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Fourth Session, Thirty-Seventh Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.
It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications.

Bill 11

THE BIOFUELS ACT


Table of Contents Explanatory Note

(Assented to                 )

WHEREAS it is in the public interest to develop and use clean renewable energy resources in place of fossil fuels;

AND WHEREAS it is in Manitoba's economic and environmental interests to support the production of cleaner fuels such as ethanol and other biofuels, and to encourage their use in Manitoba;

THEREFORE HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

PART 1

INTERPRETATION

Definitions

1           The following definitions apply in this Act:

"denatured ethanol" means a solution that meets prescribed specifications and contains ethanol derived from biomass materials. (« éthanol dénaturé »)

"Ethanol Fund" means the fund established by section 10. (« Fonds d'aide à la production de l'éthanol » ou « Fonds »)

"fuel supplier" means a collector under The Gasoline Tax Act. (« fournisseur de carburant »)

"gasohol" means a blend of gasoline and denatured ethanol that meets prescribed specifications. (« gazohol »)

"gasohol sales mandate" means the level of gasohol sales, as a prescribed proportion of all sales of gasoline based fuels, that a fuel supplier must meet in order to avoid a financial penalty under Part 2. (« quota des ventes de gazohol »)

"minister" means the minister appointed by the Lieutenant Governor in Council to administer this Act, except in subsection 14(2) where it refers to the Minister of Finance. (« ministre »)

"prescribed" means prescribed by regulation under this Act.

PART 2

ETHANOL-GASOLINE PROGRAM

Purposes

2           The purposes of this Part are to support the production of ethanol in Manitoba and encourage the supply and use of gasohol in Manitoba. It provides for

(a) the licensing of ethanol producers and blenders;

(b) funding to support the production of ethanol in Manitoba; and

(c) a gasohol sales mandate to be established by regulation and applied to fuel suppliers.

LICENSING AND OTHER REQUIREMENTS

Licence to manufacture denatured ethanol

3(1)        No person shall manufacture denatured ethanol in Manitoba unless the person holds a valid licence issued by the minister.

Licence to blend denatured ethanol

3(2)        No person shall blend denatured ethanol with gasoline in Manitoba unless

(a) the person holds a valid licence issued by the minister; and

(b) the blending is done in accordance with the regulations.

Absolute requirement for licence

3(3)        The requirements for a licence under this section are in addition to any other requirement for a licence or permit under any other Act.

Minister may issue licence

4(1)        The minister may issue a licence that is required under section 3.

Minister may cancel or refuse to issue licence

4(2)        The minister may cancel a licence of, or refuse to issue a licence to, a person who

(a) has been convicted of an offence under this or any other Act of the Legislature;

(b) fails to meet prescribed licensing criteria; or

(c) neglects or refuses to comply with any provision of this Act or the regulations, or with a term or condition of an order or agreement made under this Act or of a licence issued under it.

Licence not transferable

4(3)        A licence issued by the minister under this section is not transferable.

Records and reporting

5(1)        The holder of a licence issued under this Part must keep records and report to the minister in accordance with the regulations.

Records to be made available in Manitoba

5(2)        The licence holder must

(a) make his or her records that are relevant to the administration of this Act available for inspection, examination and audit; and

(b) if the records are not made available in Manitoba, pay to the minister the amount assessed by the minister for expenses necessarily incurred in inspecting, examining or auditing them at the place where they are kept.

Order as to books and records

5(3)        If in the minister's opinion the licence holder's records are inadequate for the purposes of this Act, the minister may, by written order, direct the licence holder as to how they are to be kept. The licence holder must then keep them as directed.

Restriction on selling denatured ethanol

6           No person shall sell denatured ethanol in Manitoba for blending with gasoline except to a fuel supplier or as otherwise permitted by the regulations.

GRANTS

Grant program to be established by regulation

7(1)        The Lieutenant Governor in Council may by regulation establish a grant program, to be funded by the Ethanol Fund, to support the production of ethanol in Manitoba.

Regulations re grant program

7(2)        Without limiting the generality of subsection (1), the Lieutenant Governor in Council may make regulations

(a) respecting applications for grants;

(b) respecting eligibility for grants;

(c) respecting terms or conditions to be imposed on grants;

(d) establishing reporting requirements for grant recipients;

(e) establishing criteria for assessing the need for a grant, and the amount of a grant.

Minister may approve or deny grant

8           Upon receipt of a grant application, the minister may

(a) approve the grant in accordance with the criteria established by regulation, and enter into an agreement with the applicant that sets out

(i) the amount or maximum amount of the grant, and the manner in which it will be paid,

(ii) any circumstances under which the amount of the grant may be reduced, or any part of it must be repaid, and

(iii) any other terms or conditions that the minister considers appropriate for the payment and administration of the grant; or

(b) deny the grant.

Continuing eligibility

9           To continue to be eligible to receive payments under a grant approved by the minister, the grant recipient must comply with

(a) the terms and conditions of the agreement governing the grant; and

(b) the applicable provisions of this Act and the regulations.

ETHANOL FUND

Fund established

10(1)       The Ethanol Fund is established, consisting of money paid or credited to the fund from time to time under subsection (3).

Purpose of the fund

10(2)       The purpose of the Ethanol Fund is to support the production of ethanol in Manitoba.

Payments into the fund

10(3)       The following amounts must be paid or credited to the Ethanol Fund:

(a) amounts appropriated by an Act of the Legislature for the fund;

(b) out of the tax collected under The Gasoline Tax Act, for every litre of gasohol on which the tax was collected and not refunded,

(i) 2.0¢, for the period from September 1, 2005 to August 31, 2007,

(ii) 1.5¢, for the period from September 1, 2007 to August 31, 2010, and

(iii) 1.0¢, for the period from September 1, 2010 to August 31, 2013;

(c) any portion of a grant repaid to the minister;

(d) all income accruing to the fund.

Payments out of the fund

10(4)       The Ethanol Fund is to be managed by the minister, who may make payments from the fund to pay the grants to be paid under this Act or the regulations.

Payment to Consolidated Fund

10(5)       Once in each fiscal year, the Lieutenant Governor in Council may transfer to the Consolidated Fund all or any part of the amount standing to the credit of the Ethanol Fund that is not required to pay for grants approved by the minister.

Winding-up of fund

10(6)       On or after March 31, 2015, the Lieutenant Governor in Council may require the Ethanol Fund to be wound up and the balance, if any, to be deposited in the Consolidated Fund.

Fiscal year

10(7)       The fiscal year of the Ethanol Fund ends on March 31 of each year.

Annual financial statement

11          Each year, the minister must prepare a financial statement of the Ethanol Fund and include it in the annual report of the department over which the minister presides.

GASOHOL SALES MANDATE

Penalty for shortfall in gasohol sales

12          A fuel supplier whose gasohol sales for a reporting year beginning after August 31, 2005, do not meet the gasohol sales mandate must pay a penalty to the Minister of Finance on the shortfall, calculated in accordance with the regulations.

Records and reporting

13(1)       A fuel supplier must

(a) keep records in accordance with the regulations; and

(b) provide prescribed information, in a form approved by the Minister of Finance, to the director under The Gasoline Tax Act, along with each monthly report that the fuel supplier is required to provide under that Act.

Annual report and payment

13(2)       The monthly report for the last month of a reporting year must include

(a) a calculation of the fuel supplier's shortfall, if any, in gasohol sales for the year, as determined under the regulations; and

(b) if there is a shortfall, payment of the penalty calculated in accordance with the regulations.

Regulations by Minister of Finance

13(3)       The Minister of Finance may make regulations

(a) establishing recordkeeping requirements for fuel suppliers in respect of purchases and sales of denatured ethanol and gasohol and other gasoline based fuels;

(b) prescribing the information to be provided to the director under this section.

Records to be made available in Manitoba

14(1)       Every fuel supplier must

(a) make his or her records that are relevant to the administration of this Act available for inspection, examination and audit; and

(b) if the records are not made available in Manitoba, pay to the Minister of Finance the amount assessed by the minister for expenses necessarily incurred in inspecting, examining or auditing them at the place where they are kept.

Order as to books and records

14(2)       If in the opinion of the Minister of Finance, a fuel supplier's records are inadequate for the purposes of this Act, the minister may, by written order, direct the fuel supplier as to how they are to be kept. The fuel supplier must then keep them as directed.

Notice of assessment

15(1)       If after an audit or inspection it appears to the director under The Gasoline Tax Act that a fuel supplier has an unreported shortfall in gasohol sales, the director may issue a notice of assessment to the fuel supplier. The notice must set out

(a) the director's determination of the unreported shortfall, which may be based on an estimate if the the fuel supplier's records are incomplete;

(b) the amount of the penalty payable under section 12 on account of the shortfall; and

(c) the interest accrued on that penalty from the day it was due until the day of the assessment.

Objection

15(2)       The fuel supplier may object to the director's assessment by filing a notice of objection with the Minister of Finance within 60 days after receiving the notice of assessment. The notice of objection must set out the relevant facts and the reasons for the objection.

Minister to rescind, vary or affirm assessment

15(3)       Upon receipt of a notice of objection, the Minister of Finance must

(a) consider the director's assessment and the fuel supplier's objection; and

(b) by written notice to the fuel supplier, affirm, set aside or vary the assessment.

Appeal to Court of Queen's Bench

15(4)       Within 60 days after receiving the notice of the Minister of Finance's decision, the fuel supplier may appeal the assessment, as varied or affirmed by the minister, to the Court of Queen's Bench by filing a notice of appeal.

Notice of appeal

15(5)       The notice of appeal must set out the relevant facts and the grounds for the appeal, and the fuel supplier must serve a copy of it on the Minister of Finance within seven days after filing it in the court.

Onus

15(6)       In an appeal to the court, the onus is on the fuel supplier to disprove the assessment.

Powers of court

15(7)       After hearing the evidence adduced by the fuel supplier and the Minister of Finance, the court may

(a) affirm, set aside or vary the assessment; and

(b) make any order as to costs it considers appropriate.

Debt

16(1)       The following amounts are deemed to be a debt due to the government by the fuel supplier:

(a) a penalty payable by the fuel supplier under section 12;

(b) an amount payable by the fuel supplier under subsection 14(1).

Interest

16(2)       The debt bears interest, as prescribed by regulation under The Financial Administration Act, from the day the penalty is due until it is paid.

Certificate of debt

16(3)       The Minister of Finance may issue a certificate as to the amount of the debt and the applicable rate of interest, and file the certificate in the Court of Queen's Bench. Once filed, it may be enforced against the fuel supplier as a judgment of the court in favour of the Crown in right of Manitoba.

Additional powers to enforce payment of debt

16(4)       Sections 16 to 18 of The Gasoline Tax Act also apply, with necessary changes, to the collection of a debt under this Part.

PART 3

ADMINISTRATION AND ENFORCEMENT

Inspectors

17          The minister may designate persons as inspectors for the purposes of this Act and issue inspector identification cards to those persons. Every peace officer is also an inspector for the purposes of this Act.

Power of entry

18(1)       For the purposes set out in subsection (2), an inspector may at any reasonable time enter

(a) business premises occupied by any person involved

(i) in manufacturing, buying or selling denatured ethanol or blending it with gasoline, or

(ii) in storing, transporting or selling gasoline or any blend of gasoline and denatured ethanol in Manitoba; or

(b) other premises where the person's business records are kept.

Purposes of entry

18(2)       The purposes for which an inspector may enter premises under this section are as follows:

(a) to determine whether this Act, the regulations, and the terms or conditions applicable to any licence issued or grant made under this Act are being or have been complied with;

(b) to inspect, audit or examine records to be kept under this Act or the regulations, or under the terms or conditions applicable to any licence issued or grant made under this Act;

(c) to ascertain the quantities of denatured ethanol on hand, manufactured, bought or sold by the person, and from whom it was bought and to whom it was sold;

(d) to ascertain the quantities of different types of gasoline-based fuel on hand, bought or sold by the person, and from whom it was purchased and to whom it was sold.

Identification card

18(3)       An inspector other than a peace officer must show his or her inspector identification card if requested to do so during an inspection.

Assistance to inspector

18(4)       The owner or person in charge of the premises or the relevant records must give the inspector all reasonable assistance to enable the inspector to carry out his or her duties, and must furnish the inspector with any information that the inspector reasonably requires.

Right to take samples

18(5)       An inspector may

(a) examine fuel on any premises that the inspector is allowed to enter under this section, including fuel in any tank, container or other receptacle; and

(b) take fuel samples.

Access to digital records and copier

18(6)       In carrying out an inspection under this section, the inspector may

(a) require the owner or person in charge of the premises or the relevant records to produce for inspection a computer printout of any relevant records that are stored in digital form; and

(b) use any copying equipment at the place of inspection to make copies of any record.

Inspector may remove records to make copies

18(7)       An inspector who is not able to make copies of records at the place of inspection may remove them in order to make copies. The inspector must make the copies as soon as practicable and return the originals to the person or place from which they were removed.

No entry of residence without consent or warrant

19(1)       Subsection 18(1) does not permit an inspector to enter a dwelling occupied as a residence without the consent of the occupier. But an inspector may enter such a dwelling under the authority of a warrant issued under subsection (2).

Warrant to enter residence

19(2)       Upon being satisfied by information on oath that premises occupied as a residence contain records that there are reasonable grounds to believe are relevant to a matter referred to in subsection 18(2), a justice may issue a warrant authorizing a person named in the warrant to enter the premises for the purposes set out in that subsection.

Written demand for records

20(1)       The minister or an inspector may serve a written demand on any person, including a director, officer or employee of a corporation, requiring the person to produce for audit, inspection or examination any records in the person's control or possession that relate to a matter referred to in subsection 18(2).

Person to comply

20(2)       The person served with the demand must comply with it within the time specified in the demand.

Copies as evidence

21          A document certified by the minister or an inspector to be a copy of a record obtained under this Part

(a) is admissible in evidence without proof of the office or signature of the person purporting to have made the certificate; and

(b) has the same probative force as the original record.

Warrant to enter and seize

22          A justice who is satisfied by information on oath that there are reasonable and probable grounds to believe that

(a) a violation of this Act or the regulations has occurred or is occurring; and

(b) something that affords evidence of the violation is to be found in a building, receptacle, vehicle, or place in the province;

may at any time, and where necessary on application without notice, issue a warrant authorizing an inspector, together with any peace officer on whom the inspector calls for assistance and any other persons named in the warrant, to enter and search the building, receptacle, vehicle, or place for the thing and to seize and retain it for production in any court proceedings.

Offences

23(1)       A person commits an offence who

(a) makes, or assents to or participates or acquiesces in the making of, a false or misleading statement in any application, report or other document provided to the minister or an inspector under this Act or the regulations;

(b) destroys, alters or fails to keep any record required to be kept under this Act or the regulations;

(c) fails to provide a record or report as required under this Act or the regulations;

(d) obstructs or interferes with, or attempts to obstruct or interfere with, any person acting or attempting to act under the authority of this Act or the regulations;

(e) manufactures, blends or sells denatured ethanol in contravention of this Act;

(f) falsely represents a product as denatured ethanol or gasohol;

(g) fails to pay a penalty under Part 2 in respect of a shortfall in gasohol sales.

Penalty

23(2)       Every person who is guilty of an offence under subsection (1) is liable on summary conviction

(a) in the case of an individual, to a fine of not more than $10,000.; and

(b) in the case of a corporation, to a fine of not more than $50,000.

Directors and officers

23(3)       If a corporation commits an offence under subsection (1), a director or officer of the corporation who authorized, permitted or acquiesced in the commission of the offence is also guilty of the offence and is liable on summary conviction to a fine of not more than $10,000., whether or not the corporation has been prosecuted or convicted.

PART 4

MISCELLANEOUS

Minister may delegate

24          The minister may delegate to one or more employees of the government any of the powers conferred or duties imposed on the minister under this Act, except the power to make regulations.

Regulations by L. G. in C.

25(1)       The Lieutenant Governor in Council may make regulations

(a) to define "gasoline" and any other term that is used but not defined in this Act;

(b) prescribing specifications for denatured ethanol;

(c) respecting the blending of gasoline and denatured ethanol, and prescribing the specifications for gasohol;

(d) respecting the Ethanol Fund and its administration;

(e) for the purposes of the gasohol sales mandate,

(i) prescribing the proportion of a fuel supplier's sales of gasoline-based fuel that must consist of sales of gasohol in order to avoid a penalty under section 12,

(ii) prescribing the reporting year,

(iii) prescribing the method of calculating any shortfall in gasohol sales, and

(iv) prescribing the method of calculating the penalty payable in respect of a shortfall;

(f) respecting the disclosure and use of information collected in the administration and enforcement of this Act;

(g) respecting any matter the Lieutenant Governor in Council considers necessary or desirable to carry out the purposes of this Act.

Regulation re gasohol sales mandate

25(2)       The proportion prescribed under subclause (1)(e)(i) cannot exceed 85% before September 1, 2007.

Regulations by minister

25(3)       The minister may make regulations

(a) respecting licensing of manufacturers and blenders of denatured ethanol;

(b) establishing recordkeeping and reporting requirements for licence holders and persons who bring denatured ethanol into Manitoba.

C.C.S.M. c. G40 amended

26(1)        This section amends The Gasoline Tax Act.

26(2)        Section 1 is amended

(a) in the definition "bulk gasoline", by striking out ", aircraft gasoline or gasohol";

(b) by repealing the definitions "denatured alcohol" and "gasohol"; and

(c) in clause (c) of the definition "gasoline", by striking out "gasohol" and substituting "a mixture of gasoline and ethanol".

26(3)        Subsection 2(1) is amended

(a) by striking out "or" at the end of clause (c); and

(b) by repealing clause (d).

26(4)        Subsections 2(6) and (7) are repealed.

26(5)        Clause 2(23)(a) is amended by striking out "or gasohol".

26(6)        Subsection 2(24) is repealed.

26(7)        Subsection 2(25) is amended

(a) by striking out "subsections (23) and (24), or any of them" and substituting "subsection (23)";

(b) by striking out ", aircraft gasoline, and gasohol" and substituting "and aircraft gasoline"; and

(c) by striking out ", (5) or (6)" and substituting "or (5)".

26(8)        Subsection 2(26) is amended

(a) by striking out "or (24) or both" in the part before clause (a);

(b) by striking out "or" at the end of clauses (b) and (e); and

(c) by repealing clauses (c) and (f).

26(9)        Subsection 4(1) is amended by striking out "or gasohol".

26(10)       Subsections 4(5), (6) and (9) are repealed.

26(11)       Subsection 5(4) is amended by striking out "or denatured alcohol".

26(12)       Subsections 15(1), (2), (3) and (4) are amended by striking out "or gasohol" wherever it occurs.

26(13)       Subsection 19(2) is amended by striking out "and gasohol".

26(14)       Subsection 32(2) is amended

(a) in the section heading, by striking out "and denatured alcohol"; and

(b) in the subsection, by striking out "or blends denatured alcohol with gasoline for resale as gasohol".

26(15)       Subsection 37(1) is amended by striking out "All moneys" and substituting, "Except for amounts to be paid to the Ethanol Fund under The Biofuels Act, all moneys".

26(16)       Section 39 is amended

(a) by repealing clause (w); and

(b) in clause (x), by striking out "and gasohol".

C.C.S.M. reference

27          This Act may be referred to as chapter B40 of the Continuing Consolidation of the Statutes of Manitoba.

Coming into force

28          This Act comes into force on a day fixed by proclamation.

Explanatory Note

This Bill is designed to encourage the production and use of fuel derived from plant and animal materials in Manitoba.

It establishes the Ethanol Fund, which will be funded by a portion of provincial gasoline tax revenues for 8 years. The fund will be used to pay grants to producers for ethanol produced and consumed in Manitoba. This program will replace the current gasohol tax preference.

It also establishes a gasohol sales mandate under which a portion of gasoline fuel sales must consist of gasohol, a blend of gasoline and ethanol to be prescribed by regulation. This mandate will be applied to those who directly or indirectly supply gasoline to retail outlets in Manitoba and who, as collectors under The Gasoline Tax Act, are required to remit gasoline tax to the Minister of Finance.

The Bill also makes consequential amendments to The Gasoline Tax Act.