an offence, and shall be liable upon conviction to a fine not exceeding $1,000 if the person is an individual, or to a fine of $5,000 if the offence is committed by a corporation, or to a term of imprisonment not exceeding 3 months, or both such fine and term of imprisonment.

22 Regulations

(1) The Minister may, with the consent of Cabinet, make Regulations for the purposes of implementing the provisions of this Act.

(2) Regulations made under subsection (1) may prescribe offences for breaches of the regulations and impose penalties for such breaches being fines not exceeding $25,000.

SCHEDULE

Reg.2

CONTROLLED SUBSTANCES

PART I - CFCS (CHLOROFLUOROCARBONS)

PART II - HALONS

PART III - OTHER CFCS (CHLOROFLUOROCARBONS)

PART IV - CARBON TETRACHLORIDE

PART V - METHYL CHLOROFORM

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

PART VI - HBFCS (HYDROBROMOFLUOROCARBONS)

PART VII - HCFCS (HYDROCHLOROFLUOROCARBONS)

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.

ENDNOTES

¹ Act 3 of 2008

^[2] LN 6/2008