The main US export authority is telling some oil companies that they should consider exporting a lightly processed form of crude oil called condensate without formal permission, according to people familiar with the discussions. In conversations that may help clear the way for more overseas sales of US shale oil, the Commerce Department's Bureau of Industry and Security (BIS) has told companies seeking clarification on the legal status of so-called "processed condensate" that self-classification - whereby companies export their product without any formal authorisation - could be a way forward, the people told Reuters.
An official familiar with the law said the agency's discussions did not represent a change in policy since self-classification is allowed under US export controls and is a routine, common practice for the majority of exports. Yet the message, though carefully couched as an informal suggestion, marks the first sign that the administration is becoming comfortable about allowing companies to work around the nation's four-decades-old ban on exporting untreated crude oil.
Last month, BHP Billiton Ltd became the first company to announce it would export lightly processed ultra-light US oil without explicit permission from the government. It said it was on firm legal footing because its product was similar to what the agency had already blessed for other companies in a landmark ruling earlier this year. But until recently, the government's attitude toward the self-classification for crude has been unclear. Officials have repeatedly declined to comment on what has become one of the year's most contentious and controversial energy policy topics, beyond saying that it is under review due to the surprising surge in US oil production.
"I would not characterise BIS's position necessarily as one of encouragement, but BIS has made clear that companies should not overlook the option of self-classification," said Theodore Kassinger, a partner at law firm O'Melveny & Myers, who had represented oil producer Pioneer Natural Resources in its dealings with the agency. Two other sources told Reuters that the agency has said self-classification may be an expedient option for companies confident their condensate has been adequately processed.
The agency did not respond to a request for comment. In March, the agency told mid-stream firm Enterprise Product Partners and Pioneer that condensate stabilised and processed through a distillation tower met the legal criteria for exports. Refined fuels and processed oil is not subject to the ban. Because the earlier rulings were private, and the regulations themselves are unclear on how much "processing" is required, other firms have been hesitant to follow suit.
Several dozen energy companies have applied for similar export rulings, but the administration had put their clarification requests on indefinite hold. Over the summer, those companies were asked to fill out a one-page, nine-question survey about their plans to export oil, including basic questions about the type of oil used for feedstock, the distillation process used and the characteristics of the output after processing. Getting companies to self-classify is likely preferable for the agency than responding case-by-case to pending requests, Jacob Dweck, a partner at the Sutherland law firm who has worked on behalf of Enterprise and other firms, told Reuters.
"The BIS obviously is aware that self-classified exports of processed condensate are and will be taking place. They have no problem with such exports," said Dweck, who has become one of the most outspoken experts on the once-obscure energy laws that ban crude exports. It remains to be seen how many companies are now prepared to take the leap and begin exporting processed condensate. With global oil prices having halved since June, pushing US crude down to nearly $50 a barrel, exports are less alluring today than they were only a few months ago.
Even so, political pressure to share the US shale boom with the rest of the world had been building domestically and from foreign trade partners, such as South Korea, and is expected to become a major energy issue in the new year. Texas Congressman Joe Barton earlier this month proposed a bill that would overturn the four-decade old ban and said he would continue to press the issue in the new Republican-led Congress in 2015.
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