In our prior post on the Russia sanctions and export of equipment to be used in oil production and exploration in shale, we noted that BIS had not yet weighed in on whether its export ban, like OFAC’s restriction, covered only production and exploration of oil in shale and not production and exploration which went through shale to oil reservoirs below. Well, in fact BIS has also recently updated its FAQs and has reached the same conclusion as OFAC. BIS is to be commended for phrasing its FAQ on this issue in a clear and unintelligible way, unlike the cryptic version posted by OFAC.

Q11: When the August 6 rule refers to shale and uses the terms exploration or production in shale, do the restricted end uses apply only to situations, such as fracking, where the hydrocarbon is located in shale formations, or do they also apply to projects involving penetrating a layer of shale to reach a reservoir located below the shale formation? What about projects that involve unconventional methods of extracting oil from shale (e.g., from shale reservoirs or oil shale processing)?

A11: The license requirements of §746.5 of the EAR apply to the specified items when you know that the item will be used directly or indirectly in exploration for, or production of, oil or gas in Russian deepwater (greater than 500 feet) or Arctic offshore locations or shale formations in Russia, or are unable to determine whether the item will be used in such projects. Thus, the license requirement applies to exploration for, or production of, oil or gas from a shale formation. The license requirement does not apply to exploration or production through shale to locate or extract crude oil or gas in reservoirs.

You can’t get any clearer than that.