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U.S. Crude Oil Export Controls Rules, Commercial Opportunities and Planning
Energy Briefing Four Seasons Hotel
Houston, TX April 30, 2013
Jacob Dweck, Partner David Goldwyn, Of Counsel David McCullough, Associate Sutherland Asbill & Brennan LLP
About Sutherland’s Energy Practice
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Crude Oil Stockholders
Policy and Regulatory (Federal &
State)
Project Development and Finance
Commercial and Trading
Practice (Dodd Frank)
Energy Transactions
(M&A, Divestiture)
. . . We know your business . . 60 energy lawyers and other professionals
Houston, Washington, New York, Austin, Atlanta
Clients: Key Players in Every Energy Sector
About David Goldwyn
President Goldwyn Global Strategies, LLC www.goldwynstrategies.com
Special Envoy for International Energy Affairs (Department of State 2009-2011)
Assistant Secretary of Energy for International Affairs (1998-2001)
Senior Fellow, Brookings Institution (Non-resident)
Moderator, New Geopolitics of Petroleum and Natural Gas Discussion Series, Bipartisan Policy Center
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Of Counsel, Sutherland
Outline of Briefing
The Takeaways
North American crude production: facts and projections
Background and architecture of U.S. crude oil export controls
Export opportunities under current rules Export from U.S. to Canada Canadian crude exported through U.S. ports Export-for-import “swap” Export of condensate Export of product/crude blends Other permissible exports
Policy and politics affecting prospects for U.S. crude oil exports
Conditions, scenarios and prospects for limited liberalization of crude exports
Implications for crude transportation projects: trains, boats and pipelines
Questions and discussion
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Takeaways
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Takeaway: U.S. Crude Export Restrictions Affect North America as Single Market
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http://www.refinerlink.com/blog/North_American_Crude_Oil_Pipelines/
Takeaway: Some Commercial Opportunities Exist Under Current U.S. Export Rules
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Export of U.S. Crude/
Product Blends
“Swap” of U.S. Crude Export for
Import Export of Finished
and Unfinished Products
Export of (“Foreign”) Canadian Crude in Transit
through U.S.
Export of Finished
and Unfinished Products
Export of U.S. Origin Crude to Canada
Other Permissible
Exports Designated
in Rules
License Required No License Required License May Be Required
Takeaway: A Significant Lifting of U.S. Export Restrictions Is Very Unlikely During Obama Administration (and Beyond?)
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Crude oil exports are not an issue on policy or political agenda . . . No discussion
Tom Donilon, National Security Advisor to the President, speaking at Columbia University Center on Global Energy Policy, April 24, 2013
Takeaway: But Targeted Liberalization May Be Possible Given Right Approach, Conditions and Timing
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Widening price spread U.S. producers
challenged Gasoline pump prices
lower Geopolitical benefits
(Canada, Mexico) Congressional opposition
managed Effective industry
advocacy
Liberal interpretation of “swap” regulation
Crude trades with Mexico Exports to FTA countries Exports of (lease)
condensate Exports of limited
volumes and for limited period
Right Conditions Possible Scenarios
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North American Crude Production: Facts and Projections
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North American Crude and Liquids Production: The Boom and Projected Surplus
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Canadian Oil: Bound for U.S. Market
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http://www.neb.gc.ca/clf-nsi/archives/rpblctn/spchsndprsnttn/2009/nbprspctvtrndcndnlsppl/nbprspctvtrndcndnlsppl-eng.html
U.S. Light Crude Filling Domestic Demand
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Source: Deutsche Bank
U.S. Crude Supply and Demand: Displacing Imports
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Source: ESIA
North American Crude Production in Global Context: Changing the Flows
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Approximate NET Crude Flows 2012 to 2020 Million b/d
Source: ESIA
Crude Pricing: Significance of Prices and Price Relationships
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Crude Pricing: Isolating Potential Effects of Export Restrictions
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U.S. Becoming Major Oil Products Exporter
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Background and Architecture of U.S. Crude Oil Export Controls
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Crude Export Controls Rooted in Arab Oil Embargo: EPCA Enacted in 1975
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Executive Branch Calls the Shots on Oil Exports
President can allow crude exports if in the “national interest” Example: Exports to Canada
Some crude exports are allowed in EPCA or other laws, while others are specifically disallowed - examples: Yes: Exports of “foreign” crude oil
No: Crude from OCS
But President subject to congressional and political pressure
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to → to →
What is “Crude Oil”?
Mixture of hydrocarbons that Exists in liquid phase in
underground reservoirs and after surface separation and
Which had not been processed through a crude distillation tower
Includes lease condensate and liquid hydrocarbons produced from tar sands and oil shale
Does not include Plant condensate
Topped crude oil
Residual oil
Other finished and unfinished oils
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Crude Oil Licensing Regulations: “By the Book”
Administered by Bureau of Industry and Security (BIS) at Department of Commerce
Strict enforcement of restrictions and exceptions
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Crude Oil Export Licensing Process
Application process appears simple−but care is required
BIS encourages an informal notification of an incoming application, particularly if unique issues are involved
Application submitted online through BIS website – https://snapr.bis.doc.gov/snapr/
Specific requirements and documentation depend on the basis for the license
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− to −
Use of License
Export only by licensed party – license non-transferable Facilitating back-to-back
transactions may be allowed
Sales only to purchasers and destinations identified on license But can list many
Restrictions on use of exported crude may apply e.g., exports for “use or
consumption” to Canada
Process for modifying license
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Enforcement and Penalties
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Export controls strictly enforced
Compliance programs and audits
Potentially severe penalties Civil Penalties: Not to exceed the
greater of $250,000 or twice the value of the transaction.
Criminal Penalties: (1) Up to the greater of $1,000,000 or 5 times the value of the transaction; and (2) 10 years imprisonment.
Additional Penalties: Denial of export privileges and seizure/forfeiture of goods.
Voluntary disclosure process
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Export Opportunities Under Current Rules
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Export Opportunities Discussed
Exports from U.S. to Canada
Canadian crude exported through U.S. ports
Export of condensate
Export-for-import “swap”
Export of product/crude and blends
Other permissible exports
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Export to Canada: The Rules
No restrictions on volumes or modes of transport
No restrictions on buyers (but must be identified)
U.S. crude must be used or consumed in Canada Re-export from Canada is prohibited, even as part of blend with Canadian
crude
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Exports to Canada: The Opportunities
U.S. crude delivered by pipeline to Western Canadian refineries and by rail to Eastern Canadian refineries
Export of condensate to be used as diluent in heavy oil
U.S. light crude delivered by vessel from Gulf Coast to refineries in maritime provinces (no Jones Act issue)
Export Allowed from Canada of “displaced” Canadian light crude and products refined from U.S. crude
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Export of “Foreign” Crude: The Rules
Law authorizes export from U.S. of “foreign” crude oil that has not been mixed with any U.S.-origin crude Documentary proof of segregation
from time of entry into U.S. to export from U.S.
Minimal comingling as a result of shared pipelines and storage tanks may be acceptable
Possible benefits of compliance with U.S. Customs (CBP) requirements for “bonded” facility or merchandise Pipelines
Rail
Terminals
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Export of Canadian Crude: The Opportunities
Export of Canadian crude transported by pipeline from production areas to ports in Gulf of Mexico
Exports of Canadian crude transported by rail to ports in the Gulf and West Coasts of U.S.
Combination of pipeline and rail
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Swap Export for Import: The Rule
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“Overall Transaction”
EXPORT IMPORT
Exported crude cannot be reasonably marketed in U.S. for “compelling” economic or technological reasons “result
directly”
Import of equal or greater quantity and equal or better quality of crude oil
or Import of petroleum products that is no less than would be derived by refining the exported crude oil
U.S. Foreign
Swap Export for Import: Issues With the Opportunities
Under what circumstances can crude not be marketed in U.S. for “compelling” economic reasons? At what point is price differential “compelling”?
Anything short of a showing that the crude would not be produced were it not for export market?
How would export “directly result” in higher valued import? Documenting that export and import are part of same “overall
transaction”?
How are values of exported crude and related imports determined?
Same stakeholder (exporter/importer)?
Can export and import be to two different geographic markets?
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Export of What Type of Condensate: The Rules
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Light hydrocarbons that liquefy at atmospheric pressures and temperatures at the wellhead or are only liquid product at gas processing plant
License Required
Lease condensate (“raw” condensate)
License Not Required
Plant Condensate (natural gasoline)
Drip Gas (from natural gas pipelines)
Naphtas (produced in refineries)
Exporting Condensate: Potential Uses
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Exporting Condensate: The Opportunities
No license required for export of plant condensate
Export of lease condensate for use as diluent for Canadian heavy oil (“dilbit”) Issue: Does use render dilbit non-foreign when imported to U.S.?
Export of lease condensate as “product” after blending
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Export of Products Exploded: No License Required
Mini refineries are reportedly processing light crude just enough to qualify output as refined products
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htt/p://www.bloomberg.com/news/2013-02-26/crude-export-ban-no-match-for-lightest-u-a-
The Flint Hills oil refinery in Corpus Christi, Texas. A boom in shale oil production has the industry finding ways to export the oil.
Crude Export Ban No Match for Lightest U.S. Shale Oil, Feb. 26, 2013
Export of Product/Crude Blends: The Interpretation and the Opportunity
No explicit rule whether export of crude/product blend requires a license
Informal interpretation that crude/product blend can be exported as product if it is in fact transported, marketed and used as product
Can blend lighter crudes with refined oils to produce Bunker fuel Fuel oil Gasoline Blendstock for the above
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Other Permissible Exports: The Rules But Few Opportunities
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Opportunities Alaska Cook Inlet
Strategic Petroleum Reserve Exchange Must directly result in importation of refined products needed in the U.S.
Heavy California Crude Gravity of 20 degrees API or lower
Only 90 day export license
Restricted Crude: Outer Continental Shelf Crude
Naval Petroleum Reserve Crude
Trans-Alaskan Pipeline Crude Not to exceed 50,000 bbls per day
Very Restricted shipping routes and shipping procedures
Mineral Leasing Act Pipeline Crude
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Policy and Politics Affecting Prospects for U.S. Crude Oil Exports
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Geopolitical Benefits Focus on Oil Boom−Not U.S. Exports Policy
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U.S. “energy independence” Lower energy costs for U.S. economy
The debate over LNG exports
Geopolitical considerations (Middle East, China, Russia)
Politics and Stakeholders: No Opening for Wholesale Liberalization of Crude Exports
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Conditions, Scenarios and Prospects for Limited Liberalization of Crude Export Controls
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Conditions for Improving Export Prospects (When?)
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Targeted and Unified Advocacy making the scope
Scenario would not impact U.S. crude supply or price
Lower gasoline prices
Shut-in production
In Bakken
Surgical Exports
Possible Limited Export Scenarios
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Liberal interpretation of “swap” regulation
Crude trades with Mexico
Exports to FTA countries
Exports of (lease) condensate
Exports of limited volumes of light crude and for a limited period
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Implications for Crude Transportation Projects: Trains, Boats and Pipelines
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A Follow-On Topic for Another Day
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June 6
U.S. Export Rules and Keystone XL
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U.S. Export Rules and Keystone XL (II)
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Questions and Discussion
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Thank you
Jacob Dweck, Partner 202.383.0775
Jacob.Dweck@Sutherland.com David McCullough, Associate
202.383.0853 David.McCullough@Sutherland.com
SUTHERLAND ASBILL & BRENNAN LLP
www.sutherland.com
David Goldwyn Of Counsel, Sutherland
202.696.1420 David.Goldwyn@Sutherland.com
Principal, Goldwyn Global Strategies, LLC dgoldwyn@goldwynstrategies.com
www.goldwynstrategies.com
CIRCULAR 230 DISCLOSURE: Any advice provided in this outline concerning a federal or state tax issue is not intended or written to be used, and cannot be used by the taxpayer, for the purpose of avoiding penalties that may be imposed on a taxpayer.
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