Comment of Public.Resource.Org and Greenpeace USA on the Notice of Proposed Rulemaking on Blowout Preventer Systems and Well Control

1. Introduction

Public.Resource.Org (“Public Resource”) and Greenpeace USA submit this comment to object to one aspect of the proposed Bureau of Safety and Environmental Enforcement (“the Bureau”) regulation entitled,“Oil and Gas and Sulphur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control”: It proposes to incorporate by reference nine public safety standards that are not reasonably available to people affected by the rule, as required by law.[1]

This rule is important to vitally important to public safety. The instant proposed version of the rule already has been mentioned in a front-page article in the New York Times.[2] The Bureau states in the Notice of Proposed Rulemaking (NPRM) that “this represents one of the most substantial rulemakings in the history of the BSEE and its predecessor organizations.” Given the critical dangers exposed by the Deepwater Horizon disaster and other events, and recent decisions by the United States to expand offshore drilling, it is clear that the Bureau needs new regulations—to consolidate equipment and operational requirements regarding offshore oil and gas drilling, including blowout preventer requirements, well design, well control, casing, cementing, real-time well monitoring, and subsea containment—and that the content of these regulations will have a major impact on energy company operations and protection of the public and our environment.

What is not clear is why the Bureau believes that it is appropriate—or in the interests of greater safety—to issue a proposed or final rule that includes major components that many people, including many interested parties, will not be able to fully access because they are only available online on a restricted and temporary basis; because obtaining these components of the law with fewer restrictions requires payment of exorbitant fees; and because of improper assertion of copyright claims that deter people from communicating the text of these provisions—that deter them from speaking their own laws.

Accordingly, Public Resource and Greenpeace are not commenting here on the substantive merits of the proposed rule. Instead, we ask the Bureau to recognize that it has acted illegally and arbitrarily at this Notice of Proposed Rulemaking (NPRM) stage in not making these standards—which are integral parts of the rule—available to us and other members of the public on a free and unrestricted basis. This unwarranted action by the Bureau places an unreasonable burden on members of the public who wish to review the entire rule in order to fully understand it and to make appropriate comments.

A final rule that incorporated the standards without making them freely available would be equally invalid. The new regulation would make these standards part of the law, yet the Bureau proposes to exclude the texts of these standards from the text of the regulation. Nor does the Bureau propose to link the online version of the regulation to websites offering free and unrestricted access to the standards. Instead, the Bureau apparently expects people to access versions that are available online from a private organization, subject to a series of elaborate requirements and restrictions, with no guarantee that those standards will remain available without charge, even on such a restricted basis, or else to purchase the standards from the same private organization, which claims the right to prohibit even purchasers from sharing these provisions of the law with others.

This failure to make public safety standards, proposed to be part of the rule, reasonably available denies people basic access to their own laws, the laws they are both bound to obey and dependent upon for protection from serious dangers. In so doing, the proposed rule violates the Freedom of Information Act, the Due Process Clause of the Constitution, and the fundamental principle of responsive governments worldwide for millennia—that people are entitled to read and speak the laws that govern them, with no restrictions.

This failure to make these components of the regulation reasonably available also weakens public safety, because people who need full access to the safety rules are less likely to obtain such access if they must pay for it, and piece together the components of a rule from a multitude of documents.

Because it is illegal, arbitrary, and dangerous to publish this proposed rule without making incorporated standards freely available, the Bureau should re-publish the proposed rule with the incorporated public safety standards available online on a free, unrestricted basis and re-open the comment period. As to any final rule, the Bureau may not lawfully incorporate these standards into its regulation until and unless they are written directly into the rule, or else permanently available to the public on a website without charge and without any restriction whatsoever on use.

2. The Proposed Incorporation by Reference

In the NPRM, the Bureau proposes to incorporate by reference nine documents. The texts of these public safety standards that the Bureau proposes to incorporate into the rule are not included in the rule itself, nor has the Bureau placed any of the standards online, nor have the private organizations that have issued the standards made them available for free, unrestricted, permanent public access online. Instead, the Bureau explains the availability of the incorporated materials as follows:

Availability of Incorporated Documents for Public Viewing

When a copyrighted technical industry standard is incorporated by reference into our regulations, BSEE is obligated to observe and protect that copyright. The BSEE provides members of the public with Web site addresses where these standards may be accessed for viewing—sometimes for free and sometimes for a fee. Standards-developing organizations decide whether to charge a fee. The API provides free online public access to key industry standards, including a broad range of technical standards. These free standards represent almost one-third of all API standards and include all that are safety-related or have been or are proposed to be incorporated into Federal regulations, including the standards in this rule. These standards are available for online review, and hardcopies and printable versions will continue to be available for purchase. We are proposing to incorporate certain API standards. The API Web site address is: http://www.api.org/publications-standards-and-statistics/publications/government-cited-safety-documents.

For the convenience of the viewing public, who may not wish to purchase or view these proposed documents online, they may be inspected at BSEE, 45600 Woodland Road, Sterling, Virginia 20166; phone: 703-787-1665; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

These documents, if incorporated in the final rule, would continue to be made available to the public for viewing when requested. Specific information on where these documents can be inspected or obtained can be found at 30 CFR 250.198, Documents incorporated by reference.

We list the nine incorporated documents, and have added with each the price to purchase the document from the American Petroleum Institute publications store:[3]

1. API Standard 53—Blowout Prevention Equipment Systems for Drilling Wells, 4th edition. API Store Price: $155 Secure PDF; $155 Printed Edition; $264 Printed Edition + PDF, 124 pages.
2. API Recommended Practice 2RD—Design of Risers for Floating Production Systems and Tension-Leg Platforms, R2006. API Store Price: $132 Secure PDF, $132 Printed Edition, $225 Printed Edition + PDF, 163 pages.
3. API Specification Q1—Specification for Quality Management System Requirements for Manufacturing Organizations for the Petroleum and Natural Gas Industry, 8th edition. API Store Price: $125 Secure PDF, $125 Printed Edition, $213 Printed Edition + PDF, 29 pages.
4. ANSI/API Specification 11D1—Packers and Bridge Plugs, 2nd edition. API Store Price: $125 Secure PDF, $125 Printed Edition, $265 Printed Edition + PDF, 30 pages.[4]
5. ANSI/API Specification 16A—Specification for Drill-Through Equipment, 3rd edition. API Store Price: $165 Secure PDF, $165 Printed Edition, $281 Printed Edition + PDF, 109 pages.
6. API Specification 16C—Specification for Choke and Kill Systems, R2010. API Store Price: $125 Secure PDF, $125 Printed Edition, $213 Printed Edition + PDF, 61 pages.
7. API Specification 16D—Specification for Control Systems for Drilling Well Control Equipment and Control Systems for Diverter Equipment, 2nd edition. API Store Price: $177 Secure PDF, $177 Printed Edition, $301 Printed Edition + PDF, 97 pages.
8. ANSI/API Specification 17D—Design and Operation of Subsea Production Systems—Subsea, 2nd edition. API Store Price: $186 Secure PDF, $186 Printed Edition, $316 Printed Edition + PDF, 268 pages.
9. API Recommended Practice 17H—Remotely Operated Tools and Interfaces on Subsea Production Systems, 1st edition, R2009 API Store Price: $127 Secure PDF, $127 Printed Edition, $169 Printed Edition + PDF, 69 pages.

In addition to the high price of purchasing all these standards—$1,317 in total for a set of print or PDF copies, or $2,247 for print + PDF, a rather high price for 950 pages of the law—a person wishing to buy these standards must visit the store and search for each appropriate standard; there are no direct link from the proposed rule, nor an online bundle to buy all the standards incorporated into this proposed rule at once. The visitor must carefully compare the references in the rule to those at the API store to be sure to purchase the correct standard; for six of the nine API documents (all but numbers 1, 5, and 8), the new BSEE rule incorporates an older edition of the document, rather than the latest version issued by API.

But if the obstacles to purchasing the standards are large, even greater are the challenges of reading them online without charge at API’s website.

There are no direct links from the NPRM to reading the API standards. Instead, the NPRM directs the public to an API webpage[5] which requires finding a link to a second page.[6] There, the visitor is greeted with yet more links to “Purchase your API Standards Today!” and “Browse the Catalog”. If the user clicks on the Browse the Catalog button, which is very prominent, they end up being diverted to the sales catalog,[7] where API is selling a wide range of its standards, including the standards incorporated into the Bureau rule at the prices listed above.

Only by reading the fine print, can the prospective reader of the law determine that they need to click on the small type that says “Browse read only documents now” where the visitor is informed she must first register and provide API with an email address, a first and last name, a company name, and a country—surrendering personal privacy, and the freedom to be left alone, to a private corporation in order to read what will become a binding provision of U.S. law. We note that the registration process requires a “captcha,” but no audio version of this integrity check is available, meaning people with visual impairments are frozen out from even registering for the site.

Then the user must agree to a lengthy “Acceptance of Terms” document,[8] agreeing, among other things, not to copy, download, print, or share the document, and “acknowledg[ing] that the content of the Online Document is copyrighted and owned by API and is protected by U.S. copyright law and international treaty provisions.” The user must also agree that “API may suspend or discontinue providing the Online Document to you with or without cause and without notice.”

Once users click past that page, API reminds them of the limitations of the “free” online offerings, and makes another attempt to sell its standards instead:

API provides online public access to key industry standards, including a broad range of safety standards, most of which were previously only available for purchase. These standards will be available as “Read Only” access, and API will host these documents on www.api.org. These documents are available for public interest purposes only, and will not be able to be edited, downloaded, printed, or shared.

Printed hardcopies and PDF versions will continue to be available for purchase. To purchase any of these standards, please visit the API Publications Store.

If the stubborn user insists on viewing the standards online by clicking yet again, next up is page that, unlike the pages offering the standards for sale, does not have a search window to find the individual standards, and also does not offer the user the chance to click on all the standards incorporated into the BSEE proposed rule or any other rule or proposed rule. Instead the user must now hunt down the standards incorporated into the Bureau rule from a menu where the item “IBR Documents Under Consideration” is buried below items like “Exploration and Production,” “Marketing,”, “Safety and Fire Production,” and “Refining.” While we are versed in the regulatory process, we suspect many citizens will not immediately recognize the acronym IBR as being the key to unlock the information on standards that are about to become law.

In any case, clicking on the “IBR Documents Under Consideration” link brings one to a screen that has only 3 standards listed:

• Recommended Practice 2N, 3rd Edition, Planning, Designing and Constructing Structures and Pipelines for Artic Conditions
• Specification 16A, 3rd Edition, Specification for Drill Through Equipment
• Specification 16C, 1st Edition, Choke Kill Equipment

The Bureau’s NPRM lists 9 standards for incorporation, but does not include Recommended Practice 2N. It does include Specifications 16A and 16C, but what about the 7 other standards? It turns out the other standards are listed in the “Exploration and “Production” section, not in the “IBR Documents Under Consideration” section. Even then, the list is immensely confusing:

• In the NPRM, ANSI/API Spec. Q1 (Specification for Quality Programs for the Petroleum, Petrochemical and Natural Gas Industry) specifically mentions the Eighth Edition, but at the API site, only the 9th edition is offered.
• While Standard 16D is listed here, Standards 16A and 16C are not present in the Exploration section, and the user must somehow know to click back over to the “IBR Documents Under Consideration Section.”

If the user eventually manages to track down one of the relevant incorporated standards, he or she will find the document in a font size that is so small that it will be difficult for many people to read, even if browser magnification is maximized, at which point the text is both small and blurry, and only a small part of the page is visible. Each page also is stamped with a distracting sideways overlay of text: “Public Access Copy Only.” Much larger and clearer is a red button urging “BUY NOW!”

For people who are visually impaired, the site is totally unintelligible. We attempted to use a standard screen reader, JAWS Professional for Windows Version 16.0,[9] and the software was unable to detect any readable text on the page. This is a direct violation of the Rehabilitation Act of 1973 (29 U.S.C. § 794d), which requires that when “Federal agencies develop, procure, maintain, or use electronic and information technology, Federal employees with disabilities have access to and use of information and data that is comparable to the access and use by Federal individuals who are not individuals with disabilities.” 36 CFR 1194.1.

We urge the Bureau to experience this limited access to the standards proposed to be incorporated into law firsthand. The viewing port for the standard is a mere 647 pixels tall, not nearly tall enough to render a page of text properly. By contrast, when API wishes to present information, such as the document extolling the “API Commitment to Safety,”[10] those documents are presented as full-resolution, optimized PDF that open up directly in the viewer’s browser.

The API thus requires the user seeking to read the standards online for “free,” to surrender personal information, to hunt for the standards, and to read tiny letters. Worse, the read-only format prevents the user from cutting and pasting, copying, or printing—tools that would make it easier for the user to analyze the API standards and share any analysis with others.

Finally the NPRM discussion makes clear that the Bureau is not even guaranteeing that this limited, cramped online access to the standards provided by API will last:

The BSEE provides members of the public with Web site addresses where these standards may be accessed for viewing—sometimes for free and sometimes for a fee. Standards-developing organizations decide whether to charge a fee…These [API] standards are available for online review, and hardcopies and printable versions will continue to be available for purchase…These documents, if incorporated in the final rule, would continue to be made available to the public [by the BSEE and NARA] for viewing when requested.”

This seems to leave the door open for API to take the standards offline once the rule becomes final, in its sole discretion, and that readers will have to go through a complicated “request” procedure.

Public Resource explored the additional option offered by the Bureau regarding the incorporated documents—obtaining them from the agency itself. During the comment period, we called the telephone number listed above at the Bureau multiple times and left multiple voice mails, asking about visiting the office to inspect the incorporated standards. No one called back. We eventually did manage to reach another BSEE staff member, who picked up his line when we called and graciously invited us to make an appointment to inspect the standards at the office, in Sterling, Virginia. However, when we asked if the Bureau would provide us with print or electronic copies of the API standards, the staff member said the agency would not.

If compliance with the regulation is to be maximized, then people need ready access to the regulation, including incorporated materials. Unfortunately, the proposed rule fails to make the incorporated materials reasonably available.

3. The Interests of Commenters

Public Resource, a non-profit organization, would be one of the many entities adversely and unlawfully disadvantaged if the Bureau issues a final rule that incorporates standards without providing a means for people to obtain and use those standards without charge and without restriction. Public Resource’s mission is to improve public access to government records and the law. The issuance by the Bureau of a regulation incorporating by reference standards that are only available to those who pay a fee is the kind of government action that Public Resource works to prevent.[11]

More generally, a final rule that incorporates standards hidden behind paywalls and other obstacles would make it less likely that affected people who want and need access to the law—academic researchers, first responders, businesses, workers, oversight bodies, community leaders, journalists, non-profit advocacy groups, and others—would have access to the law.

One such entity is Greenpeace USA, a non-profit organization that is the United States affiliate of Greenpeace. Greenpeace is the leading independent campaigning organization that uses peaceful protest and creative communication to expose global environmental problems and to promote solutions that are essential to a green and peaceful future.

Among other work, Greenpeace campaigns to protect the rich, beautiful diversity of life within our oceans from threats by destructive fishing practices, whaling, pollution, and climate change. Greenpeace USA has about 250,000 members spread all across the country. Many of these members depend on our oceans for their work, their food, their communities, and their homes. They also enjoy the beauty of the oceans and ocean life. With the lives of polar bears, walruses, and whales — and the livelihoods of local fishermen and safety of communities — at stake, Greenpeace is campaigning every day against plans to drill for oil in the Arctic. Greenpeace contends that these plans could cause a major oil spill.

Protection of the Bering Sea is a particular priority for Greenpeace. The waters of the Bering Sea —between Alaska and Russia — are one of the world’s richest marine environments and fisheries. They are home to a diverse array of wildlife, including polar bears, seals, sea lions, walruses, numerous species of whales, and millions of seabirds. And the Bering’s waters are vital to the ways of life of the indigenous communities who have made their home there for millennia. Greenpeace is calling for protections of key areas in the Bering Sea, where species and habitats can recover and people who live there can regain the rights to the resources they have always depended upon.

Greenpeace has a strong interest in ensuring that the new regulation adequately protects the oceans for its members, and the general public. But the capacity of Greenpeace and its many partner organizations to analyze and offer improvements to the proposed and final rules is hindered if the Bureau incorporates by reference public safety standards that are constrained by online impediments, high fees, and unwarranted assertions of copyright.

4. Affected Parties and the Public Interest

In addition to Public Resource and Greenpeace USA, a wide range of entities have an interest in shaping, understanding, evaluating, and monitoring compliance with the Bureau rules:

• Small and medium-sized businesses and their workers may contract or interact with the major energy companies engaged in drilling.
• Government officials, from the federal to the local level, may have responsibility for oversight and for acting as critical first responders in the event of an emergency.
• Media may need to read and understand the law to fairly and accurately report on issues affecting the safety of the community. Policy and advocacy organizations, including those representing people in communities or workplaces affected by offshore drilling, need ready access to the law to do their work. Some members of the public want to know the legal rules and technical details.

These standards are not only for the use and benefit of a small group. While not everyone has the training and experience to readily evaluate or monitor compliance with all of the standards incorporated in the proposed regulation, many people do, and interested advocacy and media outlets, among others, may seek out employees, volunteers, consultants and others who have such capacity to advise them.

Yet even though offshore drilling is very much a matter of public concern, the Bureau appears to be acting as if the details of these issues can comfortably be left in the hands of those who already have purchased the relevant standards incorporated into law, or can easily afford to purchase such standards.

Recent history in this area makes clear that such a position is wholly unwarranted.

As the Bureau is well aware, the 2010 explosion on the Deepwater Horizon drilling rig in the Gulf of Mexico caused the deaths of eleven workers and injured sixteen more. The sinking of the Deepwater Horizon caused the largest accidental marine oil spill ever, with millions of barrels of oil spilled into the Gulf, destroying marine life and damaging communities. It was the most expensive U.S. environmental disaster ever.

In the wake of the Deepwater Horizon catastrophe, API was charging as much as $1000 to read one of its standards Indeed, the Congress was so shocked by the high cost of crucial, legally-mandated safety documents during the crisis that it amended the Pipeline Safety Act of 2011 with a provision that “the Secretary may not issue guidance or a regulation pursuant to this chapter that incorporates by reference any documents or portions thereof unless the documents or portions thereof are made available to the public, free of charge, on an Internet Web site.”[12]

However, as described above, the API action, under public pressure, to make its standards available online, is merely a half-measure that provides constrained and limited access to the standards. Moreover, API in the past has threatened to sue U.S. organizations that have posted its standards on the Internet, even where those standards were lawfully purchased from API and were explicitly incorporated into U.S. law.[13]

A future drilling explosion could have even more disastrous consequences. This would especially be the case if an accident occurred while drilling in the Arctic—far from deepwater ports or large cities, with extreme weather and rough seas, and thus far from the rescue workers needed to respond. The area also is a critical habitat for a wide range of marine life that would be imperiled in the event of a spill.

Developments with respect to other areas of regulation—real-life, high-stakes matters like the 2010 San Bruno, California explosion—underscore the importance of public access to standards incorporated by reference. With respect to the San Bruno accident “the House of Representatives considered whether relevant pipeline safety standards should have been more freely accessible to first responders.”[14] Should those standards, in a life-threatening emergency situation and beyond, have been readily available to first responders? Of course.

When matters get serious, our society has had to get serious, and allow the law to be readily available for key actors and for the public to review.

The status quo approach undermines public safety. First responders, government agencies, workers, companies, and others should have the easiest access possible to these standards so that they may understand their legal obligations, be prepared to react effectively in an emergency, to educate themselves easily before any emergency occurs, and to discuss and debate means for improving safety laws. But not all affected entities can afford to pay the steep prices for all the standards incorporated into proposed and final BSEE regulations.

In this regard, we are in strong agreement with a 2012 comment to the Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) as it considered the implementation of section 24 of the Pipeline Safety, Regulatory Certainty and Job Creation Act of 2011. That comment was offered jointly by the Western Organization of Resource Councils (WORC), a regional network of seven grassroots community organizations with 10,000 members and 38 local chapters, and Dakota Rural Action, a grassroots family agriculture and conservation group:

Representing the public interest, we strive to create a more fair and open government. Secret laws, or a government that only allows access to laws by a segment of the public able to pay for it, goes in direct opposition to the values of a participatory democracy…

As of June 2010 there were 85 standards referenced in 46 CFR 192, 193, 195. For a citizen to have access to these referenced standards they would have to pay private organizations upwards of $2,000. These associated costs are an insurmountable burden for an average citizen, making it practically impossible for the public to knowledgeably comment in a rulemaking proceeding, or to propose changes to regulations that already incorporate referenced standards.

5. Law Governing the Availability of Standards Incorporated by Reference

The fundamental law of the United States requires that the government make standards that are incorporated by reference into federal regulations widely available to the public, without charge, and that such standards be deemed in the public domain rather than subject to copyright restrictions. Citizens have the right, without limitation, to read, speak, and disseminate the laws that we are required to obey, including laws that are critical to public safety and commerce. Open, effective, and efficient government and robust democracy require such free availability of standards incorporated by reference.[15]

A. The Freedom of Information Act and Regulations Governing Incorporation by Reference Compel The Bureau To Make These Incorporated Standards Freely Available

The Freedom of the Information Act allows the Director of the Federal Register to deem as effectively published in the Federal Register material that is incorporated by reference into a regulation, but only if such material is “reasonably available to the class of persons affected thereby.” 5 U.S.C. § 552(a)(1). Part 51 of Title 1 of the CFR implements this provision. The Director of the Federal Register is charged with approving each instance of incorporation by reference requested by federal agencies. In carrying out this responsibility, the Director “will assume in carrying out the responsibilities for incorporation by reference that incorporation by reference…is intended to benefit both the Federal Government and the members of the class affected…” 1 CFR § 51.1(c)(1). In order to be eligible for incorporation for a reference, a publication must meet standards including that the publication “does not detract from the usefulness of the Federal Register publication system” and “is reasonably available to and usable by the class of persons affected.” 1 CFR § 51.7(a)(2)(ii) and (a)(3).

The advent of the Internet has fundamentally transformed what it means for material to be reasonably available. The Internet has brought the possibility that all standards incorporated into federal law can be instantly available online, linked directly to the relevant provisions of the CFR.

Before the Internet, it was impractical to offer within the pages of the Federal Register and Code of Federal Regulations the often voluminous standards incorporated by reference into agency rules; the regulations, at 1 CFR § 51.7(a)(3) specifically note that material is eligible for incorporation by reference if it “[s]ubstantially reduces the volume of material published in the Federal Register.”

The widespread availability of the Internet, along with technologies like high-speed scanners and large-capacity hard drives, eliminates any argument that incorporation of standards through simple reference—as opposed to publishing the full text of the standard with the regulations—is needed to save space or trees.

Indeed, the Internet era provides a tremendous opportunity for government to inform its citizens in a broad and rapidly updated manner about the legal standards that must be met in carrying out daily activities. It also allows for companies, non-profits, and citizens to utilize and organize this information to enhance compliance, better understand the provisions of law, improve public safety, increase economic efficiency and opportunity, and highlight opportunities for effective reform.

Another strong advantage of widespread public availability of standards incorporated by reference would be to highlight the need for government to replace old, outdated standards with new ones. Public Resource has conducted an extensive examination of the Code of Federal Regulations with specific focus on incorporations by reference, coupled with an extensive examination of the Standards Incorporated by Reference (“SIBR”) database maintained by the National Institute of Standards and Technology. As is the case with the instant proposed rule, many standards incorporated by reference into the CFR have been superseded by new standards from the SDOs. Greater public access to standards incorporated by reference into federal regulations might alert policy and industry communities to the fact that federal rules are too often connected to outdated private standards and are in need of updating to improve public safety.[16]

Today, the only thing impeding the broader availability to the public of standards incorporated by reference is the belief of some SDOs that they have the right to bar the public from reading and speaking these provisions of law, because they fear that broader public access will reduce their volume of sales of such standards.

The NPRM’s statement assertion that the incorporated standards are available for inspection at the National Archives and the Bureau offices does not fix the problem: People should not be expected to travel from their homes to Washington DC in order to read the laws they are bound to obey. This solution is also inadequate because the agencies are unlikely to allow people to make copies of the standards so that they may consult them once they leave the federal buildings where they are held; the Bureau already has told us that they will not allow copying of the API standards incorporated here. Requiring citizens to memorize hundreds of pages of law is tantamount to denying them access entirely.

Given all these factors, the Bureau should determine that the mandates of FOIA and the public interest require that the standards it incorporates by reference into its final rule be written directly into the rule or else available on a public website without charge, and without limitation of use.

That would include the Bureau making clear that its obligations would not be satisfied by API continuing to make its standards available only with the kind of restrictions described above—the same kinds of restrictions that other SDOs have imposed as they have, in recent months, only after significant public pressure, posted some standards on their own websites—forcing persons wishing to read the standards to register, prohibiting copying, or printing, or bookmarking, curtailing search capacity, or otherwise limiting the capacity of all persons to read, speak, and use standards that have become binding law.

Presented with a petition by legal scholars, along with Carl Malamud of Public Resource, making the argument for free online access, the Office of the Federal Register recently addressed and modified its regulations governing incorporation by reference in a final rule (“the OFR rule”) issued on November 7, 2014, and effective January 6, 2015.[17] We believe that language in the preamble to this OFR rule inappropriately elevates copyright assertions of the SDOs over the mandates of FOIA. But the OFR rule, which became effective on January 6, 2015, does not in any respect bar the Bureau (or any other agency) from making its own judgments as to its legal and public obligations regarding standards incorporated by reference and taking appropriate steps in this rulemaking to ensure that the law, including standards incorporated in the instant rule, is freely available to all.

OFR refused to grant the petition’s central request—that it hold that material incorporated by reference in the Code of Federal Regulations be available online and free of charge. But OFR gave as its reason its view that OFR itself lacked the power to issue such a broad rule for all federal agencies: “petitioners’ proposed changes to our regulations go beyond our statutory authority.” OFR explained: “we are a procedural agency. We do not have the subject matter expertise (technical or legal) to tell another agency how they can best reach a rulemaking decision.”

In the preamble to its final rule, OFR indicated that agencies do have the discretion to make the text of standards incorporated by reference available free of charge:

One commenter stated that since it is the text of standards that must be available (citing Veeck for the proposition that the law is not subject to copyright law), agencies should copy the text of IBR'd standards and place the text online. In a footnote, the commenter suggested that OFR require agencies to place the text of their “regulatory obligations” in their online dockets. This way the “text of the legal obligation and not the standard as such” is available online for free. [footnote omitted]

We leave it to the agencies to determine if they should follow this commenter's suggestion.

The OFR preamble, therefore, confirms what should be obvious: that specific agencies may make their own choices about reasonable availability, including placing incorporated standards online. the Bureau should act here to do just that.

BSEE’s NPRM is contrary to law for the additional reason that it fails to meet new specific requirements imposed on agencies by the new OFR rule.

The OFR rule, effective January 6, 2015, requires agencies to:

1. Discuss, in the preamble of the proposed rule, the ways that the materials it proposes to incorporate by reference are reasonably available to interested parties or how it worked to make those materials reasonably available to interested parties; and summarize, in the preamble of the proposed rule, the material it proposes to incorporate by reference.
   1 CFR § 51.5(a).
2. The OFR rule imposes similar requirements in the final rule.
   1 CFR § 51.5(b).

The NPRM appears to assume that the incorporated API standards are reasonably available because of the limited read-only access on the API website, but as discussed above, current access is far from adequate, and the NPRM seems to leave open the door to API ending its practices of offering the standards online without charge. Nor does the NPRM discuss the actions that the Bureau took to ensure that the incorporated materials are more reasonably available to interested parties.

Nor does the NPRM provide any significant summary of the contents of the standards it proposes to incorporate, as the new OFR rule requires—the summaries are limited to the purposes of the standards, without any significant discussion of the approaches taken in each.

Although compliance with these new provisions would not be sufficient to correct the fundamental flaw in the Bureau’s decision-making here—the failure to make its regulations reasonably available—the lack of compliance with the OFR rule is further evidence of the Bureau’s disregard of its duties.

Similarly, the NPRM’s failure to provide access to the text of the incorporated standard violates the provisions of the Administrative Procedure Act that require agencies to give people an opportunity to comment on proposed rule making. The APA requires that an NPRM include “either the terms or substance of the proposed rule or a description of the subjects or issues involved.” 5 U.S.C. § 553(b)(3). The bare-bones discussions of the standards to be incorporated by reference into the instant rule do not meet this agency.

B. The Constitution and Judicial Decisions of the United States Compel the Bureau To Make These Incorporated Standards Freely Available

As discussed in greater detail in Public Resource’s comment in OMB Request for Information 2012–7602,[18] the U.S. Supreme Court in Wheaton v. Peters, 33 U.S. 591 (1834), and Banks v. Manchester, 128 U.S. 244 (1888), held that the law “is in the public domain and thus not amenable to copyright.” Veeck v. Southern Bldg. Code Congress International, Inc., 293 F.3d 791, 796 (5th Cir. 2002) (en banc), cert. denied, 539 U.S. 969 (2003). Wheaton, Banks, and the en banc decision of the United States Court of Appeals for the Fifth Circuit in Veeck all concerned comparable fact patterns: One private party was trying to stop another private party from publishing material that was part of the law. In none of those three cases was anyone trying to prevent the first party from selling copies of such material, and we do not question the right of SDOs to sell standards incorporated by reference into law. Rather, we believe, as the courts concluded in those cases, that once material has become law, then other parties have the right to read it and to speak it, without limitation—and that that proposition clearly applies to standards incorporated by reference into federal law, notwithstanding assertions of copyright by SDOs.

The principle that the law must be public and available to citizens to read and speak has its roots in the concept of the rule of law itself, as well as central provisions of our Constitution. See generally Thomas Henry Bingham, The Rule of Law, 37–38 (Penguin Press 2011) (“The law must be accessible…the successful conduct of trade, investment and business generally is promoted by a body of accessible legal rules governing commercial rights and obligations.”); Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 34 (Cambridge Univ. Press, 2004) (“Citizens are subject only to the law, not to the arbitrary will or judgment of another who wields coercive government power. This entails that the laws be declared publicly in clear terms in advance.”). That is why, going back to ancient times, societies that replaced the rule of tyrants with the rule of law prominently displayed the laws in public places for all to see. See, e.g., Robert C. Byrd, The Senate of the Roman Republic: Addresses on the History of Roman Constitutionalism 33, 128, 135 (U.S. Government Printing Office, 1995).

As this history suggests, open access to the law is essential to a free society. Citizens are expected to obey the law, but they cannot do so effectively if they do not know it. Further, the First Amendment right to freedom of speech is imperiled if citizens are barred from freely communicating the provisions of the law to each other. Cf. Nieman v. VersusLaw, Inc., No. 12-2810, at *2 (7th Cir. Mar. 19, 2013) (“The First Amendment privileges the publication of facts contained in lawfully obtained judicial records, even if reasonable people would want them concealed.”). By the same token, equal protection of the laws and due process are jeopardized if some citizens can afford to purchase access to the laws that all of us are bound to obey (with potential criminal penalties for non-compliance), but others cannot. Cf. Harper v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966) (a state violates the Equal Protection Clause “whenever it makes the affluence of the voter or payment of any fee an electoral standard”); see also Magna Carta 1297 c. 9 (cl. 29) (1297) (“We will sell to no man, we will not deny or defer to any man either Justice or Right.”).

Consistent with these fundamental principles, it is unlawful and unreasonable for the Bureau to make these standards part of binding United States law without providing a means for citizens to access them without cost or restriction.

6. Granting Citizens Access to Their Own Laws Will Not End the Creation of Public Safety Standards

Opposition to allowing citizens to freely read and speak the public safety standards that are incorporated into law seems to rest on the premise that allowing such access will end the standards-creation process and thereby imperil safety. The argument advanced is that if the government required that all materials incorporated by reference be available for free, then SDOs would react not by making their standards truly available to the public online but rather by ending or curtailing their work to create standards and/or by resisting government efforts to incorporate their standards into law.

Those assumptions of fact and law have been soundly refuted.

The en banc U.S. Court of Appeals for the Fifth Circuit in Veeck specifically addressed the policy and empirical issues regarding what might happen if courts, as that court did, expressly upheld the right of a citizen to communicate the law, in that case the right of a citizen to post the building code of his town, derived from a model code published by SBCCI, on the Internet. Rather than assume that the entire system of private standard-setting might collapse, the Fifth Circuit examined the arguments and determined that allowing citizens to speak their own laws would not end this beneficial system:

Many of SBCCI’s and the dissent’s arguments center on the plea that without full copyright protection for model codes, despite their enactment as the law in hundreds or thousands of jurisdictions, SBCCI will lack the revenue to continue its public service of code drafting. Thus SBCCI needs copyright’s economic incentives.

Several responses exist to this contention. First, SBCCI, like other code-writing organizations, has survived and grown over 60 years, yet no court has previously awarded copyright protection for the copying of an enacted building code under circumstances like these. Second, the success of voluntary code-writing groups is attributable to the technological complexity of modern life, which impels government entities to standardize their regulations. The entities would have to promulgate standards even if SBCCI did not exist, but the most fruitful approach for the public entities and the potentially regulated industries lies in mutual cooperation. The self-interest of the builders, engineers, designers and other relevant tradesmen should also not be overlooked in the calculus promoting uniform codes. As one commentator explained,

…it is difficult to imagine an area of creative endeavor in which the copyright incentive is needed less. Trade organizations have powerful reasons stemming from industry standardization, quality control, and self-regulation to produce these model codes; it is unlikely that, without copyright, they will cease producing them.

1 Goldstein § 2.5.2, at 2:51.

Third, to enhance the market value of its model codes, SBCCI could easily publish them as do the compilers of statutes and judicial opinions, with “value-added” in the form of commentary, questions and answers, lists of adopting jurisdictions and other information valuable to a reader. The organization could also charge fees for the massive amount of interpretive information about the codes that it doles out. In short, we are unpersuaded that the removal of copyright protection from model codes only when and to the extent they are enacted into law disserves “the Progress of Science and useful Arts.” U.S. Const. art. I. § 8, cl. 8.

293 F.3d at 806 (footnotes omitted).

These conclusions expressed by the court in Veeck are even more powerful today. Notwithstanding the issuance of the Veeck decision itself, and the U.S. Supreme Court’s denial of review after being informed by the Justice Department that “[t]he court of appeals reached the correct result,”[19] SDOs have continued to create and issue standards for another decade. SDOs also have continued to press federal and state authorities to incorporate their standards into law.[20]

Given these factors, we strongly believe that, if the Bureau and other agencies required that only standards made available without restriction be eligible for IBR, then (1) SDOs would continue to promulgate standards and urge their incorporation into law; (2) SDOs, government, and various private entities would make standards incorporated by reference available to the public without restriction, and the courts would uphold any challenges to such action, allowing the Bureau and other agencies to be confident that standards it was considering for IBR approval would indeed be publicly available.

7. Conclusion of the President’s Commission: “Safety is Not Proprietary”

The Bureau’s Notice of Proposed Rulemaking did not emerge from the dark corridors of the Department of the Interior as the brainchild of a few government employees. The current rulemaking is the direct result of a national tragedy. As the President’s National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling stated in the introduction to its exhaustive report:

The explosion that tore through the Deepwater Horizon drilling rig last April 20th, as the rig’s crew completed drilling the exploratory Macondo well deep under the waters of the Gulf of Mexico, began a human, economic, and environmental disaster.

Eleven crew members died, and others were seriously injured, as fire engulfed and ultimately destroyed the rig. And, although the nation would not know the full scope of the disaster for weeks, the first of more than four million barrels of oil began gushing uncontrolled into the Gulf—threatening livelihoods, precious habitats, and even a unique way of life. A treasured American landscape, already battered and degraded from years of mismanagement, faced yet another blow as the oil spread and washed ashore. Five years after Hurricane Katrina, the nation was again transfixed, seemingly helpless, as this new tragedy unfolded in the Gulf. The costs from this one industrial accident are not yet fully counted, but it is already clear that the impacts on the region’s natural systems and people were enormous, and that economic losses total tens of billions of dollars. [21]

The creation of the Bureau was a direct result of the Presidential Commission’s recommendations. Throughout the report, there are numerous recommendations for updating, strengthening, or changing the regulatory environment. Particularly telling is Chapter 8 of the report, entitled “Safety is Not Proprietary,” which showed that the BP Deepwater Horizon tragedy was not an isolated accident, it was a part of a series of incidents, including the Texas City refinery explosion in 2005, which was the result of numerous regulatory violations.[22]

The President’s Commission was very clear that a key issue was a regulatory lapse, technical standards that did not fulfill their key function of protecting the safety of the workers and of our environment:

According to statements made by industry officials to the Commission, API’s proffered safety and technical standards were a major casualty of this conflicted role. As described by one representative, API-proposed safety standards have increasingly failed to reflect “best industry practices” and have instead expressed the “lowest common denominator”—in other words, a standard that almost all operators could readily achieve. Because, moreover, the Interior Department has in turn relied on API in developing its own regulatory safety standards, API’s shortfalls have undermined the entire federal regulatory system.

The President’s Commission was not alone in their conclusions. Numerous other investigations stressed the crying need to update these regulations:

• One of the key findings of the Chemical Safety Board’s investigation into the Macondo Well explosion was identification of regulatory gaps in the area of blowout prevention systems and a recommendation that “more can be done to ensure a focus on preventing major accident events and to drive continuous safety improvement.”[23]
• The Chief Counsel of the Presidential Commission issued a supplementary report that included a full analysis of MMS regulations in force at the time of the blowout and concluded decisively that “MMS regulations did not address many key risk factors for the blowout.”[24]
• The Department of Interior’s own analysis of the incident concluded that “MMS did not have a comprehensive set of regulations specifically addressing deepwater technology, drilling, or well design” and proposed a “number of proposed regulatory improvements” including specific recommendations for incorporation of API standards.[25]
• The United States Coast Guard identified a number of incidents in which BP failed audits that required conformity with specific API standards required by law.[26]
• The report of the National Academy of Engineering and the National Research Council, issued after the creation of BSEE, stressed the importance of “enhancing the regulatory reform now underway” and included specific recommendations in their findings.[27]

The Bureau took these findings seriously and worked closely with the American Petroleum Institute to monitor and encourage the updating of key API standards. As the Bureau states in the NPRM, BSEE personnel participated actively in the API standardization process.[28] On January 30, 2014, API hosted an Offshore Well Control Equipment Forum that had as a specific goal to educate “the regulator” on specific standards such as the newly issued revision to Standard 53 and highlighted the upcoming rulemaking.[29] BSEE personnel are regular participants at the annual API Exploration & Production Standards Conference, and API personnel played a prominent role in the BSEE sponsored standards workshops in 2012 and 2014.

For several years, in preparation for this rulemaking, the BSEE and API have worked hand in hand with a mutual goal: specification and updating of API standards so they could be used in the regulatory process and incorporated into law. Indeed, API has repeatedly stressed the need for a single set of standards and for that single set of standards to be enacted into law.[30]

The sums at stake in this rulemaking are enormous. The NPRM has many provisions with financial implications for the industry, such as the change in testing frequency in workover and decommissioning from 7 to 14 days, a change that will save the industry $150 million per year.[31] We must not forget that these regulations are part of a bargain between regulators and industry that would permit drilling in locations such as the Chukchi Sea, in which billions of dollars of profits are at stake. The safety regulations that protect the lives of workers and our precious natural resources are an integral part of that bargain.

The nine standards proposed for incorporation into law are all produced by API, an immensely wealthy nonprofit organization, with $225,470,401 in 2013 revenues. Over 96 percent of API program service revenues come from membership dues, certification, and a lucrative annual meeting. This nonprofit organization pays its CEO $14,103,475 in annual compensation, one of the richest pay packages of any exempt organization executive.[32]

If the reason API insists on extracting $1,317 in rent before a person can read a decent copy of these nine proposed safety laws and insists on a license before one can speak them to inform their fellow citizens is all about the money, it seems petty and greedy, and at best is penny wise and pound foolish given how much money is at stake for its members. Whatever the motive API has for restricting access in this way, it is a clear principle of American democracy that the law belongs to the people and it is illegal to restrict their right to read and speak the laws by which we as a society choose to govern ourselves. Safety is not proprietary.

The only effect of restricting access to these nine key standards proposed to be incorporated into law will be to make the law harder to read. The so-called “reading room” being temporarily provided by API during the rulemaking is unusable. The high cost of print or PDF documents puts the cost of reading the law out of the reach of most citizens, watchdogs, and even government officials who simply cannot afford to pay those high fees.

The reason advanced in the NPRM incorporating standards with restricted access is what the Bureau says is an obligation to “preserve and protect copyright.” We note that the Bureau is in no position to assess copyright assertions, and in the case of at least some standards, there are many grounds to question the validity of these copyright assertions. In many cases, these standards are created by large committees of volunteers, including federal government workers, who may or may not have properly assigned their copyright interests to the Standards Development Organization. In addition, there are questions in many cases if the texts of the standards state mere facts and are not copyrightable as well as questions when the text used comes from another source, such as an earlier version of the standard or other standards or materials. Many standards clearly fall within the exclusions to copyrightability stated in the Copyright Act:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. 17 U.S.C. § 102(b).

Even if the API standards had copyright, it is important to remember that the purpose of incorporation by reference was not to permit an end run around the clear principle that in the United States the law belongs to the people and somehow allow a private organization to charge for the law and require a license for reuse. It is ironic that the Bureau is using the Incorporation by Reference mechanism as a way of keeping the law under wraps, since the provisions of federal law that permitted this mechanism were part of the landmark 1966 amendments to the Administrative Procedures Act (APA) in a bill entitled “Clarifying and Protecting the Right of the Public to Information.”[33]

Public Resource, Greenpeace USA, and a wide range of other parties are affected by the proposed rule and the incorporation by reference of the applicable standards. Many such parties cannot reasonably afford to purchase all the relevant standards incorporated by reference in these areas. In our society, based on the rule of law, all citizens must have ready access to their own laws. Public safety will be greatly improved if these standards are made available to the public without charge or restriction on use.

Because it is illegal and arbitrary to publish the proposed rule without making the incorporated materials freely available, the Bureau should re-publish the proposed rule with the standards available freely online, and it should re-open the comment period. The Bureau should not incorporate these materials into any final rule until and unless they are written directly into the rule, or else permanently available to the public on a website without charge and without any restriction on use.

Sincerely yours,

John Hocevar
Oceans Campaign Director
Greenpeace USA

David Halperin, Of Counsel
Public.Resource.Org

Carl Malamud, President and Founder
Public.Resource.Org

8. Notes