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. To avoid missing critical updates, don’t forget to sign up by clicking the white envelope in the blue toolbar below.

Cybersecurity for MTSA Facilities

 In the March 20, 2020 Federal Register, the Coast Guard published a Notice of Availability for Navigation and Inspection Circular (NVIC) 01-20: Guidelines for Addressing Cyber Risks at Maritime Transportation Security Act (MTSA) Regulated Facilities. On the same day the Coast Guard also published ALCOAST Commandant Notice 040/20, which states that all facilities will be required to conduct facility security assessments (FSA) and amend their facility security plans (FSP) to incorporate cybersecurity vulnerabilities and mitigation strategies in accordance with the NVIC. This requirement applies to all MTSA facilities.


The implementation period runs from the date of the release of these documents until September 30, 2021. During this implementation period the Coast Guard intends for facilities to assess cybersecurity vulnerabilities for their FSAs and prepare mitigation strategies for their FSPs. At the end of the implementation period, once all the issues have been addressed and the kinks worked out, facilities must submit their proposed amendments for review and approval. Beginning October 1, 2021, facilities must begin submitting FSP amendments or cybersecurity annexes by the facility's annual audit date. All submissions must be made by October 1, 2022.


Cybersecurity is a complex issue. Writing these amendments and cybersecurity annexes will require significant input of facilities' IT and OT personnel. The NVIC suggests, but does not require the use of, the National Institute of Standards and Technology's Framework for Improving Critical Infrastructure Cybersecurity. This is a comprehensive management document which covers the subject in great detail. It appears, based upon the guidance published by the Coast Guard, that they intend for facilities to have a thorough cybersecurity management plan incorporated into their FSPs.

As we move forward creating these cybersecurity annexes for our clients, I have one major concern: "scope creep."The Coast Guard makes it clear that this mandate is not based upon a new law, but originates from the MTSA. The Coast Guard is just providing guidance on how best to address the existing requirement to assess "vulnerabilities in computer systems and networks." The MTSA requires facilities to submit security plans for deterring a transportation security incident (TSI) to the maximum extent practicable. A TSI is defined in the regulations as: "a security incident resulting in a significant loss of life, environmental damage, transportation system disruption, or economic disruption in a particular area." All threat scenarios evaluated during an MTSA facility security assessment are supposed to be considered within the context of this TSI definition. Over the past seventeen years Coast Guard guidance has been aligned with this principle.

There are many cybersecurity threats to facilities. However, I suspect not all will cause or contribute to a TSI, a Breach of Security, and/or the identification of Suspicious Activity, and therefore will not rise to the level that will require inclusion in the FSP. This limited scope, described in the ALCOAST, is partially mentioned in one sentence in the NVIC, and is not mentioned at all in the Facility Inspector Cyber Job Aid, thus causing the potential for "scope creep." Remember, whatever is incorporated into the FSP basically has the force of law, and you can't change it without amending the FSP. The biggest challenge I see will be keeping cybersecurity threats addressed in the FSP within the limited scope described in the ALCOAST. This will require careful conversations with the Coast Guard personnel charged with review and approval.

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Facility Security Officer Advanced Workshop

51Facility Security Officer

Advanced Workshop

33 CFR part 105



All facility security plans must be amended due to a recent Final Rule.
A great opportunity to ensure your FSP reflects the optimum level of compliance.

Tuesday, June 18, 2019                                                    Kevin Gilheany
New Orleans, Louisiana                   Maritime Compliance International, LLC
 

You will learn how to: 

  • Determine which TSI threat scenarios a facility is required to address under the law.
  • Determine which parts of a facility the MTSA applies to, and how to properly determine the MTSA footprint.
  • Determine what should be a restricted area.
  • Determine the secure area for optimum compliance, and the pros and cons of limiting the secure area.
  • Verify a TWIC, both visually and electronically, and how to make a TWIC reader FSP amendment.
  • Draft an amendment for Seafarer's Access as required by the recent Final Rule.
  • Mitigate the biggest unaddressed threat in facility security.
  • Go about a Coast Guard waiver, reconsideration, or COTP appeal, and when each is appropriate.

Instructor:
Kevin Gilheany: owner of Maritime Compliance International, retired USCG Chief Warrant Officer, drafter of hundreds of FSPs, trainer of hundreds of FSOs, successful in USCG reconsiderations, waivers and appeals; and first adjunct instructor of Maritime Security at Tulane University.

Registration $99.00

Courtyard by Marriott Gretna
5 Westbank Expressway
Gretna, LA 70053
(504) 366.1010


Tuesday, June 18, 2019
8:30 a.m. – 3:30 p.m.

Attendance is limited to individuals working at MTSA regulated facilities, or as otherwise approved by MCI. All attendees must show a TWIC at the door.

Pay by credit card online by going to our Public Seminars page.

Or, reserve your spot via email and pay by check, payable to Maritime Compliance International, at the door or mail to 132 Lavergne St., New Orleans, LA 70114.

For more information call: 504.249.5291 or This email address is being protected from spambots. You need JavaScript enabled to view it..
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Book Launch

Warning: This is not compliance related...

I wanted to let you to know that my memoir: Minding the Helm – An Unlikely Career in the U.S. Coast Guard, has been published by the University of North Texas Press, and is currently available. I have attached the publisher's press release. Feel free to share this email with anyone you think might be interested.

If you can, please try to make one of the following book events so I can sign your copy.

If not, you can order it from Amazon Books.

I will book more events, but I won't bother you with further emails. Please connect with me on FB or LinkedIn if you want to stay tuned.

Book Events:

May 25, 2019, 1-3pm
Barnes and Noble
Tanasbourne Center
18300 NW Evergreen Pkwy
Beaverton, OR

June 1, 2019, 1-3pm
Barnes & Noble
3721 Veterans Hwy
Metairie, LA

July 13, 2019, 1-3pm
Barnes & Noble
1601B West Bank Expressway
Harvey, LA

July 28, 2019, 2-4pm
Barnes & Noble
28801 Chagrin Blvd.
Woodmere, OH

July 31, 2019, 2-4pm
The Bookman
715 Washington Avenue
Grand Haven, MI

August 1, 2019, 7-9pm
Barnes & Noble
5275 Harvey Street
Muskegon, MI

August 13, 2019, 6:30-8pm
Hubbell Library
725 Pelican Avenue
New Orleans, LA

Thanks very much for your support.
I look forward to seeing y'all.

Kevin

"An honest and inspiring tale of dogged determination in the face of adversity." 

  • Lt Col Waldo Waldman, author of the New York Times& Wall Street Journal bestseller Never Fly Solo
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Seafarer's Access to Maritime Facilities

On May 1, 2019, the Final Rule on Seafarer's Access to Maritime Facilities went into effect. All FSPs must be amended to include a "system" for how the facility will ensure the seafarers, pilots, representatives of seafarer's welfare organizations and labor unions get to and from a vessel, in a timely manner, at no cost to those individuals. All facilities must submit their amendments by February 3, 2020, and have the system fully implemented by June 1, 2020.

Escorting is the main area of concern. All docks are "secure areas," by definition. Docks are also designated as "restricted areas," as typically required by the Coast Guard. "Monitoring" is not an authorized method of escorting in a secure area which is also designated as a restricted area. Only side by side escorting is authorized in such areas. Do not be fooled by 33CFR 105.237(d)(5) regarding "monitoring pedestrian routes" as an access method. The Final Rule states the system must comply with the TWIC provisions… Therefore, "monitoring pedestrian routes," as a sole means of escorting, is only allowable in secure areas which are not also "restricted areas." That excludes every dock I have ever been on.

It occurred to me that some facilities, such as free floating barge fleeting facilities, might not have an application for such an amendment. However, I could find no exception in the Final Rule for any particular type of facility. Since it is a regulation, the proper procedure would be to get a waiver from Commandant, if a facility felt this regulation was not applicable. So, unless a facility applies for a waiver, or just hopes the Coast Guard won't enforce it on their facility, the FSP must be amended.

I have confirmed all this in writing with the Coast Guard Headquarters point of contact. We have already submitted our first "system for seafarer's access" in an FSP renewal.

Let us know if you need help with figuring out the optimum level of compliance and getting your FSP amendment approved. These topics will be covered in detail in our up-coming one-day FSO Advanced Course. Stand by for dates and details… 

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Sub M - Coast Guard Option Success Story

With only three months to go before the July deadline, we received a call recently from a tug company looking to get ready for Subchapter M. They asked for a Towing Safety Management System (TSMS), as they were sure it was mandatory from all they had heard. We could have sold them a good TSMS, but instead I told them the story of American Tugs, Inc. in Puerto Rico.

We first met the Rivera family, owners of American Tugs, Inc., at the Workboat Show a number of years ago. This family operation, running eleven tugs in Puerto Rico, quickly became a one of our best clients. In the years leading up to Subchapter M we partnered with them to gets their boats and crews ready. When Subchapter M arrived they embraced the change and started to implement our Towing Vessel Record/ Compliance Management System well ahead of time. They also followed our regulatory compliance surveys and got their boats up to Subchapter M standards.

When the time came to see if all their hard work had paid off, they called the Coast Guard and scheduled their inspections. Here's what an inspector from Sector San Juan reported back to the company after their first COI inspection: "…Inspections such as the Marilin R are what makes my job very satisfying. The inspection team was more than pleased with the condition of the vessel and the knowledge of the crew. I could tell that the crew and your employees put a lot of time and effort to get the vessel ready for USCG inspection standards."

American Tugs has, reportedly, received the first two Subchapter M COIs in Sector San Juan. They did it not with a Third Party Organization (TPO) and a TSMS, but buy simply getting into compliance with Subchapter M. Don't make this more complicated than it has to be. 

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Important Read - WorkBoat February 2019

 Great article in the February 2019 Workboat Magazine about the Subchapter M Think Tank we did at the Workboat Show in December. Good questions, good answers.

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Towing Vessel Inspections

 One hundred percent of our towing vessel clients who have been through the Coast Guard's COI process have been sucessful, and have done at minimum expense.

We only employ retired Coast Guard guys who know exactly what they are talking about. We provided surveys, TVRs, H&S plans, and training, and our clients took action and got their COIs.

If you know of any companies that have not signed up with a TPO for the TSMS option, that need help with obtaining a COI through the Coast Guard, please share these great comments provided by our satisfied clients:

"I wish all boats were like this, this job would be a lot easier. The drills went flawlessly." -U.S. Coast Guard Marine Inspector following a COI for American Tugs, Inc."

After reviewing your Overboard Prevention procedures, I'm impressed. These are probably the best and most articulated procedures I've seen so far after 25+ COI applications." -U.S. Coast Guard Marine Inspector to a client on our Health & Safety Plan 

"Hiring Kevin Gilheany was an easy decision. Without his assistance, we would not have been able to receive a COI as quickly as we did." - Phil Andrie, President, Ashton Marine, LLC

 "We appreciate all the experience and research you put into your TVR and Compliance Management System. As you must be delighted to hear, they are performing well in the inspection process and, truly, helping captains operate more safely and efficiently." - Biblia, Inc. Marine Towing & Transportation

"Maritime Compliance International (MCI) has always given our company all the right tools to be in compliance. Their TVR is excellent, and Sub M surveys are a great tool to get ahead in the game. MCI has an excellent staff, and we couldn't be happier with choosing MCI as our compliance partners" - Pedro F. Rivera Jr, Maritime Administrator, American Tugs Inc.

 "Maritime Compliance International responded quickly to our requested for assistance in becoming compliant with Subchapter M, without the complications of electronic forms, with simple forms and training that all of our Captains deckhands could comprehended." – Mike Schmeltzer, Durocher Marine Division
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Subchapter M Think Tank

 I really liked the Think Tank format at the Workboat Show this year. We had a great discussion about Third Party Option vs. Coast Guard option, Coast Guard OCMI authority to defer enforcement, the level of intensity of audits under Subchapter M, and much more.


Please let us know if any company you know of needs help getting into compliance, regardless of the chosen compliance option. We are not a TPO. We work on behalf of the client alone, not the government.
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Subchapter M Think Tank - Workboat Show

 This should be a very interesting discussion. We hope to see you there.

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Book Recommendation

On my first Coast Guard cutter we got the ship lost. True story. It was before GPS, but there was a new Navy satellite receiver on board called SatNav. Because there wasn't as many satellites up as there are now, you had to wait for them to rise and set to get a good fix. We thought it automatically updated our position whenever a good fix came in, but that was not always true. If it went a long time without a good fix we were supposed to do a, "Code 51, Enter." No one knew that. No one really studied the user manual. We could have wrecked the ship. Luckily we figured out our error before we got close to land. It was certainly a "near miss" in today's terminology. It was my first year in the Coast Guard, and I was only an E-2, but I could have read the manual too. That lesson did not escape me.

In reading Rachel Slade's book, Into the Raging Sea, on the sinking of the U.S. flag ship El Faro, I was shocked to find that not knowing the ship's equipment also played a role in that disaster. According to the book, the captain made his decision to continue on his track based upon the private weather service forecasts, which he may not have known, were based a data which was twelve hours old. They also had the NWS forecasts available on board, which are based upon data only four hours old, but the captain preferred the private weather service forecasts. He may not have read the user manual.

I highly recommend this excellent book to anyone interested in continuous improvement in the maritime industry. The lessons to be learned are many, and apply to vessel personnel, shoreside staff, ocean going vessels, inland vessels, regulators, and their agents (TPOs). We talk a lot about lessons learned, and learning from our mistakes. This book provides an excellent opportunity to learn from others' tragic mistakes. If we don't learn from mistakes, such as not "knowing your equipment," we are bound to repeat them. 

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Coast Guard Inspector: This is exactly what we need.

I have been advocating the Coast Guard option for Subchapter M since the NPRM was published. I've been telling our clients, and anyone else who will listen, all a tow boat company has to do is: 1. Get the vessel in compliance. (Paying for a regulatory compliance survey is a worthwhile investment.) 2. Have a system to manage your compliance including the TVR records. 3. Get a health and safety plan. 4. Get the required Subchapter M training. 

Okay, enough preaching. Let me tell you a success story of a client who listened...

One client of ours got their boat up to Subchapter M as well as they could. A local Coast Guard marine inspector came a couple of times and pointed out a few things they needed to take care of. This client contacted us because they were concerned about all the record keeping. We provided them with our comprehensive TVR/Compliance Management System which includes the Health and Safety Plan. Then we went to their offices and provided all the required training in one day.

The next morning the Coast Guard marine inspector (Chief Warrant Officer) came back to their boat. According to the client he was very impressed with our TVR/Compliance Management System. The inspector said, "This is exactly what we need."

If they had been ready to demonstrate drills, the inspector said he could have given them their COI that day. But the company wants to practice the "Guantanamo Bay" style drill procedures we provided them before they take that final step.

This, my friends, is the optimal level of compliance.

If you are still not prepared, or have any questions, or would like to discuss getting your vessel surveyed for Subchapter M compliance, or would like to know more about the TVR/Compliance Management System, please don't hesitate to give us a call. 

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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:

2512

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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