Energy (Biofuel Obligation and Miscellaneous Provisions) Act 2010

PART 1 Preliminary and General

1.. Short title and commencement.

1.— (1) This Act may be cited as the Energy (Biofuel Obligation and Miscellaneous Provisions) Act 2010.

(2) Subject to subsection (3), this Act comes into operation on such day or days as the Minister for Communications, Energy and Natural Resources may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.

(3) This Part and sections 3 (in so far as it applies to sections 44A and 44B (both inserted by the said section 3) of the National Oil Reserves Agency Act 2007), 4, 5and 16 come into operation on the date of the passing of this Act.

2.. Definition.

2.— In this Act “Principal Act” means the National Oil Reserves Agency Act 2007.

PART 2 Biofuel Obligation

3.. Biofuel obligation.

3.— The Principal Act is amended by inserting the following Part after Part 5:

“PART 5A

BIOFUEL OBLIGATION

Definitions for Part 5A.

44A.— (1) In this Part—

‘biofuel’ means liquid or gaseous fuel for transport produced from biomass;

‘biofuel levy assessment notice’ means a notice given under section 44Q;

‘ biofuel obligation ’ has the meaning assigned by section 44C;

‘biofuel obligation account’ means an account held under section 44E by an obligated party, biofuel producer or biofuel supplier and references to ‘biofuel obligation account holder’ shall be construed accordingly;

‘biofuel obligation certificate’ means a certificate issued under section 44G to a biofuel obligation account holder;

‘biofuel producer’ means a person who produces biofuel for his or her own use or for sale;

‘biofuel supplier’ means a person who supplies biofuel;

‘biomass’ means the biodegradable fraction of products, waste and residues from biological origin from agriculture (including vegetal and animal substances), forestry and related industries including fisheries and aquaculture, as well as the biodegradable fraction of industrial and municipal waste;

‘Directive’ means Directive 2009/28/EC ^1 of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC;

‘expenses’ has the meaning assigned by section 36;

‘ Member State’ means a state which is a member of the European Union and includes states that are parties to the agreement on the European Economic Area signed at Oporto on 2 May 1992, as adjusted by the protocol done at Brussels on 17 March 1993;

‘motor vehicle’ means a mechanically propelled vehicle which is powered, in whole or in part, by an internal combustion engine and is designed, constructed or modified to be suitable for use on roads;

‘obligated party’ means an oil company or oil consumer, as the case may be, that is subject to the biofuel obligation under this Part;

‘obligation period’, in relation to the biofuel obligation, means—

(a) in the case of the first obligation period, the period beginning on the day on which section 44C comes into operation and ending on 31 December next following that day, and

(b) in the case of each subsequent obligation period, the period of 12 months beginning on 1 January and ending on 31 December next following the immediately preceding obligation period;

‘period of validity’, in relation to a biofuel obligation certificate, has the meaning assigned by section 44G;

‘petroleum products’ has the meaning assigned by section 36;

‘relevant disposal of biofuel’ has the meaning assigned by section 44N;

‘relevant disposal of road transport fuel’ means the volume (expressed in litres) of road transport fuel that in any obligation period—

(a) an oil company consumes or disposes of by sale or otherwise to persons in the State, or

(b) an oil consumer consumes in the State;

‘relevant disposal of petroleum products’ has the same meaning as in Part 5;

‘road transport fuel’ means any liquid or gaseous fuel which may be used to power, in whole or in part, a motor vehicle whether or not it may also be used for any other purpose;

‘volume assessment’ means an assessment under section 44O of relevant disposals of biofuel.

(2) A word or expression that is used in this Part and is also used in the Directive has, unless the context otherwise requires, the same meaning in this Part as it has in the Directive.

Conversion factors.

44B.— (1) In the case of biofuel which is not in liquid form, the Agency shall, for the purposes of this Part, apply a gas to liquid conversion factor (in this section referred to as a ‘conversion factor’) calculated on the basis of providing a fair comparison between a unit volume of biofuel in gaseous form and a unit volume of road transport fuel in liquid form.

(2) Subject to subsection (3), the Agency, having considered any representations made under subsection (3)(a), shall publish a notice of the conversion factors to be applied under subsection (1) in the Iris Oifigiúil and on its website and by such other means as the Agency considers appropriate.

(3) (a) Before publishing conversion factors under subsection (2), the Agency, following consultation with the persons specified in paragraph (b), shall publish a notice of the proposed conversion factors on its website and by such other means as the Agency considers appropriate inviting persons to make representations in writing to the Agency in relation to the proposed conversion factors within 28 days from the date of publication on its website.

(b) For the purposes of paragraph (a), the Agency shall consult with—

(i) the Minister,

(ii) the Minister for Finance,

(iii) the Minister for the Environment, Heritage and Local Government,

(iv) the Environmental Protection Agency,

(v) the National Standards Authority of Ireland, and

(vi) Sustainable Energy Ireland — The Sustainable Energy Authority of Ireland,

and may consult with such other persons as the Agency considers appropriate.

Biofuel obligation.

44C.— (1) This section applies to relevant disposals of road transport fuel in respect of which, in the obligation period concerned, an oil company or an oil consumer, as the case may be, is liable to pay the levy—

(a) whether or not the levy has been paid, and

(b) in the case of an oil consumer, whether or not the oil consumer is exempt from, or has claimed an exemption from, the levy in accordance with section 38.

(2) Every oil company and oil consumer liable to pay the levy (in this Part referred to as an ‘obligated party’) is required to ensure that in each obligation period not less than a specified amount of its relevant disposal of road transport fuel to which this section applies is biofuel (in this Part referred to as the ‘biofuel obligation’ ).

(3) The specified amount, referred to in subsection (1), for the purpose of determining the biofuel obligation, shall be expressed in litres and shall be calculated by reference to—

(a) the relevant disposals of petroleum products by each obligated party during the obligation period concerned, and

(b) the percentage rate provided for by section 44D(1).

Rate of biofuel obligation.

44D.— (1) The percentage rate referred to in section 44C(3)(b) shall be—

(a) such percentage as stands specified by order under subsection (2), or

(b) where no amount stands so specified, 4.166 per cent.

(2) (a) The Minister may, from time to time, review the percentage rate provided for by subsection (1) and may, subject to this section, having considered any representations made under subsection (4)(a), by order provide for a percentage rate in lieu of the percentage rate provided for by subsection (1)(a) or the percentage rate specified in subsection (1)(b).

(b) The Minister may revoke an order under this subsection without providing for a percentage rate, in which case the percentage rate specified in subsection (1)(b) shall apply.

(3) For the purposes of a review under this section the Minister shall have regard to—

(a) the effect of the biofuel obligation on fuel prices in the State,

(b) the reports required to be submitted to the Commission of the European Communities on progress in the promotion and use of energy from renewable sources pursuant to Article 22 of the Directive, and

(c) the reports required to be submitted by the Commission of the European Communities to the European Parliament and the Council pursuant to Article 23 of the Directive,

and may have regard to such other matters as he or she considers appropriate relating to the effects, if any, of increased consumption of biofuel in the State on economic activities in the State and on the environment.

(4) (a) Before making an order under subsection (2), the Minister, following consultation with the persons specified in paragraph (b), shall publish a draft of the proposed order on the internet and by such other means as the Minister considers appropriate inviting persons to make representations in writing to the Minister in relation to the proposed order within 28 days from the date of publication on the internet.

(b) For the purposes of paragraph (a), the Minister shall consult with—

(i) the Minister for Finance,

(ii) the Minister for the Environment, Heritage and Local Government,

(iii) the Agency,

(iv) the Environmental Protection Agency,

(v) the National Standards Authority of Ireland, and

(vi) Sustainable Energy Ireland — The Sustainable Energy Authority of Ireland,

and may consult with such other persons as the Minister considers appropriate.

Biofuel obligation account.

44E.— (1) The Agency shall, in respect of each obligated party, open an account (in this Part referred to as a ‘biofuel obligation account’) within—

(a) 21 days after the coming into operation of this section, or

(b) 21 days after the oil company or oil consumer concerned first becomes liable to pay the levy,

whichever is the earlier.

(2) The following matters shall be recorded in a biofuel obligation account:

(a) the balance of biofuel obligation certificates held to the credit of the account;

(b) the issuing, transfer, cancellation and revocation of biofuel obligation certificates;

(c) such other information as the Agency determines relating to the administration of the biofuel obligation.

(3) The Agency may, in accordance with this section and any regulations made under it, open a biofuel obligation account on application to the Agency by a biofuel producer or biofuel supplier who is not an obligated party.

(4) An application under subsection (3) by a biofuel producer or biofuel supplier (in this section referred to as the ‘applicant’) to open a biofuel obligation account shall be in the prescribed form and shall include—

(a) a current tax clearance certificate,

(b) such information, particulars and documentation as the Agency may reasonably require in order to be satisfied that the applicant is a biofuel producer or a biofuel supplier, and

(c) such other information, particulars and documentation as may be prescribed.

(5) The Agency may request an applicant to give to the Agency—

(a) such additional information, particulars and documentation as the Agency determines for the purposes of an application under subsection (3), and

(b) such evidence as the Agency may reasonably require in order to verify any information, particulars or documentation given to the Agency in respect of an application under subsection (3).

(6) A request under subsection (5) shall be in such form as the Agency determines and shall specify a period of not less than 21 days from the date of the request within which such information, particulars, documentation or evidence, as the case may be, shall be given to the Agency.

(7) When making an application under subsection (3), without prejudice to any other powers which the Agency may have in that behalf, the applicant shall give consent to the Agency in the prescribed form allowing the Agency or an authorised officer of the Agency such access to premises (within the meaning of section 45), documents, books, records, computers and equipment as the Agency may reasonably require in order to verify the information, particulars and documentation given in the application or any additional information, particulars or documentation or evidence given under this section.

(8) The Agency may refuse to grant an application under subsection (3) to open a biofuel obligation account where—

(a) the Agency is not satisfied that the applicant is a biofuel producer or biofuel supplier, as the case may be,

(b) the application is incomplete,

(c) the applicant fails to give any additional information, particulars or documentation or evidence within the period specified in a request made under subsection (5),

(d) the applicant fails to give the consent referred to in subsection (7),

(e) the Agency is of the opinion that any of the information, particulars or documentation given in the application or any additional information, particulars or documentation or evidence given under this section is incorrect, or

(f) the applicant is already a biofuel obligation account holder.

(9) If the Agency proposes to refuse an application under subsection (3), it shall give the applicant a notice in such form as the Agency determines—

(a) specifying the grounds on which it is proposed to refuse the application, and

(b) informing the applicant that he or she may, within 21 days from the date of the notice, make representations in writing to the Agency—

(i) showing why the application should be granted, or

(ii) rectifying the information, particulars or documentation given in the application or any additional information, particulars or documentation or evidence given under this section,

or both.

(10) Not later than 21 days from the date of the notice under subsection (9), the applicant may make representations in writing to the Agency—

(a) showing why the application should be granted, or

(b) rectifying the information, particulars or documentation given in the application or any additional information, particulars or documentation or evidence given under this section,

or both.

(11) The Agency may refuse an application under subsection (3) only after having considered any representations made by the applicant in accordance with subsection (10).

(12) If the Agency refuses an application under subsection (3), it shall, as soon as is reasonably practicable, give to the applicant notice of the refusal in such form as the Agency determines and the notice shall include a statement setting out the reasons for the refusal.

(13) (a) An applicant aggrieved by a decision of the Agency under subsection (11) refusing an application under subsection (3) may, within 21 days beginning on the day on which the notice under subsection (12) is given to the applicant, appeal to the Minister against the decision by giving to the Minister a notice of appeal in writing stating—

(i) the name and address of the applicant,

(ii) a statement of the principal grounds for contesting the decision of the Agency and the arguments supporting those grounds, and

(iii) a schedule listing all the documents annexed to the notice of appeal.

(b) An applicant shall give a copy of the notice of appeal referred to in paragraph (a) to the Agency.

(c) The Minister shall consider the appeal in accordance with the prescribed procedures and, as the Minister sees fit, cancel or confirm the notice of refusal.

(d) The Minister shall notify the applicant and the Agency in writing of his or her decision and the reasons for the decision as soon as is reasonably practicable.

(e) A decision of the Minister on an appeal under this section shall be final and binding on the applicant and the Agency.

(14) The Minister may make regulations for the purposes of this section providing for all or any of the following:

(a) the form in which an application under subsection (3) shall be made, including by electronic means;

(b) the information, particulars and documentation to be included in an application under subsection (3);

(c) the form and content of the consent to be given by the applicant under subsection (7) for the purposes of an application under subsection (3);

(d) the procedures to be followed for the purposes of an appeal to the Minister under subsection (13);

(e) such other matters as the Minister considers necessary and appropriate relating to an application under subsection (3) or an appeal to the Minister under subsection (13).

(15) A person commits an offence where he or she gives information under this section or any regulations made under it and he or she—

(a) knowingly makes any statement or representation (whether written or verbal) which is to his or her knowledge false or misleading in any material respect, or

(b) knowingly conceals any material fact, or

(c) produces or furnishes, or causes or knowingly allows to be produced or furnished, any information, particulars, documentation or evidence which he or she knows to be false in a material particular.

(16) In this section ‘tax clearance certificate’ means a certificate under section 1095 (as substituted by section 127(b) of the Finance Act 2002) of the Taxes Consolidation Act 1997.

Management of biofuel obligation accounts.

44F.— (1) On opening a biofuel obligation account under section 44E(1) or on granting an application under section 44E(3) to open a biofuel obligation account, the Agency shall issue the biofuel obligation account holder with an account number in respect of the biofuel obligation account concerned.

(2) Biofuel obligation accounts shall be opened and maintained in electronic form or in such other form as the Agency determines or in both forms and in accordance with such procedures as the Agency determines for the purposes of, but not necessarily limited to—

(a) the opening, maintenance and closure of accounts, and

(b) the issuing, transfer, cancellation and revocation of biofuel obligation certificates and any other functions of the Agency under this Act relating tothe administration of the biofuel obligation.

Biofuel obligation certificates.