In their comments on the Coast Guard’s Deepwater Horizon Joint Investigation Team Report, Transocean made these statements about BOP maintenance standards incorporated in MMS drilling regulations:
By glossing over the contours of the regulatory language, the Draft Report unilaterally converts API Recommended Practice 53 from an advisory guideline into a mandatory requirement. Notwithstanding the Draft Report’s insistence otherwise, the API’s recommendation that the BOP “should” be disassembled and inspected according to the manufacturer’s guidelines is not mandatory. The API clarifies that the word “should” indicates a recommended practice for which a comparably safe alternative is available or which may be impractical or unnecessary in some conditions. In contrast, to denote a recommended practice that is “advisable in all circumstances,” the API uses the word “shall.” The API also emphasizes that “the formulation and publication of API standards is not intended in any way to inhibit anyone from using any other practices.” Though it recommends specific practices, API acknowledges that “equivalent alternative installations and practices may be utilized to accomplish the same objectives.” On its face, the language of API RP 53 makes clear that the recommendation that the BOP “should” be disassembled and inspected in accordance with the manufacturer’s guidelines is a recommendation, and nothing more.
Although the MMS regulations governing BOP maintenance incorporate API RP 53 sections 17.10 and 18.10 by reference, this does not convert the API’s recommendations into a mandatory requirement. As the MMS has clarified, “[t]he legal effect of incorporation by reference” is merely that “the material is treated as if it were published in the Federal Register.”
Treating API RP 53 as if it had been published in the Federal Register does not imbue its language with more regulatory significance than it had before. The API’s recommendations regarding BOP maintenance—as well as the API’s acknowledgement that alternative practices “may be utilized to accomplish the same objectives”—remain recommendations, not requirements. Transocean’s complete comments are posted on their website.
I’ll withhold my comments on the above statements, except to say that my opinion differs substantially from Transocean’s.
More significantly, these and other recent industry and government comments demonstrate the complexity of standards policy issues. How are standards most effectively applied by operators in formulating safety management programs, operating plans, and safety cases? Contractors? How should deviations from standards be assessed and documented? How should regulators use standards? To what extent should standards be incorporated into regulations? What is the appropriate role for regulators in standards development? These issues may prove to be more challenging than updating technical requirements. Stay tuned!
