Operational Excellence through Leadership and Compliance

Maritime Compliance Report

Welcome. Staying in compliance takes dedication, diligence and strong leadership skills to stay on top of all the requirements which seem to keep coming at a rapid pace. With this blog I hope to provide visitors with content that will help them in their daily work of staying in compliance. I hope you find it a resource worthy of your time and I look forward to your feedback, questions, comments and concerns. Thanks for stopping by.

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Critical Decisions - Subchapter M

Critical Decisions – Subchapter M

U.S. towing vessel operators, large and small, are faced with critical decisions:

Should they go with the Coast Guard option, or Third Party TSMS option?

If they go with the Third Party TSMS option, which Third Party Organization should they choose?

If they go with the Third Party TSMS option, what should they use for a TSMS?

How will they ensure compliance with log and record requirements, regardless of the option chosen?

Some companies have made their decisions and are confident moving forward. Others have made their decisions, but may be having doubts. Still others have no idea. There is no shortage of sales pitches, each one with a different spin, interpretation, or promise. This barrage of conflicting agendas, does little to help companies make the best decision for their compliance.

Maritime Compliance International is dedicated to helping companies make these critical decisions. We have the tools and solutions to help companies achieve the optimum level of compliance, and have a thirteen year track record of ensuring success for our clients. We are not a Subchapter M Third Party Organization, acting as an agent of the government.

I will be speaking on all these issues at the International Workboat Show next week. But even if you can’t make the conference session, come by and see us next week, booth:
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Have all your questions answered, take a look at our products and solutions, and get your free gift while they last. We look forward to seeing you.

 

 

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Marine News Magazine

Please take a look at my article in this month's edition of Marine News Magazine. (The article begins on page 20 of the magazine, page 22 of the electronic format.)  It's important information about surveying your vessel for Subchapter M compliance.

There are only 14 months left to get ready. If you need assitance with Regualtory Compliance Surveys, Towing Vessel Record/ Compliance Management Systems, Towing Safety Management Systems, or our Subchapter M Self-Study Course, please don't hesitate to contact us.

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Congratulations to E.N. Bisso & Son

Congratulations to E.N. Bisso & Son for its recent ISM certfication by ABS. The company has worked hard to achieve this goal with VP Mike Vitt leading the effort for the company. E.N. Bisso & Son partnered with Maritime Compliance International a decade ago. When they made the decision to seek ISM certification we developed their safety management system (SMS) into the ISM format, provided safety management workbooks for all captains to complete and learn the company's SMS, and conducted quarterly visits to each vessel to ensure steady progress. The ISM manual was approved with no deficiencies, the Document of Compliance was issued to the company following a successful audit, and now the vessels are being audited and issued their Safety Management Certificates. It is a pleasure to work with such dedicated clients.
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Subchapter M - 18 Months to Comply

There are now 18 months left to get towing vessels into compliance with Subchapter M. According to our Subchapter M Strategic Plan, by now all captains should have read Subchapter M, as well as all managers, who should also have read the Subchapter M Preamble in the Federal Register. Additionally, companies should have decided which compliance option they will go with. We developed a Compliance Option Decision Tool to help in this process. It takes into account seven important factors for towing vessel companies to consider, free of spin and sales pitches. So, if you haven’t done that much yet, you should consider catching up.

January 1 is the date set for companies to begin getting their boats into compliance by getting a comprehensive Subchapter M survey for each vessel. We recently completed our first two Subchapter M surveys for a client.  In order to do this properly, the company must first make some important decisions: the vessel route; number of persons in the crew; number of persons in addition to the crew; warm or cold water operation; excepted vessel or not; and the compliance option. The survey should be based upon these assumptions. Once the company has a comprehensive regulatory compliance survey report, they can budget and plan out the timing of upgrades throughout the year. 

April 1 is the date set to establish how the requirements for written records, operational policies and procedures, and training will be met. Some of our clients are getting ahead of the game by implementing our comprehensive Towing Vessel Record/ Compliance Management System, which includes all required records, policies and procedures. With a good survey, our comprehensive system, and some training, these clients are all set for Subchapter M. 

The items discussed above apply to all towing vessels, regardless of the compliance option. For those companies choosing the Third Party Option, they have a number of other considerations. More on that next time.

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Maritime Executive Magazine

My article on Subchapter M was just published in the Maritime Executive Magazine. It starts on page 34.

See you at the Workboat Show Booth 2308.

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Subchapter M Resources

We now have 20 months to get into compliance with Subchapter M. Hopefully, you have a solid plan and are on track.

But you can never have enough information, so I wanted to let you know of these resources: The International Workboat Show will be held in New Orleans from November 30 through December 2. If you are attending the conference series at the show, please try to make my Subchapter M Compliance Management session on Thursday afternoon. I guarantee you will hear things you haven’t heard before and will learn something new.

If you’re at the Workboat Show and have questions, please come by our booth 2308, say hello, and pick up a free copy of our Subchapter M Compliance Option Decision Matrix and our Subchapter M Strategic Plan for Towing Vessel Companies.

If you haven't already done so, I recommend you enter your email address, free of charge, in the subscribe box at the top of this page. You will only get an email notiication when something important has been posted.

Finally, please be on the lookout for my article on Subchapter M in the upcoming Maritime Executive Magazine. If you don’t get it delivered, be sure to pick up a free copy at the Workboat Show, or look for it online. We are looking forward to seeing you and helping to make your transition as painless as possible.

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USCG on the Subchapter M Coast Guard Option

On October 4, 2016, I attended a joint Subchapter M conference in New Orleans put on by the American Waterways Operators (AWO) and the U.S. Coast Guard. The AWO representative gave a great overview of Subchapter M, with particular emphasis on issues of concern to industry that they have been working on with the Coast Guard. Both parties should be commended for their efforts and results.

Coast Guard comments
The presentation by the Coast Guard was given by Captain Verne Gifford, Chief of Inspections and Compliance at Coast Guard Headquarters. Much of Captain Gifford’s presentation focused on the Coast Guard’s efforts to incentivize the Third Party TSMS option. The Coast Guard is concerned about manpower issues to inspect the 5,719 towing vessels in the U.S.

I took the opportunity during the Q&A session to ask Captain Gifford to address some of the concerns I had heard from industry in response to the latest round of Subchapter M frequently asked questions (FAQs) issued by headquarters. I told the Captain that the FAQs seemed so one-sided in their attempt to incentivize the Third Party TSMS option that I have heard comments such as, “I don’t even think the Coast Guard wrote these,” and “This sounds like intimidation!” Captain Gifford assured us that it was not the Coast Guard’s intent to intimidate anyone, one way or the other, but that the Coast Guard does have concerns about available manpower to get the inspections done in a timely fashion. He estimated that half of the towing vessel fleet will go with the Coast Guard option. Other senior officers on the panel chimed in and explained that currently, inspections in the Eighth District are scheduled several weeks in advance, and sometimes only a few days. They stated, if you can deal with that, the Coast Guard option may be for you. Rear Admiral Callahan, Commander of the Eighth Coast Guard District, added that if you want to go with the Coast Guard option, they would do their best to accommodate you, but he just couldn’t promise how timely they would be in doing so.

Biggest takeaway
Rear Admiral Callahan also provided the biggest takeaway for me at the end of his introductory remarks. He said he was going off-script when he gave us three things to ponder (paraphrased): 1. Does your safety management system (SMS) foster compliance, or a safety culture? 2. Is your SMS implemented, or is it just sitting on the shelf? 3. If your SMS is implemented, is it implemented across all levels of the company: top management, middle management, and on the deck plates?

Normally, I might consider these comments standard Coast Guard SMS philosophy, but taken in the context of this conference where much of the talk was centered on going with the Third Party TSMS option, I took it as a warning. A warning to towing vessel companies to ensure, before they jump on this Third Party TSMS option, that everyone in the company is ready, from the deckhands on up.

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Who wrote the Subchapter M FAQs?

Having worked for, or with, the Coast Guard for over 30 years, I found the latest round of Subchapter M “Frequently Asked Questions (FAQs)” quite strange. I understand that the Coast Guard is having to deal with quite a few new vessels to inspect, and that they may be trying to appease those who wanted the third party TSMS option to be the only option, but this latest round of FAQs dated August 31, 2016 reads more like a talking points memo with plenty of spin to sway readers in one direction. 

Having discussed it with some clients, I am not alone in having this perception. One of my clients stated after reading them, “This sounds like intimidation!” I have nothing to base this on other than my gut, but my gut tells me these FAQs were not written by the Coast Guard.

Great! TPO doesn’t have to go on my individual boats?
The first question I have is, what qualifies these to be frequently asked questions? Some of these questions seem pretty obscure, designed solely to be able to provide an answer with an agenda. For example: What must a TPO do before issuing a TSMS Certificate? Really? Even if all the TPOs asked this, I’m not sure it would qualify as a FAQ. But the last line of the answer explains the question: The TPO is not required to visit individual vessels before issuing a TSMS certificate. Reading this one might think: Oh, great, that’s what I was worried about. I know the office has it down pat, but the boats have me concerned. What the answer doesn’t say is the boats still have to pass a third party external audit in order to get a COI.

Great! Third Party Option takers have greater flexibility in scheduling and less down time.
When I was a Coast Guard marine inspector the vessel company called us up, we asked what day they wanted, we marked it in our book. Every morning we checked the book, divided up the jobs and went and did them. Only those who were not ready for inspection had problems. 

Great! Third Party Option takers get a de-scoped COI inspection and the Coast Guard option people get the full business.
I’m no lawyer, but the regulations are usually in line with the law, and the policy is usually in line with the regulations. The regulations clearly state what the COI inspection “will include.” Only the annual inspection, according to the regulations, “will cover less detail.” This is standard operating procedure, but a de-scoped COI inspection seems to be a stretch. 

How will the Coast Guard ensure compliance for vessels taking the Coast Guard only option? 
This answer is so over the top, I only have one suggestion: remove the words “ensure compliance for” and replace them with the word “punish.”

Will the Coast Guard use Petty Officers for Subchapter M?
What a curious “frequently” asked question. I have never heard anyone ask this. Most people don’t know an enlisted person from an officer. On the other hand, I have heard many unfortunate stories about the inconsistency and lack of knowledge demonstrated by enlisted towing vessel examiners during the bridging program. One towboat owner assured me he would not be using the Subchapter M Coast Guard option due to his experience with the enlisted towing vessel examiners. Oh, wait. I get it now. That’s why this was included as an FAQ…

It’s interesting that there were no FAQs about the strong language in the regulations regarding Coast Guard oversight of the TPOs and vessels under the TSMS option.

I like to warn clients to beware of the sales pitch. I guess sales pitches come from all angles these days.

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TWIC Reader Final Rule

The revised MTSA regulations included in the recently published TWIC Final Rule go into effect on August 23, 2018. As usual, the final rule comes with an extensive preamble discussion of the Coast Guard’s response to comments received during the rule making process. The preamble, which contains essential information, is usually skipped over by most readers. In fact, seasoned Coast Guard marine inspectors know to look back at the Federal Register when a particular regulation was published in order to determine the intent of a regulation in question.

Headline
The headline for this final rule is clearly: “We clarify that this final rule only affects Risk Group A vessels and facilities, and that no changes to the existing business practices of other MTSA-related vessels and facilities are required.” Before you get too excited about that, you must understand this: when Coast Guard Headquarters makes that statement they are assuming you are currently doing everything correctly in accordance with the regulations and guidance. Hopefully, for you that is the case, but maybe not. Many compliance variations have been allowed over the years. Regardless, this new regulation will bring new scrutiny by the Coast Guard, and may bring some previously accepted practices into question. I will explain further below under “Potential impacts for non-Risk Group A Facilities.”

Which vessels are required to conduct electronic TWIC inspections?
Only Risk Group A vessels will be required to conduct electronic TWIC inspections. Risk Group A vessel are listed in 33 CFR 104.263: vessels carrying CDCs in bulk; vessels certificated to carry more than 1,000 passengers; and vessels engaged in towing vessels subject to (a)(1) and (a) (2). Now before you towing vessel folks get too excited, there’s an exemption from electronic TWIC inspection requirements for vessels with 20 or fewer TWIC-holding crewmembers. That number is determined by the minimum manning requirement specified on the COI. The Coast Guard estimates that only one vessel will be required conduct electronic TWIC inspections.

Which facilities are required to conduct electronic TWIC inspections?
Only Risk Group A facilities will be required to conduct electronic TWIC inspections. Risk Group A facilities are listed in 33 CFR 105.253: facilities that handles CDCs in bulk or receive vessels carrying CDCs in bulk; and facilities that receive vessels certificated to carry more than 1, 000 passengers. Now before you stop reading this, here are a couple of things to think about: How do you ensure the ship at your dock is not carrying CDCs in bulk even if that cargo has nothing to do with your facility? Also, “handling” includes CDCs in bulk being handled by truck or rail or other means on the facility, not just vessel related. The Coast Guard estimates that 525 facilities will have to conduct electronic TWIC verification. No OCS facilities are expected to have to conduct electronic TWIC verifications.

What is Certain Dangerous Cargo (CDC)? 
It is a short but complicated list of cargos contained in 33 CFR 160.202, including ammonium nitrate based fertilizer.

A TWIC reader or a PACS?
For Risk Group A the Coast Guard authorizes either TWIC readers or using Physical Access Control Systems (PACS) that meets the standard. 33 CFR 101.530 details PACS requirements specifically for Risk Group A. The preamble explains, “… we are providing greater flexibility on the type of equipment used, as long as the three parts of electronic TWIC inspection are performed satisfactorily.” Some existing PACS accepted by the Coast Guard may need upgrading for Risk Group A facilities. 

Barge Fleeting Facilities
The revised regulation contains an exemption for certain barge fleeting facilities. 33 CFR 105.110(e) “Barge fleeting facilities without shore side access are exempt from the requirements in 33 CFR 101.535(b)(1) (Electronic TWIC inspection requirements for Risk Group A)

Clearly, if a barge fleeting facility containing ammonium nitrate barges can be accessed from shore, without having to take a boat, it will not be exempt from these TWIC reader requirements. MTSA PAC 10-09 allows free floating barge fleeting facilities to be defined as areas in the water, in accordance with the regulatory definition. This allows barge fleeting facilities to define the tiers containing the MTSA regulated barges as the “facility,” and omit other tiers of non-MTSA regulated barges and shore side areas containing an office or wash dock. Therefore, if a barge fleeting facility is defined as in the FSP, for example, as mile 147.1 to 146.9, right descending bank of the Mississippi River, it may be able to claim this exemption.

Barge fleeting facilities that did not take advantage of this PAC and include all shore side areas, and did not limit their secure area to regulated barge tiers, may find themselves missing out on the exemption provided above, regardless of whether one must take a boat to get to the regulated barges. The preamble discussion sheds some light on the topic: “These commenters raise important issues as to how we would apply the electronic TWIC inspection process to secure areas on water, such as barge fleeting facilities. Upon consideration, we do not believe that requiring electronic TWIC inspection prior to entering such areas would be practical, as there is no particular access point to such an area that can be controlled by a TWIC reader. Electronic TWIC inspection would instead be required at the barge fleeting facility’s shore side location.

Based on these comments its seems the verbiage of the exemption referring to “without shore side access,” means an isolated barge fleeting facility along a waterway with no shore side “location” from which one would go through first to gain access to the barge fleet. Not just a free floating tier of barges.

Note: On 09/07/16, this barge fleeting section was read and confirmed to be correct by the Coast Guard Headquarters’ P.O.C. named in the final rule.

Potential impacts for non-Risk Group A Facilities:

Incorporating TWIC checks into existing PACS
The guidance for incorporating TWIC checks into existing systems (PACS) is contained in NVIC 03-07 and PAC 08-09 CH1. The preamble explains those guidance documents will remain valid for non-Risk Group A facilities, but will be updated: “NVIC 03-07 and PAC 08-09 CH1 … because we are not making changes to the TWIC requirements for those vessels and facilities not in risk Group A, the guidance documents will retain their validity with regard to those entities. We will update and post these guidance documents online … prior to the effective date of the final rule.” So what will the updated guidance look like for non-Risk Group A facilities? Here’s the rub. 33 CFR 101.520, Electronic TWIC inspection, is not specific for Risk Group A facilities and outlines that the requirements must include: (a) Card authentication (b) card validity check (c) identity verification. Therefore, the revised guidance should be in line with the regulation and may not allow for issuing a facility swipe card to allow self-access to secure areas just because the person showed they possessed a valid TWIC, or even if a camera was added to monitor the person swipe themselves in.

Access point to Secure Area
The preamble sheds light onto a gray area, the physical place where the TWIC verification must take place: “Given the requirement that electronic TWIC inspection be conducted “prior to each entry” into a secure area (of facilities), we would anticipate that inspection points at facilities would be located at the access points to secure areas.” While this verbiage in the preamble is in regards to electronic TWIC inspection, it is essentially the same for all MTSA facilities as outlined in NVIC 03-07, but clearer with regards to the location of the TWIC verification process. Therefore, some compliance processes proposed in the past may be affected, such as: checking the TWIC at the front gate guard shack and then telling a visitor a punch code, or handing him a swipe card, to let himself into the secure area dock gate.

Restricted areas
There is an omission in the preamble discussion regarding the NVIC discussion of restricted areas, which might cause the reader to believe that the secure area must encompass all restricted areas. That is not the case. However, the preamble does contain an interesting comment regarding restricted area access control: “We note that a second round of electronic TWIC inspection is not required when passing from a secure area to a restricted area, although we would anticipate other security measures to be in place.” The implication is for more than signage, (33 CFR 105.260(c)).

Escorting
The preamble addresses escorting via CCTV and reiterates the standard put forth in the NVIC: “Where such monitoring is appropriate, the general principle applies that monitoring must enable sufficient observation of the individual with a means to respond if the individual is observed to be engaging in unauthorized activities or crossing into an unauthorized area.” This may give rise to the Coast Guard ensuring continuous monitoring non-TWIC personnel, which meets the intent of the regulation, not just having cameras installed.

Secure area access control
33 CFR 105.255(a)(4) implies the secure area should be fenced, but it doesn’t actually say that. If some secure areas within facilities were approved without fencing or additional access control, the new verbiage for Risk Group A facilities tacked onto this citation may bring some access control measure for secure areas into question.



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Subchapter M Products and Services

Please check out the following webpage where we have posted our Subchapter M products and services. Let us know if you have any specific concerns or needs. Thank you.
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