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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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For those of you travelling from out of town for the TSMS Workshop who want to stay at Hilton, now is the time to book a room. The Hilton is only holding the block of rooms until this Friday. Please forward this information to anyone you think would benefit from it. See you on August 8th.
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The update to the DHS regulatory agenda now shows the expected publish date of the Final Rule for Subchapter M, towing vessel inspection regulations, to be March of 2015. While some find the moving goal post frustrating, it also buys time for preparation.
Anyone who may be impacted by this regulation should take the time to read over the Notice of Proposed Rulemaking (NPRM). Some things to consider are: what equipment and other changes may be required for each company vessel based on the 17 "sub-applicabilities;" and, is it best for the company to choose the Coast Guard compliance option or the third party TSMS option.
Anyone who may be impacted by this regulation should take the time to read over the Notice of Proposed Rulemaking (NPRM). Some things to consider are: what equipment and other changes may be required for each company vessel based on the 17 "sub-applicabilities;" and, is it best for the company to choose the Coast Guard compliance option or the third party TSMS option.
Towing vessel captains should not be forgotten when considering this important compliance option. It might be interesting if companies asked a sampling of captains how they feel about passing an audit where the auditor is required by regulation to determine, by gathering objective evidence, if the company has, "effectively implemented its TSMS throughout all levels of the organization, including onboard its vessels." Even if the answer is a resounding, "bring it on!" on board implementation of all company policies and procedures would be a good topic to focus on over the next six months.
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At a recent conference some interesting information was passed regarding Subchapter M. The Coast Guard has posted on the regulatory agenda, a date of September 2014 for the release of the Final Rule for Subchapter M - Towing Vessel Inspection Regulations.
While many are already aware of this date, it is interesting to note that Subchapter M is expected to be released as a Final Rule. Many had speculated that due to the large volume of comments, that Subchapter M may be changed significantly and therefore put back out for further comments. But, based upon the current information, when it is published, the rule will be final.
Additionally, the Coast Guard passed on that interested parties should become intimately familiar with the Notice of Proposed Rule Making (NPRM) which is available for viewing in the Federal Register. Reading between the lines, one might conclude that while changes will surely be made, the NPRM may not be far from the Final Rule once published. While it may not be time to invest great sums of money in order to get ready, it is certainly time to read the NPRM if you haven't done so already. If you wait for the Final Rule before you start figuring it out, you will surely end up behind the learning curve.
While many are already aware of this date, it is interesting to note that Subchapter M is expected to be released as a Final Rule. Many had speculated that due to the large volume of comments, that Subchapter M may be changed significantly and therefore put back out for further comments. But, based upon the current information, when it is published, the rule will be final.
Additionally, the Coast Guard passed on that interested parties should become intimately familiar with the Notice of Proposed Rule Making (NPRM) which is available for viewing in the Federal Register. Reading between the lines, one might conclude that while changes will surely be made, the NPRM may not be far from the Final Rule once published. While it may not be time to invest great sums of money in order to get ready, it is certainly time to read the NPRM if you haven't done so already. If you wait for the Final Rule before you start figuring it out, you will surely end up behind the learning curve.
The regulatory agenda will be updated in August. That will be our next opportunity to get a Subchapter M update. Stay tuned.
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14The purpose of writing down the best procedure for a particular operation in a safety management system is to standardize operations in order to minimize human error. Safety management systems (SMS) vary greatly regarding their content, even within the same industry. That's because it's up to the company using it, or developing it, to determine which operations should be included. Some regulatory requirements, or industry programs, dictate what topics require policies and procedures, but most provide general headings. For example, the International Safety Management (ISM) Code provides a general outline such as Section 7 – Shipboard Operations. The company is expected to fill in the blanks.
Subchapter M is no different. The proposed requirements for the Towing Safety Management System (TSMS) contained in 46 CFR 138.220(c)(2) states, "Procedures must be in place to ensure safety of property, the environment and personnel." But what procedures? This is where risk assessment comes into play. What are the most dangerous evolutions that occur? How have people been hurt in the past? What caused a spill? For example, if a tugboat company handles lines all day every day, and parting lines pose a real and significant danger to crews, their SMS should contain procedures based upon the line manufacturers' specifications, to inspect the lines regularly and know when they have become unserviceable.Even if an auditor or government inspector doesn't catch these omissions, the courts may. Reportedly, in a recent court decision involving a deckhand being crushed to death in a capstan during a swing maneuver, the vessel was found to be "unseaworthy." This ruling made the tug owner strictly liable under general maritime law. The reason this determination was made was that the owner failed to adequately implement procedures and guidelines that would have provided the crew the training, skill and knowledge to perform the maneuver safely.
Don't buy a TSMS off the shelf. Get someone to facilitate the development of one specific for your company and make sure to involve your best captains in doing so.
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vgp The 2008 Environmental Protection Agency (EPA) Vessel General Permit (2013 VGP) expires on December 19, 2013. On the same day the new EPA VGP 2013 will go into effect. The following is a summary of most of the issues vessel operators might be concerned with. However, this summary will not be comprehensive, and vessel operators should refer to the permit itself to ensure compliance.
The new 2013 EPA VGP applies to non-recreational vessels 79 feet or greater, just as the previous 2008 permit did. In order to receive coverage under the new EPA VGP vessels 300 tons or greater, or with the capacity of 8 cubic meters of ballast water, must submit a Notice of Intent. This is the same requirement that was included in the 2008 permit, but now it must be done through the EPA's eNOI system. Many vessels which were not required to, submitted a Notice of Intent for the 2008 permit. According to the EPA website, "It is important to understand that operators must submit an NOI for coverage under the 2013 VGP even if they had submitted an NOI for coverage under the 2008 VGP."There is a moratorium from the requirement to obtain coverage for vessels less than 79ft which will remain in place until December 18, 2014. At which time, if the moratorium expires, the EPA will release the final sVGP for vessel less than 79ft. However, the draft sVGP can be viewed now on the EPA VGP website.
Unlike the 2008 VGP, the 2013 VGP requires vessels which are not required to submit an NOI (79 feet or greater but less than 300 gross tons and ballast water capacity of less than 8 cubic meters) to complete and carry on board at all times a Permit Authorization and Record of Inspection (PARI) form.
It would be useful for vessel operators to conduct a one-time assessment of the applicable discharges for each vessel and document which best management practices, outlined in the permit, will be adopted. The best management practices are better defined in the 2013 permit. For example, where previously it was implied, the 2013 permit says, "Before deck washdowns occur, you must broom clean exposed decks or use comparable management measures and remove all existing debris."
The weekly inspection is more comprehensive than simply making sure there is no debris on deck, and those processes should be reevaluated. Also, there is now requirement for all crewmembers involved to be trained, and for the training to be recorded.
An annual report is now required, where the previous permit only required a report of non-compliance. The first annual report under the new permit will be due on February 28, 2015, and every February 28th thereafter.
Those are just the highlights. Don't allow yourself to be lulled into a false sense of security by the lack of enforcement. One thing hasn't changed; the penalties include six months in jail for each instance of pencil whipping.
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Recently, a few clients have asked me about training and certification of facility security officers (FSOs). So, I will try to explain the current requirements and those expected in the future.
Ten years ago the MTSA regulations were published. The Coast Guard listed the requirements for FSO, stating the FSO must have "general knowledge, through training or on the job experience in the following:" and went on to list the topics.A subsection went on to say, that in addition the FSO must "have knowledge andreceive training in the following:" and went on to list further topics. Most designated FSOs realized they needed training, and a number of training providers developed courses, delivered training, and certified that individuals had been trained.
There is not now, and never was, a requirement for the training course to be "approved." However, at the time a program was established through theMaritime Administration (MARAD) to approve courses based on a model course developed by MARAD. A number of training providers decided to take advantage of this program to get their courses "approved" even though it was not required.
It should be noted that in 2009 STCW for Ship (Vessel) Security Officer (VSO)went into effect. Since this was an international requirement for mariner credentials, the course taken by VSOs, to get there document endorsed, needed to be an approved course. However, in the revision of that regulation, the Coast Guard recognized that many VSOs had already been trained through non-approved courses, and they made an allowance for those individuals to take a one-day refresher course instead of a full VSO training course.
Section 821 of the Coast Guard Authorization Act of 2010 requires the development of comprehensive FSO training which will lead to certification. As a result, a revised model course for FSO has been developed, and a public meeting was held to discuss the model course and training requirements. It is expected that sometime in the future, the requirement for FSO training will be changed to required attendance at an approved course.
My clients have asked me if it makes since to spend the money to take an FSO course which is currently approved. If you are also wondering about this, I offer the following thoughts. Bear in mind, this is all pure speculation, as no one knows until we see the regulation:
Ten years ago the MTSA regulations were published. The Coast Guard listed the requirements for FSO, stating the FSO must have "general knowledge, through training or on the job experience in the following:" and went on to list the topics.A subsection went on to say, that in addition the FSO must "have knowledge andreceive training in the following:" and went on to list further topics. Most designated FSOs realized they needed training, and a number of training providers developed courses, delivered training, and certified that individuals had been trained.
There is not now, and never was, a requirement for the training course to be "approved." However, at the time a program was established through theMaritime Administration (MARAD) to approve courses based on a model course developed by MARAD. A number of training providers decided to take advantage of this program to get their courses "approved" even though it was not required.
It should be noted that in 2009 STCW for Ship (Vessel) Security Officer (VSO)went into effect. Since this was an international requirement for mariner credentials, the course taken by VSOs, to get there document endorsed, needed to be an approved course. However, in the revision of that regulation, the Coast Guard recognized that many VSOs had already been trained through non-approved courses, and they made an allowance for those individuals to take a one-day refresher course instead of a full VSO training course.
Section 821 of the Coast Guard Authorization Act of 2010 requires the development of comprehensive FSO training which will lead to certification. As a result, a revised model course for FSO has been developed, and a public meeting was held to discuss the model course and training requirements. It is expected that sometime in the future, the requirement for FSO training will be changed to required attendance at an approved course.
My clients have asked me if it makes since to spend the money to take an FSO course which is currently approved. If you are also wondering about this, I offer the following thoughts. Bear in mind, this is all pure speculation, as no one knows until we see the regulation:
- the courses currently approved were approved on a voluntary basis, based upon a model course from years ago, not the model course currently being considered under this regulatory program. Therefore, it is unknown whether attendance at such a course will be accepted without condition under the new regulation.
- the Coast Guard may only require a one-day refresher course for FSOs previously trained in an unapproved course, as they did for STCW-required VSOs in 2009
- the Coast Guard may "grandfather" any FSO currently serving or who has received some sort of FSO training, and only require new FSOs to become certified under the new regulations
- Subchapter M is still not final, 8 years after the law changed requiring towing vessels to be inspected.
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The maritime security regulations call for the use of a Declaration of Security (DOS) during certain times and situations when there a heightened security threat. The International Ship and Port Security (ISPS) Code takes a more general approach to the DOS than do the very specific U.S. Coast Guard regulations on the topic, which spell out which types of interfaces require a DOS at which MARSEC levels.
However, the intent of the regulations is clear in both, which is for the two interfacing parties to get together and make a deal regarding who will take responsibility for what security measures during a particular interface. This contract, which is usually limited to a single page, is signed by both parties.Unfortunately, as the years have passed since the publication of the Code and regulations, some of the intent and perceived value of such a document has been lost. It is not unusual to find that a DOS has been filled out and signed, but that the facility and the vessel personnel are unaware of its contents. It is also not unusual to find initials down both columns, including the vessel signing that it is taking responsibility for controlling access to the facility. Clearly, individuals responsible for fulfilling the obligations of the DOS should be aware of the contents.
According to the U.S. regulations, a DOS can be filled out and signed by a Facility or Vessel security Officer or their "designated representative." This should not necessarily be a third party tankerman or stevedore who has no control over the processes prescribed in either security plan. The designated representative should be properly trained as a "vessel and facility personnel with security duties." However, a designated representative does not have to be an alternate facility or vessel security officer who would be required to be trained to the level of an FSO or VSO under the regulations.
A Declaration of Security is a useful tool if used correctly. It continues to raise eyebrows each time we role-play filling one out during training sessions. Make good use of a DOS. The regulations have not gone away, and neither have the threats.
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The Workboat Show this year was a little warmer than most, as it is usually held in December, but the "Subchapter M" buzz has certainly cooled off since last year's show. As the years go by, with no word of when the final rule may come, many have become desensitized.
Despite the uncertainty surrounding the topic, we did fill the room for our conference session on Subchapter M. The panelist, including myself, shared our ideas on the need and methodology for training, compliance management, and preparation for the impending regulations. The session was well received and ended with spirited round of questions and answers that could have gone on for at least another thirty minutes.As expected, a few people came by our booth to ask when we would see something on Subchapter M. If I had answered them, it would have been pure speculation. But surprisingly, no one asked about the new EPA VGP. We barely had a chance to show our 2013 VGP compliance management system.
The new permit (2013 VGP) goes into effect on December 19, 2013. There are some significant changes all operators of vessels subject to the permit should be aware of. For example, operators should know: what a PARI form is, what is now required annually which wasn't required previously, a weekly inspection is much more than walking around the boat, why your boats should carry a broom, what is an EUP inspection, and why is the date February 28, 2015 significant. If you are confused by any, or all, of these items now is the time to get up to speed. The 2013 VGP can be accessed on the EPA website.
So, while we wait for Subchapter M, don't forget about the VGP. One thing that hasn't changed is the severe penalties for noncompliance.
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Don't miss the 2013 Workboat Show. It's not in December this year. In fact, it's only three weeks away. The International Workboat Show will take place at the Morial Convention Center in New Orleans from October 9th through October 11th.
Once again, there is a big demand for information regarding Subchapter M, the proposed towing vessel inspection regulations. On Wednesday October 9th, from 1:00pm until 2:00pm, I will be participating in a panel discussion on Subchapter M. The Workboat Show website describes the session as follows:Solving Subchapter M Compliance Issues: There still are many unanswered questions surrounding Subchapter M — regulations for the inspection of towing vessels — and compliance. This session will review Subchapter M; look at where we are in the process and what we can expect moving forward. Join in this discussion with experts on the issue. Moderated by: Ken Hocke, Senior Technical Editor, WorkBoat Magazine Presented by: Gerald T. Frentz, E-Learning and IT Specialist, Seamens Church Institute Center for Maritime Education, Robert Russo, Owner, Maritime License Training Co& Kevin Gilheany, International Consultant, Maritime Compliance International,Michael F. Vitt, Vice President and General Counsel, EN Bisso & Son
During my portion of the program I will be discussing and demonstrating the use of our recently developed Subchapter M compliance management system. I will use practical examples to demonstrate how a management system can help companies, large and small, prepare for a successful transition to inspected vessel status.
This year we will be sharing booth 1228 with Boatracs and will be able to demonstrate the Subchapter M compliance management system's use, both on paper as well as Boatracs' electronic version. If you are a subscriber to the Maritime Compliance Report and you would like us to send you VIP floor passes for the Workboat Show, just let us know and we'll make sure you get them while they last.
See you at the show.
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When should a checklist be required?
Have you ever wondered why a watch relief checklist is common in the industry, but a bridge transit procedure checklist is not? I'm not sure the reason is given much thought. Consultants seem to think lots of forms make their manuals more professional, managers like the idea of having everything documented, and mariners feel they are the victims of a useless paperwork onslaught. A mariner, who was sick of all the foolish paperwork he was forced to do, once wrote about making a fake ISM form for how many sugar cubes were used by individuals at the ship's coffee mess. His point was proved when the crew did indeed; fill out the ISM sugar cube usage form.Some in management feel making employees complete and turn in signed checklists is a good way of covering themselves. However, the value of that is questionable, and it may be counter-productive from a leadership stand point. After all, no one wants to have to complete a checklist just so their boss can cover his ass.
I recently read an excellent book on the topic of checklist usage. I highly recommend it to all individuals involved in the development of management systems and procedures. The book is The Checklist Manifesto: How to Get Things Right; by Atul Gawande. This book makes a compelling case for the use of the checklists, through case studies in the medical and aviation fields.
When inspections are done, the use of a checklist is a good quality control measure to make sure nothing is missed. An engineer once told me he stopped using the engineering inspection checklist because he could do it from memory. After I had him close his eyes and imagine going down to the engine room and listing all the items he checked, he only listed 14% of the items on the checklist.
Clearly doing a detailed inspection requires a job aid for quality control. It is the operational checklist which is more complicated to determine. The methodology that we use to determine when a checklist is required is based upon risk assessment. A checklist may be required when: the task is done infrequently and therefore the risk of skipping a step is likely; and/ or, the consequence for missing a step is serious.
Why do airline pilots, who take off and land constantly, complete a checklist? Think of the consequence for missing something. When it comes to these decisions, aviation has it easy. In the maritime industry it requires a little more thought to figure out which checklists are required, and which are not. But the paperwork requirements are a little less tough to swallow when the reasoning behind them can be explained logically. Conversely, if a good risk-based argument can't be made for a particular checklist, get rid of it.
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In the past, I have heard many opinions from vessel operators on what they consider a "good" Coast Guard marine inspector to be. The majority opinion has been that good inspectors apply "common sense" in enforcing regulations, or that they do not necessarily, "follow the book." I disagree.
The truth is, enforcing prescriptive regulations has very little to do with applying common sense. Enforcing performance or management based regulations if a different story altogether, but we'll save that for future discussions. While some regulations may seem to be drafted without "common sense," the authority to waive them is above an inspector's pay grade. An inspector who is not knowledgeable of the regulations he is charged with enforcing, or is not thorough or consistent in enforcing them, is not doing anyone any favors.
A recent tragedy reminds us of the important role of the government inspector. On June 5, a building collapsed in Philadelphia killing six people. According to news reports a city building inspector had been to the site on February 12 and 25. He returned to the site on May 14 when a citizen complained about the demolition taking place on the building next door to the one that collapsed. Reportedly, the inspector found the complaints unfounded. On June 12, seven days after the deadly collapse, the inspector's body was found in his vehicle where he had died from an apparent self inflicted gunshot wound to the chest. This is a tragic event for all involved, but provides an opportunity to reflect on the essential role of the government inspector.
All marine inspectors, and those civilians who intend to become third party surveyor and auditors under Subchapter M, should to read the excellent book, Ship Ablaze, by Edward T. O'Donnell. The book tells the account of the Steamboat General Slocum, which caught fire in the East River on June 15, 1904, with the loss of over one thousand men, women and children. The vessel had been inspected, and certified as seaworthy, only six weeks prior by Inspector Henry Lundberg of the U.S. Steamboat Inspection Service, an agency whose responsibilities were later incorporated into the U.S. Coast Guard. After the investigation it was determined that much of the fire fighting and lifesaving equipment on board was inadequate, and it was reported that fire drills were not being conducted. Inspector Lundberg was convicted of criminal negligence for his failure in enforce federal regulations. The captain of the General Slocum was convicted of manslaughter and sentence to ten years hard labor in Sing Sing prison. President Theodore Roosevelt rejected his pardon request.
Being a government regulatory inspector is a serious and noble profession, and one which should not be taken lightly. Coast Guard marine inspectors are highly trained professionals with extensive on-the-job and classroom training. A "good" inspector, or third party acting as one, is one who is extremely knowledgeable, thorough, and consistent. Companies fortunate enough to be assigned a good inspector should consider themselves well served.
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The level of understanding of Subchapter M runs the gamut from nonexistent to expertise. Some in the towing industry have been involved with the process for the past eight years, helping to steer the direction of the final rule. Others in the towing industry have still never heard of a TSMS or think Subchapter M is a pipe dream which will never come to fruition. So here's a basic recap for those who may have been too busy to pay attention.
Subchapter M is a subchapter of 46 Code of Federal Regulations (CFR) which outlines the regulations pertaining to a new class of inspected vessel: towing vessels. The subchapter was created as a result of a change in the law which added towing vessels to the list of "inspected" vessels. The subchapter has been drafted and was published as a proposed rule a few years ago. The Coast Guard collected comments from industry, from those who were paying attention and had the time and ability to study the subchapter and provide constructive feedback to the government. The Coast Guard is now in the process of sorting through the comments, which it may already have completed. It has to go through a few more bureaucratic hurdles in the government before it is published as a "final rule." There is a great deal of speculation regarding when, or if ever, it will be published, and if it will be final or put back out for further comments. Only a few insiders know the truth about the status; the rest of us, when pressed, can only provide an educated guess. But rest assured, it is coming, because the law requires it.By the way, that sticker on your towboat does not mean that the Coast Guard has already inspected your vessels. Inspected vessels are issued a Certificate of Inspection (COI). The sticker means your vessel has been "examined" and found compliant with the existing regulations pertaining to towing vessels, which has nothing to do with Subchapter M.
Subchapter M is unique in that it provides an option to adopt a Towing Vessel Safety Management System (TSMS) and to use third party surveyors and auditors to determine compliance on behalf of the Coast Guard. It is important to remember that this is only an option and that companies may opt, regardless of whether they use a safety management system or not, to choose the traditional Coast Guard inspection process for their compliance.
Whenever a new regulation is published, we study it and develop a compliance management system. The Subchapter M compliance management system that we have recently completed provides a good visual of the subchapter. Often complex applicabilities of different sections provide the most confusion for industry and inspectors alike. The applicability tool we have developed identified 17 different applicabilities which must be determined for each vessel. Additionally, we have determined that the subchapter lends itself to: 3 checklists, 9 records, 13 management forms and 5 additional management forms for those that choose the TSMS/third party option...
Be not afraid. It is manageable. Stay tuned...
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Sometimes I feel like the boy who cried wolf. I study all maritime related regulations and policies and warn my clients about the severe consequences of noncompliance. All too often the bark is much worse than the bite when it comes to these things due to minimal or nonexistent enforcement. But when they do bite, it hurts. It hurts not only from the penalty, but from a sense of injustice. Vessel owners think, "Why am I being singled out? This was never an issue before? What about the company down the road?" For whatever reason, selective enforcement is a reality that we must live with. But every regulation ignored, or complied with in a half-assed manner, is a roll of the dice. To be fair, there are many companies who choose to minimize their risk by accepting responsibility and dedicate themselves to getting it right. However, there is no denying that the "wait and see" strategy works and has worked for many years.
Recently I have noticed a shift in the industry, not brought on by government enforcement, but by customers. Customer audits are proving a much greater motivator towards compliance and conformance than any government enforcement. This is most apparent in the red flag industry. Some companies are imposing the requirements of OCIMF SIRE and TMSA on their towing vessel subcontractors. Additionally, the new BSEE regulations require offshore industry subcontractors, including vessel operators, to include the specific policies and procedures of the offshore operator in the subcontractor's safety management system.
Compliance is key to profitability in the maritime industry. It used to be that compliance helped a company save money by avoiding fines and costly compliance errors. Now, compliance can actually help a company make money. Those companies that can satisfy these more stringent requirements will be in an excellent position moving forward. The changes being required by oil and offshore majors make Subchapter M look like small beans.
Recently I have noticed a shift in the industry, not brought on by government enforcement, but by customers. Customer audits are proving a much greater motivator towards compliance and conformance than any government enforcement. This is most apparent in the red flag industry. Some companies are imposing the requirements of OCIMF SIRE and TMSA on their towing vessel subcontractors. Additionally, the new BSEE regulations require offshore industry subcontractors, including vessel operators, to include the specific policies and procedures of the offshore operator in the subcontractor's safety management system.
Compliance is key to profitability in the maritime industry. It used to be that compliance helped a company save money by avoiding fines and costly compliance errors. Now, compliance can actually help a company make money. Those companies that can satisfy these more stringent requirements will be in an excellent position moving forward. The changes being required by oil and offshore majors make Subchapter M look like small beans.
I hope the smaller operators are not scared off by it all. Complying with all these requirements really is an achievable goal, as long as a company has the commitment to compliance on all levels, a strategy to get into compliance and stay in compliance, and the leadership and management skills necessary to execute that strategy. And, remember, in "The Boy Who Cried Wolf," the wolf eventually shows up, with devastating consequences.
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"I thought TWICs were going away?" I have heard this many times over the past year. They are not. Many believe TWIC is a useless program. The truth is TWIC is a very important program, but few understand it.
Basically, the most important purpose of a TWIC is to not allow anyone, unescorted, into a secure area of a vessel or facility unless we know they are not a terrorist and they have a card to prove it. This may seem like nonsense to some, but if a major terrorist organization can send a terrorist spy to the U.S. and infiltrate the CIA, FBI and Army Special Warfare command, then they can surely send some to infiltrate the maritime industry. In fact, during one joint FBI/ USCG operation, a significant number of individuals "having a nexus to terrorism matters," were found to have U.S. merchant mariner documents and they were subsequently placed on the terrorist watch list and the no-fly list. Furthermore, officials recently uncovered a major plot to attack the maritime industry because it is viewed as a soft target by terrorists.
Due to the lack of understanding, or acceptance of the threat, the way TWIC has been implemented and enforced in many instances makes no sense, and therefore it appears to be "useless" to the casual observer who assumes the TWIC process they observe is the one prescribed by the government.
The TWIC was designed to be a biometric credential to be used with a TWIC Reader. Realizing that we don't yet have TWIC readers, that fake TWICs are a reality, and that someone could gain access using a stolen TWIC on an automated system without biometric interface, years ago the Coast Guard published fairly specific requirements on how a TWIC should be verified by the person granting access to the secure area.
The Coast Guard recently released a Proposed Rule on the TWIC Readers. Vessels and facilities were placed in risk categories A through C. According to the proposed rule only risk category A vessels and facilities will have to use a TWIC Reader. Risk Category A is limited to vessels and facilities that handle Certain Dangerous Cargoes (CDCs) in bulk, including barge fleeting facilities with CDCs, and vessels with more than 1,000 passengers. So, the vast majority of Subchapter H compliant vessels and facilities will have to continue to verify TWICs manually. There's the rub. This sounds like a good deal, until it is enforced.
Basically, the most important purpose of a TWIC is to not allow anyone, unescorted, into a secure area of a vessel or facility unless we know they are not a terrorist and they have a card to prove it. This may seem like nonsense to some, but if a major terrorist organization can send a terrorist spy to the U.S. and infiltrate the CIA, FBI and Army Special Warfare command, then they can surely send some to infiltrate the maritime industry. In fact, during one joint FBI/ USCG operation, a significant number of individuals "having a nexus to terrorism matters," were found to have U.S. merchant mariner documents and they were subsequently placed on the terrorist watch list and the no-fly list. Furthermore, officials recently uncovered a major plot to attack the maritime industry because it is viewed as a soft target by terrorists.
Due to the lack of understanding, or acceptance of the threat, the way TWIC has been implemented and enforced in many instances makes no sense, and therefore it appears to be "useless" to the casual observer who assumes the TWIC process they observe is the one prescribed by the government.
The TWIC was designed to be a biometric credential to be used with a TWIC Reader. Realizing that we don't yet have TWIC readers, that fake TWICs are a reality, and that someone could gain access using a stolen TWIC on an automated system without biometric interface, years ago the Coast Guard published fairly specific requirements on how a TWIC should be verified by the person granting access to the secure area.
The Coast Guard recently released a Proposed Rule on the TWIC Readers. Vessels and facilities were placed in risk categories A through C. According to the proposed rule only risk category A vessels and facilities will have to use a TWIC Reader. Risk Category A is limited to vessels and facilities that handle Certain Dangerous Cargoes (CDCs) in bulk, including barge fleeting facilities with CDCs, and vessels with more than 1,000 passengers. So, the vast majority of Subchapter H compliant vessels and facilities will have to continue to verify TWICs manually. There's the rub. This sounds like a good deal, until it is enforced.
Here's a quiz: What are the three words on the triangle at the center of all TWICs? If a person granting access to a secure area has actually been examining TWICs each time as required, then surely they would remember that those three words are: "privacy, security and commerce." And by the way, poor eyesight is not a good excuse for not complying with a federal regulation. If they cannot see what they are required to check by regulation, they have no business being posted at such a position. Reading glasses or a magnifying glass would come in handy in those situations. Also, you'd also be surprised with what an inexpensive black light will show on a TWIC.
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According to news sources, Coast Guard investigators have explained that the cause of the engine room fire on the Carnival Triumph was a leaking fuel return line. There is a lesson to be learned for all vessel operators, especially towing vessel operators considering adopting a towing safety management system (TSMS) under Subchapter M.
Back in the late 1980s I served aboard the Coast Guard Cutter Wedge. She was a 75 foot push boat with a 68 foot crane barge known as a construction tender. Even though it was a small crew with a relaxed atmosphere, I had been trained on my previous cutters to make a round every hour when on duty. During one round of the engine room I noticed the fluid in the bilge ripple from a drip. I found that the source was diesel dripping from the bottom of the generator. I traced the stream of diesel around the generator to the top of the engine but could not tell where it was originating. As I stared at the components for a while it finally came into focus. It was a thread of diesel, barely visible to the naked eye, shooting out of a pin hole in one of the fuel lines. The engineers replaced the fuel line quickly and the Wedge, I am happy to say, is still in operation today.
When we set up companies with a safety management system we proved a number of vessel inspection job aids. Conducting proactive inspections of equipment in order to uncover problems before they become major is a basic concept of safety management. In some cases we have had the inspection job aids hard-laminated, to be used in the engine room with a grease pencil. After all, the idea is not to generate paper to cover our behinds. The idea is to ensure that nothing is missed during the inspection. During one of our quarterly visits to a client's boat, the engineer informed me that he didn't use the job aid, he went from memory. I said Okay, and asked him to imagine going through the engine room as he does, and to explain all the things he checks. When he was done remembering everything he could, I did some quick math and wrote in the inspection report that his failure to use the job aids provided by the company resulted in him checking only 14 percent of the items on the job aid. He got the point, and now makes sure to use the job aids. We get complacent because the likely hood that a similar situation will happen to us is extremely small, but the severity of the consequence in this type of scenario dictates that the threat must be mitigated.
Back in the late 1980s I served aboard the Coast Guard Cutter Wedge. She was a 75 foot push boat with a 68 foot crane barge known as a construction tender. Even though it was a small crew with a relaxed atmosphere, I had been trained on my previous cutters to make a round every hour when on duty. During one round of the engine room I noticed the fluid in the bilge ripple from a drip. I found that the source was diesel dripping from the bottom of the generator. I traced the stream of diesel around the generator to the top of the engine but could not tell where it was originating. As I stared at the components for a while it finally came into focus. It was a thread of diesel, barely visible to the naked eye, shooting out of a pin hole in one of the fuel lines. The engineers replaced the fuel line quickly and the Wedge, I am happy to say, is still in operation today.
When we set up companies with a safety management system we proved a number of vessel inspection job aids. Conducting proactive inspections of equipment in order to uncover problems before they become major is a basic concept of safety management. In some cases we have had the inspection job aids hard-laminated, to be used in the engine room with a grease pencil. After all, the idea is not to generate paper to cover our behinds. The idea is to ensure that nothing is missed during the inspection. During one of our quarterly visits to a client's boat, the engineer informed me that he didn't use the job aid, he went from memory. I said Okay, and asked him to imagine going through the engine room as he does, and to explain all the things he checks. When he was done remembering everything he could, I did some quick math and wrote in the inspection report that his failure to use the job aids provided by the company resulted in him checking only 14 percent of the items on the job aid. He got the point, and now makes sure to use the job aids. We get complacent because the likely hood that a similar situation will happen to us is extremely small, but the severity of the consequence in this type of scenario dictates that the threat must be mitigated.
There is a lot of chatter these days about what is the best and easiest path forward for Subchapter M compliance. There should be more focus on the quality of the TSMS itself, and the training on what safety management is really all about, rather than focusing on convenient and easy solutions. The easiest way is not always the best way to go. It takes hard work to be excellent. As a wise man once said, "If you do what is easy in life, your life will be hard; but if you do what is hard in life, your life will be easy."
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It seems that whenever a new rule making is in progress an entire new industry evolves. This was the case with Oil Pollution Act (OPA) of 90, as well as the Maritime Transportation Security Act (MTSA) of 2002. But both may pale in comparison to the economic opportunity provided by Subchapter M, which may be seen as a potential gold mine for some professional services companies and maritime entrepreneurs. Unfortunately, for towing vessel operators, the amount of information being levied upon them may add to their confusion and stress when trying to make the best decisions for their companies.
Major Point of Confusion - Subchapter M is the subchapter of Title 46 of the Code of Federal Regulations (CFR) which has been established by the U.S. Coast Guard to regulate the inspection of U.S. flagged towing vessels. In addition to the standard protocol of having the Coast Guard send a marine inspector to inspect and certify a towing vessel, the proposed rule for Subchapter M offers an option for towing vessel operators to adopt a Towing Safety Management System (TSMS). Vessel operators should understand that this is only an option. There is no requirement in the proposed rule for any towing vessel to have a safety management system of any kind, including a TSMS. Even if a company already operates under a safety management system, there is no requirement in the proposed rule for such a company to choose that option for their Subchapter M compliance. Such companies can continue to operate under their safety management system, but choose the standard Coast Guard vessel inspection option in order to obtain their certificates of inspection (COIs).
Liability - The TSMS option in Subchapter M allows for certain third party organization to conduct audits and surveys on behalf of the government. There are some unanswered questions regarding the liability of third party organizations and surveyors under the Subchapter M. While there have been some interesting discussions, we are far from having an answer. Those answers are best left to the attorneys. But as a non-attorney, I offer these few recent instances to consider: after ten years of litigation, American Bureau of Shipping (ABS) was cleared of liability in the case of the M/V Prestige, a vessel that broke apart creating a large oil spill on the coast of Spain; a case was dismissed against the U.S. Coast Guard, where the Coast Guard was being sued for alleged errors made during certification of a vessel which eventually capsized resulting in loss of life; but a third party flag surveyor was sentenced to prison for making false statements and certifying a vessel as safe, which was subsequently found to be deficient by the Coast Guard. So what will be the liability issues for third party organizations acting on behalf of the government? I hope that Coast Guard headquarters will come forth with some guidance on this issue.
Major Point of Confusion - Subchapter M is the subchapter of Title 46 of the Code of Federal Regulations (CFR) which has been established by the U.S. Coast Guard to regulate the inspection of U.S. flagged towing vessels. In addition to the standard protocol of having the Coast Guard send a marine inspector to inspect and certify a towing vessel, the proposed rule for Subchapter M offers an option for towing vessel operators to adopt a Towing Safety Management System (TSMS). Vessel operators should understand that this is only an option. There is no requirement in the proposed rule for any towing vessel to have a safety management system of any kind, including a TSMS. Even if a company already operates under a safety management system, there is no requirement in the proposed rule for such a company to choose that option for their Subchapter M compliance. Such companies can continue to operate under their safety management system, but choose the standard Coast Guard vessel inspection option in order to obtain their certificates of inspection (COIs).
Liability - The TSMS option in Subchapter M allows for certain third party organization to conduct audits and surveys on behalf of the government. There are some unanswered questions regarding the liability of third party organizations and surveyors under the Subchapter M. While there have been some interesting discussions, we are far from having an answer. Those answers are best left to the attorneys. But as a non-attorney, I offer these few recent instances to consider: after ten years of litigation, American Bureau of Shipping (ABS) was cleared of liability in the case of the M/V Prestige, a vessel that broke apart creating a large oil spill on the coast of Spain; a case was dismissed against the U.S. Coast Guard, where the Coast Guard was being sued for alleged errors made during certification of a vessel which eventually capsized resulting in loss of life; but a third party flag surveyor was sentenced to prison for making false statements and certifying a vessel as safe, which was subsequently found to be deficient by the Coast Guard. So what will be the liability issues for third party organizations acting on behalf of the government? I hope that Coast Guard headquarters will come forth with some guidance on this issue.
It remains to be seen if Subchapter M will be a gold mine, or a land mine, for third parties. But one thing is certain, towing vessel operators should proceed with caution and understand all the facts before choosing their course action.
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It's Mardi Gras time once again in New Orleans. If you have been to New Orleans' Mardi Gras parades you know that the edges of the curbs along the parade route are lined with ladders. These ladders are no ordinary ladders. They have three foot long bench seats attached to the very top where we precariously place our precious babies. It's enough to give an OSHA inspector a heart attack. How could this be legal? On very rare occasion a cop will tell people they need to move their ladders back away from the curb. Of course, the parents respond that they do this every year and it has never been a problem before. They are reluctant to move because they will lose their spot and someone else will quickly place their ladder on the edge of the same curb. It is highly unlikely that another cop will come along and tell them to move. This causes a little deja vu for me. As a Coast Guard inspector, I was that cop. I always enforced the regulations accurately and consistently. I encountered much of the same arguments and resistance. One inspector training me had told me that the regulations were written in blood. That is, some catastrophe had happened that caused the regulations to be written. I took that to heart. Even though I didn't know what the catastrophe was for each regulation, I enforced them all. After all, that's what the tax payers were paying me to do. Maybe those few New Orleans cops that occasionally tell confused parents to move their ladders back from the curb remember the story of Christian Lambert. According to a recent article in local Gambit newspaper, it turns out that putting our ladders on the curb is not legal. In 1985 the New Orleans City Council passed an ordinance which requires all ladders to be "placed as many feet back from the curb as the ladder is high." That's because of a tragedy that occurred in 1981 at the Krewe of Orleanians parade. Christian was an eight year old boy who was launched from his ladder and was crushed under float number 48 when the crowd surged forward. Accurate and consistent enforcement is a critical component to ensuring compliance. Understanding the origin and intent of regulations is an essential motivator.
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We are proud to announce a strategic partnership with Boatracs to provide an electronic Subchapter M compliance product. Please click here to read the full article: Maritime Executive.
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As I read the indictment of two BP officials, Robert Kaluza and Donald Vidrine, on 11 counts of seaman's manslaughter and involuntary manslaughter, I couldn't help but think about Subchapter M and the future of the towing vessel industry. Mr. Vidrine and Kaluza were Well Sight Leaders on the Deepwater Horizon rig the day of the explosion which resulted in the deaths of 11 people. According to the indictment, these Well Sight Leaders were responsible for, among other things, "supervising the implementation of BP's drilling plan." To draw an analogy, under Subchapter M, should a company operate under a Towing Safety Management System (TSMS), the captain will be responsible for "supervising the implementation of the company TSMS."
The indictment explains that Vidrine and Kaluza were grossly negligent in their duties for not doing what they were supposed to do, specifically: failing to call the BP engineers ashore during the negative testing about the multiple readings that the well was not secure, failing to adequately account for those abnormal readings, and for accepting a nonsensical explanation for those readings. They were not following the plan, and an explosion resulted in many deaths.A few years back the towing industry experienced a number of accidents when tows hit bridges. Bridge transit procedures were added to many safety management systems. The idea is, as with any written safety plan, if you follow it you will minimize the risk of human error. Many captains that I talk to can't explain the bridge transit procedures. Many protest that they don't need some book to tell them how to drive a boat. But what if one day a captain fails to account for wind and leeway on a big tow, and as a result he takes the bridge out and cars drive into the river? I'm sure Mr. Vidrine and Kaluza relied on their experience as well, and did not think that the rig would blow up, but it did. Had they followed the plan, perhaps those people would not have died, and they might not be looking at jail time.
If your towing company chooses a TSMS for Subchapter M, take the opportunity to make sure you have the best possible procedures and that your captains know they must follow them at all times. As a wise man once said, smart people learn from their mistakes, but really smart people learn from other people's mistakes.
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