On 24 February 2012, the Department of Energy ("the Department") published the Regulations on the Mandatory Provision of Energy Data ("the Regulations"), under section 19(1) of the National Energy Act, 34 of 2008 ("the Act").
The objectives of the Regulations are to enable the Department to collect, collate and publish energy data and information in an effective and efficient manner, and provide for the type, manner and form of energy data and information that must be provided by any data provider.

Regulation 4 of the Regulations provides for the classification of data providers into six categories. Of particular interest to mining companies are categories A and F. Category A refers to entities which hold an exploration right issued in terms of section 80 of the Mineral and Petroleum Resources Development Act, 2002 ("MPRDA"), (relating to oil and gas), a mining right (for minerals) issued in terms of section 23 of the MPRDA or a mining permit issued in terms of section 27 of the MPRDA, to carry out activities related to the exploration or mining of so-called 'primary energy commodities'. While term "primary energy commodities" is defined in the Regulations to mean "energy commodities that are either extracted or captured directly from natural resources", no definition is provided for 'energy commodities'. The Act does however, define "energy resource" to mean "non-value added material or mineral that can be used to produce energy or be converted to an energy carrier". Accordingly, on the assumption that the term 'energy commodity' would be afforded a similar definition as that given to 'energy resource', Category A would apply, for example, to an entity holding a mining right for coal, or an exploration or production right for oil or gas.

Category F refers to end users of energy, and includes entities which carry out economic activities accordingly to the Stand Industrial Classification, which includes mining and quarrying, or dwelling units. Category F accordingly makes the Regulations applicable to, inter alia, every mine irrespective of the nature of the mineral that is being mined. The Regulations provide also that notwithstanding the classifications, the Department may identify additional data sources and may request data from such sources.

The Regulations provide that the Department may, by written request in the form prescribed by the Regulations, request any data provider to submit or make available to the Department the data and information listed in the table below and any other data related to energy that the Department may request. In addition, the Regulations also provided that where relevant, a data provider must also make available to the Department any data and information describing the quantity and nature of greenhouse gases and related gaseous particles emitted as a result of the data provider's economic activities and processes and data and information describing the toxic material and other substances released as a consequence of the economic activities and processes of the data provider and which may contaminate air, soil and water. It is not clear from the Regulations when the submission of this additional information would be relevant.

A failure by a data provider to submit any data requested in terms of the Regulations is deemed to be an offence in contravention of the Act which, upon conviction would render a person liable to a fine not exceeding five million rand, imprisonment for a period not exceeding five years, both such fine and such imprisonment.
The Regulations also allow for the publication of data submitted by data providers in the public domain in instances where such data is at a very low level of disaggregation, and provided such data does not contravene and preceding legislation.

The Regulations came into operation on 1 March 2012.

Classes of data providers

Generic description of data to be provided

Category A - entities that hold exploration or mining rights, or mining permits (relating to primary energy commodities)

Data regarding seismic, drilling, logging, discoveries, concessions, leases, prospecting, exploration, permits, production activities, efficiency and reserves of energy minerals

Category B - entities that hold production rights (relating to primary energy commodities)

(i) Data regarding import, export, quality, sources, prices, volumes, capacity, cost, efficiency, technology and reserves of all primary energy commodities excluding renewable energy sources; and

(ii) data regarding the capacity, costs, imports, efficiency and technologies of renewable energy sources.

Category C - entities that carry out electricity generation, petroleum production or gas liquefaction or regasification

(i) Data regarding the production capacity, utilisation, availability, total output, efficiency, technology, input costs of energy transformation inputs; and

(ii) data regarding import, export, quality, sources, prices, volumes, capacity, cost, efficiency, and technology of secondary energy commodities.

Category D - entities responsible for the transportation, transmission or distribution of any form of energy.

Data regarding capacity and utilisation of logistics and infrastructure, transmission, distribution of energy carriers as well as associated costs, optimisation and tariffs.

Category E - industry associations

Data related to energy consumption, utilisation, efficiency, cogeneration and end use of energy within an industry represented by an association.

Category F - end users of energy

Data regarding volumes, prices, efficiency, type of energy and energy services used within the residential, industrial, mining, commercial, transport, agriculture and other sectors as defined by the SIC.

Category G - an organ of state, a research institution or an academic institution

(i) State organ's data, research and plans which are related to energy; and

(ii) Energy data collected from other sources.


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