EXECUTIVE ORDER NO. 172
EXECUTIVE ORDER NO. 172 - CREATING
THE ENERGY REGULATORY BOARD
WHEREAS,
the institutional set-up in the energy sector is such that there are a
number of regulatory bodies and supervisory Departments/Offices which
provide the policy guidelines and regulatory framework for the
activities and operations within the sector;
WHEREAS, in order to achieve a more coherent and effective policy
formulation, coordination, implementation and monitoring within the
energy sector, it is necessary to consolidate and entrust in one body
all the regulatory and adjudicatory functions covering the energy
sector;
WHEREAS, the concerns for national security and public interest
articulated in Republic Act No. 6173, which created an independent Oil
Industry Commission, still retain their validity and urgency at
present; and
WHEREAS, Executive Order No. 5 (1986), directs that necessary and
appropriate changes in the organizational and functional structures of
the government, its agencies and instrumentalities be effected to
promote efficiency and effectiveness in the delivery of public services;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by
virtue of the powers vested in me by the Constitution, do hereby order:
Section 1. Energy Regulatory Board. — There is hereby
created an independent Energy Regulatory Board, hereinafter referred to
as the Board, the nucleus of which shall be present Board of Energy.
The Board shall be composed of a Chairman and four (4) Members to be
appointed by the President, with the consent of the Commission on
Appointments. The Chairman and the Board Members shall be natural-born
citizens and residents of the Philippines.n addition, the Chairman and
the Board Members shall be persons of good moral character, at least
thirty-five (35) years of age, and of recognized competence in the
field of law, economics, finance, banking, commerce, industry,
agriculture, engineering, management or labor.
The term of office of the Chairman and the Board Members shall be four
(4) years, but the first Chairman to be appointed shall hold office for
four (4) years, and of the first four (4) Members, two (2) shall hold
office for a term of two (2) years, and two (2) shall hold office for a
term of three (3) years. No person may be appointed to serve more than
two (2) successive terms in the Board.
Three (3) members of the Board shall constitute a quorum and the vote
of three (3) Members shall be necessary for the adoption of any rule,
ruling, order, resolution, decision or other act of the Board in the
exercise of its quasi-judicial functions. The Board shall have its
office in Metro Manila or such other place as may be designated, and
may hold hearings of any proceedings at such times and places within
the Philippines, as it may provide by order in writing.
The Chairman and the Board of Members shall devote their full time to
the Board and shall not accept any other employment.
The Chairman of the Board shall receive a compensation equal to that of
a Department Undersecretary while the Board Members shall each receive
a compensation equal to that of an official next in rank to a
Department Undersecretary.
The Chairman and the Members of the Board, upon completion of their
terms or upon becoming eligible for retirement under existing laws
shall be entitled to the same retirement benefits and privileges
provided for the Chairman and Members of the Commission on
Elections.
Sec. 2. Staff . — The Board shall appoint and
maintain an adequate staff, which shall include an Executive Director
who shall be a member of the Philippine Bar with at least five (5)
years of experience in the active practice of law in the Philippines or
in the discharge of an office requiring as an indispensable requisite
admission to the practice of law in the Philippines. He shall be the
recorder and official reporter of the proceedings of the Board and
shall have authority to administer oaths in all matters falling within
the jurisdiction of the Board. He shall be custodian of the records,
maps, profiles, tariffs, reports and other documents and papers filed
in connection with any case or proceedings before the Board. He shall
likewise be responsible for the effective implementation of the
policies, rules and directives promulgated by the Board, shall
coordinate and supervise the activities of the different operating
units and shall perform such functions as may be assigned to him by the
Chairman and/or by the Board.
The Members of the technical staff, except for those performing purely
clerical functions, shall possess at least a bachelor’s degree in the
line of specialization required by their respective positions.
Sec. 3. Jurisdiction, Powers and Functions of the
Board. — When warranted and only when public necessity requires, the
Board may regulate the business of importing, exporting, re-exporting,
shipping, transporting, processing, refining, marketing and
distributing energy resources. Energy resource means any substance or
phenomenon which by itself or in combination with others, or after
processing or refining or the application to it of technology,
emanates, generates or causes the emanation or generation of energy,
such as but not limited to, petroleum or petroleum products, coal,
marsh gas, methane gas, geothermal and hydroelectric sources of energy,
uranium and other similar radioactive minerals, solar energy, tidal
power, as well as non-conventional existing and potential
sources.
The Board shall, upon proper notice and hearing, exercise the
following, among other powers and functions:
(a)
Fix and regulate the prices of petroleum products;
(b) Fix and
regulate the rate schedule or prices of piped gas to be charged by duly
franchised gas companies which distribute gas by means of underground
pipe system;
(c) Fix and
regulate the rates of pipeline concessionaires under the provisions of
Republic Act No. 387, as amended, otherwise known as the “Petroleum Act
of 1949,” as amended by Presidential Decree No. 1700;
(d) Regulate
the capacities of new refineries or additional capacities of existing
refineries and license refineries that may be organized after the
issuance of this Executive Order, under such terms and conditions as
are consistent with the national interest;
(e) Whenever
the Board has determined that there is a shortage of any petroleum
product, or when public interest so requires, it may take such steps as
it may consider necessary, including the temporary adjustment of the
levels of prices of petroleum products and the payment to the Oil Price
Stabilization Fund created under Presidential Decree No. 1956 by
persons or entities engaged in the petroleum industry of such amounts
as may be determined by the Board, which will enable the importer to
recover its cost of importation.
Sec. 4. Reorganized or Abolished Agency. — (a) The
Board of Energy is hereby reconstituted into the Energy Regulatory
Board, and the former’s powers and functions under Republic Act No.
6173, as amended by Presidential Decree No. 1208, as amended, are
transferred to the latter.
(b) The regulatory and adjudicatory powers and
functions exercised by the Bureau of Energy Utilization under
Presidential Decree No. 1206, as amended, are transferred to the Board,
the provisions of Executive Order No. 131 notwithstanding.
Sec. 5. Other Transferred Powers and Functions. —
The power of the Land Transportation Commission to determine, fix
and/or prescribe rates or charges pertaining to the hauling of
petroleum products are transferred to the Board. The power to fix and
regulate the rates or charges pertinent to shipping or transporting of
petroleum products shall also be exercised by the Board.
The foregoing transfer of powers and functions shall include applicable
funds and appropriations, records, equipment, property and such
personnel as may be necessary; Provided, That with reference to
paragraph (b) of Sec. 4 hereof, only such amount of funds and
appropriations of the Bureau of Energy Utilization, as well as only the
personnel thereof who are completely or primarily involved in the
exercise by said Bureau of its regulatory and adjudicatory powers and
functions, shall be affected by such transfer: Provided, further, That
the funds and appropriations as well as the records, equipment,
property and all personnel of the reorganized Board of Energy shall be
transferred to the Energy Regulatory Board.
Sec. 6. Power to Promulgate Rules and Perform
Other Acts. — The Board shall have the power to promulgate rules and
regulations relevant to procedures governing hearings before it and
enforce compliance with any rule, regulation, order or other
requirements: Provided, That said rules and regulations shall take
effect fifteen (15) days after publication in the Official Gazette. It
shall also perform such other acts as may be necessary or conducive to
the exercise of its powers and functions, and the attainment of the
purposes of this Order.
Sec. 7. Board Procedures. — All inquiries,
studies, hearings, investigations and proceedings conducted by the
Board shall be governed by rules adopted by the Board, and in the
conduct thereof the Board shall not be bound by the technical rules of
evidence: Provided, That the Board may summarily punish for contempt by
a fine not exceeding five thousand pesos or by imprisonment not
exceeding thirty (30) days or both, any person guilty of such
misconduct in the presence of the Board or so near thereto as to
seriously interrupt any hearing or session or any proceedings before
it, including cases in which a person wilfully fails or refuses,
without just cause, to comply with a summons, subpoena ad
testificandum, subpoena duces tecum, decision or order, rules and
regulations legally issued or promulgated by the Board; or being
present at the hearing, session or investigation, refuses to be sworn
as a witness or to answer questions when lawfully required by the
Board. The sheriff and other police agencies of the place where the
hearing or investigation is conducted shall, upon the request of the
Board, assist it to enforce the provisions of this Section .
The Board may, in any inquiry, study, hearing, investigation or
proceeding, by order in writing, cause the deposition of witnesses
residing within or without the Philippines to be taken in the manner
prescribed by the Rules of Court. Where witnesses reside in place
distant from Manila and it would be inconvenient and expensive for them
to appear personally before the Board, the Board, by proper order,
commission any clerk of court of the Regional Trial Court or any
Metropolitan, City or Municipal Trial Court judge of the Philippines to
take the deposition of witnesses in any case pending before the Board.
It shall be the duty of the official so commissioned to designate
promptly a date or dates for the taking of such deposition, giving
timely notice to the parties, and on said date to proceed to take the
deposition, reducing it to writing. After the deposition have been
taken, the official so commissioned shall certify to the depositions
taken and forward them as soon as possible to the Board. It shall be
the duty of the respective parties to furnish stenographers for taking
and transcribing the testimony taken. In case there are no
stenographers available, the testimony shall be taken in long hand by
such person as the clerk of court, metropolitan, city or municipal
trial court judge may designate. The Board may also commission a notary
public to take the depositions in the same manner as herein
provided.
The Board may also, by proper order, authorize any of its lawyer
members, or lawyer members of its staff, or any of the attorneys of the
legal branch to hear and investigate any case filed with the Board and,
in connection therewith, to receive such evidence as may be material
thereto. At the conclusion of the hearing or investigation, the
attorney or branch chief so authorized shall submit the evidence
received by him to the Board to enable the latter to render its
decision.
Sec. 8. Authority to Grant Provisional Relief . —
The Board may, upon the filing of an application, petition or complaint
or at any stage thereafter and without prior hearing, on the basis of
supporting papers duly verified or authenticated, grant provincial
relief on motion of a party in the case or on its own initiative,
without prejudice to a final decision after hearing, should the Board
find that the pleadings, together with such affidavits, documents and
other evidence which may be submitted in support of the motion,
substantially support the provisional order: Provided, That the Board
shall immediately schedule and conduct a hearing thereon within thirty
(30) days thereafter, upon publication and notice to all affected
parties.
Sec. 9. Effectivity of Board’s Decision or Orders.
— All decisions or orders of the Board to continue an existing service
or determining, fixing and prescribing rates to be charged shall be
immediately operative; and all other decisions or orders shall become
effective upon the dates specified thereon: Provided, however, That
decisions, orders, or resolutions in controverted matters and not
referring to the continuance of an existing service or determining,
fixing and prescribing rates to be charged shall take effect thirty
(30) days after notice to the parties, unless otherwise provided by the
Board.
Sec. 10. Review of the Board’s decision or
Orders. — A party adversely affected by a decision, order or ruling of
the Board, may, within thirty (30) days from notice of such decision,
order or ruling, or in case of a denial of motion for reconsideration
thereof, within fifteen (15) days after notice of such denial, file a
petition to be known as petition for review, with the Supreme Court,
which shall have jurisdiction to review such decision, order or ruling
and to modify or set aside the same when it clearly appears that there
was no evidence before the Board to support reasonably such decision,
order or law, or that it was without the jurisdiction of the Board. The
evidence presented to the Board, together with the record of the
proceedings before the Board, shall be certified by the Executive
Director of the Board to the Supreme Court. Said petition shall be
placed on file in the office of the Clerk of the Supreme Court who
shall furnish copies thereof to the Executive Director of the Board and
other parties interested.
Any decision, order or ruling of the Board may likewise be reviewed by
the Supreme Court upon a writ of certiorari in appropriate cases. The
procedure for review except as herein provided, shall be in accordance
with the rules prescribed by the Supreme Court.
The filing of a petition for a writ of certiorari or other special
remedies in the Supreme Court shall in no case supersede or stay any
decision, order or ruling of the Board, unless the Supreme Court shall
so direct, and the petitioner may be required by the Supreme Court to
give bond in such form and of such amount as may be deemed proper.
Sec. 11. Benefits of Personnel Who may be Laid
Off and Incentives to Employees. — Employees of agencies abolished or
otherwise affected by this reorganization, who are separated from the
service as a result of the implementation of this Order, shall be
entitled to the benefits and privileges provided for under existing
retirement laws; otherwise, they shall be paid the equivalent of
one-month basic salary for every year of service, or the equivalent
nearest fraction thereof favorable to them on the basis of the highest
salary received, but in no case shall such payment exceed the
equivalent of 12 months salary.
Sec. 12. Coordination with Other Agencies. — The
Board shall coordinate with the Department of Energy, Environment and
Natural Resources, the National Economic and Development Authority, the
National Electrification Administration and other appropriate
Government agencies in the exercise of its pertinent functions that
have relation to the functions of the above-mentioned agencies,
particularly as these pertain to the policies, plans, programs and
activities in the field of energy.
Sec. 13. Penalties for Violations. — The
provisions of Section 18 of Republic Act No. 6173, as amended, Sec. 7 (e) of Presidential Decree No. 1206, as amended, and Section s 21 to
28, inclusive, of Commonwealth Act No. 146, as amended, pertaining to
the penalties for violation of or non-compliance with the terms and
conditions of any certificate, license or permit or any order,
decision, rule or regulation of the abolished Oil Industry Commission,
Bureau of Energy Utilization and Public Service Commission, shall, to
the extent applicable and appropriate in the light of the foregoing
transfers of powers and functions, apply to and may be imposed by the
Board.
Sec. 14. Applicability Clause. — The applicable
provisions of Commonwealth Act No. 146, as amended, otherwise known as
the “Public Service Act”; Republic Act No. 6173, as amended, otherwise
known as the “Oil Industry Commission Act”; Republic Act No. 6395, as
amended, revising the charter of the National Power Corporation under
C. A. 120; Presidential Decree No. 269, as amended, also referred to as
the “National Electrification Administration Decree”; and Presidential
Decree No. 1206, as amended, creating the Department of Energy, shall
continue to have full force and effect, except insofar as inconsistent
with this Order.
Sec. 15. Supervision and Control. — The Board
shall be under the administrative supervision of the Office of the
President.
Sec. 16. Separability Clause. — If any provision
of this Order or the application thereof to any person or circumstances
is held invalid, the remainder of the Order and the application of such
provision to other persons or circumstances, shall not be affected
thereby.
Sec. 17. Repealing Clause. — Sec. 4, paragraph
4, and Sec. 5 (c) of Executive Order No. 131 are hereby repealed.
All laws, decrees, executive orders, administrative orders, rules and
regulations inconsistent herewith are hereby repealed, amended, or
modified accordingly.
Sec. 18. Effectivity. — The Executive Order shall
take effect immediately.
Done in the City of Manila,
this 8th day of May, in the year of Our Lord, nineteen hundred and
eighty-seven.
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