Interior Blowout Preventer Rulemaking Violates Public Access Laws

Department of the Interior
Bureau of Safety and Environmental Enforcement
Attention: Regulations Development Section
45600 Woodland Road
Sterling, VA 20166

Submitted to: http://www.regulations.gov

Subject: “Blowout Preventer Systems and Well Control Revisions, 1014-AA39”

To Whom It May Concern:

The Project On Government Oversight (POGO) requests an extension to the announced comment period for “Oil and Gas and Sulfur Operations in the Outer Continental Shelf: Blowout Preventer Systems and Well Control Revisions,” (BSEE-2018-0002) published on May 11, 2018,¹ and July 5, 2018.² The proposed regulation would revise existing regulations for well control and blowout preventer systems. Additionally, POGO demands that the Interior Department’s Bureau of Safety and Environmental Enforcement (BSEE) provide the public with unimpeded access to the American Petroleum Institute (API) standards cited in the proposed rule.

Currently, the rule violates the Administrative Procedure Act, Executive Order 13563, Executive Order 13610, and Office of Management and Budget Circular A-119 by requiring the public to engaging in an unduly burdensome process to achieve limited access to API’s standards. The incorporation of those standards in the proposed rule, including vital technical standards, fails to meet public access requirements necessary for a robust public comment process governed by federal law.³

The proposed rule states:

The American Petroleum Institute (API) provides free online public access to view read only copies of its key industry standards, including a broad range of technical standards. All API standards that are safety-related and that are incorporated into Federal regulations are available to the public for free viewing online in the Incorporation by Reference Reading Room on API’s website at: http://publications.api.org. In addition to the free online availability of these standards for viewing on API’s website, hardcopies and printable versions are available for purchase from API. The API website address to purchase standards is: http://www.api.org/publications-standards-and-statistics/publications/government-cited-safety-documents.⁴ (Italics in original)

Executive Order 13563 requires that federal agencies “promote predictability and reduce uncertainty” during the regulatory process.⁵ Moreover, the regulatory process “must ensure that regulations are accessible, consistent, written in plain language, and easy to understand.” It “shall endeavor to provide the public with an opportunity to participate in the regulatory process. To the extent feasible and permitted by law, each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation[.]” The Executive Order also mandates “[t]o the extent feasible and permitted by law, each agency shall also provide, for both proposed and final rules, timely online access to the rulemaking docket on regulations.gov, including relevant scientific and technical findings, in an open format that can be easily searched and downloaded.”

Executive Order 13610 mandates: “To promote an open exchange of information, retrospective analyses of regulations, including supporting data, shall be released to the public online wherever practicable.”⁶

OMB Circular A-119 references the need for “openness” when the federal government agencies use “voluntary consensus standards in lieu of developing their own standards[.]”⁷ The revised Circular further states that “OMB agrees that [read-only access] should be a consideration, and has amended the text to recommend agencies also consider the ease of access, registration, and navigation on those websites.”⁸

None of the requirements of the law, executive orders, and Circular A-119 are being met in the proposed rulemaking. In fact, API requires that the public purchase hardcopies and printable versions of the standards being incorporated by reference (which costs over $400) from API, visit BSEE’s office, request the standards from BSEE, or view them in a “read-only” format.

To access the documents via the web page listed in the notice, users must create an account with API. That includes giving API the user’s name, company name, country, and email address. In addition, users must agree to a set of API “terms.” That document explains that it is “a legal agreement” between the user and API, and it warns that “API may pursue any remedy legally available to it if you fail to comply with any of your obligations hereunder.”

The API registration process and its terms of use are only part of the dilemma. The free versions of the API standards are “designed to be viewed online only—there are no ‘cut and paste,’ ‘edit,’ ‘print,’ or ‘save’ capabilities,” the terms of service explain. What’s more, “the license granted to you by this agreement does not include the right to download, reproduce, store . . . modify . . . or transmit” the documents, the terms say.

In addition, “API may suspend or discontinue providing the Online Document to you with or without cause and without notice,” the agreement says.

The API website does not constitute free or reasonable availability to the public. The standards are not searchable, printable, or downloadable; nor can sections be copied for quoting or referencing within comments. Some of these standards are extensive documents, including one standard that is over 100 pages long. Preventing the public from searching within the document creates an unacceptable impediment to finding the most relevant portions on which people may wish to offer comments. Additionally, API could alter or remove the standards at any point and the public would have no way of knowing, despite the fact the BSEE is relying on those standards. This restricted access and unpredictability undermines the public’s right to meaningfully comment, in violation of federal rulemaking laws, most notably the Administrative Procedure Act, which requires that notices include the “terms or substance of the proposed rule.”⁹

POGO demands that the BSEE extend the public comment period and provide the public with unimpeded access to the API standards that the agency is seeking to incorporate by reference. If API is not willing to provide genuine public access to standards incorporated by reference into regulations for oil, gas, and sulfur well control and blowout preventer systems without login requirements, legal terms of service, and limitations on search and other standard document tools, then BSEE must provide access to those records on the agency’s website.

We appreciate your consideration and attention to this important legal matter. Please contact Sean Moulton, POGO’s Senior Policy Analyst, or Scott Amey, POGO’s General Counsel, at 202-347-1122 for more information.

Sincerely,

Danielle Brian
Executive Director