Government by Word Processor

We all know that BOEMRE has lifted the Deepwater Drilling Moratorium. We also know that few rigs have gone back to work, either in the deepwater or the shallow water Shelf. That’s because of several factors, one of which is the new Interim Final Rule which governs all offshore drilling. Compliance with the Interim Final Rule is necessary for the operator to secure a permit.


The Interim Final Rule contains this little chestnut:

When BOEMRE incorporates a document by reference, any recommendations in the document will be interpreted as requirements, unless otherwise specified.  For example, this section incorporates API [American Petroleum Institute] documents that recommend certain actions using the word should.  In the Foreword to its recommended practices, API explains that the word shall indicates that the recommended practice has universal applicability to the specific activity, while the word should denotes a recommended practice where a safe comparable alternative practice is available.  Despite this explanation, for API documents incorporated by reference into this part, the terms should and shall mean must.

Offshore drilling and production practices are regulated by a voluminous set of regulations known as 30 CFR 250. Even the Federal Government can’t specify every nuance of the industry so it “incorporates by reference” the design codes for wells, structures, vessels, pipelines, etc., promulgated by specialized standards-setting bodies (e.g., the American Society for Testing and Materials [ASTM], the American Institute of Steel Construction, Inc. [AISC] or the American National Standards Institute [ANSI]). You can get an idea of the volume involved here.


In many cases, those standards specify what constitutes a proper design. The word “should” gives the designer/engineer latitude to use common sense in a particular application that is not contemplated by the standards.

BOEMRE’s paragraph changes 14,000 instances of “should” to “must”.

  1. [Ctrl-F]> S-H-O-U-L-D
  2. [Replace with?]> M-U-S-T [cr]
  3. Done!

This is not engineering, this is engineering malpractice.

A delegation led by Louisiana Secretary of Natural Resources (and former Lt. Governor) Scott Angelle has been meeting with BOEMRE officials, including Michael Bromwich, in an effort resolve differences, including the “Should to Must Rule” that stand in the way of a more fluid and efficient permitting process. According to Angelle:

The Interim Final Rule incorporates industry standards for drilling safety by reference, but by virtue of a single provision makes arbitrary, sweeping blanket changes to those standards and all other standards incorporated by reference in 30 C.F.R. Part 250, with serious adverse and unintended consequences.  … The result does not serve to enhance safety or enforceability: on the contrary, it creates a regulation with increased safety risks, mandates that cannot be met, and too many ambiguous and unenforceable requirements to count.


Angelle and his delegation is to meet with Bromwich once more today in an attempt to forge a workable solution to this and the other impasses.

[Emphasis added throughout.]

Cross-posted at VladEnBlog.

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