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Is the use of diesel fuel to power a reefer's generator, whilst the reefer is sitting in a rail yard awaiting transportation, 'use in rail transport' as defined in section 38 of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?

No. The use of diesel fuel to power a reefer's generator, whilst the reefer is sitting in a rail yard awaiting transportation, is not 'use in rail transport' as defined in section 38 of the EGCSA.

An entity purchases diesel fuel which they place in a 'reefer'.

A reefer is a refrigerated container that ordinarily uses diesel fuel from its own tank to power the reefer's refrigeration plant. The reefer's refrigeration plant must be kept running at all times to ensure that the contents of the reefer are kept at the required temperature. The entity purchases and supplies the diesel fuel used in the reefer.

The reefer is placed on a train and transported between two places.

Once the reefer is delivered to a rail yard, it often remains there for variable periods of time prior to being loaded onto a train for transportation to its destination. The reefer may also sit in a rail yard at its destination point, prior to being collected.

Subsection 53(1) of the EGCSA provides that an entity is, subject to certain conditions, entitled to an off-road credit if they purchase diesel fuel for a use by them that qualifies.

Section 53(3) of the EGCSA provides that use in rail transport (other than for the purpose of propelling a road vehicle on a public road) in the course of carrying on an enterprise, is a use that qualifies.

Section 38 of the EGCSA sets out the meaning of the expression 'use in rail transport', and it includes various uses. All the uses covered by section 38 require the fuel to be used 'in a rail vehicle' or in some instances the fuel may be used 'in equipment in or on a rail vehicle'. The term 'rail vehicle' is defined in section 39 of the EGCSA as: ...a train, tram or any other vehicle operating on rails.

In this instance, the reefer is awaiting loading onto the train for transport to its destination. The reefer is not yet in or on the train and therefore the use of diesel fuel to chill the reefer cannot be considered to be 'use in equipment in or on a rail vehicle'. Neither is the fuel used in a rail vehicle.

Accordingly, the use of diesel fuel to power a reefer's generator, whilst the reefer is sitting in a rail yard awaiting transportation, is not 'use in rail transport' as defined in section 38 of the EGCSA.