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ORDER OF THE MINISTER OF THE INDUSTRY AND INFRASTRUCTURE DEVELOPMENT OF THE REPUBLIC OF KAZAKHSTAN

of April 30, 2019 No. 256

About approval of Rules of implementation of activities by subjects of natural monopolies

According to the subitem 6) article 8 of the Law of the Republic of Kazakhstan of December 27, 2018 "About natural monopolies" PRIKAZYVAYU:

1. Approve the enclosed Rules of implementation of activities by subjects of natural monopolies.

2. To provide to committee of civil aviation of the Ministry of the industry and infrastructure development of the Republic of Kazakhstan in the procedure established by the legislation:

1) state registration of this order in the Ministry of Justice of the Republic of Kazakhstan;

2) within ten calendar days from the date of state registration of this order the direction it in the Kazakh and Russian languages in the Republican state company on the right of economic maintaining "Institute of the legislation and legal information of the Republic of Kazakhstan", for official publication and inclusion in Reference control bank of regulatory legal acts of the Republic of Kazakhstan;

3) placement of this order on Internet resource of the Ministry of the industry and infrastructure development of the Republic of Kazakhstan.

3. To impose control of execution of this order on the supervising vice-minister of the industry and infrastructure development of the Republic of Kazakhstan.

4. This order becomes effective after ten calendar days after day of its first official publication.

Minister of the industry and infrastructure development of the Republic of Kazakhstan

R. Sklyar

It is approved

Ministry of national economy of the Republic of Kazakhstan

 

Approved by the Order of the Minister of the industry and infrastructure development of the Republic of Kazakhstan of April 30, 2019 No. 256

Rules of implementation of activities by subjects of natural monopolies

Chapter 1. General provisions

1. These rules of implementation of activities by subjects of natural monopolies (further - Rules) are developed according to the subitem 6) of article 8 of the Law of the Republic of Kazakhstan of December 27, 2018 "About natural monopolies" (further - the Law) and extend to subjects of natural monopolies in the field of services of the airports and air navigation.

2. These rules determine:

1) procedure for inclusion and exception of the State register of subjects of natural monopolies;

2) procedure for carrying out public hearings;

3) procedure for issue of consent to making of separate actions by the subject of natural monopoly, and also acceptance from the subject of natural monopoly of the notification on implementation of the activities which are not relating to regulated services according to the Law of the Republic of Kazakhstan "About permissions and notifications";

4) procedure for carrying out purchases by subjects of natural monopolies;

5) procedure for providing equal conditions of access to regulated services;

6) procedure for carrying out performance reports of the approved tariff estimates, about execution of the approved investing programs, about observance of indicators of quality and reliability of regulated services and achievement of performance indicators of activities of subjects of natural monopolies before consumers and other interested persons;

7) procedure for placement of information on availability of free and available capacities, reservoirs, places of the subject of natural monopoly, except for the data relating to the state secrets and other secret protected by the law according to the laws of the Republic of Kazakhstan;

8) approval procedure of performance indicators of activities of subjects of natural monopolies;

9) procedure of the state control in spheres of natural monopolies;

10) procedure for informing consumers and (or) authorized body about rate, its change;

11) approval procedure of indicators of quality and reliability of regulated services;

12) procedure for carrying out public monitoring and (or) technical expertize of execution of the approved investing program, observance of indicators of quality and reliability of regulated services and achievement of performance indicators of activities of subjects of natural monopolies;

13) forms:

petitions for consent on transactions with the property used for provision of regulated service if book value of the property considered in the balance sheet for the beginning of the current year exceeds percent 0,05 from book value of its assets according to the balance sheet for the beginning of the current calendar year, and reorganization or liquidation of the subject natural monopolies;

reports of the subject of natural monopoly before consumers and other interested persons:

about execution of the approved tariff estimate;

about execution of the approved investing program;

about observance of indicators of quality and reliability of regulated services;

about achievement of performance indicators of activities of subjects of natural monopolies.

3. In these rules the following basic concepts and terms are used:

1) the potential supplier - the physical person performing business activity, the legal entity, temporary consolidation legal entities (consortium) applying for the conclusion with the subject of natural monopoly of the purchase agreement;

2) tender (tender) - the purchase method providing the competition between potential suppliers and directed to detection of the most advantageous conditions of the agreement of purchase;

3) the tender (tender) committee - the collegiate organ created by the subject of natural monopoly for accomplishment of the procedure of carrying out purchases by method of tender (tender), the provided these rules;

4) tender (tender) documentation - documentation submitted to the potential supplier for preparation of the bid (tender) which contains requirements to the bid (tender), conditions and procurement procedure by method of tender (tender);

5) target measure value - the digital measure value approved by authorized body which is reached by the subject of natural monopoly on completion of the period of action of rate using the stimulating method of tariff regulation;

6) property of the subject of natural monopoly, transactions with which provide receipt of consent of authorized body - the real and personal estate which is in property of the subject of natural monopoly used for provision of regulated services and considered in the balance sheet for the beginning of the current year which cost exceeds percent 0,05 from book value of its assets according to the balance sheet for the beginning of the current year, except for money, including foreign currency;

7) purchase - acquisition by the subject of natural monopoly of goods, works and services;

8) the expert - the physical person having special and (or) technical knowledge, experience and qualification in the field of the carried-out purchases, the confirmable relevant documents (diplomas, certificates, certificates and other documents), attracted by the subject of natural monopoly or the customer to participation in development of the specification and (or) the technical specification of the purchased goods, works, services and (or) preparation of the expert opinion concerning compliance of proposals of potential suppliers of the technical specification of the purchased goods, works, services;

9) the slot - time allocated at the airport for accomplishment of transactions of arrival or departure of the aircraft of airline in certain date or the period;

10) the affiliate of the subject of natural monopoly - person (except for the state bodies performing regulation of its activities within the conferred powers) who has opportunity directly and (or) indirectly to determine decisions and (or) to exert impact on the decisions made by the subject of natural monopoly, including owing to the agreement, including the verbal agreement, or other transaction, and also any person concerning whom the subject of natural monopoly has such right;

11) the technical expert (the expert organization) - the physical person or legal entity rendering services in conducting technical expertize;

12) technical expertize - the analysis of technical condition (technical characteristics) of the involved assets, efficiency of engineering procedure of production, assessment of execution of investing programs, level of involvement and justification of distribution of fixed assets by types of the provided regulated services;

13) Aeronautical Information Circular - The bulletin of aeronautical information - the circular letter of aeronautical information (further - AIC);

14) Aeronautical Information Publication - The collection of Aeronautical Information - the collection of aeronautical information of the Republic of Kazakhstan (further - AIP);

15) NOtice To AirMen (further - NOTAM) - the notification containing information on introduction in system or to change of any aeronautical equipment (or, regulations of its work), servicing and rules of flights; or, information on danger, the timely prevention which is important for safety of flights.

Other determinations and terms used in these rules are applied according to the current legislation of the Republic of Kazakhstan.

Chapter 2. Procedure for inclusion and exception of the State register of subjects of natural monopolies

Paragraph 1. Forming of the State register of subjects of natural monopolies

4. The state register of subjects of natural monopolies (further - the Register) is created in electronic form according to appendix 1 to these rules.

5. The republican Section of the Register creates and conducts authorized body.

The subjects of natural monopolies providing regulated services in the field of the airports and air navigation join in the republican Section of the Register.

6. Action of these rules does not extend to the individual entrepreneurs and legal entities performing activities according to item 4 of article 3 of the Law.

Paragraph 2. Inclusion and exception of the Register

7. The individual entrepreneur or the legal entity providing regulated services files in authorized body petition for its inclusion in the Register in form according to appendix 2 to these rules with application of documents, the these rules specified in Item 8 no later than 15 (fifteen) calendar days from the date of the beginning of provision of regulated service to consumers.

8. For inclusion in the Register, the applicant provides the following documents in authorized body:

1) licenses, permissions (notification) in paper form or in the form of the electronic document, received according to the legislation of the Republic of Kazakhstan on permissions and notifications, data on which prove to be true in information systems of state bodies. In case of lack of data in information systems of state bodies the potential supplier represents notarially attested copy of the corresponding permission (notification), the license;

2) the list, being on balance of the applicant, or being in lease or in trust management of the engineering networks and constructions necessary for provision of regulated services for consumers in the conditions of natural monopoly, and also the schematic map, (the specified documents are signed by the first head or replacement his face);

3) calculations of the planned provision amounts to consumers of regulated services in the field of natural monopolies;

4) documents the containing data on implementation of the activities which are not relating to regulated services and (or) referred to the sphere of natural monopoly;

5) the balance sheet of the company for previous period (year, quarter);

6) the report on results of financial and economic activities with disaggregation of the income and expenses for the main and nonbasic activities, signed by the head, the chief accountant, in the cases provided by the laws, and under seal (except for the legal entities belonging to subjects of private entrepreneurship) for the period rendering regulated services, for previous period.

The statement and documents provided by this Item move the applicant in paper form.

The application for inclusion in the Register is considered by authorized body no more than 30 (thirty) calendar days on condition of provision of the documents specified in this Item of Rules. The term of consideration of the application is estimated from the date of submission of documents.

9. In case of change of form and content any of specified in subitems 3) - 5) Item 8 of these rules of documents, the subject of natural monopoly represents copies of these documents no later than 15 (fifteen) calendar days after making of the specified changes or amendments.

10. The subject of natural monopoly according to Item 7 of article 11 of the Law no later than 15 (fifteen) calendar days from the date of the termination of provision of regulated service submits in authorized body the application for exception of the Register in form according to appendix 3 to these rules and the documents confirming the termination of provision to them the regulated service referred to the sphere of natural monopoly. At the same time, the application is signed by the first head or replacement his face.

The application for exception of the Register is considered by authorized body no more than 30 (thirty) calendar days on condition of provision of supporting documents about the termination of implementation by the subject of natural monopoly of the activities referred to the sphere of natural monopoly. The term of consideration of the application is estimated from the date of receipt of the statement and the documents attached to it.

11. The bases for exception of the subject natural monopolies from the Register, are:

reorganization of the subject of natural monopoly, entailed the termination of implementation by it of the activities referred to the sphere of natural monopoly;

liquidation of the subject of natural monopoly;

the judgment about bankruptcy of the subject of natural monopoly;

the decision on transfer of the fixed assets used when implementing the activities referred to the sphere of natural monopoly from balance of the subject of natural monopoly on balance of other subject including transfer of such fixed assets to trust management;

the decision on withdrawal of fixed assets of the subject of natural monopoly according to the judgment;

the decision on property acquisition, the subject of natural monopoly, engineering networks and constructions necessary for implementation of the activities referred to the sphere of natural monopoly which is on balance;

termination of the contract of lease of the fixed assets used when implementing the activities referred to the sphere of natural monopoly;

the documents testimonial of the termination of implementation of the activities referred to the sphere of natural monopoly by it.

12. In case of exception of regulated service of the List of regulated services approved according to the subitem 32) of article 8 of the Law, the authorized body independently excludes it from the Register.

13. The decision on inclusion (exception) of the subject of natural monopoly in the Register (from the Register) is drawn up by the order of the head of the authorized body or person fulfilling its duties.

14. The authorized body, no later than 5 (five) calendar days after decision making about inclusion (exception) of the subject of natural monopoly in the Register (from the Register), notifies on it this subject of natural monopoly, but no later than 30 (thirty) calendar days from the date of receipt of the statement and the documents attached to it.

15. The bases for refusal in inclusion (exception) of the subject of natural monopoly in the Register (from the Register) are:

1) establishment of unauthenticity of the submitted documents and (or) these (data) containing in them;

2) discrepancy of the applicant and (or) the provided materials, objects, supplied and the information to the requirements established by regulatory legal acts of the Republic of Kazakhstan;

3) concerning the applicant there is decision (sentence) of court on prohibition of activities or separate types of activity which took legal effect;

4) concerning the applicant there is judgment which took legal effect based on which the applicant is deprived of the special right connected with implementation of the related activity.

16. The claim to actions (failure to act) of authorized body and (or) their officials concerning inclusion and (or) exceptions of the Register moves in higher state body (official) or court.

Chapter 3. Procedure for carrying out public hearings

Paragraph 1. General provisions

17. The purpose of carrying out public hearings is ensuring publicity, knowledge, respect for balance of consumer interests and subjects of natural monopolies, transparency of the procedure of forming of rates (the prices, rates of charges).

18. The authorized body carries out public hearings in case of approval of rate in cases and terms, stipulated in Item the 13th article 15 of the Law.

The report of the subject of natural monopoly before consumers and other interested persons in the form of public hearing is carried out according to the procedure, determined by these rules and in terms, stipulated in Item the 6th article 25 of the Law.

Paragraph 2. Procedure of carrying out public hearings

19. The authorized body in 30 (thirty) calendar days prior to day of carrying out public hearings on discussion of the project of rate places on the Internet resource and publishes the announcement of carrying out public hearings in the periodic printing edition.

In case of settlement of a tariff by method of indexation and determination of rate based on the signed agreement of public-private partnership, including the agreement of concession, the subject of natural monopoly places on the Internet resource or in the periodic printing editions distributed to the territories of the corresponding administrative and territorial unit, information on date and the venue of public hearings in 30 (thirty) calendar days prior to their carrying out.

Public hearings are carried out in time, not later than 30 (thirty) calendar days before approval of rate.

Public hearings are carried out in time, not later than 10 (ten) calendar days before approval of rate:

in case of approval of rate in the simplified procedure;

in case of change of the approved investing program in connection with implementation of state programs of the Republic of Kazakhstan;

in case of non-compliance with indicators of quality and reliability of regulated services;

in case of not achievement of performance indicators of activities of subjects of natural monopolies.

20. The announcement of the forthcoming public hearing includes the following data:

1) date, place and time of carrying out hearings;

2) the name of the subject of natural monopoly and regulated services on which the application is submitted;

3) contact telephone numbers of authorized body and subject of natural monopoly on which receipt of information is possible.

21. Public hearings on discussion of the project of rate are carried out with the invitation of deputies of Parliament of the Republic of Kazakhstan, maslikhats, representatives of local government bodies, state bodies, the subject of natural monopoly, mass media, public associations, independent experts, consumers and other interested persons.

22. The subject of natural monopoly after publication of the announcement of date of public hearings represents upon the demand of participants of public hearings before carrying out public hearings:

projects of rate and tariff estimate;

information on the reasons of change of rate for regulated services with economically reasonable calculations.

23. Hearings are carried out in the room determined by authorized body with providing easy access.

24. For carrying out public hearings from number of persons employed of authorized body the order of the head appoints the chairman of public hearings (further - the Chairman) and the secretary of public hearings who takes the protocol.

25. In the course of carrying out public hearings on discussion of the project of rate the protocol and the shorthand report of discussions is taken.

26. The chairman establishes regulations for each public hearings.

27. The chairman opens in due time hearings, announces their purpose and the agenda. The chairman informs participants of regulations of carrying out hearings.

28. In the performance the subject of natural monopoly makes detailed explanation and reasons for the offered project of rate with appendix of confirmatory photos, video records (in the presence).

29. The chairman asks questions speaking at public hearings, states the line item on cases in point, interrupts performance of the participant of hearings violating regulations of hearings, and also the performances which are not concerning subject of public hearings.

30. Participants of public hearings express the point of view, opinions on case in point, ask questions to speakers, use in the performance auxiliary materials (posters, schedules and others).

31. The chairman sums up the results of hearings and closes public hearings.

32. The authorized body places on the Internet resource - results of the carried-out public hearings on discussion of the project of rate, including the shorthand report of discussions, protocols of meetings with the made decisions on cases in point within 10 (ten) calendar days after day of their carrying out.

Chapter 4. Procedure for issue of consent to making of separate actions by the subject of natural monopoly, and also acceptance from the subject of natural monopoly of the notification on implementation of the activities which are not relating to regulated services according to the Law of the Republic of Kazakhstan "About permissions and notifications"

33. The authorized body agrees to implementation of the following actions:

1) transactions with the property used for provision of regulated service if book value of the property considered in the balance sheet for the beginning of the current year exceeds percent 0,05 from book value of its assets according to the balance sheet for the beginning of the current year;

2) reorganization or liquidation.

34. The authorized body places on the Internet resource the register of the issued soglasiya on making of separate actions by the subject of natural monopolies.

35. For receipt of consent of authorized body to transactions with the property used for provision of regulated service if book value of the property considered in the balance sheet for the beginning of the current calendar year exceeds percent 0,05 from book value of its assets according to the balance sheet for the beginning of the current calendar year the subject of natural monopoly represents:

1) the petition in form 1 according to appendix 4 to these rules;

2) the statement confirmation from the balance sheet for the beginning of the current calendar year signed by the head of the subject of natural monopoly with indication of the name, type, type, accession number, original, residual cost of alienable property by on alienable objects.

36. The subject of natural monopoly for receipt of consent of authorized body to reorganization or liquidation represents:

1) the petition in form 2 according to appendix 4 to these rules;

2) the copy of the transfer act - in case of merge, accession, transformation;

3) the copy of the separation balance sheet - in case of separation, allocation;

4) the copy of the liquidation balance sheet - in case of liquidation.

37. For making of separate actions, stipulated in Item 33 these rules, the subject of natural monopoly provides in authorized body the petition for consent on implementation of such actions in forms 1 and 2 according to appendix 4 to these rules and to submit documents according to Items 3 and 4 of article 13 of the Law.

38. The documents attached to the petition are submitted by the subject of natural monopoly according to the inventory.

39. The submitted financial records are signed by the first head and the chief accountant in cases the provided laws or persons replacing them in the presence of supporting documents.

40. Receipt of consent of authorized body is performed before transactions with the property used for provision of regulated service if book value of the property considered in the balance sheet for the beginning of the current year exceeds percent 0,05 from book value of its assets according to the balance sheet for the beginning of the current year.

41. The subject of natural monopoly in case of submission of the petition can independently in addition to the submitted documents, to send to authorized body information which, according to the subject of natural monopoly, is important for consideration of the petition.

42. The authorized body considers the petition on transactions with the property used for provision of regulated service if book value of the property considered in the balance sheet for the beginning of the current year exceeds percent 0,05 from book value of its assets according to the balance sheet for the beginning of the current year and reports to the subject natural in writing about the made decision no later than 10 (ten) working days from the date of its obtaining.

The authorized body considers the petition on reorganization or liquidation no later than 5 (five) working days from the date of its obtaining.

43. The authorized body refuses satisfaction of the petition in cases if:

It will lead 1) to increase in rate;

It will lead 2) to agreement breach with consumers;

It will lead 3) to infringement of the rights and legitimate interests of consumers;

It will lead 4) to violation of inseparably linked technology system of provision of regulated service or decline in quality of regulated service;

5) the incomplete document package, the these rules provided by Items 35 and 36 is provided, or the provided documents contain unreliable information (data).

44. The refusal in satisfaction of the petition can be appealed by the subject of natural monopoly in higher body or court.

45. The documents which are trade secret are represented by the subject of natural monopoly with obligatory mark "trade secret".

46. Property acquisition, used in production cycle in case of production and (or) provision of regulated service is performed by the subject of natural monopoly at the biddings, except as specified cessions of property in property of the state after receipt of the corresponding consent of authorized body.

47. The subject of natural monopoly in time no later than 10 (ten) working days from the date of implementation of the activities which are not relating to regulated services notifies on it authorized body.

Chapter 5. Procedure for carrying out purchases by subjects of natural monopolies

Paragraph 1. General provisions

48. This head is developed according to the subitem 4) of Item 23 of article 15 of the Law and establishes procedure for carrying out purchases by subjects of natural monopolies of goods, works and services, costs for which are considered in case of approval of rates using costly method of tariff regulation.

The Internet resource in this Chapter is understood as the Internet resource belonging on the property right or other legal cause to the subject of natural monopolies or its affiliate.

49. The requirements provided by this Chapter extend to purchases of the subject of natural monopoly to which the rate using costly method of tariff regulation, except for the purchases specified in Item 1 of article 23 of the Law is approved.

50. Purchases of goods, works, services are performed according to Item 2 of article 23 of the Law one of the following methods:

1) tender by the tender;

2) request of price offers;

3) from one source;

4) through commodity exchanges;

5) through electronic trading platforms.

Purchases of goods, works, services are performed by method of tender and (or) through commodity exchanges, electronic trading platforms, except as specified, provided by the Law.

Purchases of goods, works and services through commodity exchanges it is performed according to the legislation of the Republic of Kazakhstan on commodity exchanges.

51. Purchases are carried out by the subject of natural monopoly with respect for the following principles:

1) openness and publicity of carrying out purchases;

2) providing to all potential suppliers of equal opportunities for participation in procurement;

3) fair competition among potential suppliers.

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