A Public Access Response to Failure


Powerlessness in the face of disaster is dispiriting. Powerlessness in the face of regulatory failure is fixable.

Despite our widespread ability to communicate online; to see, as a society, to the murky bottom of the Gulf in real time, we’re still in a suspended state of irrelevance to this slow motion disaster — transfixed and dazed, as Micah Sifry points out.

Unfortunately, the people formerly known as the audience are fundamentally still functioning as the audience.

This is true, in part, because the current situation is a failure of complex machinery, which is difficult for most of us to constructively relate to. We try, suggesting enormous rubber shower curtains, or pointing out the absorbency of hay. And perhaps the international community of oil rig engineers is collaborating well now — if so, I hope that story gets told.

Mechanical failure is palatable; regulatory failure is inexcusable.

There is, however, another failure here too, that takes less specialized skill to relate to. That’s the regulatory failure that has led to current situation. We have a complex set of regulatory mechanisms set up to keep this from happening, and they have failed, and miserably so. We’re only really relating to that regulatory failure only through traditional investigative journalism — to its credit, but also at all of our peril.

Every day brings a new kick in the stomach, as the New York Times, McClatchy, and many many others illuminate new parts of this failure.

And each time I read one of those stories, I feel the same way — amazed that it happened, and also amazed that we’re only finding out about it now.

For all of the national discussion about offshore drilling, how has no one reviewed the required plans before now to realize their apparent fakeness? How were federal regulators able to let the industry fill out their own inspection forms, to be later traced in pen?

How often are we letting them languish, unread, unexamined, and unchallenged, in the “regional field offices” of our public neglect?

Many of these “public” inspections, in turns out, were only public in a very limited sense, opening the door to neglect and abuse. The same holds for the plans companies need to submit before they drill — apparently public, but effectively out of reach, and, consequently, filled out thoughtlessly, failing to create accountability. (My initial research into those reports is attached at the the end of this post, and inspired me to write this.)

Many of these public accountability mechanisms rely on outdated techniques despite their central role in our regulatory system. Putting an important report in a regional field office doesn’t make it effectively available for public inspection. As we’ve now seen, it makes them effectively hidden — waiting in obscurity for weeks for real review, even in the face of the country’s largest environmental disaster.

That’s the spirit in which we’ve helped prepare the Public Online Information Act, or POIA, introduced by Rep. Steve Israel in the House — to require public reporting to be truly public, by forcing their publication online.

While the live view of the gushing oil is valuable, creating some accountability, and having what is probably an important psychological impact, we need a live view of the other mechanisms that failed us here too — our public protections in the form of regulations. I’m not talking about cameras on the helmets of oil rig inspectors (although the image is appealing at the moment), but about key public reports going online so that they serve their intended purpose.

These reports aren’t obscure, or pointless either. They’re absolutely central to the way we regulate industry activity, and that’s true across regulatory contexts. The SEC, FCC, FEC (etc) regulatory agencies each collect public information, not as a byproduct of their work, but as a central approach to doing their jobs. Read the Federal Election Campaign Act. Or the Outer Continental Shelf Lands Act (as I did below) — they’re largely accessible even if you don’t have a law degree — and you can see that these public reports were created as the pillars of public regulation. Public reporting empowers public regulation.

How often are we letting them languish, unread, unexamined, and unchallenged, in the “regional field offices” of our public neglect?

The administration, as they piece together the Interior Department and the Minerals Management Service, should use public scrutiny to everyone’s advantage, and start posting MMS information online — if it’s public, post it. There is probably much, much more to be examined than the recent news stories indicate.

As they retroactively illuminate our regulatory failure, the daily gut check from our newspapers includes phrases like “according to our review of certain MMS documents.” We should, instead, be saying “according to documents submitted yesterday by inspectors,” or, “according to a permit to drill submitted earlier this week by ___, and spotted by ___, a reporter for the Daily ___”.

Mechanical failure is palatable; regulatory failure is inexcusable.

That it takes a national disaster to spur us into effective oversight means we’ve got a long way to go before the public can effectively hold the government, and by extension, regulated industry, to account.

What follows are my notes as I researched the OCS Lands Act, and the reports it creates ineffective public access to:

Here’s a summary of what I found regarding the MMS reports I haven’t been able to find online anywhere yet.

1. The Outer Continental Shelf Lands Act (OCS Lands Act) sets policy regarding leasing and drilling.

pdf: http://bit.ly/d1T83m US Code (43 USC 1331 – 1356a) — http://www.law.cornell.edu/uscode/html/uscode43/usc_sup_01_43_10_29_20_III.html

2. 43 USC 1351 mandates that detailed “Development and Production Plans” (DPPs) be submitted to the Secretary (almost def. the Interior Secretary). I suspect that this detailed report would be immensely valuable to read, especially if one were done of the Deepwater Horizon well. I don’t know whether that well would be covered by the OCS Lands Act, or whether it’s different, although I suspect it’d be covered. Even if the current spill isn’t covered by this requirement, it’s likely that it’d be covered by other similar requirements.

3. The same law mandates that these reports are available to the public, after appropriate redaction, and within 10 days of receipt. (“online” isn’t mentioned.) Googling for them gets me nowhere.

4. The Regulations promulgated under the OCS Lands Act require that these DPPs be made available to the public at the “MMS Regional Public Information Office”, by the Regional Supervisor.

30 CFR 250.204 (PDF: edocket.access.gpo.gov/cfr_2001/julqtr/pdf/30cfr250.204.pdf )

5. The MMS site says that these required reports will also be called a Development Operations Coordination Document, or DOCD.


6. Googling for DOCDs and DPPs (the two names for the same required report) hasn’t been productive.

7. There are numerous other reports on the MMS site that could conceivably be some sort of excerpts of the DOCDs or DPPs, but they appear to be something else.

8. Guidance from MMS on how to prepare and submit those documents: http://www.gomr.mms.gov/homepg/regulate/regs/ntls/ntl03-g17.html

9. MMS’s information page: http://www.gomr.mms.gov/homepg/pubinfo/piindex.html (The DPPs don’t appear to be here either.)