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.
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The Boy Who Cried Wolf

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.

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. 

Tags:
USCG compliance compliance management coast guard
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Pressure Cooker Bombs?

Pressure cooker bombs! Who knew?

You did hopefully. That is, if you are a "Company, Vessel or Facility Security Officer." The tragic events of this week's Boston Marathon should have come as no surprise to those charged by federal regulations with having, "…general knowledge through training or on the job experience in… recognition of dangerous substances and devices."

Ten years ago, when the Maritime Transportation Security Act regulations were published by the Coast Guard, I was hired by a training company as a subject matter expert to develop a course. It was during my research for this project that I first heard of the pressure cooker bomb. The information that I gathered at the time was that this type of improvised explosive device (IED) was very popular in Malaysia. I incorporated many kinds of IEDs into the course, including pressure cooker bombs.

The issue of recognizing devices has come up quite a few times over the years. For instance, once I was beginning an appeal for my client and started by asking the Captain of the Port for reconsideration on what his staff had decided. It involved the fact the security sweep for devices had to be done. The captain didn't think that the individuals conducting the sweep would know a device if they saw one.  That's when I explained the training requirement, that anyone doing the sweep was required by regulation to know about devices.  The captain looked surprised and granted our request. However, it was clear that it was being granted upon the condition that everyone with security duties would be fully trained as required by the regulations.

During security audits conducted over the years, to evaluate the training of security guards and vessel personnel, I decided it was a reasonable question to ask, "What would you do if you found a pressure cooker on the barge, or on the facility?" Unfortunately, most of those I asked did not find it as reasonable a question. Did I really think they might one day come across a pressure cooker bomb? Probably not, but in my mind, that didn't change the fact that they were required by federal regulation to know about them. Now the idea doesn't seem that farfetched.

Just because some Coast Guard inspectors may limit their inspections to signs, logs and records, and stickers on file cabinets, does not mean that watching a 30 minute video is sufficient training to meet the regulations. Use this tragedy in Boston as an opportunity to re-focus on maritime security requirements. Actually focus on mitigating the threat of terrorism, and not just mitigating the threat of a Coast Guard fine. 

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No Deficiencies?

Many vessel operators claim that Coast Guard inspections are notoriously inconsistent. They claim such things as, "One Coast Guard guy came and told me it had to be this way, and next year another one came and told me to do something else, and the next year a third guy came back and told me to do it the way we had it in the first place." This unfortunately is true altogether too often, especially when it comes to dealing with inexperienced inspectors or examiners.

I recently was asked to discuss Coast Guard inspection issues with a towboat owner, and every time I mentioned a requirement he didn't like he would interrupt me and say that I was incorrect because the petty officer who examined his towboat either said he didn't have to, or he hadn't mention it during the exam. At the same time this owner complained about how inconsistent the Coast Guard is. This paradox is also too often true. "I'll rely on the Coast Guard to tell me what to do and I'll believe them when it's to my advantage."

Here's why this is not a good compliance management strategy. The Coast Guard rarely checks everything. There are many reasons for this, but just understand when the Coast Guard leaves the vessel and you have no deficiencies, it does not mean you are in compliance. According to a Times Picayune article, Bill Ambrose, Transocean's director of special projects testified during the BP/Deepwater Horizon trial that the rig was in "really good shape," and that during the July 2009 inspection of the rig the Coast Guard found "no deficiencies." However, in an interview about the accident, Wall Street Journal reporter Rebecca Smith characterized Coast Guard inspections as "often cursory." She stated that the Coast Guard did a, "pretty minimal job of inspecting that rig." According to the same Time Picayune article, an expert witness for the plaintiff's lawyers "singled out Transocean for failing to maintain the Deepwater Horizon, having an improperly trained crew, and a rig that was in poor shape."

Operators can rid themselves of the headaches associated with inconsistent inspectors and prepare themselves for litigation by insuring they know the regulations and that they manage their own compliance. 

Tags:
vessel security plan ISPS facility security plan compliance management compliance coast guard
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TWIC Readers

"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.

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. 

Tags:
vessel security plan USCG facility security plan security compliance coast guard
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Subchapter M Alliances and Software

Check out this interesting article on Subchapter M alliances and software being developed:

http://www.marinelink.com/news/surfaces-chapter-finally351557.aspx 

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Lessons Learned from a Cruise Ship Fire

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.

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." 

Tags:
SMS safety management system USCG coast guard
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Critical Decisions for Vessel Operators and Third Parties

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.

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. 

Tags:
USCG SMS safety management system coast guard
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Written in Blood

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. 

Tags:
USCG compliance compliance management coast guard
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Striving for Excellence - A New Year’s Resolution

Compliance is something that many only think of when forced to. At the Workboat Show many representatives from good companies pass by our booth and say hello, but when asked if they have any compliance questions or issues we can help with, the response is usually, "No thanks we've got all that under control." Perhaps they do, but chances are their issues just haven't risen to the surface yet. Many good companies pass inspections and audits and assume that they are in full compliance. They may be, or they may find out at the next inspection, audit or accident that they were not as compliant as they had assumed. But an excellent company has a proactive compliance management program as part of their regular routine and does not rely upon inspectors' and auditors' interpretations and opinions to determine their level of compliance.

With the coming of a new year, an opportunity arises to take your company from "good" to "excellent" in terms of compliance. If striving for excellence is part of your company culture, here are a few things to consider in the new year:

TWICs are expiring en masse this year. Don't procrastinate in getting those TWICs renewed. Even with the new 30 day grace period, there could be serious repercussions.

The effective anniversary date of the EPA VGP is February 19th. Each year a comprehensive VGP annual inspection is required to be done and any instances of noncompliance with the permit must be reported to the EPA. This annual inspection includes record keeping. For example, if there are not 52 weekly inspections on file, or records of all graywater discharges, or records of any painting and deck maintenance conducted, that may constitute noncompliance with the permit. Be aware that the permit also dictates who is qualified to conduct the annual VGP inspections.

Your uninspected towing vessel examination sticker may expire this year. While you are not required to renew it, if you do, you should be prepared for a much more knowledgeable batch of examiners who may find a number of deficiencies that were not addressed in the first go round. A comprehensive regulatory compliance survey is a good way to prepare for the Coast Guard.

Subchapter M may be published this year. When it is, companies will be scrambling to determine the best path forward. You can get ahead of the curve by discussing the compliance options for each vessel, and by getting captains and crews ready by intensive drills, as well as training on what operating a vessel according to safety management system really means. A thorough internal audit or assessment by an objective third party is a good way to prepare.


 

Good companies may choose to wait and see if any of what I have addressed rises to the surface this year. Excellent companies will not take that gamble and will leave nothing to chance. Have an excellent and prosperous New Year. 

Tags:
coast guard SMS safety management system ISM epa compliance management compliance
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Strategic Partnership with Boatracs

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.

Tags:
coast guard compliance compliance management SMS safety management system USCG
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