Legislature(1995 - 1996)

04/05/1995 01:40 PM House FIN

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
txt
  HOUSE BILL 207                                                               
                                                                               
       "An Act relating to adjustments  to royalty reserved to                 
       the state to encourage  otherwise uneconomic production                 
       of oil and gas; relating to the depositing of royalties                 
       and royalty sale proceeds in the Alaska permanent fund;                 
       and providing for an effective date."                                   
                                                                               
  KEN  BOYD,  ACTING  DIRECTOR,  DIVISION   OF  OIL  AND  GAS,                 
  DEPARTMENT OF NATURAL  RESOURCES, explained that HB  207 was                 
  designed to clarify and expand existing law.                                 
                                                                               
  Mr. Boyd provided  a sectional analysis of  the legislation.                 
  Section #1 would provide the  "Legislative Intent".  Section                 
  The State of Alaska has had a royalty reduction provision in                 
                                                                               
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  order  since statehood.  This  section would also expand the                 
  current law and  would provide the commissioner  the ability                 
  to  reduce royalties for  future production.   Section #2 is                 
  considered  the   sustentative  portion  of   the  bill  and                 
  addresses  where the  law  applies,  and  also    defines  a                 
  "field".                                                                     
                                                                               
  Mr.  Boyd  continued,  the  Commissioner  may  not  grant  a                 
  reduction  of  royalty  unless  the  lessee   requests  that                 
  reduction and then makes a clear and convincing showing that                 
  the reduction would  meet the  requirements of that  section                 
  and would be in the best interest of the State.  The royalty                 
  reduction agreement condition  would specify that  a royalty                 
  reduction could  be granted by making reference to a sliding                 
  scale royalty or  an equivalent  provision providing for  an                 
  adjustment to protect the State's interests.  Mr. Boyd added                 
  that the commissioner  could not  grant a royalty  reduction                 
  for a field, pool or portion of a field or pool that exceeds                 
  75%, or royalties  supplied requiring the  balance to be  at                 
  least 25%.                                                                   
                                                                               
  Representative Parnell questioned the  logic of establishing                 
  the 25% balance number.   Mr. Boyd countered there  had been                 
  no  formula  used  to  achieve  that  number  and  that  the                 
  Administration  ascertained that  it  would be  a reasonable                 
  floor.                                                                       
                                                                               
  Representative  Navarre  asked if  the ELF  contribution tax                 
  would be at  zero.  Mr. Boyd replied that in many cases, the                 
  ELF would be near zero.                                                      
                                                                               
  Mr. Boyd noted that  Section #3 was the most  important part                 
  of the bill.   It  clarifies that the  commissioner may  not                 
  reduce royalty on leases in connection with a cooperative or                 
  unit plan except  as provided in (j).  Sections #4 & #5 were                 
  added  in  the  House  Resources  Committee to  address  the                 
  spacing units and pieces of development contracts.                           
                                                                               
  (Tape Change, HFC 95-79, Side 1).                                            
                                                                               
  Representative  Brown inquired if the actions recommended in                 
  HB  207 would be similar  to the disposal  of State land and                 
  resources requirements referenced in AS 38.05.945.  Mr. Boyd                 
  responded  that  language  had been  added  in  the previous                 
  Committee and that he did not know the answer.                               
                                                                               
  Representative Brown referenced Page 2, Lines 4-13:  "...not                 
  yet produced" field.  She  asked if it would be  possible to                 
  have a reduction on only one stream in an area that produced                 
  more resources.  Mr. Boyd acknowledged that could occur.                     
                                                                               
  Representative Brown asked  if Prudoe  Bay had produced  gas                 
                                                                               
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  for sale to date.   Mr. Boyd responded there has  not been a                 
  major gas sale  to date although, there  have been transfers                 
  and  sales of gas  among the  fields.   Representative Brown                 
  questioned how the language  on Line 10 would apply  to that                 
  situation.  Mr.  Boyd stated  that language would  not be  a                 
  result but would be part of the clear and convincing showing                 
  that a royalty reduction would be  a difficult case to make.                 
                                                                               
                                                                               
  Representative Brown  questioned if  the commissioner  would                 
  have  the  authority  to require  production  in  return for                 
  lowering the royalty.  Mr. Boyd stated that the commissioner                 
  currently has that authority, and that the legislation would                 
  not change it.  Representative Brown expressed her fear that                 
  a company could request a royalty  and then not proceed with                 
  the production.   She  suggested modifying  the language  on                 
  Page  2,  Line  31  to  be more  broad  in  order  that  the                 
  commissioner  could  condition  the  agreement  in  any  way                 
  necessary.  Mr. Boyd pointed out that if a company  does not                 
  produce oil, the royalty reduction would be meaningless.                     
                                                                               
  PATRICK COUGHLIN,  ASSISTANT ATTORNEY  GENERAL, OIL AND  GAS                 
  MINING  SECTION,  CIVIL  DIVISION,  DEPARTMENT  OF   NATURAL                 
  RESOURCES,  explained  the  standard  used  to  prolong  the                 
  economic life of a field would  require a determination that                 
  the State has achieved a maximum  economic return as well as                 
  that  the  field   is  and  would  likely  continue   to  be                 
  insufficient to  produce a  reasonable rate  of return.   He                 
  added, those standards have been deleted from the bill.                      
  Representative Brown referenced the last phrase on Line #16,                 
  "any  increase  or  decrease is  sufficient  to  make future                 
  productions no  longer economically feasible".   She thought                 
  there could be other factors driving the situation.                          
                                                                               
  Representative   Grussendorf   spoke   to  the   owner/state                 
  doctrine, acknowledging that in that philosophical base, all                 
  resources belong  to all  the people  of the  State and  any                 
  revenue derived  from those  resources should  be disbursed.                 
  Representative Grussendorf referenced Page 4, Line #31, "the                 
  commissioner's  written   determination  regarding   royalty                 
  reduction is final and not appealable to the courts".                        
                                                                               
  Mr. Coughlin pointed  out that  the Legislature has  adopted                 
  such language  at  previous  times.   The  meaning  of  such                 
  phrases  has been appealed and that the Alaska Supreme Court                 
  has  stated  that it  will  honor  such a  statement  by the                 
  Legislature   to   the   extent   that   it   accords   with                 
  constitutional guarantees.                                                   
                                                                               
  Representative  Martin  questioned the  constitutionality of                 
  the language.  He added,  from information received from Dr.                 
  Logston, there are seven fields which are not charged taxes,                 
                                                                               
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  thus  leaving only  royalty  collections  on  those  fields.                 
  Representative Martin  emphasized that  continuation of  the                 
  royalties was extremely important to the State.                              
                                                                               
  REPRESENTATIVE SCOTT OGAN noted that  the bill requires that                 
  the  commissioner  transmit  copies  of  the action  to  the                 
  presiding  officer  of  each  Body  and the  Chairs  of  the                 
  Resource and Oil and  Gas Committees.  He stressed  that the                 
  "findings"  would not be  appealable.  He  questioned at the                 
  time in which the finding was transmitted, would that be the                 
  formality or would the Legislature  then have the ability to                 
  add into the  decision.   Mr. Boyd replied  that they  would                 
  not,  although   the  Legislature   would   have  the   same                 
  opportunity  during  the public  notice process  to comment.                 
  Once the "findings"  were established, the results  would be                 
  available for the use and review of the Legislature.                         
                                                                               
  Representative Brown questioned the issue of the competitive                 
  sale  process  and that  relationship  to  the  bill.    Mr.                 
  Coughlin agreed  that there is  a possibility that  a bidder                 
  could be treated unfairly.   All leases issued by  the State                 
  of  Alaska  since  statehood  have  had  a  provision  which                 
  specifies  that  the royalty  can  be reduced  under certain                 
  circumstances.                                                               
                                                                               
  Mr. Boyd  added that the  commissioner would be  required to                 
  consider  the factors  of delineation  of  each field.   The                 
  applicant  would  be  required to  be  at  the  field for  a                 
  specified amount of time and had done some  work in order to                 
  be able to  apply for the  royalty reduction.  Mr.  Coughlin                 
  added, under existing law the same problems could occur, and                 
  would reflect the integrity of the bidding process.                          
                                                                               
  PAUL WESSELLS, (TESTIFIED  VIA TELECONFERENCE), DIRECTOR  OF                 
  TAX, B.P.  EXPLORATION, ANCHORAGE,  spoke in  support of  HB
  207.  He stated  that the legislation would be  an important                 
  step in developing a new type  of relationship for the State                 
  of Alaska  and the  petroleum industry.   That  relationship                 
  would be based on interest in common.                                        
                                                                               
  MIKE  BRUNER,  (TESTIFIED  VIA  TELECONFERENCE),  ANCHORAGE,                 
  voiced opposition to  the proposed legislation and  asked if                 
  there  was  a provision  included  in the  legislation which                 
  would   increase  oil  royalties   to  amounts  higher  than                 
  currently exist.   Mr.  Boyd referenced Page  3, Lines  2-3,                 
  "...under  this  paragraph, the  commissioner  shall include                 
  provisions  in  the agreement  to  increase or  decrease the                 
  state's royalty share  based on relevant  economic factors".                 
  He  added  that  the  commissioner   has  the  authority  to                 
  establish the  royalties lower initially in order to get the                 
  project  "off the  ground" with  the option  to modify  that                 
  provision.                                                                   
                                                                               
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  Mr. Bruner understood that the commissioner did not have the                 
  authority  to raise the  fee higher than  established in the                 
  original  lease.    Mr.  Boyd  stated that  information  was                 
  incorrect and had  resulted from  the agreement between  the                 
  State  of  Alaska  and  a   certain  company.    Mr.  Bruner                 
  concluded,  there  has  been  no  historical  incentives  to                 
  producing oil for  companies and  he felt that  the rate  of                 
  return should benefit only the State.                                        
                                                                               
  RICHARD FINEBERG, RESEARCH ASSOCIATES, ESTER, ALASKA,  spoke                 
  in  opposition  to the  legislation.   [Copy  on file].   He                 
  summarized  that  there  is a  strong  substantive  case for                 
  easing  the  State's existing  royalty relief  provisions as                 
  proposed in all versions of  HB 207 to date.   He referenced                 
  specific areas:                                                              
                                                                               
            1.   Production trends.                                            
            2.   Comments on production trends.                                
            3.   Profitability                                                 
                                                                               
  Mr. Fineberg continued, HB  207 contains serious  structural                 
  defects.                                                                     
                                                                               
            1.   Procedures  for  royalty  relief   should  be                 
                 clearly  framed  and  the  need  for  royalty                 
                 relief should be  clear to the owners  of the                 
                 resource.                                                     
                                                                               
  (Tape Change, HFC 95-79, Side 2).                                            
                                                                               
            2.   Economic  considerations  should  include  an                 
                 analysis of pipeline profits.                                 
                                                                               
            3.   Blanket  confidentiality.    The  requirement                 
                 that the Commissioner shall  hold application                 
                 material  confidential  at  industry  request                 
                 contravenes  the  state's laws,  common sense                 
                 and jurisprudence.                                            
                                                                               
            4.   Contractor analysis.                                          
                                                                               
            5.   Judicial review.  He stated  that it was easy                 
                 to understand why the industry would  like to                 
                 remove judicial review.                                       
                                                                               
  Mr.  Fineberg   concluded  that  the  current   approach  to                 
  incentives  is  flawed.    In the  policy  arena,  where the                 
  mission  is to  protect  the  public  interest in  both  the                 
  revenue stream and the environment, industry desires must be                 
  balanced against those  concerns.  It would  be self-evident                 
  that any bill that increases industry revenue at the expense                 
                                                                               
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  of the State  Treasury would  tend to stimulate  production.                 
  The  industry  would  advocate  such  a  measure.    If  the                 
  provision  which  grants  confidentiality  at  the  lessee's                 
  request  were   removed  or  replaced   with  language  that                 
  guarantees  public   access  to  information   necessary  to                 
  evaluation  of  public  policy,  it  would be  necessary  to                 
  demonstrated that the legislation would be necessary.                        
                                                                               
  Mr.  Fineberg  summarized, in  view  of the  well documented                 
  history of abuses  of confidentiality, it would  make little                 
  sense  to allow  the  lessees, at  their  own initiative  to                 
  prevent it from materializing.                                               
                                                                               
  REPRESENTATIVE NORMAN ROKEBERG  noted that he was  the Chair                 
  of  the  House  Oil  and  Gas  Committee and  spoke  to  the                 
  significant amount  of effort  and activity  that went  into                 
  preparing  the legislation  and  the committee  substitutes.                 
  The objective of the Oil and Gas Committee  was to develop a                 
  framework  around  the  commissioner's   discretion  and  to                 
  protect the citizens of Alaska and their resources                           
                                                                               
  Representative Rokeberg commented on  the philosophy of  the                 
  legislation.   He emphasized that  Alaska is competing  in a                 
  global market.  It  is clear that B.P. Exploration  and ARCO                 
  are the two  major investors  in the State  which also  have                 
  significant interest in  the North  Sea.  Those  governments                 
  have revolutionized  their tax  system  to accommodate  that                 
  interest.                                                                    
                                                                               
  He added,  without  the legislation  there would  be no  new                 
  capital investments made in  the State.  There has  not been                 
  one royalty  reduction made in Alaska.  The legislation will                 
  clarify problems from  the past while making  adjustments to                 
  new fields.                                                                  
                                                                               
  Representative  Rokeberg recommended  five areas  within the                 
  proposed  legislation  which  should  be  focused  on.    He                 
  explained   that   the  Oil   and   Gas  Committee   made  a                 
  differentiation between new and old  fields.  He added  that                 
  the major  controversial areas are in the  imposition of the                 
  floors.   The original  bill made  a provision  for a  "hold                 
  harmless"   for  the   Permanent   Fund  thus   establishing                 
  artificial floors, 50%  on leases  occurring after 1980  and                 
  25%  on  leases  before that  time.    Following significant                 
  testimony and review,  it was determined that there  were no                 
  constitutional bounds.   The Oil and Gas  Committee returned                 
  language to  the status quo:  "Any royalty payments  made to                 
  the  State of Alaska  should be  shared between  the general                 
  fund and the permanent fund".                                                
                                                                               
  Representative  Rokeberg  continued,  an   additional  issue                 
  reviewed by the  Committee was  the oversight provisions  on                 
                                                                               
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  Page 3, Section 6.  The Committee adopted the Alaska Royalty                 
  Advisory Commission Board  as an oversight group  to analyze                 
  the  commissioners  discretion.     In  the  House  Resource                 
  Committee, it  was decided  to use  public notification  and                 
  review.    Representative  Rokeberg  requested  that   House                 
  Finance Subcommittee deliberate this area.                                   
                                                                               
  Representative Rokeberg  offered his assistance to the House                 
  Finance  Subcommittee in reviewing  HB 207.   He pointed out                 
  that the federal government is  currently working on royalty                 
  reduction legislation.   These royalty  reduction bills will                 
  investigate deep water and frontier areas.                                   
                                                                               
  Representative  Brown  asked   Representative  Rokeberg   if                 
  consideration had been given to have the Legislature provide                 
  the  required  oversight.    She  recommended   providing  a                 
  disapproval mechanism within the bill unless approved by the                 
  Legislature.   Representative  Rokeberg  responded that  the                 
  Legislature and LBA  had been considered.   He added that  a                 
  sunset provision  would not  be workable  as the  time frame                 
  does not lend  itself to the  interim schedule.  He  thought                 
  that the  situation should not be "politicized"  and felt it                 
  would be if the Legislature or LBA provided the oversight.                   
                                                                               
  PATRICK  DALTON,  (TESTIFIED   VIA  TELECONFERENCE),   DELTA                 
  JUNCTION, spoke in opposition to HB 207.  He stated that the                 
  bill would provide  uneconomic production of oil and  gas in                 
  the   State.    He  added,   the  legislation  would  be  an                 
  environmental risk.  Mr. Dalton emphasized that if the State                 
  can not get what  the minerals or resources are  worth, they                 
  should  be left in the ground.  Mineral rights then could be                 
  allocated to the Alaskan residents.                                          
                                                                               
  Co-Chair Hanley countered that there existed a difference in                 
  philosophy regarding the legislation.  He placed HB 207 into                 
  Subcommittee consisting of Chair, Representative Therriault,                 
  and members Representative Parnell and Representative Brown.                 
                                                                               
                                                                               
  HB 207 was HELD in Committee for further consideration.                      

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