On Monday 19 December two additional Oil and Gas Authority (“OGA”) powers under the Energy Act 2016 (the “Act”) were brought into force. As noted in our previous Law Now, whilst most of OGA’s new range of powers were brought into force with effect from 1 October 2016, those relating to information and samples remained to be brought into effect. The third set of Commencement Regulations (accessible here) has now brought into force two of those powers, leaving further elements of the information and samples framework as yet to commence.
Section 34: OGA power to request information and samples
OGA may now serve a notice on relevant persons requiring them to provide the regulator with “any petroleum-related information, or a portion of any petroleum-related sample” held by or on behalf of that person. When seeking this information or sample, OGA must specify the form and manner in which it is to be provided along with the period within which or time at which it is to be produced. Information which is subject to legal privilege is excluded. Failure to comply may result in imposition by OGA of a sanction (as considered in our previous Law Now).
Section 36: the right of appeal against an OGA request
The corresponding right of appeal against an OGA notice regarding provision of information or samples has also been brought into force. However, such an appeal may only be sought on specified grounds, namely that OGA’s decision to serve the notice was not within the powers of OGA or that the length of time given to comply with the notice is unreasonable. Such appeals are to be made to the First-tier Tribunal. Given the wide definition provided in the legislation for “petroleum-related information”, an appeal on the first ground may face a high hurdle.
Not yet in force
Several provisions of the Energy Act 2016 regarding information and samples remain to be brought into force at a later, as yet unannounced, date. For the most part, these relate to information and samples plans, which will require to be agreed with OGA prior to certain licence events. In its Asset Stewardship Expectations (accessible here), OGA states that details of the required content for information and samples plans will be included in new guidance. Until such a time as this is finalised and the plans are to ready to be launched, OGA has indicated that section 34(1)(b) is excluded from commencement, along with all further provisions of the Act relating specifically to the plans (sections 30 to 33).
In addition to the carve-outs specified above, section 35 also awaits commencement. This section provides for the appointment by operators and others bound by the MER UK Strategy of an information and samples coordinator who would bear responsibility for monitoring their compliance with its obligations. OGA has acknowledged that the appointment of such a coordinator will require administrative action and so has undertaken to provide industry with “appropriate notice” prior to the coming into force of that provision.
The commenced provisions apply to all “relevant persons” and, as noted by OGA in its announcement on 19 December 2016, “cover a wider range of petroleum-related information than OGA’s existing powers, which relate primarily to exploration and petroleum licence sub-surface matters”. Since a failure to comply with an OGA request for information or samples is sanctionable, relevant persons will need to ensure that adequate resources are made available to respond in good time to any section 34 notice served on it by OGA.