UK Offence Report

The Hydrocarbons (Temporary Management Scheme) Regulations 2013

UK Statutory Instrument 2013 No. 1329 — creates 2 criminal offences.

2offences created
0recorded in force
0revoked
Made
4 June 2013
In force from
30 June 2013
Extent
Not stated
Subject
Energy, communications, water and utilities
Made under
European Communities Act 1972

Explanatory note

(This note is not part of the Regulations) — published with the instrument by the department that made it. © Crown copyright, reused under the Open Government Licence v3.0.

The Regulations are made further to Article 43a of EU Regulation No. 267/2012 of the Council concerning restrictive measures against Iran and repealing EU Regulation No. 961/2010 (OJ No L 88, 24.3.2012), as amended (“the Iran Sanctions Regulation”). Under that Article, a member State may authorise activities related to the exploration for, or exploitation of, hydrocarbons undertaken pursuant to a licence for such exploration or exploitation issued to a person listed in Annex IX to the Iran Sanctions Regulation. Where there is an authorisation, a derogation applies from certain restrictions in the Iran Sanctions Regulation, which at the date the Regulations are made are Articles 8, 9, 17(1), 17(2)(b), 23(2) and (3), 30 and 35. The Regulations establish a framework of duties, restrictions, powers and procedures in Part 3 (“a temporary scheme”) in respect of certain property and rights (“hydrocarbons interests”) of a person listed in Annex IX to the Iran Sanctions Regulation (“a listed person”). The hydrocarbons interests are those related to a licence granted under section 3 of the Petroleum Act 1998 (c. 17) or section 2 of the Petroleum (Production) Act 1934 (c. 36) where that licence is held by a listed person (“a restricted licence”). A temporary scheme may be applied to hydrocarbons interests where that is necessary to avoid or remediate environmental damage or to prevent permanent destruction of the value of the restricted licence. The hydrocarbons interests to which a scheme is applied are referred to in the Regulations as “restricted interests” and the listed person whose hydrocarbons interests are restricted interests is referred to as a “restricted person”. Under a temporary scheme, the Secretary of State may, on behalf of a restricted person, carry out various activities in relation to that person’s hydrocarbons interests (“temporary management activities”) and exercise certain powers (“management powers”) in order to do so. Persons who deal with the Secretary of State in the exercise of the management powers may request a notice from the Secretary of State that their dealing is authorised for the purposes of Article 43a. The Secretary of State may take control of contracts (“managed contracts”) entered into by the listed person which relate to restricted interests or enter into contracts on behalf of the listed person (“new contracts”). Transactions of moneys are permitted (“temporary management transactions”) and the management powers include the power to set up bank accounts (“temporary management accounts”) to effect such transactions. Bank accounts may also be set up to hold funds or effect transactions in relation to the decommissioning of restricted interests. The Secretary of State is required to provide a report (“a periodic report”) every six months to the listed person that in summary form includes a description of the temporary management activities undertaken and the balances held in any temporary management accounts or decommissioning accounts. To the extent the information is held by the Secretary of State, a periodic report must include such information as a listed person may require in order to deal with tax which may arise in respect of the temporary management activities. Provision is made in Part 4 for a temporary scheme to end. Regulation 1 provides for periodic review of the Regulations by the Secretary of State and the publication of reports further to a review. Regulation 2 lists definitions used in the Regulations. Regulation 3 provides for the matters which must be satisfied before a temporary scheme may be applied to the hydrocarbons interest of a listed person and that, if satisfied, a preliminary notice may be given under regulation 4. A preliminary notice may also be given where a person is not a listed person but the Secretary of State believes that person is likely to become a listed person. Regulation 4 provides for preliminary notices. These must be given to the listed person and other persons who may be affected by the application of the scheme. The regulation provides for the content of a preliminary notice and requires the Secretary of State to take into account representations received before a decision notice is given under regulation 5. A preliminary notice may be withdrawn before a decision notice is given. Regulation 5 provides for decision notices. These must be given to the listed person (or the person the Secretary of State believes may become a listed person) and include the Secretary of State’s decision whether or not to apply a temporary scheme. The regulation provides for the additional content of the notice where a temporary scheme is to be applied. The Secretary of State must also provide a written statement on how representations received were taken into account and how any matters described in the decision notice differ from the same matters described in the preliminary notice. The decision notice includes the period that a temporary scheme applies (“the management period”) and identifies the restricted licence. A decision notice may be withdrawn before the management period commences. Regulation 6 provides for the extension of the management period by an extension notice given to the restricted person and other persons who may be affected by the extension. Representations concerning an extension may be made to the Secretary of State. Regulation 7 provides that the management period, including any extension, must not exceed the shorter of five years or the remaining term of the restricted licence. Regulation 8 provides that temporary management activities may be carried out during the management period and the management powers may be exercised to do so. The Secretary of State must review periodically whether or not the continuation of a temporary scheme is necessary to avoid or remediate environmental damage or to prevent permanent destruction of the value of the restricted licence. Under regulation 9, a person (other than a listed person) may apply to the Secretary of State for a notice (“an Article 43a notice”) which authorises a dealing with the Secretary of State when the Secretary of State is exercising management powers, where that dealing would otherwise be in breach of the restrictions listed in Article 43a of the Iran Sanctions Regulation. At the date the Regulations are made, those restrictions are Articles 8, 9, 17(1), 17(2)(b), 23(2) and (3), 30 and 35 of the Iran Sanctions Regulations. By regulation 10, a restricted person indemnifies the Secretary of State in respect of any liability incurred by the Secretary of State in exercising management powers, except where the Secretary of State acts negligently. The regulation also provides that the Secretary of State is not liable to any person in respect of any cost, expense, loss or other adverse consequence which that person incurs by reason of the application (or not) of a temporary scheme, its termination or the exercise (or not) of management powers, except where the Secretary of State acts negligently. Regulation 11 prohibits a restricted person from exercising their rights comprised in a restricted interest during the management period. Breach of this prohibition is an offence under regulation 36. Regulation 12 prohibits a restricted person from exercising their rights comprised in a managed contract or a new contract. Breach of this prohibition is an offence under regulation 36. A party to a managed contract or a new contract (other than the restricted person) owes their obligations under the contract to the Secretary of State acting for the restricted person. Regulation 13 provides that the prohibition in regulation 10 does not entitle the Secretary of State to revoke a restricted licence or to terminate a pipeline works authorisation which applies to a pipeline which is a restricted interest. By regulation 14, the Secretary of State may exercise rights comprised in restricted interests. By regulation 15, the Secretary of State may direct (under regulation 23) that contracts are managed contracts and may exercise the rights of the restricted person comprised in managed contracts on the restricted person’s behalf. A liability of a restricted person under a managed contract which is required to be discharged during the rights period must be discharged by the Secretary of State, where it is practicable for the Secretary of State to do so. Where the liability is the payment of moneys, the Secretary of State is only required to discharge the payment where sufficient moneys are available to do so from any temporary management account (see regulation 19). The Secretary of State may discharge liabilities which arose before the rights period and may amend a managed contract with the consent of the other parties to it. Where a joint operating agreement is a managed contract, an operator who under that agreement was an agent for the restricted person, acts instead as agent for the Secretary of State. Regulation 16 provides that amendments to managed contracts do not continue after the end of the management period. By regulation 17, the Secretary of State may enter into new contracts on behalf of a restricted person. The period for performance of a new contract may not extend after the end of the management period. By regulation 18, the Secretary of State may appoint an agent to act for the Secretary of State in the exercise of management powers or to make or receive payments. By regulation 19, the Secretary of State may set up temporary management accounts with financial institutions or specify an account of a restricted person as a temporary management account. Payments and receipts listed in regulation 20 (“temporary management transactions”) may take place using a temporary management account. Funds held in a temporary management account are beneficially owned by the restricted person but, except for temporary management transactions, are frozen funds within the meaning of the Iran Sanctions Regulation. Regulation 20 lists the payments and receipts which are temporary management transactions. By regulation 21, the Secretary of State may set up a decommissioning account and pay into and from that account for the purposes of decommissioning a restricted petroleum facility. Funds held in a decommissioning account are beneficially owned by the restricted person (unless a decommissioning contract provides to the contrary) but, except for payments for decommissioning, are frozen funds within the meaning of the Iran Sanctions Regulation. Regulation 22 provides for periodic reports to a restricted person. Where the management period does not exceed 6 months, only a final report under regulation 33 is required. By regulation 23, the Secretary of State may give notice to the parties to a contract (except the restricted person) that the contract is to be a managed contract. Provision is made for the period for which the contract will be a managed contract (“the rights period”) and for the withdrawal of a notice. Regulation 24 provides for a contract to cease to be a managed contract. By regulation 25, a temporary scheme ends on the termination date stated in a termination notice or otherwise at the end of the management period. By regulation 26, the Secretary of State must terminate a temporary scheme before the end of the management period where the restricted person ceases to be a listed person or to continue the scheme is not necessary to avoid or remediate environmental damage or to prevent permanent destruction of the value of the restricted licence. The Secretary of State may in other cases decide to terminate a temporary scheme by a termination notice. Regulation 27 provides for termination notices and the persons to be given a termination notice. By regulation 28, a termination notice may be withdrawn. By regulation 29, where a temporary scheme terminates before the end of the management period (“early termination”), the Secretary of State must give a notice under regulation 23 for a contract to cease as a managed contract. Regulation 30 provides that where there is an early termination and the performance of a new contract may extend after the termination date, the Secretary of State must terminate that contract. Regulation 31 provides that where there is an early termination, the Secretary of State must give notice to a financial institution which holds a temporary management account that the account will cease to be a temporary management account from the date stated in the notice. Regulation 32 provides for payments from a temporary management account up to 30 days after a temporary scheme ends. Regulation 33 requires the Secretary of State to give a final report to a restricted person and provides for the matters to be contained in a final report. By regulation 34 an information notice may be given. A notice may require the provision of confidential information, subject to limited exceptions. Regulation 35 provides for the persons to whom information notices may be given and for the content of notices. By regulation 36 it is an offence to breach the prohibitions in regulation 11 or 12(1) or to fail to comply with an information notice. Penalties are imposed by regulation 37 in respect of an offence. Regulation 38 provides that offences may be committed by officers of a body corporate and by partners of Scottish partnerships. Regulation 39 provides for the form and content of notices under the Regulations. An impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen. An Explanatory Memorandum is published alongside the instrument on www.legislation.gov.uk.

Offences created by this instrument

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