Legislature(2007 - 2008)BARNES 124

03/23/2007 01:00 PM House RESOURCES


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01:07:38 PM Start
01:08:01 PM HB128
02:57:52 PM Adjourn
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 128 OIL & GAS PRODUCTION TAX: EXPENDITURES
Heard & Held
                    ALASKA STATE LEGISLATURE                                                                                  
               HOUSE RESOURCES STANDING COMMITTEE                                                                             
                         March 23, 2007                                                                                         
                           1:07 p.m.                                                                                            
                                                                                                                                
MEMBERS PRESENT                                                                                                               
                                                                                                                                
Representative Carl Gatto, Co-Chair                                                                                             
Representative Craig Johnson, Co-Chair                                                                                          
Representative Vic Kohring                                                                                                      
Representative Paul Seaton                                                                                                      
Representative Peggy Wilson                                                                                                     
Representative Bryce Edgmon                                                                                                     
Representative David Guttenberg                                                                                                 
Representative Scott Kawasaki                                                                                                   
                                                                                                                                
MEMBERS ABSENT                                                                                                                
                                                                                                                                
Representative Bob Roses                                                                                                        
                                                                                                                                
COMMITTEE CALENDAR                                                                                                            
                                                                                                                                
HOUSE BILL NO. 128                                                                                                              
"An Act relating to allowable  lease expenditures for the purpose                                                               
of determining  the production tax value  of oil and gas  for the                                                               
purposes of the oil and gas  production tax; and providing for an                                                               
effective date."                                                                                                                
                                                                                                                                
     - HEARD AND HELD                                                                                                           
                                                                                                                                
PREVIOUS COMMITTEE ACTION                                                                                                     
                                                                                                                                
BILL: HB 128                                                                                                                  
SHORT TITLE: OIL & GAS PRODUCTION TAX: EXPENDITURES                                                                             
SPONSOR(s): REPRESENTATIVE(s) OLSON                                                                                             
                                                                                                                                
02/12/07       (H)       READ THE FIRST TIME - REFERRALS                                                                        
02/12/07       (H)       O&G, RES, FIN                                                                                          
02/22/07       (H)       O&G AT 3:00 PM CAPITOL 124                                                                             
02/22/07       (H)       Heard & Held                                                                                           
02/22/07       (H)       MINUTE(O&G)                                                                                            
03/01/07       (H)       O&G AT 3:00 PM CAPITOL 124                                                                             
03/01/07       (H)       Moved CSHB 128(O&G) Out of Committee                                                                   
03/01/07       (H)       MINUTE(O&G)                                                                                            
03/05/07       (H)       O&G RPT CS(O&G) 3DP 1NR                                                                                
03/05/07       (H)       DP: DOOGAN, RAMRAS, OLSON                                                                              
03/05/07       (H)       NR: SAMUELS                                                                                            
03/19/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
03/19/07       (H)       Heard & Held                                                                                           
03/19/07       (H)       MINUTE(RES)                                                                                            
03/21/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
03/21/07       (H)       Heard & Held                                                                                           
03/21/07       (H)       MINUTE(RES)                                                                                            
03/23/07       (H)       RES AT 1:00 PM BARNES 124                                                                              
                                                                                                                                
WITNESS REGISTER                                                                                                              
                                                                                                                                
KONRAD JACKSON, Staff                                                                                                           
to Representative Kurt Olson                                                                                                    
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  Presented Amendment 1 on behalf of                                                                       
Representative Olson, prime sponsor of HB 128.                                                                                  
                                                                                                                                
DON BULLOCK, Attorney                                                                                                           
Legislative Legal and Research Services                                                                                         
Legislative Affairs Agency (LAA)                                                                                                
Alaska State Legislature                                                                                                        
Juneau, Alaska                                                                                                                  
POSITION STATEMENT:  During the hearing on HB 128, answered                                                                   
questions.                                                                                                                      
                                                                                                                                
JOHN IVERSEN, Director                                                                                                          
Anchorage Office                                                                                                                
Tax Division                                                                                                                    
Department of Revenue                                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During hearing of HB 128, answered                                                                       
questions.                                                                                                                      
                                                                                                                                
JUDITH BRADY, Executive Director                                                                                                
Alaska Oil and Gas Association (AOGA)                                                                                           
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 128.                                                                       
                                                                                                                                
MICHAEL HURLEY, Director                                                                                                        
State Government Relations                                                                                                      
ConocoPhillips Alaska, Inc.                                                                                                     
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified that HB 128 is duplicative since                                                               
the 30 cents per barrel is already in place.                                                                                    
                                                                                                                                
GARY ROGERS, Production Audit Manager                                                                                           
Tax Division                                                                                                                    
Department of Revenue                                                                                                           
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:     During  hearing  of   HB  128,  answered                                                             
questions.                                                                                                                      
                                                                                                                                
KEVIN BANKS, Acting Director                                                                                                    
Division of Oil & Gas                                                                                                           
Department of Natural Resources                                                                                                 
Anchorage, Alaska                                                                                                               
POSITION  STATEMENT:     During  hearing  of   HB  128,  answered                                                             
questions.                                                                                                                      
                                                                                                                                
JOHN NORMAN, Commissioner/Chair                                                                                                 
Alaska Oil and Gas Conservation Commission                                                                                      
Department of Administration                                                                                                    
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  During hearing  of HB 128, provided comments                                                             
and answered questions.                                                                                                         
                                                                                                                                
JASON BRUNE, Executive Director                                                                                                 
Resource Development Council (RDC)                                                                                              
Anchorage, Alaska                                                                                                               
POSITION STATEMENT:  Testified in opposition to HB 128.                                                                       
                                                                                                                                
                                                                                                                                
ACTION NARRATIVE                                                                                                              
                                                                                                                                
CO-CHAIR  CARL   GATTO  called   the  House   Resources  Standing                                                             
Committee  meeting  to  order at  1:07:38  PM.    Representatives                                                             
Gatto,  Johnson, Guttenberg,  Edgmon, Kawasaki,  Kohring, Wilson,                                                               
and Seaton were present at the call to order.                                                                                   
                                                                                                                                
HB 128-OIL & GAS PRODUCTION TAX: EXPENDITURES                                                                                 
                                                                                                                                
1:08:01 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO  announced that the  only order of  business would                                                               
be  HOUSE BILL  NO.  128,  "An Act  relating  to allowable  lease                                                               
expenditures for  the purpose of  determining the  production tax                                                               
value  of  oil and  gas  for  the purposes  of  the  oil and  gas                                                               
production tax;  and providing for  an effective date."   [Before                                                               
the committee is CSHB 128(O&G).]                                                                                                
                                                                                                                                
1:08:30 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  moved that  the committee  adopt Amendment                                                               
1,  labeled   LS-0561\K.1,  Bullock,  10/17/07,  which   read  as                                                               
follows:                                                                                                                        
                                                                                                                                
     Page 3, lines 22 - 23:                                                                                                     
          Delete "the standard practices of the industry"                                                                   
          Insert "good oil field practice"                                                                                  
                                                                                                                                
REPRESENTATIVE WILSON and CO-CHAIR JOHNSON objected.                                                                            
                                                                                                                                
1:09:05 PM                                                                                                                    
                                                                                                                                
KONRAD JACKSON, Staff to Representative  Kurt Olson, Alaska State                                                               
Legislature, presented  Amendment 1  on behalf  of Representative                                                               
Olson, prime sponsor of HB 128.                                                                                                 
                                                                                                                                
1:10:02 PM                                                                                                                    
                                                                                                                                
DON BULLOCK,  Attorney, Legislative Legal and  Research Services,                                                               
Legislative Affairs Agency (LAA),  Alaska State Legislature, told                                                               
the committee that Amendment 1  was suggested by Mr. Iversen, Tax                                                               
Division, Department  of Revenue  (DOR), and  Robert E.  Mintz, a                                                               
contract attorney formally  with the Department of Law.   He said                                                               
both  men think  using  "good  oil field  practice"  in place  of                                                               
"standard practices of  the industry" will provide  a better base                                                               
from which to  operate.  Mr. Bullock stated  that normally, taxes                                                               
and  royalty issues  don't get  to  the cost  of production;  the                                                               
change  in  the  petroleum  production   profits  tax  (PPT)  has                                                               
generated  that  change.    He  concluded,  "This  goes  back  to                                                               
expectations,  and   ...  what's  expected  in   return  for  the                                                               
deduction,  and  how  can the  Department  of  Revenue  determine                                                               
whether  a deduction's  appropriate  with the  policies that  you                                                               
folks set."                                                                                                                     
                                                                                                                                
1:11:48 PM                                                                                                                    
                                                                                                                                
MR.  BULLOCK,  in response  to  Representative  Seaton, said  the                                                               
term, "good  oil field  practice" is mentioned  in the  manual of                                                               
oil and gas  terms, as well as  being used in certain  cases.  In                                                               
further response,  he explained that  in addition to  legal terms                                                               
found in  statute, there  are also legal  terms that  courts have                                                               
defined as  necessary to define the  law.  He offered  his belief                                                               
that ["good oil field practice"] is  a common law term that could                                                               
have been developed in a contract.                                                                                              
                                                                                                                                
1:12:52 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON said "good  oil field practice" sounds like                                                               
a term  that could  be used  in several  places and  have several                                                               
different meanings.   He  asked if  there needs  to be  a certain                                                               
citation.                                                                                                                       
                                                                                                                                
MR. BULLOCK said  the aforementioned manual of oil  and gas terms                                                               
is a generally recognized resource.  He continued:                                                                              
                                                                                                                                
     When I was researching this  bill at the request of the                                                                    
     sponsor, I spent  quite a bit of time trying  to find a                                                                    
     universal standard,  and there just isn't.   And that's                                                                    
     why  it's important  that the  committee consider  what                                                                    
     kind of  standard you want to  apply.  And this  is the                                                                    
     approach  that the  Department  of  Revenue feels  that                                                                    
     they  can find  the most  information about,  that they                                                                    
     can say, "This  is what we expect, and if  you did what                                                                    
     we expected,  you get  the deduction."   So, if  it was                                                                    
     something less  than what would be  expected under this                                                                    
     standard,  then  the  deduction   would  be  denied  or                                                                    
     adjusted.                                                                                                                  
                                                                                                                                
1:13:56 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  directed attention  to the  words, "taking                                                           
into consideration", which  appear on page 3,  line 22, preceding                                                           
the words  proposed in Amendment  1.   He asked, "Does  that mean                                                               
that  they are  required to  follow the  standards of  good field                                                               
practice that you just mentioned they would find as a standard?"                                                                
                                                                                                                                
MR. BULLOCK responded:                                                                                                          
                                                                                                                                
     It means  that they have  to look at the  standard when                                                                    
     they're  ... making  their decision  as  to ...  what's                                                                    
     expected, they  would take that into  consideration and                                                                    
     give  it  appropriate  weight.   They  may  find  other                                                                    
     standards that are also applicable.   They may look at,                                                                    
     perhaps,  a standard  operating agreement  form to  see                                                                    
     what normally would be expected.                                                                                           
                                                                                                                                
     ... This  is ... trying to  establish ... expectations:                                                                    
     what kind of  care is expected; what  kind of avoidance                                                                    
     of  unnecessary costs  could be  anticipated.   Like  I                                                                    
     say,  this is  a  new  area, and  they  felt that  they                                                                    
     needed some discretion and some  area within which they                                                                    
     can  operate to  be reasonable,  because no  doubt this                                                                    
     type  of expense  will be  appealed if  the deduction's                                                                    
     just allowed.  Obviously they want to make a good case                                                                     
     ahead of time.                                                                                                             
                                                                                                                                
1:15:25 PM                                                                                                                    
                                                                                                                                
CO-CHAIR   GATTO  commented   that   what   is  considered   good                                                               
maintenance  in Saudi  Arabia may  be different  than in  another                                                               
part  of the  world.   He indicated  that the  term, "good"  must                                                               
apply in the Arctic.                                                                                                            
                                                                                                                                
MR.  BULLOCK  said  it's  not  just  a  location  issue;  another                                                               
consideration is  what is in  the oil itself.   Some oil  will be                                                               
more corrosive,  he said.  He  offered further details.   He said                                                               
the department needs  the discretion because there  is no "silver                                                               
bullet standard."                                                                                                               
                                                                                                                                
CO-CHAIR GATTO  related that  good oil  field practices  are also                                                               
determined by oil flow.                                                                                                         
                                                                                                                                
MR. BULLOCK said there are risks  that can be identified that are                                                               
within the scope of regulation  of the government.  The industry,                                                               
he said,  is actually the  best source for what  constitutes good                                                               
oil field practices.                                                                                                            
                                                                                                                                
1:20:34 PM                                                                                                                    
                                                                                                                                
MR.  BULLOCK,   in  response  to   Co-Chair  Johnson,   said  the                                                               
aforementioned manual  of oil and gas  terms can be found  in the                                                               
legislative law library.                                                                                                        
                                                                                                                                
1:20:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  WILSON asked  if  there is  any  reason that  the                                                               
committee could not  take "that definition" and put it  in the HB
128.                                                                                                                            
                                                                                                                                
MR.  BULLOCK  said he  thinks  that  would be  possible,  however                                                               
whatever standard  the legislature picks should  reflect not only                                                               
policy, but also what the legislature is "speaking to."                                                                         
                                                                                                                                
1:21:48 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO commented on other variables.                                                                                    
                                                                                                                                
1:22:29 PM                                                                                                                    
                                                                                                                                
MR.  BULLOCK, in  response  to  Representative Wilson,  indicated                                                               
that he  would try  to incorporate the  definition in  the manual                                                               
into the bill, as Representative Wilson had suggested.                                                                          
                                                                                                                                
1:22:56 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOHNSON asked  if  there is  any  inconsistency in  the                                                               
makeup of the oils on the different North Slope fields.                                                                         
                                                                                                                                
MR. BULLOCK suggested that the  oil companies could better answer                                                               
that  question; however,  he surmised  that there  would be  some                                                               
differences.                                                                                                                    
                                                                                                                                
1:24:04 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOHNSON  asked if  it  would  be  necessary to  have  a                                                               
different standard for each field.                                                                                              
                                                                                                                                
MR.  BULLOCK responded,  "It's not  so  much how  big the  bill's                                                               
going to be, but how much the  Department of Revenue has to do to                                                               
decide how  broad the standard can  be applied.  But  the factors                                                               
for applying the standard may be same."  He offered examples.                                                                   
                                                                                                                                
1:25:20 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOHNSON asked  how the  flow into  a pipeline  would be                                                               
monitored  if it  is coming  from  several different  areas.   He                                                               
offered  an  example   in  which  too  much  money   is  paid  on                                                               
maintenance that is  unnecessary because the standard  was set to                                                               
the lowest denominator.   He asked, "So, are we going  to be in a                                                               
situation  where we're  getting tax  credits for  doing stuff  we                                                               
don't need  to do, because  we've set  a standard that's  for the                                                               
worst-case scenario?"                                                                                                           
                                                                                                                                
MR. BULLOCK  said if  the presumption was  overly strict  for one                                                               
field, it could be changed.                                                                                                     
                                                                                                                                
1:26:31 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON explained that he  does not want the presumption                                                               
to  be  defined  in  court, but  would  rather  have  legislation                                                               
crafted that  is not incident  driven but withstands the  test of                                                               
time.                                                                                                                           
                                                                                                                                
1:27:26 PM                                                                                                                    
                                                                                                                                
MR.  BULLOCK  responded  that  although there  may  have  been  a                                                               
particular  incident that  brought  the  proposed legislation  to                                                               
mind, the  bill has not  been written to apply  only in 2007.   A                                                               
good  oil field  practice  would be  looked at  each  time a  tax                                                               
return  would  be  audited  for  the  deductions;  therefore,  as                                                               
technology  improves,  the good  oil  field  practice would  also                                                               
"rise to a higher level."                                                                                                       
                                                                                                                                
1:28:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GUTTENBERG related  he  is  under the  impression                                                               
that  [Amendment 1]  addresses  Co-Chair Johnson's  concern.   He                                                               
explained as follows:                                                                                                           
                                                                                                                                
     Standard on one  field or one situation or  one type of                                                                    
     oil wouldn't be the right  standard on another.  So, if                                                                    
     you ...  go to  this definition of  ... good  oil field                                                                    
     practices,  somebody  could  come in  and  say  exactly                                                                    
     that:  "That  used to be the standard, but  ... this is                                                                    
     a  good  practice."   And,  while  there ...  might  be                                                                    
     challenge by the department, they  could say, "No, this                                                                    
     is the  oil; this is the  content we have; this  is the                                                                    
     flow  rate.   That  might  have  been the  standard  in                                                                    
     another  situation,  but  this  is  the  good  standard                                                                    
     here."  And they could  justify that and come back with                                                                    
     the argument.                                                                                                              
                                                                                                                                
     ... It  goes both  ways for both  parties.   They could                                                                    
     come in and  say, "The standard is  not necessarily the                                                                    
     best  in every  situation."   ... Instead  of being  so                                                                    
     rigid, simply say, "standard."                                                                                             
                                                                                                                                
1:29:48 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  GATTO  suggested that  the  highest  standard could  be                                                               
consistently applied, although it may be difficult to attain.                                                                   
                                                                                                                                
REPRESENTATIVE  GUTTENBERG  responded,   "Sometimes  the  highest                                                               
standard causes things to break prematurely."                                                                                   
                                                                                                                                
1:30:04 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  said he is uncertain  that requiring "good                                                               
oil field practices"  to be taken into  consideration will result                                                               
in  those  practices being  used.    Problems  in the  past  have                                                               
resulted  from some  unexpected  factor.   He  said,  "If it  was                                                               
something that could have been anticipated, it's already covered                                                                
under gross negligence."  He continued:                                                                                         
                                                                                                                                
     So, I don't  even know why we have  gross negligence in                                                                    
     the bill if we adopt  this, because gross negligence is                                                                    
     always going  to be  improperly maintained;  it's going                                                                    
     to  be at  least this  standard  if it  ever arises  to                                                                    
     gross negligence.                                                                                                          
                                                                                                                                
REPRESENTATIVE SEATON asked Mr. Bullock to address his concern.                                                                 
                                                                                                                                
1:32:46 PM                                                                                                                    
                                                                                                                                
MR. BULLOCK  clarified that he  had not  meant to say  that every                                                               
time a tax  return is filed a new determination  would be made as                                                               
to what good  oil field practice is.  He  said that determination                                                               
would  be field  specific and  applied  over several  years.   He                                                               
continued:                                                                                                                      
                                                                                                                                
     The state is giving up  a dollar deduction for a dollar                                                                    
     of cost  in maintaining the  field, and that  works out                                                                    
     to  about 22.5  cents  for every  dollar that's  spent.                                                                    
     And  if it's  a qualified  capital expenditure,  that's                                                                    
     another 20  percent out of  that dollar.  So,  the real                                                                    
     question  is:   What does  the state  expect?   Does it                                                                    
     expect for oil field practice  to be the standard?  So,                                                                    
     are we  willing to share  the cost of  poor maintenance                                                                    
     or improper maintenance?   Or are we going  to say ...,                                                                    
     "This is our  money.  We don't want you  to spend money                                                                    
     unnecessarily, so  we're going  to ask that  you comply                                                                    
     with  good oil  field practice,  with how  the industry                                                                    
     defines it  ...."   And if  it is  and there's  still a                                                                    
     problem, ... we've  set the standard as  good oil field                                                                    
     practice, even if it doesn't  get us as much protection                                                                    
     as we want from our revenue  stream.  So, what this is,                                                                    
     is it's  trying to use  the industry's own  standard to                                                                    
     be  reasonable and  apply the  state's expectations  to                                                                    
     these  expenses,  to say,  "These  are  the ones  we're                                                                    
     going  to share  the  cost in,  and  something less  we                                                                    
     choose not to share the cost."                                                                                             
                                                                                                                                
1:35:02 PM                                                                                                                    
                                                                                                                                
[Co-Chair Gatto passed the gavel to Co-Chair Johnson.]                                                                          
                                                                                                                                
REPRESENTATIVE WILSON asked:                                                                                                    
                                                                                                                                
     Since  this happened  up on  the North  Slope, has  the                                                                    
     department itself changed any  of [its] regulations?  I                                                                    
     mean, are  they looking at things  a little differently                                                                    
     than they did  before?  And if they are,  maybe this is                                                                    
     covered just in regulation ....                                                                                            
                                                                                                                                
1:35:34 PM                                                                                                                    
                                                                                                                                
MR. BULLOCK deferred to Mr. Iversen.                                                                                            
                                                                                                                                
1:36:07 PM                                                                                                                    
                                                                                                                                
JOHN   IVERSEN,  Director,   Anchorage   Office,  Tax   Division,                                                               
Department  of Revenue,  in response  to Representative  Wilson's                                                               
questions,   said  the   department  envisions   two  rounds   of                                                               
regulations,  the  first  of  which is  waiting  only  for  final                                                               
review.    Any  substantive  changes   that  are  made  to  those                                                               
regulations would  need to  be approved  by the  commissioner and                                                               
lieutenant   governor.     He  said,   "That  [first]   round  of                                                               
[regulations] has  not addressed the issue  of lease expenditures                                                               
in  the context  that we're  talking about  in this  section, so,                                                               
that  would be  the part  of the  second regulations  ...."   The                                                               
second  round of  regulations will  be considered  through spring                                                               
and summer [of  2007].  Regarding whether  "the legislature needs                                                               
to  put this  into a  statute  as opposed  to what's  in the  law                                                               
already," he explained:                                                                                                         
                                                                                                                                
     When we draft regulations, we're  limited as to what we                                                                    
     can  say  ...  by  what's  in the  statute  -  ...  the                                                                    
     regulations  implement the  statute.   Any  regulations                                                                    
     that would  be ... outside  of the bounds of  what's in                                                                    
     the statute  would be subject  to legal challenge.   If                                                                    
     ...  we  were  to  write a  regulation  that  expressly                                                                    
     incorporates the  language that's  in this bill,  as to                                                                    
     improper maintenance, that would  be subject to a legal                                                                    
     challenge.  That doesn't mean  it would necessarily get                                                                    
     shot  down,  but it  would  be  more subject  to  legal                                                                    
     challenge than if  ... we were actually  going off this                                                                    
     express ...  language in the  statute.   Stated another                                                                    
     way:  A  regulation that we would draft  like this does                                                                    
     not find explicit  basis in the statute.   That doesn't                                                                    
     mean we can't necessarily get  there, it's just that if                                                                    
     the  legislature wants  to make  sure and  clarify that                                                                    
     these sorts  of costs  are going  to be  excluded, then                                                                    
     the  bullet-proof  way to  do  it  would be  through  a                                                                    
     statute.                                                                                                                   
                                                                                                                                
1:39:39 PM                                                                                                                    
                                                                                                                                
[Co-Chair Johnson returned the gavel to Co-Chair Gatto.]                                                                        
                                                                                                                                
1:40:35 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON removed his objection to Amendment 1.                                                                          
                                                                                                                                
1:40:38 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  GATTO  asked if  there  was  any further  objection  to                                                               
Amendment  1.    [The  objection  by  Representative  Wilson  was                                                               
treated  as   withdrawn.]    There  being   no  other  objection,                                                               
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
1:40:52 PM                                                                                                                    
                                                                                                                                
JUDITH BRADY, Executive Director,  Alaska Oil and Gas Association                                                               
(AOGA),  testified  in opposition  to  HB  128.   She  said  AOGA                                                               
believes that  the state  is already  protected and  the proposed                                                               
legislation would not survive a  legal challenge.  In response to                                                               
Co-Chair Gatto,  she said AOGA members  have not had a  chance to                                                               
study the bill  with the newly adopted Amendment 1,  but she said                                                               
with that amendment,  the bill is certainly "moving  in the right                                                               
direction."                                                                                                                     
                                                                                                                                
1:42:22 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO noted  that Ms. Brady would  be allowed additional                                                               
testimony  at an  upcoming meeting  in  order to  respond to  the                                                               
bill, as amended.                                                                                                               
                                                                                                                                
1:42:41 PM                                                                                                                    
                                                                                                                                
MS. BRADY remarked  that all the issues that  have been discussed                                                               
during the  last two hearings  on the  bill are issues  that have                                                               
been  discussed  during  the  prior  year.   She  said  there  is                                                               
precedent for  people to change their  opinions about legislation                                                               
after being presented with another viewpoint.                                                                                   
                                                                                                                                
MS. BRADY  related that  AOGA is concerned  about adding  a broad                                                               
category of  costs that cannot be  deducted and will result  in a                                                               
constant adversarial  relationship between  the industry  and the                                                               
state, litigation,  and a raised  level of uncertainty  about how                                                               
to  operate in  Alaska.   She  said the  proposed legislation  is                                                               
moving  from  an "incident-related  concern  about  costs" to  "a                                                               
place where you're going to ... end up requiring an audit of                                                                    
every single capital expense."                                                                                                  
                                                                                                                                
1:45:42 PM                                                                                                                    
                                                                                                                                
MS. BRADY stated, "The concern of the sponsors now is exactly                                                                   
the concern of the legislators last year - and for very good                                                                    
reason."  She continued:                                                                                                        
                                                                                                                                
     The  PPT ...  did two  things:   Number one,  it raised                                                                    
     taxes when prices are higher;  and two, because there's                                                                    
     this  need  for  new  investment  in  the  state,  they                                                                    
     decided that the state would  share some of the risk of                                                                    
     the  expense, and  they would  allow  the deduction  of                                                                    
     lease   expenditures,  ...   and  they're   immediately                                                                    
     expensed before  you come to the  production tax value.                                                                    
     And in addition, ... capital  costs are eligible for 20                                                                    
     percent.      And   the  purpose   was   to   encourage                                                                    
     reinvestment in  Alaska.   It did  raise taxes,  but it                                                                    
     also  raised very  high concerns.    There was  hearing                                                                    
     after  hearing  ...  talking just  about  exactly  what                                                                    
     you're talking about:   "Well, shoot, how  are we going                                                                    
     to  know  what's  a  real expense  and  what's  not  an                                                                    
     expense?  We could be  expensed right down to the point                                                                    
     where we  don't have  any ... tax  money coming  in; we                                                                    
     could be expensed  down to zero.  ... How  are we going                                                                    
     to be  able to audit this?"   All of the  things you're                                                                    
     raising  now were  raised over  and over  ... again  at                                                                    
     that time, and ... they came  up with more and more ...                                                                    
     answers.                                                                                                                   
                                                                                                                                
1:47:21 PM                                                                                                                    
                                                                                                                                
MS. BRADY drew attention to "the lease expenditures part of the                                                                 
bill."  She continued:                                                                                                          
                                                                                                                                
     They start  out with saying  that for purposes  of this                                                                    
     bill [PPT?],  lease expenditures  are the  ordinary and                                                                    
     necessary  cost upstream  of  the  point of  production                                                                    
     that  are direct  cost  exploring  for, developing,  or                                                                    
     producing gas  deposits.   So, that  was the  first ...                                                                    
     requirement:  Direct and ordinary.                                                                                         
                                                                                                                                
     Then further  back in  that section  they say,  "And if                                                                    
     the cost  is disputed  by working owner  interests, the                                                                    
     state ... doesn't  have to pay that cost  either.  They                                                                    
     were  talking   about  the  fact  that   working  owner                                                                    
     interests    have   very    highly   developed    audit                                                                    
     capabilities;  they audit  each other  all the  time to                                                                    
     see about costs.   And if you don't  think that's true,                                                                    
     there's  about 4,000  categories of  costs for  Prudhoe                                                                    
     Bay alone that  are constantly audited by  ... the four                                                                    
     or five working partners.                                                                                                  
                                                                                                                                
MS.  BRADY,  in response  to  Co-Chair  Gatto, characterized  the                                                               
4,000  number  as  "pretty  accurate."   She  said  the  interest                                                               
owners'  value is  dependent  upon reasonable  costs.   She  said                                                               
there  are   almost  eight  pages   of  discussion   under  lease                                                               
expenditures that attempt  to close the gap on  decisions made as                                                               
to what can and cannot be deducted.                                                                                             
                                                                                                                                
1:49:30 PM                                                                                                                    
                                                                                                                                
MS.  BRADY recalled  that just  before the  House passed  the PPT                                                               
bill, on August  6, 2006, BP discovered a leak  at Flow Station 2                                                               
in the oil  transit line.  The company  notified the authorities,                                                               
implemented procedures  to stop the  leak, and began  the process                                                               
of suspending  production from the  entire field.  The  House was                                                               
informed about  the leak just before  voting on the PPT  bill and                                                               
that legislation passed the House 29:10.  She continued:                                                                        
                                                                                                                                
     But as more information came  out, the level of concern                                                                    
     regarding   the  effect   of   this  bill   heightened.                                                                    
     Legislators did not want the  State of Alaska to end up                                                                    
     paying for the  result of this bill, under  the PPT, if                                                                    
     the standard  had been  ignored -  exactly the  kind of                                                                    
     thing you're concerned about today.   And, as a result,                                                                    
     the Senate ... super committee  ... went over the whole                                                                    
     lease expenditure piece again.   ... They added and re-                                                                    
     added  and talked  about lease  expenditures would  not                                                                    
     include costs  arising from fraud,  willful misconduct,                                                                    
     or  gross  negligence.     And  there  was   a  lot  of                                                                    
     discussion  at   the  time  about  whether   to  go  to                                                                    
     negligence and  gross negligence, and it  was decided -                                                                    
     on much of the same  information that Commissioner John                                                                    
     Norman, the AOGCC,  talked about the other day  - to go                                                                    
     with  gross negligence.   It  was further  decided that                                                                    
     costs  incurred for  containment,  control, cleanup  or                                                                    
     removal in  connection with any unpermitted  release of                                                                    
     oil or  hazardous ... substance  would not  be included                                                                    
     as  lease expenditure.   So,  ... bills  related to  an                                                                    
     incident cannot be ... deducted.                                                                                           
                                                                                                                                
1:51:27 PM                                                                                                                    
                                                                                                                                
MS.  BRADY, continuing  her  review  of the  history  of the  PPT                                                               
legislation, noted that there had  been two amendments containing                                                               
"the same  language that you are  looking at today."   There were                                                               
questions regarding  the definition of "properly  maintained" and                                                               
"diminished  capacity,"  whether  an   auditor  should  make  the                                                               
decisions,  what would  constitute a  red flag  for the  auditor,                                                               
whether  there has  to  be an  incident like  an  oil spill,  and                                                               
whether every expenditure must be  audited - whether or not there                                                               
has been a spill.  She continued:                                                                                               
                                                                                                                                
     In  response to  this,  Pedro van  Meurs,  who was  the                                                                    
     consultant, did  two presentations  to the  Senate, ...                                                                    
     talking about a way to do it.   And on August 8, he had                                                                    
     a  white paper  ... disallowing  deemed capital  costs,                                                                    
     and he  said, "Should  companies receive  tax deduction                                                                    
     and tax credit, together with  40 percent of the value"                                                                    
     - that was under the  20/20 - "for replacing a pipeline                                                                    
     that was  defective and not properly  maintained?"  And                                                                    
     he  said, "Well"  - and  it brings  up a  larger policy                                                                    
     area,  the gray  area  between  betterment and  repair,                                                                    
     replacement.  And  so, what he suggested is  you do not                                                                    
     want to do a case by case  audit; you do not want to be                                                                    
     auditing every single expenditure.   You don't have the                                                                    
     time; you  don't have the  personnel; it will  cost you                                                                    
     more than  -- it's not  done.   And the other  thing is                                                                    
     it's  not done  anywhere.   So, he  suggested that  you                                                                    
     disallow  30   cents  per   barrel  for   every  barrel                                                                    
     produced, regardless if there's  any question, and that                                                                    
     will take  care of and  adds about $45 million  to $100                                                                    
     million a  year in  taxes, and that  will take  care of                                                                    
     any kind  of general  maintenance that  otherwise you'd                                                                    
     have to do  on an audit of every expenditure  for.  And                                                                    
     that  was what  the Senate  agreed to  do.   Instead of                                                                    
     doing an audit on  every single expenditure, they would                                                                    
     take the 30 cents a  barrel regardless ... if a company                                                                    
     had an issue or not ... to keep the state whole.                                                                           
                                                                                                                                
1:53:59 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO asked if the 30  cents to which Ms. Brady referred                                                               
is related to maintenance or capital improvement.                                                                               
                                                                                                                                
MS.  BRADY said  breakdown is  expected  and the  30 cents  would                                                               
cover  that;  it would  cover  any  miscellaneous maintenance  or                                                               
capital costs.                                                                                                                  
                                                                                                                                
1:56:01 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO offered his understanding  that the 30 cents would                                                               
cover capital expenses, not maintenance costs.                                                                                  
                                                                                                                                
MS. BRADY responded that the  Department of Revenue's source book                                                               
for  Fall 2006  states:   "In  order to  protect  the state  from                                                               
crediting  companies   for  unmet  maintenance   obligation,  the                                                               
legislature  specifically disallowed  capital expenditures  up to                                                               
30 cents per barrel under the PPT."                                                                                             
                                                                                                                                
1:57:30 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  GATTO  surmised  then  that  if  there  is  no  capital                                                               
expenditure, "then you don't get this 30 cents for maintenance."                                                                
                                                                                                                                
MS. BRADY replied, "You pay the 30 cents regardless."                                                                           
                                                                                                                                
CO-CHAIR GATTO  said he  would seek  further explanation  from an                                                               
upcoming testifier.                                                                                                             
                                                                                                                                
1:58:16 PM                                                                                                                    
                                                                                                                                
MS. BRADY recalled Mr. Norman,  Commissioner, AOGCC, pointing out                                                               
that  the PPT  protects  the state  from intentional  negligence,                                                               
willful negligence, gross negligence,  and strict liability.  The                                                               
strict   liability   is   encompassed  in   the   language   "any                                                               
unpermitted release."   Therefore, it doesn't  matter the reason,                                                               
it can't be  deducted.  Commissioner Norman went on  to say that,                                                               
therefore only simple  negligence is left, which is  when he made                                                               
the point that simple negligence is  when things happen.  "If you                                                               
were going to  go into that level, you were  talking about trying                                                               
to  bullet  proof  or  zero  tolerance  for  almost  any  capital                                                               
expense," she  said.   If that's  the case,  she opined  that the                                                               
legislation  no longer  functions as  a vehicle  for sharing  the                                                               
risk.   Therefore,  the  sponsors of  the  legislation and  other                                                               
legislators may want  to review the protections  that are already                                                               
in place  and be clear  regarding whether the state  is protected                                                               
enough.   She said that  some of  the conversation ends  up about                                                               
determining  what's heavy  oil or  light  oil and  the state,  in                                                               
effect, becomes oil field operators.   The aforementioned results                                                               
in the  costs, for the  purposes of this legislation,  being more                                                               
than is secured from the taxes.                                                                                                 
                                                                                                                                
2:01:04 PM                                                                                                                    
                                                                                                                                
MS. BRADY  said that if  the determination  is that the  state is                                                               
protected enough,  then the  exercise of  going through  all this                                                               
reasoning,  yet  again,  has  been helpful.    However,  if  it's                                                               
determined  that the  state isn't  protected, then  she suggested                                                               
concentrating on  standards that have legal  meaning and limiting                                                               
the application.   Currently, there is no beginning  for an audit                                                               
as it  isn't incident driven  and [an  audit] can be  [caused by]                                                               
any  expenditure that  catches the  auditor's eye.   Furthermore,                                                               
there's no  end due to the  cascading.  Ms. Brady  expressed hope                                                               
that the [committee] will decide that  the state is as covered as                                                               
it can  be and  that it  cannot be  bullet-proof.   Moreover, the                                                               
things that would be expected to  be covered have been.  If there                                                               
is a change, then  it must be done in such  a manner that doesn't                                                               
place the state  and the oil industry in  a permanent adversarial                                                               
position.   She expressed further  hope that some of  the answers                                                               
will come from the Petroleum System Integrity Office.                                                                           
                                                                                                                                
2:03:23 PM                                                                                                                    
                                                                                                                                
MS.  BRADY,  in  response  to   Co-Chair  Gatto,  clarified  that                                                               
currently  it's not  incident driven  and there  is no  action to                                                               
start  the audit  so everything  will have  to be  audited.   She                                                               
surmised that  everything will  have to  be audited  for improper                                                               
maintenance because there's no "flag" to start the audit.                                                                       
                                                                                                                                
2:04:48 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO surmised,  "So, you're saying, 'Let  the oil flow.                                                               
When there's an incident that occurs, we'll know it.'"                                                                          
                                                                                                                                
MS.  BRADY  replied  yes,  adding   that  the  state  is  already                                                               
protected when  an incident occurs.   The  language accomplishing                                                               
such is already in place.                                                                                                       
                                                                                                                                
2:05:54 PM                                                                                                                    
                                                                                                                                
MICHAEL   HURLEY,    Director,   State    Government   Relations,                                                               
ConocoPhillips  Alaska, Inc.,  regarding the  30 cents,  directed                                                               
attention to a memo from Dr. Pedro  van Meurs dated August 8.  At                                                               
the time the PPT was  being developed, there was discussion about                                                               
the incident at Prudhoe Bay.   As a body, the legislature has the                                                               
ability and  obligation to determine  what items can  be deducted                                                               
and  what items  cannot be  deducted.   The issue  then became  a                                                               
question as to  whether the state wants to address  the matter on                                                               
an incident-by-incident basis or develop  some sort of proxy.  He                                                               
questioned, "Do you want to just  develop some kind of a standard                                                               
deduction to the  deductions for maintenance that  we know you're                                                               
going  to  screw up?"    The  aforementioned  was debated.    The                                                               
ultimate choice  was to take 30  cents a barrel and  disallow the                                                               
deduction.  The  aforementioned was what Dr.  van Meurs explained                                                               
and  recommended in  the August  8 memo.   In  fact, in  the last                                                               
paragraph of  the last page of  the memo, Dr. van  Meurs said, "I                                                               
believe that this would provide  a good answer to possible public                                                               
criticism  that under  PPT, we  would provide  50 percent  of the                                                               
replacement costs  of pipelines  as a result  of the  Prudhoe Bay                                                               
shutdown."   Mr. Hurley related  that ConocoPhillips  believes HB
128 is  duplicative because the  policy call, 30 cents  a barrel,                                                               
has  been made.   Although  the legislature  may want  to revisit                                                               
that  policy and  may determine  to approach  on an  incident-by-                                                               
incident basis, Mr.  Hurley stated that it's  inappropriate to do                                                               
both.                                                                                                                           
                                                                                                                                
2:09:57 PM                                                                                                                    
                                                                                                                                
MR.  HURLEY, in  response  to Co-Chair  Gatto,  explained that  a                                                               
company will  have "a  bucket of  costs" that  a company  will be                                                               
allowed  to deduct  against its  revenue.   From  that bucket  of                                                               
costs,  30 cents  a  barrel has  to  be taken  out  and can't  be                                                               
deducted.  Therefore,  that 30 cents is an amount  that a company                                                               
can't deduct.                                                                                                                   
                                                                                                                                
2:10:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON  posed a scenario in  which [production] is                                                               
down to  750,000 barrels a  day, which  at 30 percent  amounts to                                                               
about  $81 million  a year.   In  such a  scenario, she  said she                                                               
understood that a company can  deduct the $81 million but nothing                                                               
else.                                                                                                                           
                                                                                                                                
MR. HURLEY replied  no, adding that Dr. van  Meurs' analysis used                                                               
numbers that  were in  the $40-$50 million  range.   He explained                                                               
that the maintenance  costs to run the fields is  in the hundreds                                                               
of millions  of dollars.  For  instance, if it was  $345 million,                                                               
that would be  deducted against all of the  company's revenue for                                                               
maintenance.  However, because of  that [30 cents] provision, the                                                               
company can  only deduct $305  million.  Therefore, instead  of a                                                               
company being  able to  deduct all  of its  costs, it  can deduct                                                               
fewer of  its costs.  In  response to Co-Chair Gatto,  Mr. Hurley                                                               
confirmed that the 30 cents is the first thing that happens.                                                                    
                                                                                                                                
CO-CHAIR GATTO  surmised then  that if  an incident  occurs, [the                                                               
funds] for it are already covered due to the 30 cents.                                                                          
                                                                                                                                
MR.  HURLEY interjected  that  the [cost  of  an incident]  would                                                               
already  be covered  by  that  30 cents.    Additionally, if  the                                                               
incident is  something that's  not allowed in  terms of  good oil                                                               
field practice  within the  unit and the  other owners  won't pay                                                               
for it, then the state doesn't have to pay for it either.                                                                       
                                                                                                                                
2:13:42 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO  asked if such  cooperation occurs with  three oil                                                               
companies.                                                                                                                      
                                                                                                                                
MR.  HURLEY confirmed  that  there  are lots  of  times when  oil                                                               
companies don't cooperate.                                                                                                      
                                                                                                                                
2:14:02 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOHNSON posed  a scenario  in which  Mr. Hurley  is the                                                               
chairman of  the board of ConocoPhillips.   He then asked  if Mr.                                                               
Hurley,  as  chairman,  would contest  the  expenditure  on  this                                                               
particular incident.                                                                                                            
                                                                                                                                
MR.  HURLEY informed  the committee  that ConocoPhillips  has had                                                               
discussions with the operator at  Prudhoe Bay regarding its plans                                                               
to  fix and  replace  transit  lines.   [The  operator] has  made                                                               
proposals to the  other owners to fund some  of those activities.                                                               
He noted  that those  are currently under  review and  aren't yet                                                               
approved.                                                                                                                       
                                                                                                                                
2:14:59 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON said that he  understands the transit lines, and                                                               
highlighted that "we're dealing with an incident here."                                                                         
                                                                                                                                
MR.  HURLEY  stated  that  at  some  point,  the  producers  will                                                               
complete  their review  of the  incident and  a decision  will be                                                               
made.    However,  at  this point,  only  one  authorization  for                                                               
expenditure (AFE)  has been  submitted to  the other  owners from                                                               
the  operators.   He opined  that it  will be  a long  process to                                                               
perform all the  things discussed.  All the  discussions with the                                                               
other owners about  the technical feasibility, the  cost, and the                                                               
schedule haven't  been completed.   Furthermore, the  analysis of                                                               
the issues by the other owners hasn't been completed.                                                                           
                                                                                                                                
2:16:24 PM                                                                                                                    
                                                                                                                                
CO-CHAIR  JOHNSON questioned  whether  the cart  has been  placed                                                               
before  the  horse,  since  there aren't  regulations  yet.    He                                                               
related, "We  are talking about a  process ... as opposed  to ...                                                               
looking down  the road.   I'm ... a little  uncomfortable looking                                                               
that far."                                                                                                                      
                                                                                                                                
2:16:51 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  SEATON recalled  the notion  that good  oil field                                                               
practices would  be applied at  each tax  return if not  at every                                                               
audit.    He  asked  if  that's  something  ConocoPhillips  would                                                               
contest  through  litigation  as   selective  enforcement.    The                                                               
provision  in HB  128 isn't  incident  driven and  applies to  an                                                               
expenditure  that may  have resulted  from improper  maintenance.                                                               
He inquired  as to Mr. Hurley's  perspective as to what  he would                                                               
expect as far as the tax auditing.                                                                                              
                                                                                                                                
MR. HURLEY confirmed  that to be one of the  issues that concerns                                                               
ConocoPhillips about  how this particular  disallowance structure                                                               
is established because it is  incident driven.  He explained that                                                               
the  "first cut  at  it"  would be  when  the  company files  its                                                               
monthly production  tax return  and an auditor  reviews it.   The                                                               
auditor  will  make  some  decision   regarding  good  oil  field                                                               
practices, although that  auditor may not have  much expertise in                                                               
that area.  The  auditor will then go to either  DNR or the AOGCC                                                               
in an  attempt to get  them to  agree that things  shouldn't have                                                               
been  done  as they  were.    The  aforementioned is  of  concern                                                               
because  an  auditor  who  is  reviewing  something  from  a  tax                                                               
perspective is being asked whether  [an incident] represents good                                                               
oil field practice.                                                                                                             
                                                                                                                                
2:19:58 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON questioned whether  this is incident driven                                                               
or  investment driven.   He  opined that  it's really  investment                                                               
driven  because   it's  a  tax   audit.    If  there's   a  large                                                               
expenditure,  then  review  of that  expenditure  will  occur  to                                                               
determine  whether improper  maintenance  was the  cause of  that                                                               
expenditure.                                                                                                                    
                                                                                                                                
MR.  HURLEY answered,  "That's probably  correct."   He  surmised                                                               
that an auditor  whose job it is to maximize  return to the state                                                               
would look for  things that were improper maintenance.   "It will                                                               
be driven by their review  of tax audits, rather than necessarily                                                               
by  any incident  that  actually occurred  or  didn't occur,"  he                                                               
remarked.                                                                                                                       
                                                                                                                                
2:21:06 PM                                                                                                                    
                                                                                                                                
MR.  IVERSEN noted  that he  has had  discussions with  the audit                                                               
supervisor for the  Oil & Gas Revenue Section, which  will be the                                                               
section to implement this.  There  are a number of different ways                                                               
that these costs  will turn up. For instance, it  could be front-                                                               
page news as is the case  with the current incident.  Another way                                                               
that the  costs show up  is through  an application for  a credit                                                               
for  the expenditure  to replace  or repair  whatever is  broken.                                                               
Yet another  way the costs show  up is in an  audit that uncovers                                                               
an   uncharacteristically  large   cost  figure   or  simply   an                                                               
uncharacteristic cost  figure.  When the  auditor asks questions,                                                               
if  the auditor  turns  up  something that  seems  to fall  under                                                               
improper  maintenance,  the auditor  would  confer  with DNR  and                                                               
AOGCC, as appropriate.                                                                                                          
                                                                                                                                
2:23:31 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON  asked if Mr.  Iversen envisions  auditing every                                                               
return.                                                                                                                         
                                                                                                                                
MR. IVERSEN deferred to Mr. Rogers.                                                                                             
                                                                                                                                
2:23:58 PM                                                                                                                    
                                                                                                                                
The committee took an at-ease from 2:23 p.m. to 2:24 p.m.                                                                       
                                                                                                                                
2:24:55 PM                                                                                                                    
                                                                                                                                
GARY ROGERS,  Production Audit Manager, Tax  Division, Department                                                               
of  Revenue, specified  that if  there was  knowledge as  to from                                                               
where  the  costs were  coming,  the  returns of  those  partners                                                               
involved  would be  audited.   Therefore,  all  returns would  be                                                               
audited.   In response  to Co-Chair  Gatto, Mr.  Rogers confirmed                                                               
that his  job is to  audit every  return, although he  noted that                                                               
sometimes the audits  may be full-blown field  audits while other                                                               
times it  may merely be a  desk audit.  The  auditor uses his/her                                                               
professional  judgment  and  materiality   comes  into  play,  he                                                               
related.                                                                                                                        
                                                                                                                                
2:25:37 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO  remarked that it  reminds him of  sampling, which                                                               
the  Internal Revenue  Service  (IRS) does  to  determine who  to                                                               
audit.  He  related his understanding that there  are certain red                                                               
flags that [trigger an audit].                                                                                                  
                                                                                                                                
MR. ROGERS  informed the  committee that the  division is  in the                                                               
process of  developing the audit  program for  this new tax.   In                                                               
the past,  if there have  been 14-15 taxpayers, the  division has                                                               
been  able to  review  every  taxpayer's return.    Now with  the                                                               
complexity and volume  of information as well as  the increase in                                                               
the number of  expenditures and deductions, the  division may not                                                               
have the luxury of auditing  every taxpayer's return.  Therefore,                                                               
the division may  have to choose which taxpayers  are audited and                                                               
which aren't.                                                                                                                   
                                                                                                                                
CO-CHAIR GATTO  questioned whether  one option  might be  to hire                                                               
more people.                                                                                                                    
                                                                                                                                
MR.  ROGERS noted  his agreement  that hiring  more people  is an                                                               
option.                                                                                                                         
                                                                                                                                
2:26:45 PM                                                                                                                    
                                                                                                                                
MR. ROGERS, in  response to Co-Chair Johnson,  explained that for                                                               
a  field audit,  the auditors  go to  the taxpayer's  offices and                                                               
review  documentation in  their  offices.   However,  for a  desk                                                               
audit the auditor may review  the return filed and decide whether                                                               
more information  is necessary.   A standard audit  procedure, he                                                               
related,  is  to  actually  go  in  the  field  and  observe  the                                                               
facilities,  the  assets,  the equipment  and  determine  whether                                                               
those exist and are in place.   Mr. Rogers noted that he has done                                                               
the aforementioned before, although it's not done very often.                                                                   
                                                                                                                                
2:28:04 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON  asked if  any of  the auditors  receive special                                                               
training that allows the auditor to  determine what is and is not                                                               
good oil field practice.                                                                                                        
                                                                                                                                
MR. ROGERS  clarified that the  auditors aren't engineers  of any                                                               
type, and  thus the  auditors would  consult with  engineers when                                                               
they felt there was issue  needing an opinion from the engineers.                                                               
He informed the committee that the  auditors do study oil and gas                                                               
industry  accounting  practices,  oil   and  gas  industry  joint                                                               
venture auditing  practices, and  oil and gas  industry financial                                                               
reporting practices.   In further  response to  Co-Chair Johnson,                                                               
Mr.  Rogers informed  the committee  that currently  the division                                                               
has an engineer on contract that  assists with property tax.  The                                                               
division also  uses the engineers at  DNR and AOGCC.   Mr. Rogers                                                               
mentioned  that  he  would   anticipate  needing  outside  expert                                                               
contractors to perform the audits.                                                                                              
                                                                                                                                
2:30:57 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO directed attention  to the term "gross negligence"                                                               
and related that Blacks Law  Dictionary defines it as:  "willful,                                                             
wanton, or reckless misconduct or such  utter lack of all care as                                                               
will  be  evidence  thereof".    "Does  that  mean  if  something                                                               
happened, that really is the  definition of gross negligence," he                                                               
asked.   He clarified, "If,  indeed, we have some  evidence, does                                                               
it  immediately default  to  gross negligence  even  if it  isn't                                                               
willful, wanton, or  reckless or utterly lack of care  or does it                                                               
simply say ... if something happened, that's gross negligence?"                                                                 
                                                                                                                                
2:32:03 PM                                                                                                                    
                                                                                                                                
KEVIN BANKS, Acting  Director, Division of Oil  & Gas, Department                                                               
of Natural  Resources, said that  would be beyond  his expertise.                                                               
Mr.  Banks  related  his  belief   that  the  language  "evidence                                                               
thereof"  seems to  indicate the  need to  determine that  if the                                                               
accident was  caused by someone performing  with utter disregard.                                                               
Therefore, one  would [seek  information] regarding  what someone                                                               
did or didn't  do in a particular situation.   Negligence and the                                                               
lack of good oil field practices  is broader in scope and doesn't                                                               
require that someone  has done something with  the willful intent                                                               
to cause an incident.                                                                                                           
                                                                                                                                
2:33:41 PM                                                                                                                    
                                                                                                                                
CO-CHAIR GATTO commented that "willful" is such a high bar.                                                                     
                                                                                                                                
2:34:27 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON  related her understanding that  by the end                                                               
of this  month, the first tax  return will be available  and thus                                                               
there will be real figures.                                                                                                     
                                                                                                                                
MR. IVERSEN  confirmed that returns  will be received at  the end                                                               
of this  month, and thus  more will be  known with regard  to the                                                               
gross  numbers.   What's actually  being claimed  won't be  known                                                               
until   there's  an   analysis   of  the   returns,  receipt   of                                                               
applications of credits,  and goes through the audit  cycle.  The                                                               
aforementioned will  take some time.   In fact, there's  a three-                                                               
year audit cycle  and there's time for amended returns.   He then                                                               
pointed out  that although  the gross numbers  in terms  of gross                                                               
receipts  that   were  paid  in   total  can  be   released,  any                                                               
information about  the taxpayer  can't be released  because under                                                               
statute it's confidential.                                                                                                      
                                                                                                                                
2:36:42 PM                                                                                                                    
                                                                                                                                
CO-CHAIR JOHNSON asked if that confidentiality could be waived.                                                                 
                                                                                                                                
MR. IVERSEN replied yes, adding  that the confidentiality belongs                                                               
to the taxpayer who can waive it.                                                                                               
                                                                                                                                
2:37:09 PM                                                                                                                    
                                                                                                                                
JOHN NORMAN, Commissioner/Chair, Alaska  Oil and Gas Conservation                                                               
Commission,  Department of  Administration, pointed  out that  AS                                                               
31.05.010(15) references  good oil field engineering  practice in                                                               
the definition of  waste.  That concept of failure  to apply good                                                               
oil  field  practice has  been  utilized  and  thus isn't  a  new                                                               
practice.    Furthermore,  that  concept  exists  throughout  the                                                               
regulations  and  generally  would  tie back  into  the  American                                                               
Petroleum   Institute   (API)   standards  as   well   as   other                                                               
professional standards.                                                                                                         
                                                                                                                                
2:39:14 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON recalled testimony  that [a red flag] could                                                               
be raised  due to an article  in the newspaper or  an application                                                               
for  a credit  for expenditures  to replace  or repair  something                                                               
large or  from an  oddity in an  audit.  He  asked if  Mr. Norman                                                               
views  the legal  language  that specifies  that  good oil  field                                                               
practice will  be taken  into consideration  means those  are the                                                               
standards  that  will  be  used  or are  they  reviewed  but  not                                                               
necessarily followed as a strict guideline.                                                                                     
                                                                                                                                
MR.  NORMAN answered  that the  black letter  standards would  be                                                               
applied to  the extent that they  exist.  He noted  that in prior                                                               
correspondence  he   has  noted  that  in   many  instances  such                                                               
standards don't  exist.  He  expressed the hope that  in applying                                                               
those standards, a measure of  common sense would be applied such                                                               
that the totality of the circumstances would be considered.                                                                     
                                                                                                                                
2:41:18 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  inquired as to  how Mr. Norman  would make                                                               
the determination that there was improper maintenance.                                                                          
                                                                                                                                
MR. NORMAN  acknowledged that a newspaper  article would identify                                                               
an incident.  However, he  mentioned that normally there would be                                                               
a  time  lag between  the  filing  of  a taxpayer's  return,  the                                                               
claiming  of  a  lease  expenditure,   and  working  through  the                                                               
different filters.   Timing would be of concern  because there is                                                               
a need in  oil field diagnostic to move quickly  when looking for                                                               
root causes.   The earlier  AOGCC is involved, the  more accurate                                                               
the  assessment would  be, he  opined.   He noted  that currently                                                               
there  are  reporting  requirements   that  come  in  daily,  but                                                               
matching it  to a tax  deduction would  be somewhat awkward.   He                                                               
emphasized  that AOGCC  would do  its best  to work  out protocol                                                               
with DOR,  but he expressed  the need  to have some  retention of                                                               
evidence in  order to  have the ability  to review  the situation                                                               
and determine whether there's been good oil field practices.                                                                    
                                                                                                                                
2:44:22 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE SEATON  remarked that Mr. Norman  had answered his                                                               
question  in relation  to  an incident.    However, he  expressed                                                               
interest in  how the  AOGCC would address  the application  for a                                                               
credit for  expenditures to  replace or repair.   He  related his                                                               
understanding  that  the  aforementioned would  occur  after  the                                                               
expenditure  is made  and  then the  application  for the  credit                                                               
comes in with the tax payment.   The aforementioned would then be                                                               
after the repair or replacement  occurred.  Representative Seaton                                                               
asked if Mr. Norman is saying  that a new procedure would have to                                                               
be established  such that  the replaced  or repaired  items would                                                               
have  to stay  in  place in  order to  allow  AOGCC to  determine                                                               
whether it was replaced or repaired due to improper maintenance.                                                                
                                                                                                                                
MR. NORMAN  explained that generally speaking  instances in which                                                               
there would be gross negligence,  willful misconduct, or careless                                                               
disregard often  self-identify.  Those  will be the  most obvious                                                               
and AOGCC would  probably have received advance  notice on those.                                                               
If a contact came in from DOR,  AOGCC would relate that it has an                                                               
incident  file and  an investigative  file.   The more  difficult                                                               
situations will be equipment that  breaks down, which could occur                                                               
in the  ordinary course  of business.   Those are  more difficult                                                               
because those  aren't situations  on which  the AOGCC  would have                                                               
incident  files.   He said  that the  response of  AOGCC is  more                                                               
incident- or  event-oriented.  Therefore, Mr.  Norman opined that                                                               
the legislation,  with regard  to gross  negligence moves  into a                                                               
new  area.   This is  a level  of conduct  that AOGCC  previously                                                               
hasn't  monitored, which  is ordinary  maintenance.   If some  of                                                               
AOGCC's specific  regulations had  been violated,  AOGCC would've                                                               
been aware  as AOGCC inspectors  are constantly  checking things.                                                               
However, there are  other areas of maintenance  that could become                                                               
problematic  because a  question may  not be  presented to  AOGCC                                                               
until well after the event and thus it may be difficult.                                                                        
                                                                                                                                
2:49:33 PM                                                                                                                    
                                                                                                                                
CO-CHAIR   GATTO  pointed   out  that   the  question   of  gross                                                               
negligence, willful misconduct, and  fraud is already included in                                                               
the  PPT.    This  bill  really only  addresses  the  concept  of                                                               
improper maintenance  not gross negligence.   Therefore, the only                                                               
word we're  dealing with is  "improper".  He asked  if everything                                                               
is being driven by identifying what "improper" is.                                                                              
                                                                                                                                
MR. NORMAN replied yes.  He  said that the term "improper" can be                                                               
identified,  although   there  are   subtle  distinctions.     He                                                               
explained that  generally there's an  analysis in the  concept of                                                               
simple  negligence.    If  between paragraph  (6)  and  (19)  the                                                               
intention is  even a  broader standard  than negligence,  then it                                                               
seems  to  move  toward  strict liability  and  therefore  almost                                                               
necessitates the guarantee of a perfect operation.                                                                              
                                                                                                                                
2:51:45 PM                                                                                                                    
                                                                                                                                
JASON  BRUNE, Executive  Director,  Resource Development  Council                                                               
(RDC), informed  the committee that  RDC is a  statewide business                                                               
association  with a  very diverse  membership, including  oil and                                                               
gas, mining,  timber, fishery, and  tourism companies as  well as                                                               
regional  Native  corporations,   local  communities,  and  labor                                                               
[organizations].  Mr.  Brune then related RDC's  opposition to HB
128,  which he  characterized  as bad  legislation.   He  further                                                               
characterized  HB 128  as bad  public  policy that's  potentially                                                               
precedent  setting  for  other  industries  in  the  state.    He                                                               
emphasized  that  with   the  passage  of  the   PPT,  the  state                                                               
effectively tripled the  production taxes on the  oil industry in                                                               
Alaska, which he  said would likely result in over  $1 billion in                                                               
additional revenue  to the state  this fiscal year.   In exchange                                                               
for these additional  taxes, producers are now  allowed to deduct                                                               
operating  expenses in  calculating these  taxes.   Additionally,                                                               
the  producers  are allowed  to  take  a  20 percent  credit  for                                                               
capital  investments  as an  incentive  for  improving the  North                                                               
Slope infrastructure.  However,  these deductions may not include                                                               
costs   arising  from   fraud,  willful   misconduct,  or   gross                                                               
negligence.    He  related  the definition  he  found  for  gross                                                               
negligence,  as   follows:    "a   careless  disregard   for  the                                                               
consequences of an  action or lack of action".   He stressed that                                                               
the definition refers to "lack of action."                                                                                      
                                                                                                                                
MR. BRUNE opined that HB  128 proposes to disallow costs "related                                                               
to the repair  and replacement of property or  equipment that was                                                               
not maintained  or was  improperly maintained."   He  related his                                                               
understanding that  the aforementioned  is already  covered under                                                               
the current  gross negligent  requirement.   If this  language is                                                               
adopted, he questioned how the  term "improper maintenance" would                                                               
be  defined  as  it's not  defined  in  HB  128.   In  fact,  the                                                               
aforementioned was  echoed in  a February  16, 2007,  letter from                                                               
Mr. Norman, AOGCC, in which he  says, "Our main concern with this                                                               
bill  is  the  absence  of   a  precise  definition  of  improper                                                               
maintenance.  The bill proposes  relying on standard practices of                                                               
the   industry  to   gauge  whether   there  has   been  improper                                                               
maintenance,  but  often  there   are  not  established  industry                                                               
standards  to  rely upon."    The  aforementioned brings  up  the                                                               
question regarding  what it would  take for the state  to declare                                                               
improper  maintenance.   Mr. Brune  questioned  whether it  would                                                               
take a  spill.  He  posed a situation in  which two sets  of pipe                                                               
have the same maintenance history,  but one develops a leak while                                                               
the other does  not.  Would replacement of one  pipe be allowable                                                               
as an  expense and the other  not, he asked.   He then questioned                                                               
whether  HB  128 will  cause  the  producers to  overcorrect  and                                                               
replace pipe  more frequently than  necessary in order  to ensure                                                               
they qualify for  the deduction.  By doing so,  it would net back                                                               
less  for Alaska  as these  expenses would  then be  permissible.                                                               
Mr. Brune  related that  RDC's members believe  that HB  128 will                                                               
exponentially  increase  disputes  between   the  state  and  the                                                               
producers.   He  stressed that  passage of  HB 128  will lead  to                                                               
endless litigation.   In conclusion,  Mr. Brune  reiterated RDC's                                                               
opposition  to  HB  128  and belief  that  the  gross  negligence                                                               
standard is  in place to  satisfy the intent of  the legislation.                                                               
He encouraged  the committee  to give  the PPT  a chance  to work                                                               
before changing it.                                                                                                             
                                                                                                                                
2:56:59 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE WILSON  announced that  because there are  so many                                                               
unanswered questions,  she is  withdrawing her  co-sponsorship of                                                               
the bill.                                                                                                                       
                                                                                                                                
[HB 128 was held over.]                                                                                                         
                                                                                                                                
2:57:52 PM                                                                                                                    
                                                                                                                                
ADJOURNMENT                                                                                                                   
                                                                                                                                
There being no  further business before the  committee, the House                                                               
Resources Standing Committee meeting was adjourned at 2:57 p.m.                                                                 

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