Cal. Code Regs. Tit. 17, § 95973 - Requirements for Offset Projects Using ARB Compliance Offset Protocols
(a) General
Requirements for Offset Projects. To qualify under the provisions set forth in
this article, an Offset Project Operator or Authorized Project Designee must
ensure that an offset project:
(1) Meets all
of the requirements in a Compliance Offset Protocol approved by the Board
pursuant to section
95971;
(2) Meets the following additionality
requirements, as well as any additionality requirements in the applicable
Compliance Offset Protocol, as of the date of Offset Project Commencement:
(A) The activities that result in GHG
reductions and GHG removal enhancements are not required by law, regulation, or
any legally binding mandate applicable in the offset project's jurisdiction,
and would not otherwise occur in a conservative business-as-usual
scenario;
(B) The Offset Project
Commencement date occurs after December 31, 2006, unless otherwise specified in
the applicable Compliance Offset Protocol, except as provided in section
95973(c);
and
(C) The GHG reductions and GHG
removal enhancements resulting from the offset project exceed the project
baseline calculated by the applicable version of the Compliance Offset Protocol
under which the offset project has been listed pursuant to section
95975 or under which the offset
project has been transitioned to pursuant to section
95973(a)(2)(D)
for that offset project type as set forth in the following:
1. Compliance Offset Protocol Ozone Depleting
Substances Projects, October 20, 2011, and Compliance Offset Protocol Ozone
Depeleting Substances Projects, November 14, 2014, which are hereby
incorporated by reference;
2.
Compliance Offset Protocol Livestock Projects, October 20, 2011 and Compliance
Offset Protocol Livestock Projects, November 14, 2014, which are hereby
incorporated by reference;
3.
Compliance Offset Protocol Urban Forest Projects, October 20, 2011, which is
hereby incorporated by reference;
4. Compliance Offset Protocol U.S. Forest
Projects, October 20, 2011, Compliance Offset Protocol U.S. Forest Projects,
November 14, 2014, and Compliance Offset Protocol U.S. Forest Projects, June
25, 2015, which are hereby incorporated by reference;
5. Compliance Offset Protocol Mine Methane
Capture Projects, April 25, 2014, which is hereby incorporated by reference;
and
6. Compliance Offset Protocol
Rice Cultivation Projects, June 25, 2015, which is hereby incorporated by
reference.
(D) The Offset
Project Operator or Authorized Project Designee may transition an offset
project to the most recently incorporated version of the Compliance Offset
Protocol by updating the listing information in an Offset Project Data Report
pursuant to section
95976. Projects transitioning to
the most recent version of the Compliance Offset Protocol may only do so with
an Offset Project Data Report submitted to ARB or the Offset Project Registry
prior to the site visit, pursuant to section
95977.1(b)(3)(D).
To properly transition to the most recent version of the Compliance Offset
Protocol, the Offset Project Data Report for the transitioning project must
specify the most recent protocol version as the version under which the project
is reporting, pursuant to section
95976(d)(10).
Projects may only transition to the latest version of the Compliance Offset
Protocol during a reporting period that is subject to a full offset
verification. For projects using a protocol specified in section
95973(a)(2)(C)4.,
the first verification after transitioning to a new version of the Compliance
Offset Protocol must meet all the requirements of section
95977.1(b)(3)(D)1.
A project will be considered to have completed the transition to the most
recent version of the Compliance Offset Protocol at the time a Positive or
Qualified Positive Offset Verification Statement for the applicable reporting
period has been approved by ARB. An offset project that transitions to a new
version of the Compliance Offset Protocol during a crediting period will
continue in the same crediting period and not start a new crediting
period.
(E) The offset project must
meet all the requirements in this Regulation for the applicable version of the
Compliance Offset Protocol under which the offset project has been listed
pursuant to 95975 or under which the offset project has been transitioned to
pursuant to section
95973(a)(2)(D).
(F) The applicable version of the Compliance
Offset Protocol is the version under which the offset project has been listed
pursuant to section
95975 or transitioned to pursuant
to section
95973(a)(2)(D).
(G) If any law, regulation, or legally
binding mandate requiring GHG emission reductions or GHG removal enhancements
comes into effect in California, in a linked jurisdiction pursuant to section
95943, or in a jurisdiction
outside California, affecting the offset project, during an offset project's
crediting period, then the offset project is eligible to continue to receive
ARB offset credits for those GHG emission reductions and GHG removal
enhancements for the remainder of the offset project's crediting period, but
the offset project may not renew that crediting period. If an offset project
has not been listed prior to the law, regulation, or legally binding mandate
going into effect, or the law, regulation, or legally binding mandate goes into
effect before the offset project's crediting period renews, then only emission
reductions or removal enhancements that are in excess of what is required to
comply with those laws, regulations, and/or legally binding mandates are
eligible for ARB offset credits.
(3) Is located in the United States or United
States Territories.
(b)
Local, Regional, State, and National Regulatory Compliance and Environmental
Impact Assessment Requirements. An Offset Project Operator or Authorized
Project Designee must fulfill all local, regional, state, and national
requirements on environmental impact assessments that apply based on the offset
project location. In addition, an offset project must also fulfill all local,
regional, state, and national environmental and health and safety laws and
regulations that apply based on the offset project location and that directly
apply to the offset project, including as specified in a Compliance Offset
Protocol. The project is considered out of regulatory compliance if the project
activities were subject to enforcement action by a regulatory oversight body
during the Reporting Period, although whether such enforcement action has
occurred is not the only consideration ARB may use in determining whether a
project is out of regulatory compliance.
(1)
An offset project using a protocol from sections
95973(a)(2)(C)1.,
2., 4., or 5. that is out of regulatory compliance is not eligible to receive
ARB or registry offset credits for GHG reductions or GHG removal enhancements
that occurred during the period that the offset project is out of regulatory
compliance. The Offset Project Operator or Authorized Project Designee must
provide documentation indicating the beginning and end of the time period that
the offset project is out of regulatory compliance to the satisfaction of ARB.
(A) The time period that the offset project
is out of regulatory compliance begins on the date that the activity which led
to the offset project being out of regulatory compliance actually began and not
necessarily the date that the regulatory oversight body first became aware of
the issue. For determining the initial date of the offset project being out of
regulatory compliance the Offsets Project Operator or Authorized Project
Designee must provide one or more of the following to ARB:
1. Documentation from the relevant local,
state, or federal regulatory oversight body that expressly identifies the
precise start date of the offset project being out of regulatory compliance.
Documentation must include evidence of the start date such as CEMS or other
monitoring data, engineering estimates, satellite imagery, witness statements,
or other reasonable method to aid in the identification of the precise start
date; or
2. Documentation of the
date of the last inspection by the relevant local, state, or federal regulatory
oversight body that did not indicate the offset project was out of regulatory
compliance for the activity in question. The project will be considered out of
regulatory compliance beginning the day after the inspection.
3. If the last inspection described in
section 95973(b)(1)(A)2.
above was prior to the beginning of the Reporting Period, or if documentation
regarding the date the project was out of regulatory compliance is not provided
as set forth in sections
95973(b)(1)(A)(1) or
(2) above to the satisfaction of ARB, then
the time period that the offset project is out of regulatory compliance, for
purposes of the Reporting Period, commences at the beginning of the Reporting
Period.
(B) For
determining the end date when the offset project returned to regulatory
compliance, the Offset Project Operator or Authorized Project Designee must
provide documentation from the relevant local, state, or federal regulatory
oversight body stating that the offset project is back in regulatory
compliance. The date when the offset project is deemed to have returned to
regulatory compliance is the date that the relevant local, state, or federal
regulatory oversight body determines that the project is back in regulatory
compliance. This date is not necessarily the date that the activity ends or the
device is repaired, and may include time for the payment of fines or completion
of any additional requirements placed on the offset project by the regulatory
oversight body, as determined by the regulatory oversight body. If the
regulatory oversight body does not provide a written determination regarding
the date when the project returned to regulatory compliance to the satisfaction
of ARB, the Offset Project Operator or Authorized Project Designee may provide
documentation to ARB from the regulatory oversight body clearly identifying the
date the project returned to regulatory compliance. Documentation should be
official dated correspondence with the relevant regulatory agency, such as a
consent decree, inspection report, or other such documentation, identifying
that the project has remedied the condition(s) that rendered it out of
compliance. For purposes of this subsection, ARB may also take into
consideration information pertaining to the date(s) the activity subject to
enforcement action occurred; if the Offset Project Operator, Authorized Project
Designee, or forest owner has acknowledged responsibility for the activity; and
the ongoing status of the enforcement proceedings with the relevant local,
state, or federal regulatory oversight body. If the relevant regulatory
oversight body does not provide a written determination regarding the date when
the project returned to regulatory compliance to the satisfaction of ARB, and
the Offset Project Operator or Authorized Project Designee is unable to provide
documentation clearly identifying the date the project returned to regulatory
compliance to the satisfaction of ARB, then for purposes of the applicable
Reporting Period, the Offset Project Operator or Authorized Project Designee
must use the end of the Reporting Period for the date when the offset project
returned to regulatory compliance.
(C) Nothing in this section precludes the
invalidation of ARB offset credits issued for previous or subsequent Reporting
Periods if ARB determines that the offset project was out of regulatory
compliance in previous or subsequent Reporting Periods. The offset project will
continue to be deemed out of regulatory compliance in subsequent Reporting
Periods until the Offset Project Operator or Authorized Project Designee
provides the documentation demonstrating regulatory compliance identified in
section 95973(b)(1)(B) to
ARB.
(D) ARB's written
determination and any supporting documents from the regulatory oversight body
relating to the offset project being out of regulatory compliance and the
timeframe identified for removal from the Reporting Period will be made
public.
(E) For determining GHG
emission reductions or GHG removal enhancements for the Reporting Period as
modified to reflect any period the offset project was out of regulatory
compliance, the Offset Project Operator or Authorized Project Designee must
remove the days when the project was out of regulatory compliance from the
Reporting Period using the following methods:
1. For projects using a protocol in sections
95973(a)(2)(C)2.
or 5., the entire calendar day during which any portion of the project was not
in regulatory compliance must be removed from the modeled or measured project
baseline;
2. For projects using a
protocol in section
95973(a)(2)(C)1.,
the entire destruction(s) under a Certificate of Destruction that contains any
time the project is out of regulatory compliance must be removed. For projects
using a protocol in section
97973(a)(2)(C)1.
that consist of a destruction under a single Certificate of Destruction that
contains any time the project is out of regulatory compliance, the entire
project will be ineligible for ARB or registry offset credits; and
3. For projects using a protocol in section
95973(a)(2)(C)4.,
the entire calendar day during which any portion of the project was not in
regulatory compliance must be removed by dividing the total calculated
emissions reductions for the 12 month period from the end of the previous
Reporting Period, by the total number of days in the previous 12 months, either
365 days or 366 days, to calculate a daily emissions reductions. The daily
emissions reductions will be multiplied by the number of days the project was
not in regulatory compliance and this number will be added to the project
baseline for the end of the Reporting Period and the emissions reductions for
the Reporting Period, excluding the days the project was out of regulatory
compliance, will be calculated.
(2) An offset project using a protocol from
sections 95973(a)(2)(C)3.,
or 6., is not eligible to receive ARB or registry offset credits for GHG
reductions or GHG removal enhancements for the entire Reporting Period if the
offset project is not in compliance with regulatory requirements directly
applicable to the offset project during the Reporting Period.
(3) Project activities subject to the
regulatory compliance requirements of this section are set forth in Appendix
E.
(c) Early Action
Offset Project Commencement Date. Offset projects that transitioned to
Compliance Offset Protocols pursuant to the Program for Recognition of Early
Action Offset Credits may have an Offset Project Commencement date before
December 31, 2006.
(d) Any Offset
Project Operator or Authorized Project Designee seeking to list an offset
project situated on any of the following categories of land must demonstrate
the existence of a limited waiver of sovereign immunity between ARB and the
governing body of the Tribe entered into pursuant to section
95975 (l):
(1) Land that is owned by, or subject to, an
ownership or possessory interest of the Tribe;
(2) Land that is "Indian lands" of the Tribe,
as defined by 25 U.S.C,
§
81(a)(1);
or
(3) Land that is owned by any
person, entity, or tribe, within the external borders of such Indian
lands.
(e) Only a Primary
Account Representative or Alternate Account Representative on the Offset
Project Operator's tracking system account may sign any documents or
attestations to ARB or an Offset Project Registry on behalf of the Offset
Project Operator for an offset project.
Notes
2. Amendment of subsections (a)(2)(C)3.-4., new subsection (a)(2)(C)5. and amendment of subsections (a)(3) and (b) filed 6-26-2014; operative 7-1-2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 26).
3. Amendment of subsections (a)(2)(C)-(a)(2)(C)5. and new subsections (a)(2)(D)-(F) filed 12-31-2014; operative 1-1-2015 pursuant to Government Code section 11343.4(b)(3) (Register 2015, No. 1).
4. Amendment of subsections (a)(2)(C)4.-5. and new subsection (a)(2)(C)6. filed 10-20-2015; operative 11-1-2015 pursuant to Government Code section 11343.4(b)(3) (Register 2015, No. 43).
5. Amendment filed 9-18-2017; operative 10-1-2017 pursuant to Government Code section 11343.4(b)(3) (Register 2017, No. 38).
6. Amendment of subsections (a)(2)(D), (b)(1), (b)(1)(B) and (b)(1)(E), new subsections (b)(1)(E)1.-3., amendment of subsection (b)(2) and new subsection (e) filed 3-29-2019; operative 3-29-2019 pursuant to Government Code section 11343.4(b)(3) (Register 2019, No. 13).
Note: Authority cited: Sections 38510, 38560, 38562, 38570, 38571, 38580, 39600 and 39601, Health and Safety Code. Reference: Sections 38530, 38560.5, 38564, 38565, 38570 and 39600, Health and Safety Code.
2. Amendment of subsections (a)(2)(C)3.-4., new subsection (a)(2)(C)5. and amendment of subsections (a)(3) and (b) filed 6-26-2014; operative 7-1-2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 26).
3. Amendment of subsections (a)(2)(C)-(a)(2)(C)5. and new subsections (a)(2)(D)-(F) filed 12-31-2014; operative 1-1-2015 pursuant to Government Code section 11343.4(b)(3) (Register 2015, No. 1).
4. Amendment of subsections (a)(2)(C)4.-5. and new subsection (a)(2)(C)6. filed 10-20-2015; operative
5. Amendment filed 9-18-2017; operative
6. Amendment of subsections (a)(2)(D), (b)(1), (b)(1)(B) and (b)(1)(E), new subsections (b)(1)(E)1.-3., amendment of subsection (b)(2) and new subsection (e) filed 3-29-2019; operative
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