[Federal Register Volume 72, Number 242 (Tuesday, December 18, 2007)]
[Proposed Rules]
[Pages 71610-71613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-24384]
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SECURITIES AND EXCHANGE COMMISSION
17 CFR Parts 210, 229, 231 and 241
[Release Nos. 33-8870; 34-56945; File No. S7-29-07]
RIN 3235-AK00
Concept Release on Possible Revisions to the Disclosure
Requirements Relating to Oil and Gas Reserves
AGENCY: Securities and Exchange Commission.
ACTION: Concept release.
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SUMMARY: The Commission is publishing this Concept Release to obtain
information about the extent and nature of the public's interest in
revising oil and gas reserves disclosure requirements which exist in
their current form in Regulation S-K and Regulation S-X under the
Securities Act of 1933 and the Securities Exchange Act of 1934. The
Commission adopted the current oil and gas reserves disclosure
requirements between 1978 and 1982. In the decades that have passed
since the adoption of these rules, there have been significant changes
in the oil and gas industry. Some commentators have expressed concern
that the Commission's rules have not adapted to current practices and
may not provide investors with the most useful picture of oil and gas
reserves public companies hold.
DATES: Comments should be received on or before February 19, 2008.
ADDRESSES: Comments may be submitted by any of the following methods:
Electronic Comments
Use the Commission's Internet comment form (http://www.sec.gov/rules/concept.shtml); or
Send an e-mail to [email protected]. Please include
File Number S7-XX-07 on the subject line; or
Use the Federal e-Rulemaking Portal http://www.regulations.gov.
Follow the instructions for submitting comments.
Paper Comments
Send paper submissions in triplicate to Nancy M. Morris,
Secretary, Securities and Exchange Commission, 100 F Street, NE.,
Washington, DC 20549-1090.
All submissions should refer to File Number S7-XX-07. This file number
should be included on the subject line if e-mail is used. To help us
process and review your comments more efficiently, please use only one
method. The Commission will post all comments on the Commission's
Internet Web site (http://www.sec.gov/rules/concept.shtml). Comments
also are available for public inspection and copying in the
Commission's Public Reference Room, 100 F Street, NE., Washington, DC
20549, on official business days between the hours of 10 a.m. and 3
p.m. All comments received will be posted without change; we do not
edit personal identifying information from submissions. You should
submit only information that you wish to make available publicly.
FOR FURTHER INFORMATION CONTACT: Questions on this Concept Release
should be directed to Mellissa Campbell Duru, Attorney-Advisor or Dr.
W. John Lee, Academic Petroleum Engineering Fellow at (202) 551-3740,
Division of Corporation Finance; or Mark Mahar, Associate Chief
Accountant, Office of the Chief Accountant at (202) 551-5300; U.S.
Securities and Exchange Commission, 100 F Street, NE., Washington, DC
20549.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Definition of Oil and Gas Reserves
III. The Impact of Technology
IV. Alternative Classification Systems
V. Independent Preparation, Assessment or Evaluation of Reserves
Disclosure
VI. General Request for Comment
I. Introduction
Throughout the Commission's history, our focus on the information
needs of investors in public companies has caused us to continually re-
evaluate the disclosure requirements of the federal securities laws.
The extent and pace of changes in the oil and gas industry, and public
concern that our oil and gas reserves disclosure requirements are not
fully aligned with current industry practice, have led us to reconsider
those requirements. Through this Concept Release, the Commission seeks
public comment on our oil and gas reserves disclosure requirements.\1\
While we set forth a number of general and specific questions, we
welcome comments on any other concerns commenters may have related to
these issues.
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\1\ The Commission is currently considering the use of
International Financial Reporting Standards as published by the
International Accounting Standards Board by U.S. public companies.
The International Accounting Standards Board is also undertaking a
project with respect to the convergence of accounting and disclosure
reporting practices related to all extractive industries. This
concept release is not seeking comment with respect to those
matters.
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The current oil and gas reserves disclosure requirements have been
in place for some time. The Energy Policy and Conservation Act of 1975
directed the Commission to ``take such steps as may be necessary to
assure the development and observance of accounting practices to be
followed in the preparation of accounts by persons engaged, in whole or
in part, in the production of crude oil or natural gas in the United
States.'' \2\ In 1978, the Commission issued Accounting Series Release
No. 253, which amended Regulation S-X by adding new Rule 3-18,\3\ the
precursor to Rule 4-10 of Regulation S-X.\4\ Rule 4-10 prescribes the
financial and reporting standards for companies engaged in oil and gas
producing activities. Rule 4-10 defines what constitutes oil and gas
producing activities and proved reserves.\5\ Item 102 of Regulation S-
K, which the Commission adopted in 1982, requires that companies
disclose their proved reserves and prohibits them from disclosing other
categories of reserves.\6\ There have been significant technological
advancements, changes in the oil and gas markets, and changes in the
types of projects in which companies invest since the Commission
adopted these rules and disclosure requirements. Many in the oil and
gas industry, including some oil and gas companies, professional
organizations and analysts, believe that our oil and gas reserves
disclosure requirements have not kept pace with industry changes.\7\
[[Page 71611]]
Other commentators suggest that our reserves disclosure requirements
prevent an investor from viewing the company through management's eyes.
These commentators also believe that our rules prevent companies from
fully presenting the reasons for their oil and gas project investment
decisions.\8\
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\2\ See 42 U.S.C. 6201-6422.
\3\ See Accounting Series Release No. 253 (August 31, 1978) [43
FR 40688]. See also Accounting Series Release No. 257 (December 19,
1978) [43 FR 60404] (further amending Rule 3-18 of Regulation S-X
and revising the definition of proved reserves).
\4\ 17 CFR 210.4-10. See Release No. 33-6233 (Sept. 25, 1980)
[45 FR 63660] (adopting amendments to Regulation S-X, including Rule
4-10).
\5\ 17 CFR 210.4-10(a).
\6\ Item 102 of Regulation S-K [17 CFR 229.102]. In 1982, the
Commission adopted Item 102 of Regulation S-K. Item 102 contains the
disclosure requirements previously located in Item 2 of Regulation
S-K. See Release No. 33-6383 (March 16, 1982) [47 FR 11380]. The
Commission also ``recast[] * * * the disclosure requirements for oil
and gas operations, formerly contained in Item 2(b) of Regulation S-
K, as an industry guide.'' See Release No. 33-6384 (March 16, 1982)
[47 FR 11476].
\7\ See, for example, Steve Levine, ``Tracking the Numbers: Oil
Firms Want SEC to Loosen Reserves Rules,'' Wall Street Journal
(February 7, 2006); Christopher Hope, ``Oil Majors Back Attack on
SEC Rules,'' The Daily Telegraph (London) (February 24, 2005);
``Deloitte Calls on Regulators to Update Rules for Oil and Gas
Reserves Reporting,'' (February 9, 2005) Business Wire Inc.
available at http://biz.yahoo.com/bw/050209/95991_1.html.
\8\ See, for example, Christopher Hope, ``Oil Majors Back Attack
on SEC Rules,'' The Daily Telegraph (London)(February 24, 2005).
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II. Definition of Oil and Gas Reserves
Even though they do not appear on a company's balance sheet, oil
and gas reserves are among the most significant assets of an oil and
gas company. Given that they lie in deeply buried geological
formations, oil and gas reserves are difficult to measure and, until a
company extracts them, it can only estimate their volume.
Item 102 of Regulation S-K sets forth the disclosure requirements
for the physical property of a company. Instruction 3 to Item 102
requires an oil and gas company to disclose material information about
its proved reserves. Instruction 5 to Item 102 prohibits a company from
disclosing reserves estimates other than proved reserves in any filing
it makes with the Commission. Instruction 6 to Item 102 states that the
definitions in Rule 4-10 of Regulation S-X shall apply to Item 102 with
respect to oil and gas operations.\9\
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\9\ 17 CFR 229.102.
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Rule 4-10(a)(2) defines proved reserves as ``the estimated
quantities of crude oil, natural gas, and natural gas liquids which
geological and engineering data demonstrate with reasonable certainty
to be recoverable in future years from known reservoirs under existing
economic and operating conditions, i.e. prices and costs as of the date
the estimate is made.''\10\ While the rule does not define ``reasonable
certainty,'' the staff has interpreted this term to mean a level of
certainty such that, as more information about a reservoir becomes
available, it is more likely than not that the additional data will
confirm or enhance the company's original estimate of the quantity it
can ultimately recover.\11\ The staff has historically interpreted the
requirement that the reserves be recoverable ``under existing economic
* * * conditions,'' referred to in Rule 4-10(a)(2)(i) as ``economic
producibility,'' to mean that the company can sell the resources for
more than its cost to extract and transport them to market.\12\ In
other words, the company may classify its reserves as proved only if it
can economically produce them. Although Rule 4-10 does not specify the
price a company should use to make this determination, the staff has
historically applied the fiscal year end price requirements set forth
in two related accounting standards--Statement of Financial and
Accounting Standard No. 19 and Statement of Financial and Accounting
Standard No. 69.\13\
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\10\ 17 CFR 210.4-10(a)(2).
\11\ See Division of Corporation Finance, Current Issues and
Rulemaking Projects (November 14, 2000) available at http://www.sec.gov/divisions/corpfin/guidance/cfoilgasinterps.htm.
\12\ Id.
\13\ See Financial Accounting Standards Board, Statement of
Financial Accounting Standard No. 19: Financial Accounting and
Reporting by Oil and Gas Producing Companies (December 1977); and
Financial Accounting Standards Board, Statement of Financial
Accounting Standard No. 69: Disclosures About Oil and Gas Producing
Activities-an Amendment of FASB Statements 19, 25, 33, 39 (November
1982). These standards set forth the year-end price requirement used
for calculating discounted future net cash flows of proved reserves.
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Rule 4-10(a)(2) also requires that a company be able to recover
resources ``under existing * * * operating conditions'' before
classifying them as proved reserves. In the absence of a definition of
``existing operating conditions,'' the staff has historically
interpreted this to include a ready market and a means to transport
resources to that market.\14\ For oil, these conditions are generally
deemed to be met because a company can easily transport oil to a sales
point. For gas, there must be a pipeline to transport the gas to a
sales point.\15\ If a company does not have a current means to
transport gas, the staff assumes a ready market for gas does not
exist.\16\ Therefore, the staff does not consider gas without a means
of transport, known as stranded gas, to qualify for classification as
proved reserves under Rule 4-10.\17\
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\14\ See Division of Corporation Finance, Current Issues and
Rulemaking Projects (November 14, 2000) available at http://www.sec.gov/divisions/corpfin/guidance/cfoilgasinterps.htm.
\15\ An alternative is to convert the gas to a liquid.
Historically, however, such conversion projects have been capital
intensive and have not always been economically justified given the
quantity of reserves.
\16\ See Division of Corporation Finance, Current Issues and
Rulemaking Projects (November 14, 2000) available at http://www.sec.gov/divisions/corpfin/guidance/cfoilgasinterps.htm.
\17\ Id.
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To estimate whether it can economically produce its oil and gas
resources, a company relies on different methods to evaluate a
reservoir where it believes reserves exist. Rule 4-10(a)(2)(i)
specifies the tests a company must conduct and the type of data it must
consider to estimate, with reasonable certainty, its proved reserves.
The company must support its economic producibility conclusion by
either actual production from a reservoir or by a conclusive formation
test. Although not defined in Rule 4-10, the staff has historically
considered a conclusive formation test to include a combination of
drilling and well flow testing.\18\
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\18\ Under a particular set of circumstances, the staff viewed
this requirement slightly differently. See the subsequent discussion
in note 24 for details regarding companies operating in the
deepwater Gulf of Mexico.
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Rule 4-10(a)(4) allows a company to classify, as part of its proved
reserves, the proved undeveloped reserves that it expects to recover
from ``new wells on undrilled acreage, or from existing wells where a
relatively major expenditure is required.'' \19\ Proved undeveloped
reserves are restricted to ``offsetting productive units that are
reasonably certain of production when drilled.'' \20\ In the absence of
a definition of the term ``offsetting'' in Rule 4-10(a)(4), the staff
has historically interpreted this to mean immediately adjacent.\21\
Rule 4-10(a)(4) does not specify a period of time during which a
company should expect to commence drilling the new well or the period
of time in which a company will incur a relatively major expenditure.
Some industry commentators have expressed concern that companies
continue to categorize quantities of proved undeveloped reserves for
extended periods of time without taking any action to develop these
reserves.\22\ This raises the question as to whether such quantities
originally met, or currently meet, the reasonable certainty
requirement.
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\19\ 17 CFR 210.4-10(a)(4).
\20\ Id.
\21\ See Division of Corporation Finance, Current Issues and
Rulemaking Projects (November 14, 2000) available at http://www.sec.gov/divisions/corpfin/guidance/cfoilgasinterps.htm.
\22\ See, for example, Leslie Haynes, ``Defining PUDs,'' Oil &
Gas Investor; Volume 244; Issue 5 (May 1, 2004).
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Finally, Rule 4-10(a)(4) allows a company to claim resources as
proved undeveloped reserves for other undrilled units ``only where it
can be demonstrated with certainty that there is continuity of
production from the existing productive formation.'' \23\ Many
companies are utilizing new technologies, such as 3-D seismic, to
provide estimates, which they believe are reasonably certain, of proved
undeveloped reserves more than one offset away. Nevertheless, given
Rule 4-10(a)(4)'s requirement of certainty
[[Page 71612]]
versus reasonable certainty, the staff has considered the requirement
of certainty to have a relatively higher threshold than reasonable
certainty and, therefore, has not accepted estimates of proved
undeveloped reserves based on such technologies. Some commentators have
expressed concern that, in practice, this constitutes absolute
certainty which they believe is too stringent a criterion.
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\23\ 17 CFR 210.4-10(a)(4).
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III. The Impact of Technology
Technological advances since 1978 have improved how companies may
identify oil and gas resources. Advances such as 3-D and 4-D seismic
interpretation provide increased information about reservoirs and their
boundaries. Reservoir description tools and computer reservoir
simulation models continue to improve as technology changes.
While a company may currently choose to use new techniques to help
it decide where to drill additional wells, the staff has, in nearly all
cases, continued to require that, in the absence of actual production,
a company support economic producibility through a conclusive formation
test. With one exception, the staff interprets this to mean direct
contact with the reservoir through drilling and a well-flow test.\24\
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\24\ In a particular set of circumstances, the staff does not
object to companies operating in the deepwater Gulf of Mexico
asserting reasonable certainty and economic producibility without a
well-flow test. In 2002 and 2003, the staff reviewed the disclosure
of oil and gas companies operating in the deepwater Gulf of Mexico.
In response to staff comments, companies provided extensive data
from open hole logs, core samples, wire line conveyed sampling and
seismic surveys to support their position that a traditional well-
flow test was not necessary in that specific location. Given the
results of this data, the staff does not object to classification of
proved reserves in the absence of a traditional well flow test as
long as a company's conclusions are supported by all four tests.
This position, however, is limited to this specific geographic
location. See the Division of Corporation Finance: Letter to
Companies With Oil and Gas Operations in the Gulf of Mexico (April
15, 2004) available at http://www.sec.gov/divisions/corpfin/guidance/oilgasltr04152004.htm.
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Given the scarcity of relatively accessible petroleum reserves that
companies can extract using conventional techniques, companies are
increasingly looking to resources that are more difficult to access due
to their geologic or geographical location or require specialized
extraction techniques. Among these resources are tar sands and oil
shales, both of which contain chemical compounds which can be processed
into oil. When the Commission adopted the proved reserves definitions
in 1978, the only effective way to extract these compounds was through
traditional mining techniques. Since 1978, however, companies have
developed techniques to extract these compounds using oil and gas
drilling techniques. Despite these technological advances, Rule 4-10
prohibits a company from including the oil it extracts from tar sands
and oil shales in its estimation of proved reserves. Rule 4-10 states
that ``oil and gas producing activities do not include * * * [t]he
extraction of hydrocarbons from shale, tar sands, or coal.'' \25\ Rule
4-10 excludes ``crude oil, natural gas, and natural gas liquids, that
may be recovered from oil shales, coal, gilsonite and other such
sources'' from the definition of proved reserves.\26\ Notwithstanding a
company's ability to economically extract oil from tar sands and oil
shales, Rule 4-10 prevents it from including these amounts in its
estimates of proved reserves.\27\
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\25\ 17 CFR 210.4-10(a)(1)(ii)(D).
\26\ 17 CFR 210.4-10(a)(2)(iii)(D).
\27\ Canadian regulators have revised their definitions of oil
reserves to include non-traditional resources such as bitumen, which
is extracted from tar sands. See, for example, Statements of the
Alberta Securities Commission with respect to National Instrument
(NI) 51-101 (National Instrument 51-101 Standards of Disclosure for
Oil and Gas Activities) available at www. albertasecurities.com.
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IV. Alternative Classification Systems
The Commission's proved reserves definitions are those used by the
Department of Energy in 1978 and were based upon definitions used by
the Society of Petroleum Engineers and the general industry at that
time. Since 1978, the Society of Petroleum Engineers has made several
significant revisions to its classification framework. It released its
most recent version, the ``Petroleum Resources Management System,'' in
February 2007.\28\ This system was jointly sponsored by the World
Petroleum Council, the American Association of Petroleum Geologists and
the Society of Petroleum Evaluation Engineers. The classification
framework defines a broad range of reserves categories, contingent
resources and prospective resources.\29\ We understand that oil and gas
companies may use this classification framework to prepare reserves
estimates for purposes other than their SEC filings and that investors
in private financing transactions and participants in business
combinations may use this framework as well.
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\28\ See Society of Petroleum Engineers, the World Petroleum
Council, American Association of Petroleum Geologists, and the
Society of Petroleum Evaluation Engineers, Petroleum Resources
Management System, SPE/WPC/AAPG/SPEE (2007).
\29\ Id.
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The International Accounting Standards Board is currently
consulting with the Society of Petroleum Engineers Oil and Gas Reserves
Committee regarding oil and gas company accounting requirements.\30\
The United Nations Economic Commission for Europe and the United
Nations Economic and Social Council are currently working together to
establish an international classification system to classify resources
in the oil and gas and mining industries.\31\ Finally, other
jurisdictions, such as Canada, have adopted disclosure requirements
that share characteristics with the Petroleum Resources Management
System.\32\
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\30\ See, for example, American Association of Petroleum
Geologists and Society of Petroleum Engineers International
Multidisciplinary Conference on Oil and Gas Reserves and Resources,
Washington, DC (June 24-26, 2007) available at http://www.spe.org/spe-site/spe/spe/industry/reserves/AAPG-SPE_EXECUTIVE_SUMMARY_29AUG07.pdf.
\31\ See United Nations Framework Classification System for
Fossil Energy and Mineral Resources, United Nations Economic Council
for Europe (March, 2006) available at http://www.unece.org/ie/se/pdfs/UNFC/UNFCemr.pdf.
\32\ See SPE Oil and Gas Reserves Committee, Mapping
Subcommittee Final Report (December 2005)--Comparisons of Selected
Reserves of Selected Reserves and Resources Classifications and
Associated Definitions.
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V. Independent Preparation, Assessment or Evaluation of Reserves
Disclosure
Although a company may engage a third party to prepare its reserves
estimates, assess its estimates, or evaluate the proved reserves
information in the filings that it makes with us, our rules do not
require it to do so. While some professional organizations may require
their members to follow certain standards in providing such services,
it does not appear that these standards are binding or that these
professional organizations have any specialized enforcement mechanisms
to assure compliance with them.
VI. General Request for Comment
As noted above, in light of the extent and pace of changes in the
oil and gas industry and public concern that our oil and gas reserves
disclosure requirements are not fully aligned with current industry
practice, we are reconsidering our oil and gas reserves disclosure
requirements. The Commission seeks public comment on our oil and gas
reserves disclosure requirements and related issues.
Questions
1. Should we replace our rules-based current oil and gas reserves
disclosure requirements, which identify in specific terms which
disclosures are required and which are prohibited, with a
[[Page 71613]]
principles-based rule? If yes, what primary disclosure principles
should the Commission consider? If the Commission were to adopt a
principles-based reserves disclosure framework, how could it affect
disclosure quality, consistency and comparability?
2. Should the Commission consider allowing companies to disclose
reserves other than proved reserves in filings with the SEC? If we were
to allow companies to include reserves other than proved reserves, what
reserves disclosure should we consider? Should we specify categories of
reserves? If so, how should we define those categories?
3. Should the Commission adopt all or part of the Society of
Petroleum Engineers--Petroleum Resources Management System? If so, what
portions should we consider adopting? Are there other classification
frameworks the Commission should consider? If the Commission were to
adopt a different classification framework, how should the Commission
respond if that framework is later changed?
4. Should we consider revising the current definition of proved
reserves, proved developed reserves and proved undeveloped reserves? If
so, how? Is there a way to revise the definition or the elements of the
definition, to accommodate future technological innovations?
5. Should we specify the tests companies must undertake to estimate
reserves? If so, what tests should we require? Should we specify the
data companies must produce to support reserves conclusions? If so,
what data should we require? Should we specify the process a company
must follow to assess that data in estimating its reserves?
6. Should we reconsider the concept of reasonable certainty? If we
were to replace it, what should we replace it with? How could that
affect disclosure quality? Should we consider requiring companies to
make certain assumptions? Should we prohibit others?
7. Should we reconsider the concept of certainty with regard to
proved undeveloped reserves? Should we allow companies to indefinitely
classify undeveloped reserves as proved?
8. Should we reconsider the concept of economic producibility? If
we were to replace it, what should we replace it with? How could that
affect disclosure quality? Should we consider requiring companies to
make certain assumptions? Should we prohibit others?
9. Should we reconsider the concept of existing operating
conditions? If we were to replace it, what should we replace it with?
How could that affect disclosure quality? Should we consider requiring
companies to make certain assumptions? Should we prohibit others?
10. Should we reconsider requiring companies to use a sale price in
estimating reserves? If so, how should we establish the price
framework? Should we require or allow companies to use an average price
instead of a fixed price or a futures price instead of a spot price?
Should we allow companies to determine the price framework? How would
allowing companies to use different prices affect disclosure quality
and consistency? Regardless of the pricing method that is used, should
we allow or require companies to present a sensitivity analysis that
would quantify the effect of price changes on the level of proved
reserves?
11. Should we consider eliminating any of the current exclusions
from proved reserves? How could removing these exclusions affect
disclosure quality?
12. Should we consider eliminating any of the current exclusions
from oil and gas activities? How could removing these exclusions affect
disclosure quality?
13. Should we consider eliminating the current restrictions on
including oil and gas reserves from sources that require further
processing, e.g., tar sands? If we were to eliminate the current
restrictions, how should we consider a disclosure framework for those
reserves? What physical form of those reserves should we consider in
evaluating such a framework? Is there a way to establish a disclosure
framework that accommodates unforeseen resource discoveries and
processing methods?
14. What aspects of technology should we consider in evaluating a
disclosure framework? Is there a way to establish a disclosure
framework that accommodates technological advances?
15. Should we consider requiring companies to engage an independent
third party to evaluate their reserves estimates in the filings they
make with us? If yes, what should that party's role be? Should we
specify who would qualify to perform this function? If so, who should
be permitted to perform this function and what professional standards
should they follow? Are there professional organizations that the
Commission can look to set and enforce adherence to those standards?
In addition to the areas for comment identified above, we are
interested in any other issues that commenters may wish to address and
the benefits and costs relating to investors, issuers and other market
participants of the possibility of revising disclosure rules pertaining
to petroleum reserves included in Commission filings. Please be as
specific as possible in your discussion and analysis of any additional
issues. Where possible, please provide empirical data or observations
to support or illustrate your comments.
By the Commission.
Dated: December 12, 2007.
Florence E. Harmon,
Deputy Secretary.
[FR Doc. E7-24384 Filed 12-17-07; 8:45 am]
BILLING CODE 8011-01-P