Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 11th June, 2019.

I, RICHARD BRUTON, Minister for Communications, Climate Action and Environment, 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 further effect to Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998¹ as amended by Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015² , hereby make the following regulations:

1. These Regulations may be cited as the European Union (Greenhouse Gas Emission Reductions, Calculation Methods and Reporting Requirements) (Amendment) Regulations 2019.

2. In these Regulations -

“Regulations of 2011” means the European Communities Act, 1972 (Environmental Specifications for Petrol, Diesel Fuels and Gas Oils for use by non-road mobile machinery, including inland waterway vessels, agricultural and forestry tractors, and recreational craft) Regulations 2011 ( S.I. No. 155 of 2011 );

“Regulations of 2017” means the European Union (Greenhouse Gas Emission Reductions, Calculation Methods and Reporting Requirements) Regulations 2017 ( S.I. No. 160 of 2017 ).

3. Regulation 2(1) of the Regulations of 2017 is amended -

(a) by the insertion of the following definitions:

“ ‘actual value’ shall be construed in accordance with Regulation 9(3)(b);

‘agricultural, aquaculture, fisheries and forestry residues’ means residues that are directly generated by agriculture, aquaculture, fisheries and forestry excluding residues from related industries or processing;

‘combined method’ shall be construed in accordance with Regulation 9(3)(c);

‘competent authority’ means the Minister for Culture, Heritage and the Gaeltacht;

‘continuously forested area’ means land spanning more than one hectare with trees higher than five metres and a canopy cover of more than 30 per cent, or trees able to reach those thresholds in situ;

‘default value’ shall be construed in accordance with Regulation 9(1)(a);

‘disaggregated default value’ means in relation to biofuel described in the first column of a table in Part D or E of Annex IV to Directive 98/70/EC, the value which corresponds to that description in the third column of that table in Part D or E of that Annex;

‘greenhouse gas emissions from the use of fossil fuel’ means the value given in paragraph 19 of Part C of Annex IV as the fossil fuel comparator for biofuels;

‘highly biodiverse grassland’ means -

(a) in the case of natural grassland, grassland that would remain grassland in the absence of human intervention and which maintains the natural species composition and ecological characteristics and processes, or

(b) in the case of non-natural grassland, grassland that would cease to be grassland in the absence of human intervention and which is species-rich and not degraded, unless evidence is provided that the harvesting of the raw material is necessary to preserve its grassland status;

‘less forested area’ means land spanning more than one hectare with trees higher than 5 metres and a canopy cover of between 10 and 30 per cent, or trees able to reach those thresholds in situ, unless evidence is provided that the carbon stock of the area before and after conversion is such that, when the methodology laid down in Part C of Annex IV to Directive 98/70/EC is applied, the greenhouse gas emission savings stated in Regulation 9(1) would be achieved;

‘low indirect land-use change-risk biofuels’ means biofuels, the feedstocks of which were produced within schemes which reduce the displacement of production for purposes other than for making biofuels and which were produced in accordance with the sustainability criteria for biofuels set out in Regulation 9;

‘nature protection area’ means an area designated -

(a) by law or by the competent authority for nature protection purposes, or

(b) for the protection of rare, threatened or endangered ecosystems or species recognised by international agreements or included in lists drawn up by intergovernmental organisations or the International Union for the Conservation of Nature, subject to their recognition in accordance with the second subparagraph of Article 7c(4) of Directive 98/70/EC;

‘primary forest’ means forest and other wooded land of native species, where there is no clearly visible indication of human activity and the ecological processes are not significantly disturbed;

‘processing residue’ means a substance that is not the end product or products that a production process directly seeks to produce and is not a primary aim of the production process and the process has not been deliberately modified to produce it;

‘Regulations of 2012’ means the European Union (Biofuel Sustainability Criteria) Regulations 2012 ( S.I. No. 33 of 2012 );

‘Regulations of 2014’ means the European Union (Renewable Energy) Regulations 2014 ( S.I. No. 483 of 2014 );

‘renewable liquid and gaseous transport fuels of non-biological origin’ means liquid or gaseous fuels other than biofuels whose energy content comes from renewable energy sources other than biomass, and which are used in transport;

‘starch-rich crops’ means crops comprising mainly cereals (regardless of whether only the grains are used, or the whole plant, such as in the case of green maize, is used), tubers and root crops (such as potatoes, Jerusalem artichokes, sweet potatoes, cassava and yams), and corm crops (such as taro and cocoyam);

‘wetland’ means land that is covered with or saturated by water permanently or for a significant part of the year.”,

and

(b) by the substitution for the definition of “Directive 98/70/EC” of the following:

“ ‘Directive 98/70/EC’ means Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998¹ as amended by -

(a) Commission Directive 2000/71/EC of 7 November 2000³ ,

(b) Directive 2003/17/EC of the European Parliament and of the Council of 3 March 2003⁴ ,

(c) Regulation (EC) No. 1882/2003 of the European Parliament and of the Council of 29 September 2003⁵ ,

(d) Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009⁶ ,

(e) Commission Directive 2011/63/EU of 1 June 2011⁷ ,

(f) Commission Directive 2014/77/EU of 10 June 2014⁸ , and

(g) Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015² ;”.

4. The Regulations of 2017 are amended by the substitution for Regulation 6 of the following Regulation:=

“6. (1) NORA shall designate the supplier or suppliers responsible for monitoring and reporting life cycle greenhouse gas emissions per unit of energy from fuel and energy supplied. In the case of providers of electricity for use in road vehicles, such providers may choose to become a contributor to the reduction obligation laid down in Regulation 8 if they can demonstrate that they can adequately measure and monitor electricity supplied for use in those vehicles.

(2) NORA may permit suppliers of biofuels for use in aviation to choose to become contributors to the reduction obligation set out in Regulation 8 provided that that those biofuels comply with the sustainability criteria set out in Regulation 9.”.

5. The Regulations of 2017 are amended in Regulation 7 -

(a) in paragraph (1)(b), by the substitution for “energy.” of “energy, and”,

(b) in paragraph (1), by the insertion after subparagraph (b) of the following subparagraph:

“(c) biofuel production pathways and the volumes of biofuels derived from the feedstocks as categorised in Part A of the Schedule, and the life cycle greenhouse gas emissions per unit of energy, including the provisional mean values of the estimated indirect land-use change emissions from biofuels.”,

and

(c) by the insertion after paragraph (2) of the following paragraph:

“(3) The Minister shall cause a report to be made to the European Commission of the information referred to in subparagraph (c) provided by suppliers to NORA.”.

6. The Regulations of 2017 are amended by the insertion after Regulation 8 of the following Regulation:

“8A. (1) Subject to paragraph (2), life cycle greenhouse gas emissions from biofuels shall be taken into account for the purpose of compliance with the target referred to in Regulation 8 only if it has been verified that they fulfil the sustainability criteria set out in Regulation 9.

(2) Biofuels produced from wastes or residues other than residues from agriculture, aquaculture, fisheries or forestry, shall only be required to fulfil the sustainability criteria in Regulation 9(1) in order to be taken into account for the purpose of compliance with the target referred to in Regulation 8.”.

7. The Regulations of 2017 are amended by the substitution for Regulation 9 of the following Regulation:

“9. (1) For the purposes of Regulation 8, the greenhouse gas emission saving from the use of biofuels compared to the greenhouse gas emissions from the use of fossil fuel shall be:

(a) in the case of installations starting operation after 5 October 2015, at least 60 per cent;

(b) in the case of installations that were in operation on or before 5 October 2015, at least 35 per cent until 31 December 2017 and at least 50 per cent from 1 January 2018.

(2) An installation referred to in paragraph (1) shall be considered to be in operation if the physical production of biofuels has taken place.

(3) For the purposes of paragraph (1) and Regulation 8, life cycle greenhouse gas emissions from biofuels shall be calculated as follows:

(a) where a default value for greenhouse gas emission savings for the biofuel production pathway is laid down in Part A or B of Annex IV to Directive 98/70/EC and where the e1 value for those biofuels calculated in accordance with point 7 of Part C of Annex IV to that Directive is equal to or less than zero, by using that default value;

(b) by using an actual value calculated in accordance with the methodology laid down in Part C of Annex IV to Directive 98/70/EC, or

(c) by using a value calculated as the sum of the factors of the formula referred to in point 1 of Part C of Annex IV to Directive 98/70/EC, where disaggregated default values in Part D or E of Annex IV to that Directive may be used for some factors, and actual values, calculated in accordance with the methodology laid down in Part C of Annex IV to that Directive, for all other factors.

(4) The combined method may only be used for the purposes of paragraph (1) and Regulation 8 if the biofuel is described in the first column of a table in Part D or Part E of Annex IV to Directive 98/70/EC.

(5) The default value may only be used for the purposes of paragraph (1) and Regulation 8 if, in relation to the biofuel, the result of the calculation in paragraph 7 of Part C of Annex IV to Directive 98/70/EC is equal to, or less than, zero.

(6) Biofuels taken into account for the purposes referred to in paragraph (1) and Regulation 8 shall not be made from raw material obtained from land that was -

(a) primary forest in or after January 2008, whether or not the land continues to be primary forest;

(b) a nature protection area in or after January 2008, (whether or not the land continues to be a nature protection area) other than where evidence is provided that the production of the feedstock concerned did not interfere with the nature protection purposes for which it was designated;

(c) highly biodiverse grassland in or after January 2008, whether or not the land continues to be highly biodiverse grassland;

(d) wetland in January 2008, but was not a wetland at the time the feedstock was obtained;

(e) a continuously forested area in January 2008, but was not a continuously forested area at the time the feedstock was obtained;

(f) a less forested area in January 2008, but was not in that category at the time the feedstock was obtained;

(g) peatland in January 2008, other than where evidence is provided that the cultivation and harvesting of that raw material does not involve drainage of previously undrained soil.

(7) Agricultural raw materials cultivated in a Member State (including the State) and used for the production of biofuels for the purposes of paragraph (1) and Regulation 8 shall be obtained in accordance with -

(a) the minimum requirements for good agricultural and environmental conditions referred to in Article 6(1) of Council Regulation (EC) No. 73/2009 of 19 January 2009⁹ ,

(b) the requirements and standards provided under the heading “Environment” in Point A of Annex II to that Council Regulation, and

(c) the requirements and standards in Point 9 of Annex II to that Council Regulation.

(8) NORA shall not refuse to take into account, on other sustainability grounds, biofuels which fulfil the sustainability criteria set out in this Regulation.”.

8. The Regulations of 2017 are amended by the insertion after Regulation 9 of the following Regulations:

“9A. (1) Where biofuels are to be taken into account for the purposes of Regulation 8, suppliers shall report to NORA on compliance with paragraphs (1), (3) and (6) of Regulation 9 in accordance with a mass balance system that -

(a) allows consignments of raw material or biofuel with differing sustainability characteristics to be mixed,

(b) requires information about the sustainability characteristics and sizes of the consignments referred to in subparagraph (a) to remain assigned to the mixture, and

(c) provides for the sum of all consignments referred to in subparagraph (a) withdrawn from the mixture to be described as having the same sustainability characteristics, in the same quantities, as the sum of all consignments added to the mixture.

(2) A supplier shall provide to NORA a statement of compliance with paragraphs (1), (3) and (6) of Regulation 9 specifying which of the following methods has been utilised with respect to each consignment of biofuel:

(a) through compliance with any national scheme arranged under Regulation 4 of the Regulations of 2012;

(b) through a bilateral or multilateral agreement referred to in the first subparagraph of Article 7c(4) of Directive 98/70/EC;

(c) through a voluntary national or international scheme referred to in the second subparagraph of Article 7c(4) of Directive 98/70/EC.

(3) A supplier shall, on request from NORA, provide the following information for each consignment of biofuel referred to in paragraph (1):

(a) whether the greenhouse gas emissions savings required under Regulation 9(1) are being achieved through -

(i) the use of default values,

(ii) a combination of disaggregated default values and actual values, or

(iii) solely through the use of actual values;

(b) compliance with the sustainability criteria in paragraphs (1), (3) and (6) of Regulation 9;

(c) the type of raw material from which the product is made;

(d) the place of origin of the raw material;

(e) details of measures taken for -

(i) soil, water and air protection,

(ii) the restoration of degraded land,

(iii) the avoidance of excessive water consumption in areas where water is scarce, and

(iv) dealing with the issues referred to in the second subparagraph of Article 7b(7) of Directive 98/70/EC;

(f) whether the bonus referred to in paragraphs 7 and 8 of Part C of Annex IV of Directive 98/70/EC has been used in the greenhouse gas emissions calculation referred to in paragraph 1 of Part C of Annex IV of Directive 98/70/EC for the consignment;

(g) whether the factor for greenhouse gas emissions savings from soil carbon accumulation via improved agricultural management referred to in paragraph 1 of Part C of Annex IV of Directive 98/70/EC has been used in the greenhouse gas calculation referred to in the same paragraph for the consignment, and at least one of the following -

(i) a statement, and evidence in support thereof, that the consignment has been certified or accepted as fulfilling the requirements of any procedure referred to in Regulation 4 of the Regulations of 2012,

(ii) a statement, and evidence in support thereof, that the consignment has been certified or accepted as fulfilling the requirements of a bilateral or multilateral agreement referred to in the first subparagraph of Article 7c(4) of Directive 98/70/EC, to contain accurate data for the purposes of information on measures taken for soil, water and air protection, the restoration of degraded land and the avoidance of excessive water consumption in areas where water is scarce and to take into account the issues referred to in the second subparagraph of Article 7b(7) of Directive 98/70/EC, or

(iii) a statement, and evidence in support thereof, that the consignment has been duly certified as fulfilling the requirements of a voluntary scheme (including the name of the voluntary scheme) referred to in the second subparagraph of Article 7c(4) of Directive 98/70/EC, to contain accurate data for the purposes of information on measures taken for soil, water and air protection, the restoration of degraded land and the avoidance of excessive water consumption in areas where water is scarce and to take into account the issues referred to in the second subparagraph of Article 7b(7) of Directive 98/70/EC.

(4) Paragraphs (1)(f) and (g) shall not apply where biofuel has been produced from waste and residues.

(5) The information submitted to NORA under this Regulation shall be accompanied by a report verifying the information, which verification shall be completed by an independent person in accordance with requirements for assurance engagements, as may be approved by NORA from time to time.

(6) Where calculation of emissions savings is involved, a supplier shall hold the details of these calculations on file for 3 years and these details shall be available for audit as required by Regulation 9B.

(7) Where a supplier provides proof or data obtained through -

(a) a bilateral or multilateral agreement referred to in the first subparagraph of Article 7c(4) of Directive 98/70/EC, or

(b) a voluntary national or international scheme referred to in the second subparagraph of Article 7c(4) of Directive 98/70/EC,

to the extent covered by that agreement or scheme, the supplier shall not be required to provide further evidence of compliance with the sustainability criteria in Regulation 9.

(8) Where a supplier has provided information to NORA in accordance with Regulation 5 or 6 of the Regulations of 2012, to the extent the information is required to be provided under this Regulation, the supplier shall not be required to provide the same information as already provided under the said Regulation 5 or 6.

(9) Where a supplier has provided information to NORA in accordance with this Regulation, to the extent the information is required to be provided under Regulation 5 or 6 of the Regulations of 2012, the supplier shall not be required to provide the same information as already provided under this Regulation.

(10) The Minister shall cause a report to be submitted to the European Commission, in aggregated form, of the information required to be submitted to NORA under this Regulation.

9B. (1) A supplier using biofuel shall maintain data and records relating to the sustainability criteria for each consignment of biofuel used.

(2) A supplier using biofuel shall arrange for an independent audit of the data referred to in paragraph (1) and the information submitted to NORA under these Regulations on an annual basis.

(3) The audit referred to in paragraph (2) shall -

(a) evaluate the frequency and methodology of sampling and the robustness of the data,

(b) verify that the systems used by the supplier are accurate, reliable and protected against fraud,

(c) meet the requirements specified for assurance engagements as may be approved by NORA from time to time, and

(d) be in such form as NORA may require.

(4) A supplier shall provide the auditor’s report to NORA not later than 3 months after the end of each calendar year.

(5) Notwithstanding paragraph (4), where a supplier has provided an auditor’s report to NORA under Regulation 7 of the Regulations of 2012, to the extent that the report contains the information required under this Regulation, the supplier shall not be required to provide an auditor’s report containing the same information under this Regulation.”.

9. The Regulations of 2017 are amended by the insertion after Regulation 17 of the following Regulations:

“17A. A person who -

(a) in purported compliance with Regulations 7(1), 9A and 13, makes a statement or furnishes information which is false or misleading, knowing it to be false or misleading in a material respect or being reckless as to whether it is so false or misleading, or

(b) fails to disclose a material particular,

shall be guilty of an offence.

17B. Summary proceedings for an offence under Regulation 17A may be brought and prosecuted by NORA.

17C. A person guilty of an offence under Regulation 17A shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.

17D. (1) Where an offence under these Regulations is committed by a body corporate and it is proved that the offence was committed with the consent or connivance, or was attributable to any wilful neglect, of a person who, when the offence was committed, was a director, manager, secretary or other officer of the body corporate, or a person purporting to act in that capacity, that person, as well as the body corporate, shall be guilty of an offence and may be proceeded against and punished as if he or she were guilty of the first-mentioned offence.

(2) Where the affairs of a body corporate are managed by its members, paragraph (1) applies in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director or manager of the body corporate.

17E. (1) Subject to paragraphs (2) and (3), a document that is required to be given to a person by these Regulations shall be addressed to the person concerned by name, and may be so given to the person in one or more of the following ways:

(a) by delivering it to the person;

(b) by leaving it at the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, at that address;

(c) by sending it by post in a prepaid registered letter to the address at which the person carries on business or ordinarily resides or, in a case in which an address for service has been furnished, to that address;

(d) where there is a facility for receiving the text of the notice by electronic means at the address at which the person carries on business or ordinarily resides, by transmitting the text of the notice by such means to such address, provided that the notice is also delivered in any of the other ways referred to in this paragraph;

(e) if the address at which the person ordinarily resides cannot be ascertained by reasonable enquiry and the notice relates to a premises, by delivering it to the premises or by affixing it in a conspicuous position on or near the premises.

(2) Where a document under these Regulations is to be given to a person who is the owner or occupier of land or property and the name of the person cannot be ascertained by reasonable inquiry, it may be addressed to the person by using the words “the owner” or, as the case may require, “the occupier”.

(3) For the purposes of this Regulation, a company formed and registered under the Companies Act 2014 or an existing company within the meaning of that Act shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

(4) Where an opinion, finding, statement or decision of NORA is contained in a document which -

(a) purports to have been made by or at the direction of NORA, and

(b) is produced in evidence by NORA in any proceedings,

such document shall be admissible in evidence and shall be evidence of any such opinion, finding, statement or decision in such proceedings without further proof.”.

10. The Regulations of 2017 are amended by the insertion after Regulation 18 of the following:

“SCHEDULE

Part A

Provisional estimated indirect land-use change emissions from biofuels (gCO_2eq/MJ)⁺

* The mean values included here represent a weighted average of the individually modelled feedstock values.

** The range included here reflects 90% of the results using the fifth and ninety-fifth percentile values resulting from the analysis. The fifth percentile suggests a value below which 5% of the observations were found (i.e. 5% of total data used showed results below 8, 4 and 33 gCO_2eq/MJ). The ninety-fifth percentile suggests a value below which 95% of the observations were found (i.e. 5% of total data used showed results above 16, 17, and 66 gCO_2eq/MJ).

Part B

Biofuels for which the estimated indirect land-use change emissions are considered to be zero

Biofuels produced from the following feedstock categories will be considered to have estimated indirect land-use change emissions of zero:

1. Feedstocks which are not listed in Part A;

2. Feedstocks, the production of which has led to direct land-use change, i.e. a change from one of the following IPCC land cover categories: forest land, grassland, wetlands, settlements or other land to cropland or perennial cropland⁺⁺. In such a case a direct land-use change emission value (el) should have been calculated in accordance with paragraph 7 of Part C of Annex IV of Directive 98/70/EC.

⁺ The mean values reported here represent a weighted average of the individually modelled feedstock values. The magnitude of the values in the Schedule is sensitive to the range of assumptions (such as treatment of co-products, yield developments, carbon stocks and displacement of other commodities) used in the economic models developed for their estimation. Although it is therefore not possible to fully characterise the uncertainty range associated with such estimates, a sensitivity analysis conducted on the results based on a random variation of key parameters, a so-called Monte Carlo analysis, was conducted.

⁺⁺ Perennial crops are defined as multi-annual crops, the stem of which is usually not annually harvested such as short rotation coppice and oil palm.”.

11. The Regulations of 2011 are amended -

(a) in Regulation 3(1), by the substitution for the definition of “Directive 98/70/EC as amended” of the following definition:

“ ‘Directive 98/70/EC as amended’ means Directive 98/70/EC of the European Parliament and of the Council of 13 October 1998¹ as amended by -

(a) Commission Directive 2000/71/EC of 7 November 2000¹⁰ ,

(b) Directive 2003/17/EC of the European Parliament and of the Council of 3 March 2003¹¹ ,

(c) Regulation (EC) No. 1882/2003 of the European Parliament and of the Council of 29 September 2003¹² ,

(d) Directive 2009/30/EC of the European Parliament and of the Council of 23 April 2009¹³ ,

(e) Commission Directive 2011/63/EU of 1 June 2011¹⁴ ,

(f) Commission Directive 2014/77/EU of 10 June 2014¹⁵ , and

(g) Directive (EU) 2015/1513 of the European Parliament and of the Council of 9 September 2015² ;”,

and

(b) by the insertion after Regulation 14 of the following Regulation:

“14A. The Minister shall cause a report to be made to the European Commission -

(a) on national fuel quality data by 31 August of each year for the preceding calendar year,

(b) the total volumes of petrol and diesel fuels marketed in the State and the volumes of unleaded petrol and diesel fuels marketed in the State with a maximum sulphur content of 10mg/kg, and

(c) on the availability, on an appropriately balanced geographical basis, of petrol and diesel fuels marketed in the State with a maximum sulphur content of 10mg/kg.”.

GIVEN under my Official Seal,

30 May 2019.

RICHARD BRUTON

Minister for Communications, Climate Action and Environment.

1 OJ No. L. 350, 28.12.1998, p. 58

2 OJ No. L. 239, 15.9.2015, p. 1

1 OJ No. L. 350, 28.12.1998, p. 58

3 OJ No. L. 287, 14.11.2000, p. 46

4 OJ No. L. 76, 22.3.2003, p. 10

5 OJ No. L. 284, 31.10.2003, p. 1

6 OJ No. L. 140 5.6.2009, p. 88

7 OJ No. L. 147 2.6.2011, p. 15

8 OJ No. L. 170 11.6.2014, p. 62

2 OJ No. L. 239, 15.9.2015, p. 1

9 OJ No. L. 30, 31.1.2009, p.16

1 OJ No. L. 350, 28.12.1998, p. 58

10 OJ No. L. 287, 14.11.2000, p. 46

11 OJ No. L. 76, 22.3.2003, p. 10

12 OJ No. L. 284, 31.10.2003, p. 1

13 OJ No. L. 140, 5.6.2009, p. 88

14 OJ No. L. 147, 2.6.2011, p. 15

15 OJ No. L. 170, 11.6.2014, p. 62

2 OJ No. L. 239, 15.9.2015, p. 1