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.

Towing Safety Management System - Contents

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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Nontank Vessel Response Plans

 Hopefully you made the deadline of January 30th to submit your Nontank Vessel Response Plan (NTVRP) to the Coast Guard. According to Coast Guard Headquarters, on January 31, 2014, all old nontank vessel response plans were to be deactivated. That's because the long awaited final rule for the nontank vessel response plan regulations was published a few months ago. The old nontank vessel response plans were drafted based upon Coast Guard guidance, which is now superseded by the regulation.

The regulation applies to any vessel operating in U.S. water that is measured 400 gross tons or more, regulatory or ITC. From there, the sub-applicabilities get a little complicated based upon capacities. Some of the additional service requirements include fire-fighting and salvage, dispersants, aerial surveillance, shoreline protection and shoreline clean-up. If applicable, evidence of signed contracts for these services must be submitted with the NTVRP.

In conducting a gap analysis on one of our own plans, there didn't appear to be much difference between the old guidance and the new regulation with regards to the actual content of the plan. However there were some additional requirements to be added to the NTVRP.  If you have an existing plan that was fully compliant there shouldn't be too much work involved. Some companies may have not have conducted a thorough gap analysis between their existing NTVRP and the new regulations in trying to meet the deadline. If so, the Coast Guard will notify those companies that their current NTVRP are inadequate.

The Coast Guard has many NTVRPs to review. It will take some time for all the interim operating letters to go out, and even longer for approval letters to be issued.
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EPA Vessel General Permit 2013

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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Facility Security Officer (FSO) Training

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:

  • 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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Declaration of Security

 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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Workboat Show 2013 Wrap up

 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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Workboat Show 2013

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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Checklists

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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A “Good” Inspector

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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Unraveling Subchapter M

 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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