S.I. No. 237/2000 - Gas (Amendment) Act, 2000 (Section 2) Regulations, 2000.

I, MARY O'ROURKE, Minister for Public Enterprise, in exercise of the powers conferred on me by section 2 of the Gas (Amendment) Act, 2000 (No. 26 of 2000), and after consultation with the Commission for Electricity Regulation, hereby make the following regulations:

1. These Regulations may be cited as the Gas (Amendment) Act, 2000 (Section 2) Regulations, 2000.

2. (1) In these Regulations—

“Act” means the Gas (Amendment) Act, 2000 (No. 26 of 2000);

“applicant” and “application” have the meanings assigned to them by Regulation 8;

“commissioning date” has the meaning assigned to it by Regulation 8;

“condition” includes a condition precedent;

“planned generating station” shall be construed in accordance with Regulation 8;

“relevant rights” means—

(a) the right, by virtue of these Regulations, to employ, for the relevant purposes, the procedure specified in section 10 of the Act,

(b) the right, on foot of a contract which has been entered into with the Board in consequence of the employment of that procedure, to use for those purposes the amount of the capacity of the natural gas network that has been determined in respect of the holder of the right under these Regulations;

“total available capacity” has the meaning assigned to it by Regulation 8;

“year 2001 - 02” means the period of 12 months beginning on 1 October 2001 and any corresponding expression in which 2 years are similarly mentioned means the period of 12 months beginning on 1 October in the first-mentioned of those 2 years.

(2) A word or expression that is used in these Regulations and is also used in the Act shall, unless the contrary intention appears, have the same meaning in these Regulations as it has in the Act.

(3) References in these Regulations to a person being selected shall be construed as references to the person being selected by the Commission under Regulation 8 and cognate references shall be construed accordingly.

(4) In these Regulations—

(a) a reference to a Regulation is a reference to a Regulation of these Regulations unless it is indicated that reference to some other enactment is intended,

(b) a reference to a paragraph is a reference to a paragraph of the Regulation in which the reference occurs unless it is indicated that reference to some other provision is intended.

3. The Commission shall, in accordance with these Regulations, select 2 or more persons as persons who shall each have relevant rights as respects such an amount of the capacity of the natural gas network as is determined by the Commission in respect of him or her under these Regulations, and each person who is so selected shall accordingly have, subject to these Regulations, relevant rights as respects that amount of capacity.

4. Amongst the persons who may be selected there may be selected a company of which the Board has control (but not the Board itself).

5. As respects 2 or more persons who are associated companies of one another, only one of those persons may be selected (but nothing in this Regulation shall be construed as preventing 2 or more such persons from being so selected as persons who shall jointly have relevant rights).

6. (1) The aggregate of the amounts of the capacity of the natural gas network as respects which persons may be selected as having relevant rights shall not exceed 3.3 million standard cubic metres of natural gas per day.

(2) Subject to Regulation 11(3), in the year 2001-02 the portion of the maximum amount of capacity specified in paragraph (1) that may comprise interruptible capacity shall not exceed 0.1 million standard cubic metres of natural gas per day.

(3) Subject to Regulation 11(3), in each of the years 2002-03 and 2003-04 the portion of the maximum amount of capacity specified in paragraph (1) that may comprise interruptible capacity shall not exceed 1.1 million standard cubic metres of natural gas per day.

7. (1) A person who wishes to be selected shall make an application in that behalf to the Commission.

(2) Such an application shall be in such form, contain such particulars and be made to the Commission before such date as the Commission determines.

(3) The making of such an application shall be accompanied by the payment by the applicant to the Commission of a fee.

(4) The amount of that fee shall be the amount specified in column (2) of the Table to this Regulation opposite the mention in column (1) of that Table of the category of rated generating capacity into which the rated generating capacity of the planned generating station to which the application relates falls.

(5) The applicant shall supply such information as the Commission may reasonably require and requests the applicant to supply to it for the purpose of its deciding whom should be selected.

TABLE

8. (1) In this Regulation—

“applicant” and “application” mean, respectively, the applicant and the application referred to in Regulation 7;

“commissioning date” means, in relation to an application, the date estimated under paragraph (2) as being the date by which the planned generating station to which the application relates will become commissioned;

“earliest commissioning date” means the commissioning date that falls the earliest from the time that the Commission makes the selection;

“planned generating station” means, in relation to an applicant, the generating station in relation to which the applicant's relevant rights, if the applicant is selected, are to be exercised and cognate expressions shall be construed accordingly;

“rated generating capacity” means, in relation to a planned generating station, the capacity specified in the relevant application as being the station's rated generating capacity;

“total available capacity” means the amount of capacity referred to in Regulation 6(1).

(2) The Commission shall make the selection by the following method, that is to say, by—

(a) evaluating each of the applications,

(b) estimating the respective dates by which it considers each of the applicants' planned generating stations will become commissioned,

(c) ranking the applications in the following order of precedence, that is to say, the application that has the earliest commissioning date shall be ranked first, the application that has the next earliest commissioning date shall be ranked second and so on,

(d) making such alterations in that order of precedence (if any) as are necessary by virtue of paragraphs (4) and (5),

and, accordingly, selecting as the persons who shall each have relevant rights the person whose application ranks first in that order of precedence (being that order with such alterations (if any) as are made to it as aforesaid) and such of the other applicants, according as his or her application is ranked in that order of precedence, as—

(i) the total available capacity,

and

(ii) Regulation 9 and any determination made by the Commission thereunder,

allow.

(3) For the purposes of paragraph (2)(c) if 2 or more applications have the same commissioning date the precedence in which those applications shall rank amongst themselves shall be as follows:

(a) in case there are only 2 such applications, the application whose planned generating station will have the larger generating capacity as against that of the other application shall rank before that other,

(b) in case there are more than 2 such applications—

(i) the application (“the first-mentioned application”) whose planned generating station will have the largest rated generating capacity as against those of the other applications shall rank before those others,

(ii) of those other applications, the application whose planned generating station will have the larger or the largest rated generating capacity as against that or those of the other application or applications shall rank next after the first-mentioned application and so on.

(4) Where, in the opinion of the Commission, the ranking of any particular person in the order of precedence referred to in paragraph (2)(c) would, if the person were to be selected, result in the promotion of competition in the market for the generation and supply of electricty being adversely affected, the Commission shall, subject to paragraph (5), make such alteration in the ranking of the person in that order of precedence as it considers will prevent such a result or, if necessary, decide that the person shall not be amongst the persons who are selected (and, where the Commission so decides, the person, accordingly, shall not be selected).

(5) The Commission, if it is of opinion that the exercise of that power would ultimately result in demand for the supply of electricity in the State not being met, shall not exercise the power referred to in paragraph (4) to alter the ranking of a person or, as the case may be, not to select a person to such extent as is necessary to ensure, so far as is practicable, that such demand is met.

(6) The Commission may, for the purposes of exercising the power referred to in paragraph (4), consult with the Competition Authority.

9. The Commission shall select no more than 3 persons under Regulation 8 unless, in evaluating the applications referred to in that Regulation, it determines that there are good grounds for doing otherwise and, in making any such determination, it shall have regard, and only have regard, to—

(a) the need to ensure that as much of the total available capacity as is possible will be utilised for the generation of electricity, and

(b) the need to promote competition in the market for the generation and supply of electricity.

10. (1) If the relevant rights of a person stand forfeited under Regulation 17 or 18, the Commission may, in accordance with this Regulation, select one or more persons as the person or persons who shall have, or who shall each have, relevant rights as respects such an amount of the capacity of the natural gas network in relation to which the first-mentioned person had relevant rights as is determined by the Commission.

(2) Unless the Commission opts to adopt the procedures referred to in paragraph (6), the Commission shall select as the person or, as it may think appropriate, the persons who shall have, or who shall each have, relevant rights as aforesaid the person or persons whose application or applications was or were ranked, in the order of precedence last mentioned in Regulation 8(2), immediately after the application of the person lastly selected in accordance with the method referred to in that provision.

(3) If the selection of a person referred to in paragraph (2) would, in the opinion of the Commission, result in the promotion of competition in the market for the generation and supply of electricity being adversely affected, the Commission shall, subject to paragraph (4), not select that person and instead shall select whichever person of the persons whose applications were ranked, in the order of precedence last mentioned in Regulation 8(2), after that other person's application whose application ranks the nearest to that other person's application and whose selection will not result in the promotion of such competition being adversely affected.

(4) If the Commission is of opinion that the exercise of the powers referred to in paragraph (3) would ultimately result in demand for the supply of electricity in the State not being met, it shall select the first-mentioned person in that paragraph or, if it is not necessary that that person be selected in order to ensure, so far as is practicable, that demand as aforesaid is met, whichever person of the second-mentioned persons in that paragraph whose application ranks the nearest to that first-mentioned person's application and whose selection will ensure, so far as is practicable, that such demand is met.

(5) Regulations 11 to 19 and this Regulation shall, with any necessary modifications, apply to a person selected in accordance with the foregoing paragraphs as they apply to a person selected in accordance with the method referred to in Regulation 8.

(6) The Commission may, instead of employing the procedure referred to in paragraphs (2) to (5) for the purposes of selecting a person or persons who shall have, or who shall each have, relevant rights as provided for by paragraph (1), opt to employ again the provisions generally of these Regulations with regard to the selection of persons and, where the Commission so opts, those provisions shall apply, accordingly, with any necessary modifications.

(7) The Commission may, for the purpose of exercising the powers referred to in paragraph (3), consult with the Competition Authority.

11. (1) The Commission shall determine the respective amounts of the capacity of the natural gas network, and the types of that capacity, as respects which each of the persons to be selected by it shall, in each of the periods referred to in paragraph (2), have relevant rights and, in determining those amounts, the Commission shall have regard to the need to ensure that as much of the total available capacity as is possible will be utilised for the generation of electricity.

(2) The periods mentioned in paragraph (1) are—

(a) such period beginning and ending in the year 2001-02 (or comprising the whole of that year) as the Commission determines after consultation with the person to be selected and the Board,

(b) the year 2002-03,

and

(c) the year 2003-04,

or, if the person to be selected consents to the Commission's so doing in relation to that person's relevant rights, such periods other than one or more of the foregoing periods as the Commission determines (not being, in any case, a period of more than 12 months or which begins before 1 October 2001 or ends after 30 September 2004).

(3) A person who has been selected may, at any time after the determination referred to in paragraph (1) has been made in relation to him or her, request the Commission to vary the types of the capacity of the natural gas network, the subject of that determination in relation to him or her, by increasing the proportion of that capacity which is interruptible as distinct from firm in any particular period and the Commission shall consider such a request and if, after consultation with the Board, it is satisfied that such an increase—

(a) is practicable from a technical standpoint, and

(b) will not adversely affect the relevant rights of the other persons selected or the rights of any other persons to use the capacity of the natural gas network.

shall make such a variation and, accordingly, increase the said proportion of capacity by such amount as it considers appropriate.

12. As soon as may be after it has made a selection under Regulation 8, the Commission shall notify each of the applicants as to whether he or she has been selected or not.

13. (1) As soon as may be after it has made a selection under Regulation 8, the Commission shall prepare a report in relation to the selection and that report shall, in particular, specify the manner, if any such power has fallen to be exercised, in which it exercised any of the powers under paragraphs (4) and (5) of Regulation 8.

(2) The Commission shall furnish a copy of such a report to each of the applicants.

14. (1) A relevant right referred to in paragraph (a) of the definition of “relevant rights” in Regulation 2 shall be enjoyed by the person concerned for the period commencing on the date he or she is selected and ending on the date the employment by him or her of the procedure specified in section 10 of the Act concludes.

(2) A relevant right referred to in paragraph (b) of the said definition shall be enjoyed by the person concerned for the period commencing on a date determined by the Commission after consultation with the person and the Board (not being a date earlier than 1 October 2001) and ending on 30 September 2004 or, if the person concerned consents to the Commission's so doing, such earlier date as the Commission determines.

15. A person's relevant rights shall be enjoyed by the person subject to his or her complying with the terms and conditions referred to in Regulation 16 and such other terms and conditions (if any) as the Commission may specify in selecting that person under Regulation 8.

16. The terms and conditions mentioned in Regulation 15 are—

(a) that, within 14 days of his or her being notified under Regulation 12 that he or she has been selected, the person concerned furnishes to the Commission an acknowledgement in writing by him or her of that fact and such acknowledgement is accompanied by—

(i) payment to the Commission of the levy referred to in Regulation 19,

and

(ii) a copy of the bond referred to in Regulation 20 that has been effected by the person,

(b) that the person concerned make a requirement of the Board under section 10(4) of the Act within 14 days of his or her being notified under Regulation 12 that he or she has been selected,

(c) that such stages in the construction and commissioning of the relevant planned generating station as may be specified by the Commission in making the selection are completed on or before such dates as are so specified by the Commission,

and

(d) that, in relation to the contract entered into by him or her pursuant to section 10 of the Act and which contains a term of the kind first-mentioned in subsection (12)(a) of that section, the person concerned—

(i) does not commit a breach of a term or condition of the contract, being a term or condition to which the said first-mentioned term relates,

or

(ii) if the said first-mentioned term does not enable the Board to terminate or rescind the contract unless the term or condition as aforesaid is breached in a specified manner or to a specified extent, does not commit a breach of that term or condition in that specified manner or to that specified extent.

17. A person's relevant rights shall stand forfeited if he or she fails to comply with a term or condition referred to in Regulation 16 (other than paragraph (c) thereof).

18. If a person fails to comply with a term or condition specified by the Commission, in selecting that person under Regulation 8, as a term or condition subject to which that person's relevant rights shall be enjoyed or with Regulation 16(c) and the nature of the failure to comply concerned is of such seriousness as, in the opinion of the Commission, warrants the Commission so doing, the Commission may decide that those rights shall, on a date specified by the Commission, stand forfeited and where the Commission so decides those rights shall stand forfeited on that date accordingly.

19. (1) The Commission shall, on selecting each person under Regulation 8, impose a levy on the person for the purposes of—

(a) defraying the expenses incurred by it in performing its functions under the Act and these Regulations,

and

(b) recouping to the Minister the sums expended by him or her before the passing of the Act or the making of these Regulations in taking steps, in anticipation of the passing of the Act or the making of these Regulations, to facilitate the doing by the Commission of any thing the doing of which by it is provided for by the Act or these Regulations.

(2) The amount of such a levy shall be determined by the Commission but shall not be greater than the amount obtained by multiplying the sum of £1,000 by the number of megawatts which the rated generating capacity of the planned generating station in relation to the person concerned comprises.

20. (1) Each person who is selected shall effect a bond (“the bond”), in a form approved by the Minister, with another person providing for the payment under the bond by that other person to the Minister of the amount specified in paragraph (2) for each day that elapses after the commissioning date in relation to the first-mentioned person's application on which the planned generating station in relation to that person is not capable, if such be the case, of sending out an amount of electricity, up to its rated generating capacity, to the transmission or distribution system.

(2) The amount mentioned in paragraph (1) is the amount equal to one one hundred and eightieth of the amount obtained by the following formula:

where—

C is the rated generating capacity of the planned generating station expressed in megawatts,

and

M is a megawatt.

and the amount obtained by the foregoing formula shall be the aggregate of the amounts that may be payable under the bond.

(3) The bond shall not be effected otherwise than with a person who has been approved for the purpose by the Minister.

(4) The amount mentioned in paragraph (1) shall be paid to the Minister no later than a date determined by the Minister for the purpose after consultation with the person who effected the bond and the Commission; in making such a determination the Minister shall have regard to the steps being taken by the person who effected the bond to ensure that the station concerned is capable of doing the thing referred to in paragraph (1) and the extent to which the fact that the station is not capable of doing the said thing is due to circumstances outside the control of that person.

(5) The bond shall—

(a) be lodged with the Minister by the person who has effected it within 14 days of the person's being notified under Regulation 12 that he or she has been selected,

(b) be expressed to remain in force for the period of 180 days after the commissioning date in relation to the station concerned (but without prejudice to the liability, after such expiry, of the person who has given the bond for any amounts falling due under the bond before such expiry and remaining unpaid).

(6) If the relevant rights of the person who effected the bond stand forfeited under Regulation 17 or 18, no amounts shall be payable under the bond on or after the date of such forfeiture.

(7) No amounts or, as the case may be, no further amounts shall be payable under the bond if the reason for the generating station concerned not being capable of doing, on the date concerned or, as the case may be, at a time subsequent to the date concerned, the thing referred to in paragraph (1) is due to force majeure.

EXPLANATORY NOTE.

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

The purpose of these regulations is to give effect to the provisions of the Gas (Amendment) Act, 2000 (No. 26 of 2000) relating to the allocation of the use of a specific amount of capacity in the natural gas network by the Commission for Electricity Regulation to certain persons for the purpose of supplying natural gas to electricity generating stations.