(Mayo): I move amendment No. 5:
In page 6, between lines 39 and 40, to insert the following:
"7.–The Act of 1999 is amended, on the appointed day, by the insertion of the following section after section 9:
‘9A.–(1) The Commission may in relation to gas distribution agreements–
(a) set conditions which the Commission may specify as a condition precedent to the conclusion of a gas distribution agreement in the areas listed in Part I of Schedule 2 which said conditions shall be published by the Commission in accordance with section 9B, and
(b) encourage coverage of the issues listed in Part II of Schedule 2.
(2) The Commission may, from time to time, intervene on its own accord and shall intervene if requested by any party concerned in order to specify issues which shall be included in a gas distribution agreement or to lay down specific conditions to be observed by one or more parties to such an agreement and the Commission may direct that those issues or conditions be included in the gas distribution agreement and it shall be an offence to fail to comply with a direction of the Commission under this subsection.
(3) In exceptional cases the Commission may direct that changes be made to a gas distribution agreement in order to ensure effective competition of services for users and it shall be an offence to fail to comply with a direction of the Commission under this subsection.
(4) The conditions set or changes directed by the Commission pursuant to subsections (2) and (3) may include, inter alia, conditions designed to ensure effective competition, technical conditions, tariffs, supply and usage conditions, conditions as to compliance with relevant standards, compliance with essential requirements, protection of the environment or maintenance of end-to-end quality of service.
(5) The Commission may, at any time on his or her own initiative or if requested by either party, set the period within which negotiations on gas distribution shall be completed and if agreement is not reached within that period the Commission shall take steps to conclude an agreement under procedures to be laid down by the Commission.
(6) The Commission shall establish and maintain procedures in order to procure the agreement referred to in subsection (5) and the procedures shall be made available to the public in accordance with section 9B.
(7) In the event of a dispute between organisations in relation to gas distribution the Commission shall, at the request of either party, take steps to resolve the dispute within six months of that request being made and the resolution of the dispute (in these Regulations referred to as a "finding" of the Commission) shall represent a fair balance between the legitimate interests of both parties.
(8) In seeking to resolve a dispute under this Act the Commission shall take into account, inter alia–
(a) the user interest,
(b) regulatory obligations or constraints imposed on any of the parties,
(c) the availability of technically and commercially viable alternatives to the gas distribution requested,
(d) the desirability of ensuring equal access arrangements,
(e) the need to maintain the integrity of the gas distribution network,
(f) the nature of the request in relation to the resources available to meet the request,
(g) the relative market positions of the parties,
(h) the public interest (including but not restricted to the protection of the environment),
(i) the promotion of competition, and
(j) the need to maintain a public service obligation.
(9) The Commission shall make any finding under subsection (7) available to interested parties on a request being made to the Commission and the parties to the dispute shall be given a full statement of the reasons on which the decision is based.
(10) An organisation which fails to comply with a finding of the Commission under subsection (7) shall be guilty of an offence.'.".
This amendment refers to the role of the commission in overseeing gas distribution agreements. It seeks to set down in clear detail what the role and powers of the commission would be in such circumstances. Subsection (1)(a) states that the commission may specify as a condition precedent to the conclusion of a gas distribution agreement in the areas listed in Part I of the Schedule which said conditions shall be published by the commission in accordance with section 9B, and encourage coverage of the issues listed in Part II of Schedule 2. What we are saying here is that the commission may intervene to specify the issues which should be included in a gas distribution agreement or it can lay down specific conditions to be observed by one or more of the parties. In addition, it may direct that those issues or conditions be included in the gas distribution agreement and it shall be an offence to fail to comply with the direction of the commission under this subsection.
Subsection (3) is in the national interest, to borrow a phrase from the much lamented "Bull Island". It states that the commission may direct that changes be made to a gas distribution agreement to ensure effective competition of services for users and it shall be an offence not to comply with the direction of the commission in this regard. In other words, it shall ensure that a gas distribution agreement is in the spirit of providing effective competition for services, in other words, that the consumer or user will at the end of the day be the net beneficiary of such competition. The amendment seeks to ensure effective competition, technical conditions, tariffs, supply and usage conditions, conditions as to compliance with relevant standards, compliance with essential requirements, protection of the environment or maintenance of end-to-end quality of service. Again, from the point of view of the timeframe within which an agreement can be reached, it shall set a period within which negotiations on gas distribution shall be completed. It will take steps to conclude an agreement under the procedures laid down by the commission.
Subsection (7) states that in the event of a dispute between organisations in relation to gas distribution the commission shall, at the request of either party, take steps to resolve the dispute within six months of that request being made and the resolution of the dispute shall represent a fair balance between the legitimate interests of both parties. We are talking here about the regulatory arbitrary refereeing role of the commission in relation to overseeing gas distribution agreements. Where a dispute arises, it shall ensure the dispute is resolved within a six month period and not be allowed to drag on interminably. The amendment seeks to try to resolve the dispute to ensure it happens within the six month period.
The issues to be taken into account by the commission shall be the user interest, the regulatory obligations or constraints imposed on any of the parties, the availability of technically and commercially viable alternatives to the gas distribution requested, the desirability of ensuring equal access arrangements, the need to maintain the integrity of the gas distribution network, the nature of the request in relation to the resources available to meet the request, the relative market position and the relative strength of their market share, the public interest, including but not restricted to the protection of the environment, the promotion of competition and the need to maintain a public service obligation. The commission shall make any finding under subsection (7) available to interested parties on a request being made to the commission and the parties to the dispute shall be given a full statement of the reasons on which the decision is based. An organisation which fails to comply with a finding of the commission under subsection (7) shall be guilty of an offence.
This amendment which seeks to set down a set of guidelines or rules under which the gas distribution agreements will operate and the role of the commission in overseeing and arbitrating in such circumstances and in resolving disputes is a sensible one.