Edited version of private ruling

Authorisation Number: 1011594815516

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Ruling

Subject: product stewardship (oil) - category 8 benefit

Question:

Are you entitled to a product stewardship (oil) benefit under category 8 for the use of recycled or virgin paraffinic process oils in your timber preservative product?

Answer:

No.

This ruling applies for the following period/s:

2003-04 income year

2004-05 income year

2005-06 income year

2006-07 income year

2007-08 income year

2008-09 income year

2009-10 income year

2010-11 income year

The scheme commences on:

27 March 2003

Relevant facts and circumstances

You state you are a subsidiary company.

You have the same business address and contact details.

You manufacture one timber preservative product that utlises virgin and parraffinic oils.

This is registered with the APVMA under the Agricultural and Veterinary Chemicals Act 1994 for Australian use APVMA Reg No 56932.

Section 4 of the Agricultural and Veterinary Chemicals Act 1994 provides for the definition of APVMA as:

…the Australian Pesticides and Veterinary Medicines Authority continued in existence by section 6 of the Agricultural and Veterinary Chemicals (Administration) Act 1992.

You seek an exemption to the product stewardship oil program for recycled and virgin multi-use oils.

Relevant legislative provisions

Product stewardship (Oil) Act 2000 section 6

Product Stewardship (Oil) Act 2000 subsection 6(a)

Product Stewardship (Oil) Act 2000 subsection 6(b)

Product Stewardship (Oil) Act 2000 subsection 9(3)

Product Stewardship (Oil) Declaration 2003 schedule 1

Reasons for decision

You have stated that you would like to apply for an exemption to the Product Stewardship (Oil) Programme (PSO) for recycled and virgin paraffinic process oil as currently an exempt use does not exist for your specific circumstance. As the Product Stewardship (Oil) Act 2000 (PSOA) does not contain any provision for an exemption in your circumstances we have interpreted your request as follows:

You would like to apply for a product stewardship (oil) benefit for the use of a gazetted oil in a gazetted use (Category 8) on the basis that your use of the oil has aspects that are similar to other gazetted uses.

Category 8 benefit

Subsection 9(3) of the PSOA provides that you are entitled to a product stewardship (oil) benefit for:

the consumption in Australia of gazetted oil for a gazetted use.

Section 6 of the PSOA defines 'gazetted oil' as:

… oil of a kind that is declared by the Minister, by notice published in the Gazette, to be gazetted oil.

The term 'gazetted use' is defined in section 6 of the PSOA as:

… in relation to gazetted oil, means a use of the oil that is declared by the Minister, by notice published in the Gazette, to be a gazetted use, being:

a use in the manufacture of a product:

· that will not permit the oil to be recycled; and

· that constitutes only a low risk to the environment; or

a use in a process:

· that will not permit the oil to be recycled; and

· that constitutes only a low risk to the environment.

Schedule 1 to the Product Stewardship (Oil) Declaration 2003 (Schedule) lists those oils, and the use of the oil, that the Minister has declared to be a gazetted oil and a gazetted use for the purposes of subsection 9(3) of the PSOA. The Declaration is published in the Commonwealth of Australia Gazette No. S 437, and refers to a use that occurs on or after 27 March 2003.

Thus, where an oil is:

· used in the manufacture of a product that meets the requirements of the definition, or is used in a process that meets the requirements of the definition; and

· the Minister has declared the oil to be a gazetted oil and its use a gazetted use;

· all the conditions of the definition of a gazetted oil and gazetted use under section 6 of the PSOA are met.

Where an entity uses the oil in the manufacture of the product in Australia, or uses the oil in a process that is done in Australia, the oil is consumed in Australia.

Column 2 of item 2 of the Schedule includes paraffinic process oil as a gazetted oil. Column 3 of item 2 of the Schedule explains that the gazetted use of the kind of oil listed in column 2 of item 2 of the Schedule is incorporation into any of the following:

· a dedusting composition for insulating material;

· a dewatering flocculant composition;

· a mould release composition;

· an adhesive;

· an agricultural spray;

· an anti-bloat composition;

· an explosive of the Ammonium Nitrate Fuel Oil type;

· an ink, varnish or resin for printing;

· a personal care product;

· a rock drilling composition;

· a rubber compound.

You use paraffinic process oil in manufacturing your timber preservative. Although the paraffinic process oil is a gazetted oil, it is not incorporated into a product with a gazetted use. Rather, it is incorporated into a timber treatment which is not a gazetted use listed in the Schedule.

While you say the timber preservative is registered with the Australian Pesticides and Veterinary Medicines Authority (APMVA) by virtue of section 6 of the Agricultural and Veterinary Chemicals (Administration) Act 1992 there is no discretion within the PSOA or the Schedule that allows us to consider a product that resembles a gazetted use. It must be one of the uses that the Minister has declared to be a gazetted use.

Accordingly, category 8 does not apply in this instance.

As such, you are not entitled to a product stewardship (oil) benefit under category 8 for the use of recycled or virgin paraffinic process oils in your timber preservative product as there would be no entitlement under subsection 9(3) of the PSOA.