UK: The New North Sea – Part 3: Top 10 "MER UK" Issues For Exploration Activities

Last Updated: 23 June 2016
Article by Anna Tostevin

Exploration is undoubtedly a key area of focus for the bodies responsible for achieving MER UK. In its Corporate Plan, the OGA lists "revitalising exploration" as one of its priorities. It also sets out a proposed pathway for reaching its target of 50 E&A wells drilled per annum by Q1 2021. In addition, an 'exploration sector strategy' is awaited which will hopefully set out in more detail how the OGA intends to apply the MER UK Strategy to exploration operations. Our third post in this series sets out our top 10 key "MER UK" changes which may have a bearing on exploration operations in the North Sea.

1. All exploration activities must comply with the central obligation of achieving MER: All offshore petroleum licensees must comply with the MER UK Strategy (pursuant to the changes to the Petroleum Act 1998, brought in by the Infrastructure Act 2015). The MER UK Strategy was developed by the Secretary of State and sets out the proposed strategy for achieving the principal objective – "the objective of maximising the economic recovery of UK petroleum" (see also our previous post on the MER UK Strategy). It is binding upon relevant persons operating in the UKCS, specifically holders of offshore petroleum licences and operators of petroleum licences.

The MER UK Strategy expressly requires licensees under an offshore licence to plan, fund and undertake exploration activities within the licence area, in a manner that is "optimal for maximising the value of economically recoverable reserves" within the licence area. The MER UK Strategy contains more detail as to how "relevant persons" should act. Some of these are discussed in more detail below, but the key requirement is to carry out all functions in a manner compliant with MER.

2. Failure to comply with MER: Failure to comply with the MER UK Strategy may lead to sanctions. The Energy Act 2016 grants the OGA powers to impose sanctions on offshore petroleum licensees for failing to comply with the MER UK Strategy, or for failing to comply with a term or condition of the offshore licence. The possible sanctions range from enforcement notices and fines to, ultimately, the removal of the operator of a petroleum licence and/or revocation of the licence.

3. No relinquishment until firm commitment carried out: The MER UK Strategy provides that, except where the licensee would not make a "satisfactory expected commercial return" (as defined in the MER UK Strategy), a licensee cannot relinquish a licence until it has completed any work programme, to which it made a firm commitment in the licence.

4. Regional exploration plans: The OGA may produce plans setting out its view of how it expects obligations in the MER UK Strategy to be met. The plans may cover exploration activities carried out within specific regions of the North Sea, for example West of Shetland.

As far as we are aware, the OGA has not yet developed any exploration plans. If the OGA wishes to produce a plan under the MER UK Strategy, it must first consult with those persons it thinks may be affected by the plan. As the plans are binding, we recommend you engage with the OGA on any proposed plan that may affect your exploration activities (and potentially future activities down the line, including development and decommissioning).

If you intend to carry out activities in a manner inconsistent with any plan published by the OGA, you will need to first consult with the OGA.

5. Collaboration and competition law issues: The MER UK Strategy requires licensees to consider whether collaboration or cooperation with other licensees or service providers could reduce costs and/or increase the recovery of economically recoverable petroleum, and to give due consideration to such possibilities.

At the same time, the MER UK Strategy states that no obligation imposed by the Strategy permits conduct which would otherwise be prohibited under legislation, including competition law. There appears to be an inherent conflict between these requirements. It is your responsibility to ensure that you do not infringe competition laws whilst complying with MER.

6. New technologies: According to the MER UK Strategy, licensees must ensure that, in carrying out their activities, new and emerging technologies are deployed to their optimum effect. This may also be the subject of an OGA plan, which you may be required to comply with.

7. OGA attendance at meetings: Under the Energy Act 2016, the OGA will have powers to attend meetings between licensees and other relevant persons discussing matters relevant to achieving MER. This includes formal meetings such as Opcom meetings, as well as meetings conducted through electronic means (e.g. telephone calls). The organiser of the meeting has to provide notice to the OGA of any such meetings (14 days' notice, unless it is not practicable to do so) and provide any papers relating to the MER UK issue, which are distributed to the attendees to the OGA. If an OGA representative does not attend, the organiser must provide a summary of the discussion to the OGA.

In practical terms, employees organising meetings need to be aware of what "MER" issues are, in order to know when the OGA should be given notice and what papers to provide. Waivers of confidentiality from other persons may be required. In addition, papers given to the OGA should only cover those issues relevant to the OGA and not commercially sensitive information.

Whilst these new powers appear to be fairly onerous, they may be useful, if there is an issue that you want the OGA to be involved in.

8. Information and samples: There are new provisions in the Energy Act that give the Secretary of State the power to create regulations to require licensees, operators and owners of petroleum infrastructure to retain specified petroleum related information and samples. Notably, the regulations can require a party to keep information and samples even where it is no longer a licensee (as a result of transfer, surrender, expiry or revocation).

Procedures will need to be put in place to ensure the data and samples are retained. In addition, each licensee is required to have an information and samples coordinator within the organisation to supervise data retention and correspondence with the OGA.

If a licence is transferred, surrendered, revoked or expires, then the OGA can request that the licensee informs it of what is to happen with information and samples (in an information and samples plan). The plan must provide for the party to either: (i) retain the information and samples, (ii) transfer to a new licensee or (iii) secure appropriate storage. So on a transfer of a licence, the licensee has the choice of potentially incurring costs to retain or store the data and samples, or handing over its intellectual property to another licensee.

9. MER UK disputes: Relevant persons, including offshore petroleum licensees and owners of upstream infrastructure, may refer disputes relating to fulfilment of the MER, or relating to activities carried out under an offshore petroleum licence, to the OGA for a non-binding recommendation on how to resolve the dispute. It should be noted that the OGA also has the power to decide on its own initiative to consider a dispute involving such issues.

As there is already a separate procedure for disputes relating to third party access, the new powers do not apply to such disputes relating to third party access.

10. Satisfactory expected commercial return: The general principle behind the MER UK Strategy is that investment made in the UKCS should be made such that the maximum value of economically recoverable petroleum is recovered, and that assets should be in the hands of those who are willing to make such investment. So the MER UK Strategy contains a safeguard that no licensee or owner of infrastructure is required to invest or fund activity if it would not make a satisfactory expected commercial return. The definition is fairly vague, but prescribes that a satisfactory expected commercial return is not necessarily a return in line with corporate policy. If a licensee feels that it would not make a satisfactory return, but a "satisfactory expected commercial return" could be made, the licensee could ultimately be required to sell the asset.

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