(No. 12 of 2006) In exercise of the powers conferred by section 102 of the Energy Act, 2006 the Minister for Energy makes the following regulations:-

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1 Appendix VI THE ENERGY ACT, 2006 (No. 12 of 2006) In exercise of the powers conferred by section 102 of the Energy Act, 2006 the Minister for Energy makes the following regulations:- The Energy (Operation of Common User Petroleum Logistics Facilities) Regulations, Citation Commencement Application Interpretation No. 12 of These Regulations may be cited as the Energy (Operation of Common User Petroleum Logistics Facilities) Regulations, These Regulations shall come into operation upon their publication in the Gazette. 2. These Regulations shall not apply to: (a) Petroleum logistics facilities that are owned maintained or operated for private use of the owner or operator of the facilities. (b) The Kenya Defence Forces. In these Regulations, unless the context otherwise requires- Act means the Energy Act, 2006; Commission means the Energy Regulatory Commission established under section 4 of the Act. Common user petroleum logistics facilities means petroleum logistics facilities owned or operated by a licensee for use exclusively by third party petroleum business licensees. Kenya Standard means a specification or code of practice declared by the Council under section 9 of the Standards Act.

2 Licence means any document or instrument in writing granted under this Act by the Commission to any person authorizing the importation, exportation, refining, transportation, storage, distribution or sale of petroleum. Licensee means any person holding a license granted by the Commission under the Act. Minister means the minister for the time being responsible for energy. Petroleum logistics facility means any facility that is or can be used to receive, store, load, offload or transport petroleum and includes petroleum marine jetties, marine terminals, pipeline systems, and storage depots but does not include retail dispensing sites. Specifications has the meaning assigned to it in section 2 of the Standards Act. Tariff means a written statement of rates, terms and conditions for services relating to use of petroleum logistics facilities approved by the Commission Tribunal means the Energy Tribunal set up under section 108 of the Act. User means a petroleum business licensee that has entered into a contract with an owner or operator of a common user petroleum logistics facility Operation of a petroleum logistics facility 5. A person shall not engage in the operation of a common user petroleum logistics facility except in accordance with the Act and the terms and conditions of a valid licence issued by the Commission or its agents.

3 Obligation of the operator Of a common user Petroleum facility 6. (1) An operator of a common user petroleum logistics facility shall provide capacity that is sufficient and has geographic scope to meet in a cost effective manner the needs of petroleum business licensees. No 12 of 2006 Chapter 286 Chapter 265 No 8 of 2000 No 15 of 2007 Chapter 513 Chapter 403 Chapter 472 (2) An operator of a common user petroleum logistics facility shall operate and maintain the petroleum logistics facility in accordance with the requirements of the Energy Act, Physical Planning Act, Standards Act, Local Government Act, Environmental Management and Co-ordination Act, Occupational Safety and Health Act, Weights and Measures Act, Traffic Act, Customs and Excise Act and any other written law; (3) An operator of a common user petroleum logistics facility shall maintain its facility in a fully operational condition. Terms of access to a petroleum logistics facility 7. (1) An operator of a common user petroleum logistics facility shall provide access to all petroleum business licensees who desire to use its services on terms and conditions approved by (2) Where capacity is limited an operator of a common user petroleum logistics facility shall allocate capacity among petroleum business licensees in proportion to market share provided that any unutilized capacity shall be reallocated on the basis of market share. Non-discrimination 8. An operator of a common user petroleum logistics facility shall not discriminate between Users regarding access, tariffs, prices and conditions of service.

4 Tariffs 9. An operator of a common user petroleum logistics facility shall only charge the tariffs approved by the Commission or its agents. Ownership and custody 10. (1) Subject to the right of lien of an operator of a common user petroleum logistics facility, the ownership of the petroleum tendered for the provision of the logistics services shall at all times remain vested in the User. (2) An operator of a common user petroleum logistics facility shall have custody and be responsible for the User s petroleum from the time of reception into the facility to the time it is delivered to the User. Interconnections 11. A licensee of a common user petroleum logistics facility shall allow interconnections with the facilities of another licensee, provided that the interconnections are technically feasible. Third party Compliance 12. A licensee of a common user petroleum logistics facility shall only deal with other persons in possession of valid petroleum business licences, permits or certificates issued by Complaints 13. (1) A person may lodge a complaint with the Commission if aggrieved by discrimination regarding tariffs or terms and conditions of service.

5 Appeals Contracts (2) A complaint contemplated under this Regulation shall be submitted in the manner prescribed by the Act and these Regulations and shall be accompanied by: (a) Any information in support of the complaint; and (b) A description of efforts made to resolve the dispute before making the complaint to the Commission. (3) The Commission or its agents shall determine a complaint in any matter falling within the ambit of the Act. 14. A person aggrieved by the decision of the Commission or its agents on a complaint may appeal to the Tribunal. 15. (1) A petroleum business licensee wishing to access a common user petroleum logistics facility shall contract with the common user petroleum logistics facility operator in respect to the logistics services. Penalties (2) A contract between licensees and the operator of a common user petroleum logistics facility shall be subject to approval by 16. Any person who contravenes any of the above regulations commits an offence under Section 80(5) of the Act and shall on conviction be liable to a fine not exceeding one million shillings or to a maximum term of imprisonment of one year, or both such fine and imprisonment. DATED the KIRAITU MURUNGI Minister for Energy