S.I. No. 2/1983:

FUELS (PETROLEUM OILS) ORDER, 1983.

FUELS (PETROLEUM OILS) ORDER, 1983.

WHEREAS there is in force an order (entitled the "Petroleum Oils (Regulation or Control of the Acquisition, Supply, Distribution or Marketing) Order, 1983" ( S.I. No. 1 of 1983 )) made by the Government under section 2 of the Fuels (Control of Supplies) Act, 1971 (No. 3 of 1971) (inserted by the Fuels (Control of Supplies) Act, 1982 (No. 18 of 1982));

NOW, therefore, the Minister for Industry and Energy, in exercise of the powers conferred on him by section 3 (1) of the Fuels (Control of Supplies) Act, 1971 (inserted by the Fuels (Control of Supplies) Act, 1982 (No. 18 of 1982)), the Energy (Transfer of Departmental Administration and Ministerial Functions) Order, 1977 ( S.I. No. 295 of 1977 ), the Energy (Transfer of Departmental Administration and Ministerial Functions) Order, 1980 ( S.I. No. 9 of 1980 ), and the Energy (Alteration of Name of Department and Title of Minister) Order, 1981 ( S.I. No. 289 of 1981 ), hereby makes the following Order:

1. This Order may be cited as the Fuels (Petroleum Oils) Order, 1983.

2. In this Order--

"the Corporation" means the Irish National Petroleum Corporation Limited;

"the Minister" means the Minister for Industry and Energy or a person to whom his powers under this Order have been delegated under this Order;

"quarter" means, except where otherwise stated, any of the following periods:--

the period commencing on the 1st day of January and ending on the next following 31st day of March,

the period commencing on the 1st day of April and ending on the next following 30th day of June,

the period commencing on the 1st day of July and ending on the next following 30th day of September,

the period commencing on the 1st day of October and ending on the next following 31st day of December;

"the refinery" means the refinery of the Irish Refining Company Limited situated at Whitegate in the county of Cork.

3. This Order applies to a person who imports into the State any of the following petroleum oils--

( a ) Liquified petroleum gas,

( b ) fuel oil (whether light fuel oil, medium fuel oil or heavy fuel oil),

( c ) gas oil,

( d ) kerosene,

( e ) light virgin naphtha,

( f ) premium gasoline,

( g ) regular gasoline.

4. (1) ( a ) Subject to Articles 5, 6 and 10 of this Order, a person to whom this Order applies shall in each quarter (commencing with the first quarter of 1983) purchase from the Corporation, on such terms as shall (subject to Articles 7 and 14 of this Order) be fixed by the Corporation for all purchases under this Order and be communicated by the Corporation to persons to whom this Order applies, a quantity of each type of petroleum oil specified in Article 3 of this Order, being a type which that person imported into the State within the period of 15 months ending at the commencement of that quarter.

( b ) The quantity of each type of petroleum oil to be purchased under subparagraph (a) of this paragraph shall be equal to that percentage of that person's total requirements for the quarter concerned of that type of petroleum oil which the output of the refinery of that type (as forecast by the Corporation) for that quarter represents of the total requirements of that type for that quarter of all persons to whom this Order applies.

(2) ( a ) A person's total requirements of a type of petroleum oil shall be taken to be the total of the quantities of his consumption and of his disposal of that type of petroleum oil which he imports into the State or purchases from the Corporation, including such oil which he supplies to offshore platforms situate in an area which is a designated area within the meaning of the Continental Shelf Act, 1968 (No. 14 of 1968).

( b ) The total requirements of all persons of a type of petroleum oil shall be taken to be the sum of the requirements of that type of petroleum oil of all persons to whom this Order applies as defined by subparagraph (a) of this paragraph.

( c ) (i) The requirements referred to in paragraph (1) of this Article shall be determined as being the quarterly average of the requirements (as defined by paragraph (2) (a) of this Article) of a person to whom this Order applies in the most recent period of twelve months for which information required to be furnished under section 3 (4A) of the Fuels (Control of Supplies) Act, 1971 (inserted by the Fuels (Control of Supplies) Act, 1982 ) has been furnished.

(ii) In a case where such information has not been so required or has not been so furnished, or in a case where such information has been furnished but the Minister believes it to be incomplete or inaccurate in a material respect, the Minister may make such estimate of a person's total requirements under paragraph 2 (a) of this Article as the Minister believes to be reasonable and may adjust such estimate having regard to such further information as he may receive, and any such estimate shall be deemed to be the requirement of which it is an estimate for the purposes of this Order.

(3) Notwithstanding paragraph (1) of this Article, the quantity of all types of petroleum oil specified in Article 3 of this Order which a person shall be required by this Article to purchase from the Corporation in any quarter shall not exceed 35 per cent. of that person's requirements (as calculated or estimated under paragraph 2 of this Article) of all such types of such petroleum oil in the quarter concerned and, in relation to a particular type of such petroleum oil, shall not exceed 40 per cent. of his said requirement thereof.

5. Notwithstanding Article 4 of this Order, a person to whom this Order applies shall be taken to have complied with that Article if he purchases from the Corporation the quantity of a type of petroleum oil required by that Article to be purchased by him, less 20 tonnes (in respect of any quarter) of that type of petroleum oil.

6. Notwithstanding Article 4 of this Order, an obligation imposed by that Article to purchase petroleum oil from the Corporation in any quarter may, with the agreement in writing of the Minister, be fulfilled (in whole or in part) in any other quarter or quarters.

7. (1) ( a ) The Minister shall, in respect of each quarter, give to each person to whom this Order applies notice in writing of the quantities of each type of petroleum oil which that person is required by Article 4 of this Order to purchase from the Corporation, and such notice shall be given not later than one month before the beginning of the quarter to which the requirement relates.

( b ) The Minister shall determine for the purpose of this Order on an FOB basis the prices per tonne at which types of petroleum oils required by Article 4 of this Order to be purchased from the Corporation shall be so purchased, and the prices so determined shall be notified in writing, before the beginning of each quarter, to each person to whom this Order applies.

( c ) In this paragraph "FOB" means free on board ship or other conveyance at the point of departure from the refinery but exclusive of insurance and freight costs.

(2) ( a ) (i) In respect of the quarter commencing on the 1st day of January, 1983, the Minister shall determine, by reference to such criteria as he considers proper having regard to paragraph (4) of this Article, the prices per tonne at which fuel oil required by Article 4 of this Order to be purchased from the Corporation shall be so purchased and shall notify such prices to the persons to whom this Order applies as soon as practicable after the 1st day of January, 1983.

(ii) In respect of any quarter commencing on or after the 1st day of April, 1983, the price for fuel oil payable to the Corporation by a person to whom this Order applies shall be equal to the average CIF price, expressed in the currency of the United States of America (hereinafter referred to as "U.S. dollars"), per tonne of that person's imports of fuel oil under one or more supply contracts in the most recent quarter for which relevant information required to be furnished under section 3 (4A) of the Fuels (Control of Supplies) Act, 1971 (inserted by the Fuels (Control of Supplies) Act, 1982 ) is available to the Minister.

(iii) For the purpose of determining prices under clause (ii) of this subparagraph, where the prices of imports of fuel oil provided for in a supply contract are so provided for in any currency other than U.S. dollars, the importer shall specify the exchange rate between that other currency and U.S. dollars on the date of import and shall verify that rate by means of a certificate from his banker if required to do so by the Minister and if the importer fails to specify the exchange rate or to verify that rate to the satisfaction of the Minister, the Minister may determine the exchange rate for the purpose of this Article by reference to such criteria as he considers proper.

(iv) (A) Purchases of fuel oil required by Article 4 of this Order to be made may be paid for in the currency of the State (hereinafter referred to as "Irish pounds") or in U.S. dollars.

(B) Where such payment is made in U.S. dollars it shall be at the price determined under subparagraph (a) (ii) of this paragraph, and where payment is made in Irish pounds the U.S. dollar price shall be converted into Irish pounds by using the exchange rate between U.S. dollars and Irish pounds used for the time being by the Minister in determining the dollar prices in U.S. dollars of other products of the refinery.

(v) (A) For the purposes of this clause "exchange differential" means in relation to any particular quantity of fuel oil paid for or to be paid for by a particular person in Irish pounds, the amount in Irish pounds equal to the difference between--

(I) the amount payable in Irish pounds for such fuel oil using the exchange rate referred to in clause (iv) (B) of this subparagraph for his purchases of fuel oil in a quarter, and

(II) the total of the amount which would be payable in Irish pounds in respect of such purchases from the Corporation in that quarter using the exchange rate (as certified by any one of the bankers of the Corporation) applicable at 11 a.m. on the day which is two business days after the date of dispatch of the quantities so purchased for the purchase on that day of U.S. dollars for delivery on the day on which payment to the Corporation is due, subject to due compliance with any applicable exchange control regulations.

(B) The exchange differential incurred in respect of purchases required to be made by Article 4 of this Order by a particular person in a particular quarter shall be divided by the quantity in tonnes of that person's obligation under this Order to purchase fuel oil in the following quarter (or, at the Minister's discretion, in more than one following quarter) and the result shall be added to or subtracted from (as the case may be) the price per tonne for that following quarter (or those following quarters, as the case may be) calculated under this Article.

(vi) Where imports referred to in subparagraph (a) (ii) of this paragraph include oil with a Kinematic Viscosity greater than 14 Centistokes at 80°C and less than 33 Centistokes at 80°C, the CIF price per tonne shall, for the purpose of calculating the average referred to in that subparagraph, be reduced by the amount per tonne (expressed in U.S. dollars at the exchange rate between Irish pounds and U.S. dollars on the date of import and accepted by the Minister for the purposes of subparagraph (a) (iii) of this paragraph) by which the average of the maximum prices per tonne (as fixed under the Prices Acts, 1958 to 1972, and in force at the time of importation) for medium fuel oil exceeds the average of the maximum prices per tonne for heavy fuel oil, as so fixed and so in force.

(vii) Where the imports referred to in subparagraph (a) (ii) of this paragraph include oil with a Kinematic Viscosity of 14 Centistokes at 80°C or less, the CIF price per tonne shall, for the purpose of calculating the average referred to in that subparagraph be reduced by the amount per tonne (expressed in U.S. dollars at the exchange rate between Irish pounds and U.S. dollars on the date of import and accepted by the Minister for the purposes of subparagraph (a) (iii) of this paragraph) by which the average of the maximum prices per tonne (as fixed under the Prices Acts, 1958 to 1972, and in force at the time of importation) for light fuel oil exceeds the average of the maximum prices per tonne for heavy fuel oil, as so fixed and as so in force.

(viii) In this paragraph--

"CIF price" means the price inclusive of cost, insurance and freight to the point of importation into the State, but exclusive of any duties or other taxes payable in the State;

"Kinematic Viscosity" means that viscosity which is measured in Centistokes by testing procedure number D445 of the American Society for Testing and Materials or by a procedure which in the opinion of the Minister is equivalent to that procedure;

"supply contract" means a legally enforceable agreement under which a person to whom this Order applies is required to purchase and is entitled to be supplied with a quantity of quantities of fuel oil during a period of not less than 12 months.

( b ) The Minister may, where information referred to in subparagraph (a) (ii) of this paragraph has not been required or has not been furnished, or where the person concerned has not imported fuel oil under a supply contract in a quarter referred to in that subparagraph, determine the price by reference to such information (if any) as may be available to him concerning purchases of petroleum oil by that person and by reference to the average price payable under this subparagraph by other persons.

(3) The price determined for the purposes of this Article for any type of petroleum oil other than fuel oil shall be the same for all persons to whom this Order applies.

(4) Prices determined for the purposes of this Order shall take into account the costs incurred by the Corporation or the Irish Refining Company Limited in relation to capital cost, financing costs and overhead costs of acquiring crude oil, shipment, storage, processing and any other costs reasonably incurred in or arising from the operation of the refinery, including gains or losses incurred in the sale of such products (other than fuel oil) by reason of movements of exchange rates since the 6th day of September, 1982.

8. The Corporation shall furnish annually to a person to whom this Order applies a preliminary statement of its intentions concerning the production of petroleum oils of the types referred to in Article 3 of this Order by the refinery for the following year.

9. Subject to Article 6 of this Order, where in a particular quarter a person to whom this Order applies fails to remove from the refinery the petroleum oil which the person is obliged to purchase under this Order in respect of that quarter, he shall be liable to pay to the Corporation on demand, in addition to the purchase price of that petroleum oil, an extra sum of money equivalent to the cost incurred by the Corporation by reason of such failure.

10. (1) Where a person to whom this Order applies shows to the satisfaction of the Minister before the commencement of a particular quarter that, in respect of that quarter, that person's consumption or disposal (or, where appropriate, his consumption and disposal) of a particular type of petroleum oil is or are likely to be lower than his total requirements of that type of petroleum oil (as calculated under Article 4 (2) (a) of this Order) to such an extent as to justify, in the opinion of the Minister, a reduction by him of more than 10 per cent in the quantity comprising the person's obligation (as calculated under Article 4 (1) (b) of this Order) in respect of that quarter, the Minister may at his discretion adjust the quantity so calculated, and the adjusted quantity shall be deemed to be the quantity which that person is required by Article 4 of this Order to purchase from the Corporation.

(2) Where the information used for the purpose of making an adjustment under paragraph (1) of this Article shows to the satisfaction of the Minister that the total requirements of the type of petroleum oil concerned of other persons to whom this Order applies are likely to be increased under Article 4 (2) (a) of this Order, the Minister may at his discretion make corresponding adjustments in the quantities comprising the obligations of such other persons under Article 4 (1) (b) of this Order, and such adjusted quantities shall be deemed to be the quantities which those other persons are required by Article 4 of this Order to purchase from the Corporation.

11. The Minister may give such directions as appear to him to be necessary or expedient for giving full effect to any provision of this Order, and a person to whom such a direction has been given shall duly comply with it.

12. (1) Persons to whom this Order applies may, with the consent of the Minister, nominate for the purpose of this Article a person who is a duly qualified auditor, and who is referred to in this Article as "the auditor".

(2) It shall be the function of the auditor, having regard to the requirement of confidentiality, to examine on behalf of the persons who nominated him whether in his opinion in the implementation of this Order each such person is being treated equitably by reference to the treatment in such implementation of other such persons.

(3) The auditor may be furnished by the persons who nominated him and, subject to the requirement of confidentiality of information relating to the affairs of a person who has not nominated the auditor, shall be furnished by the Minister with such information as the auditor may require in order to perform his functions under this Article.

(4) Where information furnished under this Article by the Minister is designated confidential by him, the auditor shall not disclose such information to any of the persons who nominated him.

13. (1) The Minister may delegate in writing, for such period as may be specified in the delegation, to one or more of his officers so specified any of his powers under this Order.

(2) A delegation under this Article shall operate, so long as it continues in force, to confer on and vest in the officer or officers specified in the delegation all or such of the powers of the Minister under this Order as are so specified.

(3) A delegation under this Article may be revoked by the Minister at any time.

(4) A copy of a document purporting to be a delegation under this Article produced by an officer of the Minister and purporting to be signed by the Minister shall be received in evidence and be deemed to be sufficient evidence of such delegation until the contrary is shown.

14. (1) Petroleum oil required to be purchased under this Order by a person to whom this Order applies shall be removed from the refinery in accordance with a shipping programme to be agreed between the Corporation and that person in respect of each quarter.

(2) Where the Corporation and a person referred to in paragraph (1) of this Article fail to agree on such a programme, the matter may be referred by either of them to the Minister, who shall determine a programme for the purposes of this Article.

15. Any act done, communication made or notice given by or on behalf of the Minister or the Corporation before the making of this Order, by reference to, or for the purposes of, the Fuels (Control of Supplies) Order, 1982 ( S.I. No. 280 of 1982 ), shall be as valid and effectual for the purposes of this Order as if such act, communication or notice had been done, made or given by reference to, or for the purposes of, this Order and as if this Order had then been in force.

GIVEN under the Official Seal of the Minister for Industry and

Energy this 1st day of January, 1983.

S. O'MUIRI,

A person authorised by the Minister for Industry and Energy to

authenticate the Official Seal of the Minister.

EXPLANATORY NOTE.

The Order applies to persons who import into the State certain petroleum products either for their own use or for disposal in the State. Such persons are obliged to purchase a quantity of petroleum products, refined at the Whitegate oil refinery, from the Irish National Petroleum Corporation Limited.