S.I. No. 96/1995:

EUROPEAN COMMUNITIES (MINIMUM STOCKS OF PETROLEUM OILS) REGULATIONS, 1995.

EUROPEAN COMMUNITIES (MINIMUM STOCKS OF PETROLEUM OILS) REGULATIONS, 1995.

I, MICHAEL LOWRY, Minister for Transport, Energy and Communications in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directives 68/414/EEC and 72/425/EEC, hereby make the following Regulations:

1. (1) These Regulations may be cited as the European Communities (Minimum Stocks of Petroleum Oils) Regulations, 1995.

(2) The European Communities (Minimum Stocks of Petroleum Oils) Regulations, 1974 to 1977 are hereby revoked.

(3) These Regulations shall come into operation on the first day of June, 1995.

2. (1) For the purpose of these Regulations "petroleum oils" include the following categories of oils--

( a ) motor spirit and aviation fuel (that is to say, jet fuel of the gasoline type and aviation spirit);

( b ) gas oil, diesel oil and kerosene (including jet fuel of the kerosene type); and

( c ) fuel oils;

and any reference in these Regulations to a category of petroleum oils is a reference to oils falling within one only of paragraphs (a) to (c).

(2) In these Regulations--

"the 1968 Directive" means Council Directive 68/414/EEC;

"the Agency" has the meaning assigned by Regulation 3 (1);

"average daily national oil consumption" means in any year the total consumption of petroleum oils within the State for the preceding year as calculated by the Minister on the basis of the most recent information furnished to him under Regulation 10, or such other information available to him, or as estimated by him, divided by the number of days in that preceding year;

"costs" includes costs of a revenue or capital nature, (including, without prejudice to the generality, those associated with borrowing, taxation, fluctuations in exchange rates and administrative costs);

"holding contract" has the meaning assigned by Regulation 4;

"intermediate product" means any substance other than crude oil which is capable of being processed into petroleum oils of any description;

"the levy" means the levy for which provision is made by Regulations 6 to 8;

"marine bunkers" means petroleum oils which are exempt from excise duty as being intended for the fuel tanks of seagoing vessels;

"the Minister" means the Minister for Transport, Energy and Communications;

"national oil reserves" means at any time the total amount of petroleum oils, together with intermediate products and crude oils accounted for as petroleum oils in accordance with Regulation 9, which are held at that time by oil companies, by oil consumers, by the Agency and by persons who store oil in the State for consumption or resale outside the State;

"oil" means crude oils, intermediate products and petroleum oils;

"oil company" means, with respect to any month, any person, other than the National Oil Reserves Agency and the Irish National Petroleum Corporation Limited, who, in any of the preceding twelve months, imported into the State or purchased from the Irish National Petroleum Corporation Limited, not less than two tonnes of petroleum oils in the aggregate for that person's own consumption or for resale in the State;

"oil consumer" means, with respect to any month, any person, other than an oil company, who, in any of the preceding twelve months, purchased not less than 1,000 tonnes of petroleum oils for that person's own consumption in the State and not for resale in the State;

"oil exporter" means, with respect to any month, any person who is not established in the State and who, in the preceding month, exported not less than two tonnes of petroleum oils in the aggregate to persons in the State, other than oil companies;

"relevant disposal" has the meaning assigned by Regulation 6(3);

"working day" means any week day other than a Saturday or a public holiday, within the meaning of the Holidays (Employees) Act, 1973 .

(3) Any reference in these Regulations to the Irish National Petroleum Corporation Limited includes, unless the context otherwise requires, a reference to its subsidiaries--

( a ) Bantry Terminals Limited, and

( b ) Irish Refining Public Limited Company.

(4) Subject to paragraphs (1) and (2), a word or expression that is used in these Regulations and is also used in the 1968 Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in that Directive.

3. (1) In these Regulations "the Agency" means such person as the Minister designates by notice in writing as the National Oil Reserves Agency.

(2) It shall be the duty of the Agency to maintain, subject to the provisions of this Regulation, such stocks of oil as will secure that national oil reserves are not less than 90 times the average daily national oil consumption (as notified to the Agency under paragraph (3)) or such greater amount as the Minister may from time to time direct.

(3) At such time or times as he considers appropriate, and not less than once a year, the Minister shall notify the Agency of--

( a ) the average daily national oil consumption; and

( b ) the minimum stocks of oil which the Agency must maintain to comply with paragraph (2).

(4) If the Minister notifies the Agency at any time that a case of particular urgency exists, the Agency may allow the stocks of oil maintained by it to fall below the minimum specified in paragraph (2) for such period and to such level as the Minister may direct.

(5) The Agency shall maintain stocks of oil either by holding the stocks itself or by entering into holding contracts in accordance with Regulation 4.

(6) It shall be the duty of the Agency to re-imburse the Irish National Petroleum Corporation Limited for such amount as the Minister approves as representing the costs of and incidental to the storage--

( a ) of crude oils at Whiddy Oil Terminal, and

( b ) of petroleum oils at the ESB Terminals at Marina and North Wall,

for the period beginning on 1st March 1994 and ending on the coming into force of a holding contract between the Agency and the Irish National Petroleum Corporation Limited.

(7) The Agency shall keep proper accounts with respect to the carrying out of its functions under these Regulations; and those accounts--

( a ) shall be kept in such form and by reference to such periods as may be determined by the Minister; and

( b ) shall be submitted to the Minister at such time or times as he may determine.

4. (1) A contract is for the purposes of these Regulations a holding contract if--

( a ) it is a contract between the Agency and another person whereby that other person undertakes to hold an agreed amount of oil stocks (whether or not owned by the Agency) for the purposes of the Agency's functions; and

( b ) it provides for those oil stocks to be maintained either in the State as mentioned in paragraph (3) (a) or (b) or outside the State in accordance with paragraphs (4) and (5).

(2) The Agency shall not enter into a holding contract with the Irish National Petroleum Corporation Limited unless the terms of the contact are approved by the Minister.

(3) For the purposes of paragraph (1) (b) oil stocks maintained in the State must be so maintained either--

( a ) in conjunction with an oil refining business carried on in the State and as a specific amount of non-identified crude oils, intermediate products or petroleum oils; or

( b ) as a specific amount of identified oils which may not be drawn upon or replenished (except by the Agency), but without prejudice to the replacement of the oils from time to time, with the prior consent of the Agency, for the purpose of avoiding degradation of quality.

(4) If the Government has entered into an agreement with the Government of another Member State for the purpose implementing the 1968 Directive, then, subject to the approval of the Minister under paragraph (5), the Agency may in accordance with that agreement, provide for stocks of crude oils or petroleum oils, or both, to be maintained in the territory of that other Member State for the purposes of the Agency's functions.

(5) Before making provision as mentioned in paragraph (4), the Agency shall submit its proposals to the Minister; and, in determining whether to give or withhold his approval, the Minister may have regard to such factors as he considers appropriate, including any need for particular stocks of oil to be held within the State.

5. As a precautionary measure against supply disruptions, each oil company and each oil consumer shall at all times endeavour to maintain a prudent level of stocks of each category of petroleum oils which it consumed or resold in the State in the preceding month.

6. (1) For the purpose of funding the operations of the Agency there shall be a levy payable to the Agency in accordance with these Regulations by oil companies and oil exporters.

(2) The levy shall be payable by reference to the quantity (expressed in tonnes or litres) of petroleum oils, other than marine bunkers, aviation fuel and jet fuel of the kerosene type, which, in each month,--

( a ) in the case of an oil company, having been imported into the State or purchased from the Irish National Petroleum Corporation Limited, are consumed by the company or sold by the company to persons in the State; and

( b ) in the case of an oil exporter, are sold to persons in the State, other than oil companies.

(3) In these Regulations, a "relevant disposal" of petroleum oils falling within paragraph (2) or any category of such petroleum oils means,--

( a ) in relation to an oil company, either consumption or a sale falling within paragraph (2) (a); and

( b ) in relation to an oil exporter, a sale falling within paragraph (2) (b);

and any reference to petroleum oils being relevantly disposed of shall be construed accordingly.

(4) Subject to paragraph (5), the levy shall be charged at such amount per tonne or per litre of petroleum oils relevantly disposed of by each oil company or oil exporter in a particular month as may be determined by the Minister from time to time; and different amounts may be so determined for different categories of petroleum oils and in relation to different months.

(5) No levy shall be charged in any month in respect of relevant disposals by an oil company which is not engaged in the business of selling petroleum oils in the State and which, throughout the preceding month, held within the State stocks of petroleum oils which equalled or exceeded 55 times the average amount of those oils relevantly disposed of by the company on each day in the preceding year, such average daily amount being determined in such manner as the Minister considers appropriate.

(6) In determining the amount of the levy for any month, the Minister shall seek to secure that, taking one year with another, the proceeds of the levy meet, but do not exceed, the amount appearing to him to represent the costs incurred or to be incurred by the Agency in carrying out its functions under these Regulations.

7. (1) Before the end of each month (other than the month in which these Regulations come into operation), the Minister shall notify the Agency of the quantity, expressed in tonnes of litres, of each category of petroleum oils appearing to have been relevantly disposed of in the preceding month by each oil company and oil exporter, other than an oil company which is not liable to the levy by virtue of Regulation 6 (5); and in this Regulation and Regulation 8 the notification so given with respect to an oil company or oil exporter is referred to as the company's or exporter's "volume assessment" for the month in question.

(2) The Minister shall prepare each oil company's or oil exporter's volume assessment for a month--

( a ) on the basis of information supplied to the Minister by the company or exporter pursuant to Regulation 10; or

( b ) if no relevant information has been so supplied, or if the Minister has reason to believe that any information so supplied is incomplete or inaccurate in a material respect, on the basis of such estimates as appear to the Minister to be reasonable, having regard to any other information which is available.

(3) By a notice (in this Regulation and Regulation 8 referred to as a "levy assessment") referring to relevant disposals in a particular month and sent to each oil company and oil exporter, the Agency shall notify the company or exporter, as the case may be, of the amount of levy which appears to be payable by it in respect of its relevant disposals in that month.

(4) The Agency shall prepare the levy assessment sent to an oil company or oil exporter with respect to a particular month by reference to--

( a ) the company's or exporter's volume assessment for that month; and

( b ) the rate of levy determined under Regulation 6 (4) for that month (and, where relevant, for each category of petroleum oils specified in the volume assessment).

(5) Subject to Regulation 8, the amount specified in a levy assessment shall become due to the Agency from the oil company or oil exporter to which it refers on the fifth working day following the day on which the levy assessment is sent to the company or exporter.

(6) If, or to the extent that, the amount specified in a levy assessment is not paid on or before the due date, it shall carry interest from that date until paid at an annual rate of (D + AR + 2) per cent, where "D" and "AR" have the meanings given in paragraph (7).

(7) In paragraph (6), in relation to any amount (in this paragraph referred to as "the overdue levy") not paid on or before the due date--

( a ) "D" is the rate of interest (expressed as a percentage per annum) certified by the Bank of Ireland to be--

(i) the rate offered on the Dublin Inter-bank Market at 11 a.m. on the due date for 30-day funds in Irish pounds of an amount equal to the overdue levy; or

(ii) if there was no such rate as is referred to in sub-paragraph (i), the rate applicable to funds in Irish pounds borrowed on that day from the Central Bank of Ireland of an amount equal to the overdue levy; and

( b ) "AR" is such additional rate of interest (expressed as a percentage per annum) as the Bank of Ireland shall certify would be necessary to compensate that Bank for the cost to that Bank (without taking into account any deductibility of that cost for purposes of corporation tax), calculated by reference to circumstances existing on the due date, of making or maintaining a 30 day loan of an amount equal to the overdue levy, by reason of the then liquidity reserve ratios, special deposits or similar requirements (or other reserve requirements having the same or similar purposes) of the Central Bank of Ireland or any other relevant regulatory authority.

8. (1) If the Minister is satisfied, whether on an application made by the oil company or oil exporter concerned or otherwise, that the amount specified in a levy assessment for any month is in error (whether because of an error in the volume assessment on which it is based or otherwise), the Minister may--

( a ) cancel the levy assessment; and

( b ) direct the Agency to issue a further levy assessment for the month in question on such basis as is specified in the direction; and

( c ) if it appears that the oil company or oil exporter concerned has paid by way of levy an amount which exceeds what has become due in respect of months previous to the direction (including the month to which the further levy assessment relates) direct the Agency to repay the excess.

(2) The Minister shall not entertain an application by an oil company or oil exporter under paragraph (1) unless he is satisfied that the oil company or oil exporter concerned--

( a ) has paid not less than 90 per cent. of the amount specified in the levy assessment to which the application relates; and

( b ) has sent a copy of the application to the Agency.

(3) An oil company or oil exporter which--

( a ) has made an application with respect to a levy assessment under paragraph (1), and

( b ) is dissatisfied with the decision of the Minister on that application,

may appeal against that decision to the Circuit Court; and if the Court allows such an appeal, the Court shall have the like powers as the Minister under paragraph (1).

(4) Where a levy assessment is cancelled under paragraph (1), and a further levy assessment is issued, the amount paid as mentioned in paragraph (2) (a) shall be regarded as paid on account of the amount payable under the levy assessment.

(5) An amount which has become due to the Agency in accordance with these Regulations may be recovered by the Agency as a simple contract debt in any court of competent jurisdiction.

9. By reference to Article 5 of the 1968 Directive, the Minister shall from time to time determine the extent to which, and the manner in which, crude oils and intermediate products are to be taken into account as petroleum oils both for the purposes of the Agency's duty under Regulation 3 (2) and in calculating national oil reserves.

10. (1) Each oil company shall furnish in writing to the Minister, in such form as the Minister may require, within twenty days after the end of each month a return, certified by a director, secretary or other person acceptable to the Minister, containing information, expressed in tonnes or litres, according as the Minister may direct, about such of the following matters as the Minister considers appropriate--

( a ) the stocks held at the beginning of that month by the company of crude oils, intermediate products and each category of petroleum oils;

( b ) all purchases by the company in that month in respect of crude oils, intermediate products and each category of petroleum oils, being purchases made by the company from the Irish National Petroleum Corporation Limited;

( c ) all imports into and exports from the State by the company in that month of crude oils, intermediate products and each category of petroleum oils;

( d ) the stocks of crude oils, intermediate products and each category of petroleum oils held by the company at the end of that month;

( e ) total sales by the company in that month of each category of petroleum oils, showing separately sales of petroleum oils which were neither imported by the company nor purchased by the company from the Irish National Petroleum Corporation Limited;

( f ) total sales by the company in that month of marine bunkers and aviation fuel, including jet fuel of the Kerosene type; and

( g ) the company's consumption in that month of each category of petroleum oils.

(2) Each oil exporter shall furnish in writing to the Minister, in such form as the Minister may require, within twenty days after the end of each month a return, expressed in tonnes or litres, according as the Minister may direct, and certified by a director, secretary or other person acceptable to the Minister, of all sales by the oil exporter in that month to persons in the State, other than oil companies, of each category of petroleum oils.

(3) The Agency, each oil consumer, and every person who stores oil in the State for disposal outside the State shall furnish in writing to the Minister, in such form as the Minister may require, within twenty days after the end of each month a return, expressed in tonnes or litres, according as the Minister may direct, and certified by a director, secretary or other person acceptable to the Minister, of the stocks held at the end of that month by the Agency, oil consumer or person concerned of crude oils, intermediate products and each category of petroleum oils.

(4) In any case where an oil company, oil exporter, oil consumer or other person required to furnish any information is an individual, any reference in this section to a director, secretary or other person acceptable to the Minister is a reference to that individual.

11. (1) When compiling a return required by Regulation 10, the Agency, an oil company, an oil consumer and any person who stores oil in the State for consumption or resale outside the State shall include the following if they are in its or his beneficial ownership--

( a ) stocks on board oil tankers in ports in the State awaiting unloading after completion of port formalities;

( b ) stocks stored in an unloading port in the State;

( c ) stocks in tanks at the entry to oil pipe-lines;

( d ) stocks in refinery tanks (excluding pipes and refinery plant);

( e ) stocks in storage by refineries (other than stocks falling within paragraph (d)) and by importing, storage, or wholesale distribution firms;

( f ) stocks in barges and coastal vessels, whether in a port in the State or in the course of transportation from one place in the State to another such place;

( g ) blending components intended for processing into petroleum oils; and

( h ) stocks held abroad by the Agency in accordance with Regulation 4 (4) and (5).

(2) When compiling a return required by Regulation 10, the Agency, an oil company, an oil consumer and any person who stores oil in the State for consumption or resale outside the State shall not include as stocks the following:--

( a ) marine bunkers;

( b ) supplies in pipelines, in road tankers or rail tank wagons or in the storage tanks of motor spirit retail outlets; or

( c ) supplies held on behalf of the Defence Forces.

12. (1) The following shall be authorised officers for the purposes of these Regulations:--

( a ) officers of Customs and Excise within the meaning of section 3 of the Customs Consolidation Act, 1876, section 4 of the Inland Revenue Regulation Act, 1890, the Excise Transfer Order, 1900, (SR & O., No. 197 of 1909) and the Customs Act, 1956 ;

( b ) an auditor appointed by the Agency and authorised by the Minister for the purposes of these Regulations;

( c ) any other person appointed by the Minister to be an authorised officer for those purposes;

and, if the Minister thinks fit, an officer of the Minister may be appointed under paragraph (c).

(2) Every authorised officer who is not an officer of Customs and Excise shall be furnished with a warrant of his appointment and, when exercising any power conferred on him by Regulation 13, shall, if requested by any person affected, produce the warrant to that person.

13. (1) For the purpose of obtaining any information which the Minister may reasonably require in order to carry out the functions conferred on the Minister under these Regulations, an authorised officer may do any one or more of the following things:--

( a ) at all reasonable times enter premises in the State of an oil company, oil exporter or oil consumer, inspect the premises, tanks and any storage receptacles and ascertain any quantities of petroleum oils held in those tanks or receptacles;

( b ) require the oil company, oil exporter or oil consumer to produce to the officer any books, documents or records relating to or in connection with its sale or consumption of petroleum oils into or in the State which are in its power or control and to give such information as the officer may reasonably require in relation to any entries in those books, documents or records;

( c ) inspect and copy or take extracts from those books, documents or records;

( d ) require the oil company, oil exporter or oil consumer to give to him any other information which the officer may reasonably require in regard to any thing referred to in this Regulation.

(2) References in paragraph (1) to an oil company, oil exporter or oil consumer includes references to any person whom the authorised officer concerned has reasonable grounds for believing to be an oil company, oil exporter or oil consumer.

(3) Any information obtained by an authorised officer who is an auditor appointed as mentioned in Regulation 12 (1) (b) shall be furnished directly to the Minister (and not to the Agency); but without prejudice to the right of the Minister, if he thinks fit, to pass all or any of that information to the Agency.

14. (1) Any person who contravenes or attempts to contravene a provision of these Regulations shall be guilty of an offence.

(2) Any person who obstructs or impedes an authorised officer in the exercise of his powers under Regulation 13 or who does not comply with a requirement of an authorised officer under that Regulation shall be guilty of an offence.

(3) Where an offence under these Regulations is committed by a body corporate and is proved to have been committed with the consent or approval of, or to have been facilitated by any wilful neglect on the part of, any director, manager, secretary, or other officer of the body corporate, the director, manager, secretary or other officer shall also be guilty of an offence.

(4) Every person who commits an offence under these Regulations shall be liable on summary conviction to a fine not exceeding £1,500 (together with, in the case of a continuing offence, a fine not exceeding £1,000 for every day on which the offence is continued) or, at the discretion of the court, to imprisonment for a term not exceeding six months or to both such fines and such imprisonment.

(5) An offence under these Regulations may be prosecuted by the Minister.

15. (1) For the purpose of keeping the activities of the Agency under review, the Minister may appoint an Oil Reserves Advisory Group (in this Regulation referred to as "the Advisory Body").

(2) The Advisory Body shall consist of not more than 6 persons appointed by the Minister as being representative of oil companies and oil consumers, together, if the Minister considers it appropriate, with a person representing the Minister.

(3) The appointment of any person to the Advisory Body shall be on such terms as the Minister considers appropriate.

(4) The Advisory Body shall determine its own procedure and may at any time make representations to the Minister with respect to any aspect of the Agency's activities.

(5) Any expenses incurred by the Advisory Body with the prior approval of the Agency shall be met by the Agency.

GIVEN under my Official Seal, this 13th day of April, 1995.

MICHAEL LOWRY,

Minister for Transport, Energy and

Communications.

EXPLANATORY NOTE.

These Regulations give effect to Council Directives 68/414/EEC and 72/425/EEC and revoke the European Communities (Minimum Stocks of Petroleum Oils) Regulations 1974 to 1977. Under the Council Directives, Member States are required to maintain minimum stocks of petroleum products. Up to now, responsibility had been placed on oil importers and oil consumers to maintain minimum oil reserves. These Regulations provide for the establishment of a national stock holding agency to whom that responsibility will now be devolved thereby removing the burden from oil importers and oil consumers. The Regulations provide that the costs incurred by the agency will be funded by a levy on oil sales and collected by the agency from oil companies based on market share. Market share will be calculated by the Minister on the basis of information provided under these Regulations.