Ocean Thermal Energy Conversion Enactment 2024

This Enactment comes into operation on the date of its publication in the Gazette. [16.05.2024]

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Interpretation

to issue licences under section 6;

to regulate the exploration activity and the construction, operation and location of the facility and plantship;

to protect the interests of Government in the exploration activity and in the construction, operation and location of the facility and plantship;

to advise the Minister on all matters relating to ocean thermal energy conversion, including recommendations on policies, laws and actions to be applied to promote ocean thermal energy conversion;

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to carry out, arrange, support or promote the conduct of researches and innovation activities, assessments, studies and advisory services, and to collate, analyse and publish information, statistics and factors influencing or relevant to the development of ocean thermal energy conversion sector;

to facilitate the development of facility and plantship;

to monitor the operation of the facility and plantship including to carry out investigations, collect, record and maintain data, information and statistics and to provide such data, information and statistics to the Minister as he may from time to time require;

to conduct, promote and support, in such manner as the

Commission deems fit, training or other programmes relating to the development of human resources and capacity building in the ocean thermal energy conversion sector;

to act as a focal point to assist the Minister on matters relating to ocean thermal energy conversion; and

to carry on all such other activities as may appear to the Commission requisite, advantageous or convenient for the purpose of carrying out or in connection with the performance of its functions and powers under this

Enactment.

The functions and duties of the Commission may at any time be carried out by any officer of the Commission duly appointed in writing by the

Commission for such purpose.

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Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both, and in the case of a continuing offence, to a further fine not exceeding one hundred thousand ringgit for every day or part of a day during which the offence continues after conviction.

Any licensee who, without the written approval from the Commission, carries out any exploration activity, construction or operation of facility or plantship outside the area specified in his licence shall be deemed to be operating without a licence and commits an offence under subsection (2).

Application for licence

Any person applying for a licence under subsection (1) shall provide to the Commission any information as determined by the Commission.

All persons applying for a licence under this Enactment shall comply with the principles and procedures as may be prescribed by the codes or guidelines issued by the Commission for the purpose of making such application.

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Grant of licence

A licence shall not be granted to any person —

For the purpose of granting a licence under this section, the

Commission may grant more than one licence to any person as the

Commission deems fit.

No licence shall be capable of being transferred, assigned, sub-assigned or otherwise disposed of unless the written consent of the Minister or the Commission has been obtained.

Licences may be for such periods as the Commission may in each case approve.

Any licence granted under this section may extend to the determination of the area of the exploration activity, construction or operation of the facility or plantship by the Commission.

Subject to the approval of the Minister, any licence granted under this section may authorize the licensee to lay, place or carry —

The amount of the security shall be based on the licensee’s exploration, construction or operational costs, as the case may be, as determined by the Commission and such amount may be reviewed from time to time.

If a licence is revoked under section 10, the security shall be forfeited as the Commission deems fit.

For the purpose of this section, “operational costs” means all costs calculated by the Commission to be the costs of operating the facility or plantship including wages, costs of fuel, spare parts, labour charges and lubricants but not including capital costs or loans.

Licensee to comply with terms and conditions of licence

Any licensee who fails to comply with any terms and conditions specified in the licence commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit and in the case of a

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continuing offence, to a further fine not exceeding one hundred thousand ringgit for every day or part of a day during which the offence continues after conviction.

Power to impose additional terms or conditions or to amend terms or conditions

impose any additional terms or conditions on the licence granted under section 6; or

amend any of the terms or conditions imposed on the licence granted under section 6.

Suspension or revocation of the licence

the licensee has contravened any provisions of this Enactment;

the licensee has failed to comply with any of the terms or conditions of the licence;

the licensee has default of payment of any moneys payable under this Enactment;

the licensee has ceased to carry out exploration activity or to construct or operate the facility or plantship which he was authorized to do under the licence;

the licensee has failed or refused to carry out exploration activity or to construct or operate the facility or plantship stipulated in the licence;

the licensee had improperly or illegally obtained the licence;

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the licensee has been convicted of an offence under this

Enactment;

a receiver, receiver and manager, provisional liquidator or like official has been appointed over the whole or substantial part of the licensee’s assets and such appointment is not revoked or annulled within a period of sixty days from the date of appointment; or

there has been any act or default on the part of the licensee or there has been a change of circumstances such that the licensee would no longer be entitled to be granted a licence under this

Enactment.

Before the Commission makes a decision under subsection (1), the

Commission shall give the licensee —

After the expiry of the period specified in the notice, the Commission shall, after considering the written representations made by the licensee under subsection (2), if any, decide whether to suspend the licence or not.

The Commission shall give the licensee a written notice of its decision under subsection (3) as soon as practicable.

Upon the suspension of a licence, the Commission may —

If the Commission is satisfied that the licensee has complied with the requirement under paragraph (5)(a) the suspension may be lifted and the licensee may be allowed to continue the exploration activity, construction or operation of the facility or plantship, as the case may be.

If the licensee fails to rectify the breach as required under paragraph

Upon revocation of a licence, the Commission may —

A licensee whose licence is suspended or revoked shall not be entitled to any compensation for any loss caused to him by the suspension or revocation of a licence under this Enactment.

If a licence is revoked under this section the security shall be forfeited as the Commission deems fit.

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Any licensee who contravenes this section commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit.

Commission may require licensee to submit information, data, etc.

Any licensee who contravenes this section commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit and in the case of a continuing offence, to a further fine not exceeding ten thousand ringgit for every day or part of a day during which the offence continues after conviction.

Requirements on licensing

The licensee shall take all reasonable measures to comply and submit periodic compliance reports on the measures taken to the satisfaction of the

Commission.

Any licensee who contravenes subsection (2) commits an offence.

Any person who by any dishonest, rash or negligent act or omission, tampers with or damages any facility or plantship so as to cause or to be likely to cause injury to human life or limb or damage to any property commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both.

Confidentiality

be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both, and for a second or subsequent offence, to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both; or

if such person is a body corporate, be liable to a fine not exceeding one million ringgit, and for a second or subsequent offence, to a fine not exceeding five million ringgit.

Nothing in subsection (1) shall operate to prevent the disclosure of information where —

For the purposes of this section, “confidential information” means trade, business or industrial information that belongs to any person, that has economic value and is not generally available to or known by others.

Any such officer shall be deemed to be a public servant within the meaning of the Penal Code [Act 574].

Authority card

Whenever an authorized officer exercises any of the powers under this

Enactment, he shall, on demand, produce to the person against whom the power is being exercised, the authority card issued to him under subsection

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Power of entry, inspection and examination

The authorized officer may, in relation to any investigation in respect of any offence committed under this Enactment, exercise the special powers in relation to police investigation, except that the power to arrest without warrant, given by the Criminal Procedure Code [Act 593] in any seizable offence.

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Obstruction

refuses any authorized officer access to any facility or plantship which the authorized officer is entitled to have under this

Enactment or in the execution of any duty imposed or power conferred by this Enactment;

assaults, obstructs, hinders or interferes with any authorized officer in the execution of his duty imposed or power conferred by this Enactment; or

refuses to give any authorized officer any information relating to an offence or suspected offence under this Enactment or any other information which may reasonably be required of him and which he has in his knowledge or power to give, commits an offence and shall, on conviction, be liable to a fine not exceeding one hundred thousand ringgit or to imprisonment for a term not exceeding one year or to both, and in the case of a continuing offence, to a further fine not exceeding ten thousand ringgit for every day or part of a day during which the offence continues after conviction.

An offer under subsection (1) may be made at any time after the offence has been committed, but before any prosecution for it has been instituted.

If the amount specified in the offer made under subsection (1) is not paid within the time specified in the offer or within such extended period as the Commission may grant, prosecution for the offence may be instituted at any time after that against the person to whom the offer was made.

Where an offence has been compounded under subsection (1), no prosecution shall be instituted in respect of the offence against the person to whom the offer to compound was made.

All sums of money accepted under this section shall be paid into the State Consolidated Fund.

Prosecution

Any person may on payment of any prescribed fee —

If a person requests that a copy be provided in an electronic form, the

Commission may provide the relevant information —

carry out or cause to be carried out audit of any licensee, any information furnished to the Commission or on any other matters as directed by the Commission;

require a licensee to appoint, at their own cost, an independent expert, with qualifications as may be stated by the

Commission to review or audit on any licence granted under this Enactment, any information which a licensee furnishes to the Commission or on any other matters as directed by the

Commission.

For the purpose of subsection (1), the review or audit shall be carried out in accordance with any codes, guidelines or directions issued under this

Enactment, or as may otherwise be determined by the Commission.

A licensee, or any other person as determined by the Commission who

—

Any person who contravenes subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both.

Protection against suit and legal proceedings

the Commission, the Chief Executive Officer or the officers duly authorized under this Enactment for or on account of

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or in respect of any act ordered or done for the purpose of carrying into effect this Enactment; and

any other person for any act done or purported to be done by him under the order, direction or instruction of the

Commission or any other officers duly authorized under this

Enactment, if the act was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served by it and for the carrying into effect the provisions of this Enactment.

Public Authorities Protection Act 1948

The Commission may develop and issue such additional codes as the Commission deems fit and expedient or as the Minister may direct, as the case may be.

All codes developed and issued under this section shall only be effective upon registration by the Commission.

All licensees and any other parties who have entered into any agreement shall comply with the codes.

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Unless otherwise determined by the Commission, in ensuring reliability, safety and security of the facility or plantship, the codes issued under this section shall take precedence over any agreement that may exist between the parties mentioned in subsection (4).

Any person who contravenes subsection (4) commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both.

Guidelines or directions by the Commission

The Commission may issue directions in writing to any licensee, or any person on the compliance or non-compliance of this Enactment, conditions of licences issued, including the remedying of a breach of a licence condition or on any other matter requiring the making of a direction or specifically to be made the subject of a direction in accordance with such procedures as may be prescribed.

The guidelines or directions issued by the Commission under this section shall be registered and shall be effective from the date of such registration or such later date as the Commission may specify in the guidelines or directions.

A licensee or any person shall comply with the guidelines and directions.

A licensee or any person who fails to comply with any guideline or direction of the Commission commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both.

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Modification, variation, review or revocation of code, guideline or direction by the Commission

The procedures set out in subsections 29(2), (3), (4), (5), 30(2), (3)

and (4) shall apply in respect of any modification, variation, review or revocation of the codes, guidelines or directions.

Power of the Commission to obtain information

Any person who fails without any reasonable excuse to do anything required of him by notice under subsection (1) commits an offence.

Any person who —

If any person fails to comply with the notice under subsection (1), the court may, on the application of the Commission, make such order as the court thinks fit to secure compliance with such notice.

Any order referred to in subsection (4) may provide that all the cost and expenses of and incidental to the application shall be borne by such person or by any officer of a company or other association who is responsible for the failure.

Disclosure of information obtained

any information or document given by any person to the

Commission under this Enactment; and

such information or document given whereby the person giving it notifies the Commission in writing that it is of a confidential or commercially sensitive nature.

The Commission shall not disclose to any person the information or the contents of a document to which this section applies unless —

A person aggrieved by the notice under paragraph (2)(b) may appeal to the Minister within twenty-one days of the date of the notice.

Subsection (2) shall not prevent the Commission from disclosing any information or the contents of any document —

For the purposes of this section, the disclosure of any information or the contents of a document already in the public domain at the time the

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Commission wishes to disclose it cannot cause detriment to any person referred to in paragraph (2)(a).

Licensees’ infrastructure information security

The licensee shall —

Any licensee who fails or neglects to comply with or contravenes any provision of this section commits an offence and shall, on conviction, be liable to a fine not exceeding one million ringgit or to imprisonment for a term not exceeding ten years or to both.

For the purposes of this section —

“supporting network infrastructure” refers to relevant connection, network devices, hardware and software that provides network services in supporting business functions;

“information security controls” refers to means of managing risk, including policies, procedures, guidelines, practices or organizational structures, which can be administrative, technical, management or legal in nature; and

“resiliency” means an ability of an organization to resist being affected by an incident.

Special powers in emergency

suspend the licence of any licensee, take temporary possession of any facility or plantship of such licensee and operate it in such manner as the Commission deems fit; or

withdraw either partially or totally the operation of any facility or plantship from any person or class of persons.

If any doubt arises as to the existence of an emergency or whether

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any act done under subsection (1) was in the interest of public safety, a certificate signed by the

Yang di-Pertuan Agong and exhibited at such places as the Minister deems fit shall be conclusive proof on the point.

Where the Commission takes possession of any licensees’ facility or plantship under paragraph (1)(a) the licensee shall be paid adequate compensation which shall be determined by the Commission after giving an opportunity to the licensee to be heard on the matter.

Exemption

the procedures for the Commission in the exercise of its functions, duties and powers under this Enactment;

the management of the exploration activity, construction or operation of the facility or plantship;

the fees to be paid for licences which are required to be prescribed under this

Enactment;

the standard and methods for the construction of and the materials to be used for the facility or plantship;

to prescribe all matters relating to the issuance of licences granted under this

Enactment, including the eligibility of persons applying for licences, licence fees for different types of licences, the duration of the licences, the forms of licences, the standard conditions of the licences and renewal fees;

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the manner of service and the form of notices;

the means to be adopted, whether by forbidding or otherwise, to prevent or abate any nuisance likely to arise or arising from the exploration activity, construction or operation of the facility or plantship;

the interval, time and manner for any facility or plantship to be inspected, the notice to be given in relation to any inspection and the preparation to be made by the licensee or any person for such inspection;

the offences which may be compounded and the forms to be used in and the method and procedure for compounding offences;

the method and procedure for the investigation of any serious accident reported pursuant to section 26; and

any other matter generally to give effect to the provisions of this Enactment.

Any regulations made under subsection (1) may prescribe any act in contravention of the regulations to be an offence and may prescribe a fine not exceeding one million ringgit or imprisonment for a term not exceeding ten years or to both, for such offence.

CERTIFIED by me to be a true copy of the Bill passed by the Legislative Assembly on

Thursday, the 25th day of April, 2024.

DATUK SERI PANGLIMA HAJI KADZIM BIN HAJI M. YAHYA,

Speaker,

State Legislative Assembly.